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EXECUTION COPY
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CREDIT AGREEMENT
AMONG
HUMANA INC.,
THE SEVERAL BANKS AND OTHER FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTIES HERETO
AND
CHEMICAL BANK,
AS AGENT AND AS CAF LOAN AGENT
DATED AS OF JANUARY 12, 1994
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS..................................................... 1
1.1 Defined Terms.................................................... 1
1.2 Other Definitional Provisions.................................... 16
SECTION 2. AMOUNT AND TERMS OF LOANS....................................... 17
2.1 Revolving Credit Loans and Revolving Credit Notes................ 17
2.2 CAF Loans and CAF Loan Notes..................................... 18
2.3 Fees............................................................. 22
2.4 Termination, Reduction or Extension of Commitments............... 23
2.5 Optional Prepayments............................................. 25
2.6 Conversion Options; Minimum Amount of Loans...................... 25
2.7 Interest Rate and Payment Dates for Revolving
Credit Loans................................................... 26
2.8 Computation of Interest and Fees................................. 27
2.9 Inability to Determine Interest Rate............................. 28
2.10 Pro Rata Borrowings and Payments................................ 29
2.11 Illegality...................................................... 30
2.12 Requirements of Law............................................. 31
2.13 Capital Adequacy................................................ 32
2.14 Taxes........................................................... 32
2.15 Indemnity....................................................... 34
2.16 Application of Proceeds of Loans................................ 34
2.17 Notice of Certain Circumstances; Assignment of
Commitments Under Certain Circumstances....................... 34
SECTION 3. LETTERS OF CREDIT................................................ 35
3.1 L/C Sublimit.................................................... 35
3.2 Procedure for Issuance of Letters of Credit .................... 36
3.3 Fees, Commissions and Other Charges............................. 36
3.4 L/C Participation............................................... 37
3.5 Reimbursement Obligation of the Borrower........................ 38
3.6 Obligations Absolute............................................ 38
3.7 Letter of Credit Payments....................................... 38
3.8 Application..................................................... 39
SECTION 4. REPRESENTATIONS AND WARRANTIES................................ 39
4.1 Corporate Existence; Compliance with Law......................... 39
4.2 No Legal Obstacle to Agreement; Enforceability................... 39
4.3 Litigation....................................................... 40
4.4 Disclosure....................................................... 40
4.5 Defaults......................................................... 41
4.6 Financial Condition.............................................. 41
4.7 Changes in Condition............................................. 41
4.8 Assets........................................................... 42
4.9 Tax Returns...................................................... 42
4.10 Contracts, etc................................................... 42
4.11 Subsidiaries..................................................... 42
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4.12 Burdensome Obligations........................................... 43
4.13 Pension Plans.................................................... 43
4.14 Environmental and Public and Employee Health and
Safety Matters................................................ 43
4.15 Federal Regulations.............................................. 44
4.16 Investment Company Act; Other Regulations........................ 44
4.17 Solvency......................................................... 44
4.19 Business Activity................................................ 44
4.20 Purpose of Loans................................................. 44
SECTION 5. CONDITIONS...................................................... 44
5.1 Conditions to the Closing Date................................... 44
5.2 Conditions to Each Loan.......................................... 46
SECTION 6. AFFIRMATIVE COVENANTS........................................... 47
6.1 Taxes, Indebtedness, etc......................................... 47
6.2 Maintenance of Properties; Maintenance of
Existence.................................................... 47
6.3 Insurance........................................................ 48
6.4 Financial Statements............................................. 48
6.5 Certificates; Other Information.................................. 50
6.6 Compliance with ERISA............................................ 50
6.7 Compliance with Laws............................................. 51
6.8 Inspection of Property; Books and Records;
Discussions.................................................. 51
6.9 Notices.......................................................... 51
6.10 Maintenance of Accreditation, Etc. .............................. 52
6.11 Further Assurances............................................... 52
SECTION 7. NEGATIVE COVENANTS.............................................. 53
7.1 Financial Condition Covenants.................................... 53
7.2 Limitation on Subsidiary Indebtedness............................ 53
7.3 Limitation on Liens.............................................. 53
7.4 Limitations on Fundamental Changes............................... 55
7.5 Limitation on Sale of Assets..................................... 55
7.6 Limitation on Distributions...................................... 56
7.7 Transactions with Affiliates..................................... 56
7.8 Sale and Leaseback............................................... 56
7.9 Limitation on Negative Pledge Clauses............................ 57
SECTION 8. DEFAULTS........................................................ 57
8.1 Events of Default................................................ 57
8.2 Annulment of Defaults............................................ 61
8.3 Waivers.......................................................... 61
8.4 Course of Dealing................................................ 61
SECTION 9. THE AGENT....................................................... 61
9.1 Appointment...................................................... 61
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9.2 Delegation of Duties............................................. 62
9.3 Exculpatory Provisions........................................... 62
9.4 Reliance by Agent................................................ 62
9.5 Notice of Default................................................ 63
9.6 Non-Reliance on Agent and Other Banks............................ 63
9.7 Indemnification.................................................. 64
9.8 Agent and CAF Loan Agent in Its Individual Capacity.............. 64
9.9 Successor Agent.................................................. 64
SECTION 10. MISCELLANEOUS.................................................. 65
10.1 Amendments and Waivers........................................... 65
10.2 Notices.......................................................... 65
10.3 No Waiver; Cumulative Remedies................................... 66
10.4 Survival of Representations and Warranties....................... 66
10.5 Payment of Expenses and Taxes; Indemnity......................... 67
10.6 Successors and Assigns; Participations;
Purchasing Banks............................................... 67
10.7 Adjustments; Set-off............................................. 71
10.8 Counterparts..................................................... 72
10.9 GOVERNING LAW.................................................... 72
10.10 WAIVERS OF JURY TRIAL........................................... 72
10.11 Submission To Jurisdiction; Waivers............................. 72
10.12 Confidentiality of Information.................................. 72
SCHEDULES
SCHEDULE I Commitment Amounts and Percentages; Lending
Offices; Addresses for Notice
SCHEDULE II Applicable Margins
SCHEDULE III Indebtedness
SCHEDULE IV Subsidiaries of the Company
SCHEDULE V Liens
EXHIBITS
EXHIBIT A Form of Revolving Credit Note
EXHIBIT B Form of Grid CAF Loan Note
EXHIBIT C Form of Individual CAF Loan Note
EXHIBIT D Form of CAF Loan Request
EXHIBIT E Form of CAF Loan Offer
EXHIBIT F Form of CAF Loan Confirmation Agreement
EXHIBIT G Form of Commitment Transfer Supplement
EXHIBIT H Form of Closing Certificate
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CREDIT AGREEMENT, dated as of January 12, 1994, among HUMANA INC., a
Delaware corporation (the "Company"), the several banks and other financial
institutions from time to time parties to this Agreement (the "Banks") and
CHEMICAL BANK, a New York banking corporation, as agent for the Banks hereunder
(in such capacity, the "Agent") and as CAF Loan agent (in such capacity, the
"CAF Loan Agent").
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms have the following meanings:
"Additional Bank": as defined in subsection 2.4(d).
"Admitted Asset": with respect to any HMO Subsidiary or
Insurance Subsidiary, any asset of such HMO subsidiary or Insurance
Subsidiary which qualifies as an "admitted asset" (or any like item)
under the applicable Insurance Regulations and HMO Regulations.
"Affiliate": (a) any director or officer of any corporation or
partner or joint venturer or Person holding a similar position in
another Person or members of their families, whether or not living
under the same roof, or any Person owning beneficially more than 5% of
the outstanding common stock or other evidences of beneficial interest
of the Person in question, (b) any Person of which any one or more of
the Persons described in clause (a) above is an officer, director or
beneficial owner of more than 5% of the shares or other beneficial
interest and (c) any Person controlled by, controlling or under common
control with the Person in question.
"Aggregate Outstanding Extensions of Credit": as to any Bank
at any time, an amount equal to the sum of (a) the aggregate principal
amount of all Loans made by such Bank then outstanding and (b) such
Bank's Commitment Percentage of the L/C Obligations then outstanding.
"Agreement": this Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Alternate Base Rate": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greatest
of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and (c) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. For purposes hereof: "Prime Rate"
shall mean the rate of interest per annum publicly announced from time
to time by the Agent as its prime rate in effect
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at its principal office in New York City (each change in the Prime
Rate to be effective on the date such change is publicly
announced); "Base CD Rate" shall mean the sum of (a) the product of (i)
the Three-Month Secondary CD Rate and (ii) a fraction, the numerator
of which is one and the denominator of which is one minus the C/D
Reserve Percentage and (b) the C/D Assessment Rate; "Three-Month
Secondary CD Rate" shall mean, for any day, the secondary market rate
for three-month certificates of deposit reported as being in effect on
such day (or, if such day shall not be a Business Day, the next
preceding Business Day) by the Board of Governors of the Federal
Reserve System (the "Board") through the public information telephone
line of the Federal Reserve Bank of New York (which rate will, under
the current practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day), or,
if such rate shall not be so reported on such day or such next
preceding Business Day, the average of the secondary market quotations
for three-month certificates of deposit of major money center banks in
New York City received at approximately 10:00 A.M., New York City
time, on such day (or, if such day shall not be a Business Day, on the
next preceding Business Day) by the Agent from three New York City
negotiable certificate of deposit dealers of recognized standing
selected by it; "C/D Reserve Percentage" shall mean, for any day, that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board (or any successor), for determining the
maximum reserve requirement for a member bank of the Federal Reserve
System in New York City with deposits exceeding one billion Dollars in
respect of new non-personal three-month certificates of deposit in
the secondary market in Dollars in New York City and in an amount of
$100,000 or more; "C/D Assessment Rate" shall mean, for any day, the
net annual assessment rate (rounded upward to the nearest 1/100th of
1%) determined by Chemical Bank to be payable on such day to the
Federal Deposit Insurance Corporation or any successor ("FDIC") for
FDIC's insuring time deposits made in Dollars at offices of Chemical
Bank in the United States; and "Federal Funds Effective Rate" shall
mean, for any day, the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate
is not so published for any day which is a Business Day, the average
of the quotations for the day of such transactions received by the
Agent from three federal funds brokers of recognized standing selected
by it. Any change in the Alternate Base Rate due to a change in the
Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate shall be effective on the effective day of such change
in the Prime Rate, the Three-Month Secondary CD Rate or the Federal
Funds Effective Rate, respectively.
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"Alternate Base Rate Loans": Revolving Credit Loans hereunder
at such time as they are made and/or being maintained at a rate of
interest based upon the Alternate Base Rate.
"Applicable LIBOR Auction Advance Rate": in respect of any CAF
Loan requested pursuant to a LIBOR Auction Advance Request, the London
interbank offered rate for deposits in Dollars for the period
commencing on the date of such CAF Loan and ending on the maturity
date thereof which appears on Telerate Page 3750 as of 11:00 A.M.,
London time, two Working Days prior to the beginning of such period.
"Applicable Margin": for each Type of Revolving Credit Loan
during a Level I Utilization Period, Level II Utilization Period or
Level III Utilization Period, the rate per annum set forth under the
relevant column heading in Schedule II. Increases or decreases in the
Applicable Margin shall become effective on the first day of the Level
I Utilization Period, Level II Utilization Period or Level III
Utilization Period, as the case may be, to which such Applicable
Margin relates.
"Application": any application, in such form as the Issuing
Bank may specify from time to time, requesting the Issuing Bank to
open a Letter of Credit.
"Available Commitments": at a particular time, an amount equal
to the difference between (a) the amount of the Commitments at such
time and (b) the Aggregate Outstanding Extensions of Credit at such
time.
"Bank Obligations": as defined in subsection 8.1.
"Benefitted Bank": as defined in subsection 10.7.
"Borrowing Date": any Business Day specified in a notice
pursuant to subsection 2.1(c) or 2.2(b) as a date on which the Company
requests the Banks to make Revolving Credit Loans or CAF Loans, as the
case may be, hereunder.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close.
"CAF Loan": each CAF Loan made pursuant to subsection 2.2;
the aggregate amount advanced by a CAF Loan Bank pursuant to
subsection 2.2 on each CAF Loan Date shall constitute one or more CAF
Loans, as specified by such CAF Loan Bank pursuant to subsection
2.2(b)(vi).
"CAF Loan Assignee": as defined in subsection 10.6(c).
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"CAF Loan Assignment": any assignment by a CAF Loan Bank to a
CAF Loan Assignee of a CAF Loan and related Individual CAF Loan Note;
any such CAF Loan Assignment to be registered in the Register must set
forth, in respect of the CAF Loan Assignee thereunder, the full name
of such CAF Loan Assignee, its address for notices, its lending office
address (in each case with telephone and facsimile transmission
numbers) and payment instructions for all payments to such CAF Loan
Assignee, and must contain an agreement by such CAF Loan Assignee to
comply with the provisions of subsection 10.6(c) and subsection
10.6(h) to the same extent as any Bank.
"CAF Loan Banks": Banks from time to time designated as CAF
Loan Banks by the Company by written notice to the CAF Loan Agent
(which notice the CAF Loan Agent shall transmit to each such CAF Loan
Bank).
"CAF Loan Confirmation": each confirmation by the Company of
its acceptance of one or more CAF Loan Offers, which CAF Loan
Confirmation shall be substantially in the form of Exhibit F and shall
be delivered to the CAF Loan Agent in writing or by facsimile
transmission.
"CAF Loan Date": each date on which a CAF Loan is made
pursuant to subsection 2.2.
"CAF Loan Note": a Grid CAF Loan Note or an Individual CAF
Loan Note.
"CAF Loan Offer": each offer by a CAF Loan Bank to make one
or more CAF Loans pursuant to a CAF Loan Request, which CAF Loan Offer
shall contain the information specified in Exhibit E and shall be
delivered to the CAF Loan Agent by telephone, immediately confirmed by
facsimile transmission.
"CAF Loan Request": each request by the Company for CAF Loan
Banks to submit bids to make CAF Loans, which shall contain the
information in respect of such requested CAF Loans specified in
Exhibit D and shall be delivered to the CAF Loan Agent in writing or
by facsimile transmission, or by telephone, immediately confirmed by
facsimile transmission.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants or options to
purchase any of the foregoing.
"Change in Control": of any corporation, (a) any Person or
"group" (as defined in Section 13(d)(3) of the Securities Exchange
Act of 1934, as amended), other than the
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Company, that shall acquire more than 50% of the Voting Stock of such
corporation or (b) any Person or group (as defined in preceding clause
(a)), other than the Company, that shall acquire more than 20% of the
Voting Stock of such corporation and, at any time following an
acquisition described in this clause (b), the Continuing Directors
shall not constitute a majority of the board of directors of such
corporation.
"Chemical Bank": Chemical Bank, a New York banking corporation.
"Closing Date": the date on which all of the conditions
precedent for the Closing Date set forth in subsection 5.1 shall have
been fulfilled.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment": as to any Bank, its obligation to make Revolving
Credit Loans to the Company pursuant to subsection 2.1(a) and/or issue
or participate in Letters of Credit issued on behalf of the Company in
an aggregate principal amount and/or face amount not to exceed at any
one time outstanding the amount set forth opposite such Bank's name in
Schedule I, as such amount may be reduced or increased from time to
time as provided herein.
"Commitment Percentage": as to any Bank, the percentage of the
aggregate Commitments constituted by such Bank's Commitment.
"Commitment Period": the period from and including the Closing
Date to but not including the Termination Date or such earlier date on
which the Commitments shall terminate as provided herein.
"Commitment Transfer Supplement": a Commitment Transfer
Supplement, substantially in the form of Exhibit G.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Company and which is treated as a single employer under
Section 414 of the Code.
"Consolidated Assets": the consolidated assets of the Company
and its Subsidiaries, determined in accordance with GAAP.
"Consolidated Earnings Before Interest and Taxes": for any
period for which the amount thereof is to be determined, Consolidated
Net Income for such period plus all amounts deducted in computing such
Consolidated Net Income in
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respect of Consolidated Interest Expense and income taxes, all
determined in accordance with GAAP.
"Consolidated Interest Expense": for any period for which the
amount thereof is to be determined, all amounts deducted in computing
Consolidated Net Income for such period in respect of interest expense
on Indebtedness determined in accordance with GAAP.
"Consolidated Net Income": for any period, the consolidated
net income, if any, after taxes, of the Company and its Subsidiaries
for such period determined in accordance with GAAP.
"Consolidated Net Tangible Assets": means the total amount of
assets (less applicable reserves and other properly deductible items)
after deducting therefrom (i) all current liabilities as disclosed on
the consolidated balance sheet of the Company (excluding any thereof
which are by their terms extendable or renewable at the option of the
obligor thereon to a time more than 12 months after the time as of
which the amount thereof is being computed and excluding any deferred
income taxes that are included in current liabilities), and (ii) all
goodwill, trade names, trademarks, patents, unamortized debt discount
and expense and other like intangible assets, all as set forth on the
most recent consolidated balance sheet of the Company and computed in
accordance with GAAP.
"Consolidated Net Worth": Consolidated Assets of the Company
and its Subsidiaries less the following:
(a) the amount, if any, at which any treasury stock
appears on the assets side of the balance sheet;
(b) an amount equal to all amounts which appear or
should appear as a credit on the balance sheet of the Company
in respect of any class or series of preferred stock of the
Company; and
(c) all liabilities which in accordance with GAAP
should be reflected as liabilities on such consolidated
balance sheet, but in any event including all Indebtedness.
"Consolidated Total Debt": the aggregate of all Indebtedness
(including the current portion thereof) of the Company and its
Subsidiaries on a consolidated basis.
"Continuing Bank": as defined in subsection 2.4(c).
"Continuing Director": any member of the Board of Directors of
the Company who is a member of such Board on the date of this
Agreement, and any Person who is a member
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of such Board and whose nomination as a director was approved by a
majority of the Continuing Directors then on such Board.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of
its property is bound.
"Control Group Person": any Person which is a member of the
controlled group or is under common control with the Company within
the meaning of Section 414(b) or 414(c) of the Code or Section
4001(b)(1) of ERISA.
"Default": any of the events specified in subsection 8.1,
whether or not any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Distribution": (a) the declaration or payment of any dividend
on or in respect of any shares of any class of Capital Stock of the
Company other than dividends payable solely in shares of common stock
of the Company; (b) the purchase, redemption or other acquisition of
any shares of any class of Capital Stock of the Company directly or
indirectly through a Subsidiary or otherwise; and (c) any other
distribution on or in respect of any shares of any class of Capital
Stock of the Company.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Domestic Lending Office": initially, the office of each Bank
designated as such in Schedule I; thereafter, such other office of
such Bank, if any, located within the United States which shall be
making or maintaining Alternate Base Rate Loans.
"Effective Date": as defined in subsection 2.4(b).
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to
a Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal
and emergency reserves under any regulations of the Board of Governors
of the Federal Reserve System or other Governmental Authority having
jurisdiction with respect thereto), dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as
"Eurocurrency
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Liabilities" in Regulation D of such Board) maintained by a member
bank of such System.
"Eurodollar Lending Office": initially, the office of each
Bank designated as such in Schedule I; thereafter, such other office
of such Bank, if any, which shall be making or maintaining Eurodollar
Loans.
"Eurodollar Loans": Revolving Credit Loans hereunder at such
time as they are made and/or are being maintained at a rate of
interest based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
equal to the average (rounded upwards to the nearest whole multiple of
one sixteenth of one percent) of the respective rates notified to the
Agent by the Reference Banks as the rate at which each of their
Eurodollar Lending Offices is offered Dollar deposits two Working Days
prior to the beginning of such Interest Period in the interbank
eurodollar market where the eurodollar and foreign currency and
exchange operations of such Eurodollar Lending Office are then being
conducted at or about 10:00 A.M., New York City time, for delivery on
the first day of such Interest Period for the number of days comprised
therein and in an amount comparable to the amount of the Eurodollar
Loan of such Reference Bank to be outstanding during such Interest
Period.
"Eurodollar Tranche": the collective reference to Eurodollar
Loans having the same Interest Period (whether or not originally made
on the same day).
"Event of Default": any of the events specified in subsection
8.1, provided that any requirement for the giving of notice, the lapse
of time, or both, or any other condition, event or act has been
satisfied.
"Financing Lease": any lease of property, real or personal, if
the then present value of the minimum rental commitment thereunder
should, in accordance with GAAP, be capitalized on a balance sheet of
the lessee.
"Fixed Rate Auction Advance Request": any CAF Loan Request
requesting the CAF Loan Banks to offer to make CAF Loans at a fixed
rate (as opposed to a rate composed of the Applicable LIBOR Auction
Advance Rate plus or minus a margin).
"GAAP": (a) with respect to determining compliance by the
Company with the provisions of subsections 7.1, 7.2 and 7.5, generally
accepted accounting principles in the United States of America
consistent with those utilized in preparing the audited financial
statements referred to in
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subsection 4.6 and (b) with respect to the financial statements
referred to in subsection 4.6 or the furnishing of financial
statements pursuant to subsection 6.4 and otherwise, generally
accepted accounting principles in the United States of America from
time to time in effect.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Grid CAF Loan Note": as defined in subsection 2.2(f).
"Guarantee Obligation": any arrangement whereby credit is
extended to one party on the basis of any promise of another, whether
that promise is expressed in terms of an obligation to pay the
Indebtedness of another, or to purchase an obligation owed by that
other, to purchase assets or to provide funds in the form of lease or
other types of payments under circumstances that would enable that
other to discharge one or more of its obligations, whether or not such
arrangement is listed in the balance sheet of the obligor or referred
to in a footnote thereto, but shall not include endorsements of items
for collection in the ordinary course of business.
"Headquarters": the principal executive offices of the Company
located at 000 Xxxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
"HMO": a health maintenance organization doing business as
such (or required to qualify or to be licensed as such) under HMO
Regulations.
"HMO Regulation": all laws, regulations, directives and
administrative orders applicable under federal or state law to health
maintenance organizations and any regulations, orders and directives
promulgated or issued pursuant thereto.
"HMO Regulator": any Person charged with the administration,
oversight or enforcement of an HMO Regulation.
"HMO Subsidiary": any Subsidiary of the Company that is now or
hereafter an HMO.
"Indebtedness": of a Person, at a particular date, the sum
(without duplication) at such date of (a) all indebtedness of such
Person for borrowed money or for the deferred purchase price of
property or services or which is evidenced by a note, bond, debenture
or similar instrument, (b) all obligations of such Person under
Financing Leases,
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(c) all obligations of such Person in respect of letters of credit,
acceptances, or similar obligations issued or created for the account
of such Person in excess of $1,000,000, (d) all liabilities secured by
any Lien on any property owned by the Company or any Subsidiary even
though such Person has not assumed or otherwise become liable for the
payment thereof and (e) all Guarantee Obligations relating to any of
the foregoing in excess of $1,000,000.
"Individual CAF Loan Note": as defined in subsection 2.2(g).
"Insolvency" or "Insolvent": at any particular time, a
Multiemployer Plan which is insolvent within the meaning of Section
4245 of ERISA.
"Insurance Regulation": any law, regulation, rule, directive
or order applicable to an insurance company.
"Insurance Regulator": any Person charged with the
administration, oversight or enforcement of any Insurance Regulation.
"Insurance Subsidiary": any Subsidiary of the Company that is
now or hereafter doing business (or required to qualify or to be
licensed) under Insurance Regulations.
"Interest Payment Date": (a) as to any Alternate Base Rate
Loan, the last day of each March, June, September and December,
commencing on the first of such days to occur after Alternate Base
Rate Loans are made or Eurodollar Loans are converted to Alternate
Base Rate Loans, (b) as to any Eurodollar Loan in respect of which the
Company has selected an Interest Period of one, two or three months,
the last day of such Interest Period and (c) as to any Eurodollar Loan
in respect of which the Company has selected a longer Interest Period
than the periods described in clause (b), the last day of each March,
June, September and December falling within such Interest Period and
the last day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loans:
(i) initially, the period commencing on the
borrowing or conversion date, as the case may be, with respect
to such Eurodollar Loans and ending one, two, three or six
months thereafter (or, with the consent of all the Banks, nine
or twelve months thereafter), as selected by the Company in
its notice of borrowing as provided in subsection 2.1(c) or
its notice of conversion as provided in subsection 2.6(a), as
the case may be; and
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(ii) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such
Eurodollar Loans and ending one, two, three or six months
thereafter (or, with the consent of all the Banks, nine or
twelve months thereafter), as selected by the Company by
irrevocable notice to the Agent not less than three Business
Days prior to the last day of the then current Interest Period
with respect to such Eurodollar Loans;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period pertaining to a
Eurodollar Loan would otherwise end on a day which is not a
Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end
on the immediately preceding Business Day;
(2) if the Company shall fail to give notice as
provided above, the Company shall be deemed to have selected
an Alternate Base Rate Loan to replace the affected Eurodollar
Loan;
(3) any Interest Period pertaining to a Eurodollar
Loan that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month;
(4) any interest period pertaining to a Eurodollar
Loan that would otherwise end after the Termination Date shall
end on the Termination Date; and
(5) the Company shall select Interest Periods so as
not to require a payment or prepayment of any Eurodollar Loan
during an Interest Period for such Loan.
"Issuing Bank": Chemical Bank, in its capacity as issuer of
any Letter of Credit.
"L/C Fee Payment Date": the last day of each March, June,
September and December.
"L/C Obligations": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then
outstanding Letters of Credit and (b) the aggregate amount of drawings
under Letters of Credit which have not then been reimbursed pursuant
to subsection 3.5.
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"L/C Participants": the collective reference to all the Banks
other than the Issuing Bank.
"L/C Sublimit": $75,000,000.
"Letters of Credit": as defined in subsection 3.1(a).
"Level I Utilization Period": at a particular time, any
six-month period (or, at any time which is prior to the date which is
six-months after the Closing Date, such shorter period) ending at such
time during which the average daily Aggregate Outstanding Extensions
of Credit of all Banks is less than 33-1/3% of the aggregate amount of
the average daily Commitments of all Banks.
"Level II Utilization Period": at a particular time, any
six-month period (or, at any time which is prior to the date which is
six months after the Closing Date, such shorter period) ending at such
time during which the average daily Aggregate Outstanding Extensions
of Credit of all Banks is greater than or equal to 33-1/3% of the
aggregate amount of the average daily Commitments of all Banks but
less than 66-2/3% of the aggregate amount of the average daily
Commitments of all Banks.
"Level III Utilization Period": at a particular time, any
six-month period (or, at any time which is prior to the date which is
six months after the Closing Date, such shorter period) ending at such
time during which the average daily Aggregate Outstanding Extensions
of Credit of all Banks is greater than or equal to 66-2/3% of the
aggregate amount of the average daily Commitments of all Banks.
"Leverage Ratio": at the last day of any full fiscal quarter
of the Company, the ratio of (a) all Indebtedness of the Company and
its Subsidiaries outstanding on such date to (b) Consolidated Net
Income for the period of four fiscal quarters of the Company ended on
such day plus, to the extent deducted from earnings in determining
such Consolidated Net Income, Consolidated Interest Expense, income
taxes, depreciation and amortization.
"LIBOR Auction Advance Request": any CAF Loan Request
requesting the CAF Loan Banks to offer to make CAF Loans at an
interest rate equal to the Applicable LIBOR Auction Advance Rate plus
or minus a margin.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), or
preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement,
any
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financing lease having substantially the same economic effect as any
of the foregoing).
"Loan": any loan made by any Bank pursuant to this Agreement.
"Loan Documents": this Agreement, the Notes and the
Applications.
"Majority Banks": (a) during the Commitment Period, Banks
whose Commitment Percentages aggregate at least 51% and (b) after the
Commitments have expired or been terminated, Banks whose outstanding
Loans represent in the aggregate 51% of all outstanding Loans.
"Material Adverse Effect": any material adverse effect on (a)
the business, assets, operations or condition (financial or otherwise)
of the Company and its Subsidiaries taken as a whole, (b) the ability
of the Company to perform its obligations under this Agreement and the
Notes or (c) the rights and remedies of the Banks with respect to the
Company and its Subsidiaries under any of the Loan Documents.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Note": any Revolving Credit Note or CAF Loan Note.
"Participants": as defined in subsection 10.6(b).
"Payment Sharing Notice": a written notice from the Company,
or any Bank, informing the Agent that an Event of Default has occurred
and is continuing and directing the Agent to allocate payments
thereafter received from the Company in accordance with subsection
2.10(c).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan
which is covered by ERISA and in respect of which the Company or a
Control Group Person is (or, if such plan were terminated at such
time, would under Section 4069 of ERISA be deemed to be) an "employer"
as defined in Section 3(5) of ERISA.
"Purchasing Banks": as defined in subsection 10.6(d).
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"Reference Banks": Chemical Bank, The Chase Manhattan Bank,
N.A. and Citibank, N.A.
"Register": as defined in subsection 10.6(e).
"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System.
"Reimbursement Obligation": the obligation of the Company to
reimburse the Issuing Bank pursuant to subsection 3.5(a) for amounts
drawn under Letters of Credit.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
such term as used in Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .13, .14, .16, .18, .19 or
.20 of PBGC Reg. subsection 2615.
"Requested Termination Date": as defined in subsection 2.4(b).
"Required Banks": (a) during the Commitment Period, Banks
whose Commitment Percentages aggregate at least 66-2/3% and (b) after
the Commitments have expired or been terminated, Banks whose
outstanding Loans represent in the aggregate 66-2/3% of all
outstanding Loans.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Responsible Officer": the chief executive officer, the
president, any executive or senior vice president or vice president of
the Company, the chief financial officer, treasurer or controller of
the Company.
"Revolving Credit Loans": as defined in subsection 2.1(a).
"Revolving Credit Notes": as defined in subsection 2.1(b).
"Significant Subsidiary": means, at any particular time, any
Subsidiary of the Company having total assets of $5,000,000 or more at
that time.
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"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Solvent": with respect to any Person (or group of Persons) on
a particular date, that on such date (i) the fair value of the
property of such Person (or group of Persons) is greater than the
total amount of liabilities, including, without limitation, contingent
liabilities, of such Person (or group of Persons), (ii) the present
fair salable value of the assets of such Person (or group of Persons)
is not less than the amount that will be required to pay the probable
liability of such Person (or group of Persons) on its debts as they
become absolute and matured, (iii) such Person (or group of Persons)
is able to pay its debts and other liabilities, contingent obligations
and other commitments as they mature in the normal course of business,
(iv) such Person (or group of Persons) does not intend to, and does
not believe that it will, incur debts or liabilities beyond such
Person's (or group of Person's) ability to pay as such debts and
liabilities mature, (v) such Person (or group of Persons) is not
engaged in a business or a transaction, and is not about to engage in
a business or a transaction, for which such Person's (or group of
Person's) property would constitute unreasonably small capital after
giving due consideration to the prevailing practice in the industry in
which such Person (or group of Persons) is engaged and (vi) such
Person (or group of Persons) is solvent under all applicable HMO
Regulations and Insurance Regulations. In computing the amount of
contingent liabilities at any time, it is intended that such
liabilities will be computed at the amount which, in light of all the
facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured
liability.
"Standby Letter of Credit": as defined in subsection 3.1(a).
"Subsidiary": as to any Person, a corporation of which shares
of stock having ordinary voting power (other than stock having such
power only by reason of the happening of a contingency) to elect a
majority of the board of directors or other managers of such
corporation are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise qualified,
all references to a "Subsidiary" or to "Subsidiaries" in this
Agreement shall refer to a Subsidiary or Subsidiaries of the Company.
"Taxes": as defined in subsection 2.14.
"Terminating Bank": as defined in subsection 2.4(c).
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"Termination Date": the third anniversary of the Closing Date
(or, if such date is not a Business Day, the next succeeding Business
Day), or such other Business Day to which the Termination Date may be
changed pursuant to subsection 2.4).
"Transfer Effective Date": as defined in each Commitment
Transfer Supplement.
"Transferee": as defined in subsection 10.6(g).
"Type": as to any Revolving Credit Loan, its nature as an
Alternate Base Rate Loan or Eurodollar Loan.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be amended from time to time.
"Voting Stock": of any corporation, shares of capital stock or
other securities of such corporation entitled to vote generally in the
election of directors of such corporation.
"Working Day": any Business Day on which dealings in foreign
currencies and exchange between banks may be carried on in London,
England.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the Notes or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Company and its Subsidiaries not defined in
subsection 1.1 and accounting terms partly defined in subsection 1.1, to the
extent not defined, shall have the respective meanings given to them under
GAAP.
(c) The words "hereof", "herein", and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
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SECTION 2. AMOUNT AND TERMS OF LOANS
2.1 Revolving Credit Loans and Revolving Credit Notes. (a)
Subject to the terms and conditions hereof, each Bank severally agrees to make
loans ("Revolving Credit Loans") to the Company from time to time during the
Commitment Period in an aggregate principal amount at any one time outstanding
which, when added to such Bank's Commitment Percentage of the then outstanding
L/C Obligations, does not exceed the Commitment of such Bank, provided that the
Aggregate Outstanding Extensions of Credit of all Banks shall not at any time
exceed the aggregate amount of the Commitments. During the Commitment Period
the Company may use the Commitments by borrowing, prepaying the Revolving
Credit Loans in whole or in part, and reborrowing, all in accordance with the
terms and conditions hereof. The Revolving Credit Loans may be (i) Eurodollar
Loans, (ii) Alternate Base Rate Loans or (iii) a combination thereof, as
determined by the Company and notified to the Agent in accordance with
subsection 2.1 (c). Eurodollar Loans shall be made and maintained by each Bank
at its Eurodollar Lending Office, and Alternate Base Rate Loans shall be made
and maintained by each Bank at its Domestic Lending Office.
(b) The Revolving Credit Loans made by each Bank shall be
evidenced by a promissory note of the Company, substantially in the form of
Exhibit A with appropriate insertions as to payee, date and principal amount (a
"Revolving Credit Note"), payable to the order of such Bank and evidencing the
obligation of the Company to pay a principal amount equal to the amount of the
initial Commitment of such Bank or, if a lesser amount, the aggregate unpaid
principal amount of all Revolving Credit Loans made by such Bank. Each Bank is
hereby authorized to record the date, Type and amount of each Revolving Credit
Loan made or converted by such Bank, and the date and amount of each payment or
prepayment of principal thereof, and, in the case of Eurodollar Loans, the
Interest Period with respect thereto, on the schedule annexed to and
constituting a part of its Revolving Credit Note, and any such recordation
shall constitute prima facie evidence of the accuracy of the information so
recorded; provided, however, that the failure to make any such recordation
shall not affect the obligations of the Company hereunder or under any
Revolving Credit Note. Each Revolving Credit Note shall (x) be dated the
Closing Date, (y) be stated to mature on the Termination Date, and (z) bear
interest on the unpaid principal amount thereof from time to time outstanding
at the applicable interest rate per annum determined as provided in subsection
2.7.
(c) The Company may borrow under the Commitments during the
Commitment Period on any Working Day if the borrowing is of Eurodollar Loans or
on any Business Day if the borrowing is of Alternate Base Rate Loans; provided
that the Company shall give the Agent irrevocable notice (which notice must be
received by the Agent (i) prior to 11:30 A.M., New York City time three
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Working Days prior to the requested Borrowing Date, in the case of Eurodollar
Loans, and (ii) prior to 10:00 A.M., New York City time, on the requested
Borrowing Date, in the case of Alternate Base Rate Loans), specifying (A) the
amount to be borrowed, (B) the requested Borrowing Date, (C) whether the
borrowing is to be of Eurodollar Loans, Alternate Base Rate Loans, or a
combination thereof, and (D) if the borrowing is to be entirely or partly of
Eurodollar Loans, the length of the Interest Period therefor. Each borrowing
pursuant to the Commitments shall be in an aggregate principal amount equal to
the lesser of (i) $10,000,000 or a whole multiple of $1,000,000 in excess
thereof and (ii) the then Available Commitments. Upon receipt of such notice
from the Company, the Agent shall promptly notify each Bank thereof. Each Bank
will make the amount of its pro rata share of each borrowing available to the
Agent for the account of the Company at the office of the Agent set forth in
subsection 10.2 prior to 12:00 P.M., New York City time, on the Borrowing Date
requested by the Company in funds immediately available to the Agent. The
proceeds of all such Revolving Credit Loans will then be made available to the
Company by the Agent at such office of the Agent by crediting the account of
the Company on the books of such office with the aggregate of the amounts made
available to the Agent by the Banks.
2.2 CAF Loans and CAF Loan Notes. (a) The Company may borrow
CAF Loans from time to time on any Business Day (in the case of CAF Loans made
pursuant to a Fixed Rate Auction Advance Request) or any Working Day (in the
case of CAF Loans made pursuant to a LIBOR Auction Advance Request) during the
period from the Closing Date until the date occurring 14 days prior to the
Termination Date in the manner set forth in this subsection 2.2 and in amounts
such that the Aggregate Outstanding Extensions of Credit of all Banks at any
time shall not exceed the aggregate amount of the Commitments at such time.
(b) (i) The Company shall request CAF Loans by delivering a CAF
Loan Request to the CAF Loan Agent, not later than 12:00 Noon (New York City
time) four Working Days prior to the proposed Borrowing Date (in the case of a
LIBOR Auction Advance Request), and not later than 10:00 A.M. (New York City
time) one Business Day prior to the proposed Borrowing Date (in the case of a
Fixed Rate Auction Advance Request). Each CAF Loan Request may solicit bids
for CAF Loans in an aggregate principal amount of $10,000,000 or an integral
multiple thereof and for not more than three alternative maturity dates for
such CAF Loans. The maturity date for each CAF Loan shall be not less than 7
days nor more than 360 days after the Borrowing Date therefor (and in any event
not after the Termination Date). The CAF Loan Agent shall promptly notify each
CAF Loan Bank by facsimile transmission of the contents of each CAF Loan
Request received by it.
(ii) In the case of a LIBOR Auction Advance Request, upon receipt
of notice from the CAF Loan Agent of the contents of
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such CAF Loan Request, any CAF Loan Bank that elects, in its sole discretion,
to do so, shall irrevocably offer to make one or more CAF Loans at the
Applicable LIBOR Auction Advance Rate plus or minus a margin for each such CAF
Loan determined by such CAF Loan Bank in its sole discretion. Any such
irrevocable offer shall be made by delivering a CAF Loan Offer to the CAF Loan
Agent, before 9:30 A.M., New York City time, three Working Days before the
proposed Borrowing Date, setting forth the maximum amount of CAF Loans for each
maturity date, and the aggregate maximum amount for all maturity dates, which
such Bank would be willing to make (which amounts may, subject to subsection
2.2(a), exceed such CAF Loan Bank's Commitment) and the margin above the
Applicable LIBOR Auction Advance Rate at which such CAF Loan Bank is willing to
make each such CAF Loan; the CAF Loan Agent shall advise the Company before
10:00 A.M., New York City time, three Working Days before the proposed
Borrowing Date of the contents of each such CAF Loan Offer received by it. If
the CAF Loan Agent in its capacity as a CAF Loan Bank shall, in its sole
discretion, elect to make any such offer, it shall advise the Company of the
contents of its CAF Loan Offer before 9:00 A.M., New York City time, three
Working Days before the proposed Borrowing Date.
(iii) In the case of a Fixed Rate Auction Advance Request, upon
receipt of notice from the Agent of the contents of such CAF Loan Request, any
CAF Loan Bank that elects, in its sole discretion, to do so, shall irrevocably
offer to make one or more CAF Loans at a rate or rates of interest for each
such CAF Loan determined by such CAF Loan Bank in its sole discretion. Any
such irrevocable offer shall be made by delivering a CAF Loan Offer to the CAF
Loan Agent, before 9:30 A.M., New York City time, on the proposed Borrowing
Date, setting forth the maximum amount of CAF Loans for each maturity date, and
the aggregate maximum amount for all maturity dates, which such CAF Loan Bank
would be willing to make (which amounts may, subject to subsection 2.2 (a),
exceed such CAF Loan Bank's Commitment) and the rate or rates of interest at
which such CAF Loan Bank is willing to make each such CAF Loan; the CAF Loan
Agent shall advise the Company before 10:15 A.M., New York City time, on the
proposed Borrowing Date of the contents of each such CAF Loan Offer received by
it. If the CAF Loan Agent or any affiliate thereof in its capacity as a CAF
Loan Bank shall, in its sole discretion, elect to make any such offer, it shall
advise the Company of the contents of its CAF Loan Offer before 9:15 A.M., New
York City time, on the proposed Borrowing Date.
(iv) The Company shall before 11:00 A.M., New York City time,
three Working Days before the proposed Borrowing Date (in the case of CAF Loans
requested by a LIBOR Auction Advance Request) and before 10:30 A.M., New York
City time, on the proposed Borrowing Date (in the case of CAF Loans requested
by a Fixed Rate Auction Advance Request) either, in its absolute discretion:
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(A) cancel such CAF Loan Request by giving the CAF Loan Agent
telephone notice to that effect, or
(B) accept one or more of the offers made by any CAF Loan Bank
or CAF Loan Banks pursuant to clause (ii) or clause (iii) above, as
the case may be, by giving telephone notice to the CAF Loan Agent
(immediately confirmed by delivery to the CAF Loan Agent of a CAF Loan
Confirmation) of the amount of CAF Loans for each relevant maturity
date to be made by each CAF Loan Bank (which amount for each such
maturity date shall be equal to or less than the maximum amount for
such maturity date specified in the CAF Loan offer of such CAF Loan
Bank, and for all maturity dates included in such CAF Loan Offer shall
be equal to or less than the aggregate maximum amount specified in
such CAF Loan offer for all such maturity dates) and reject any
remaining offers made by CAF Loan Banks pursuant to clause (ii) or
clause (iii) above, as the case may be; provided, however, that (x)
the Company may not accept offers for CAF Loans for any maturity date
in an aggregate principal amount in excess of the maximum principal
amount requested in the related CAF Loan Request, (y) if the Company
accepts any of such offers, it must accept offers strictly based upon
pricing for such relevant maturity date and no other criteria
whatsoever and (z) if two or more CAF Loan Banks submit offers for any
maturity date at identical pricing and the Company accepts any of such
offers but does not wish to borrow the total amount offered by such
CAF Loan Banks with such identical pricing, the Company shall accept
offers from all of such CAF Loan Banks in amounts allocated among them
pro rata according to the amounts offered by such CAF Loan Banks (or
as nearly pro rata as shall be practicable after giving effect to the
requirement that CAF Loans made by a CAF Loan Bank on a Borrowing Date
for each relevant maturity date shall be in a principal amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof
provided that if the number of CAF Loan Banks that submit offers for
any maturity date at identical pricing is such that, after the Company
accepts such offers pro rata in accordance with the foregoing, the CAF
Loans to be made by such CAF Loan Banks would be less then $5,000,000
principal amount, the number of such CAF Loan Banks shall be reduced
by the CAF Loan Agent by lot until the CAF Loans to be made by such
remaining CAF Loan Banks would be in a principal amount of $5,000,000
or an integral multiple of $1,000,000 in excess thereof).
(v) If the Company notifies the CAF Loan Agent that a CAF Loan
Request is cancelled pursuant to clause (iv)(A) above, the CAF Loan Agent shall
give prompt, but in no event more then one hour later, telephone notice thereof
to the CAF Loan Banks, and the CAF Loans requested thereby shall not be made.
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(vi) If the Company accepts pursuant to clause (iv)(B) above
one or more of the offers made by any CAF Loan Bank or CAF Loan Banks, the
CAF Loan Agent shall promptly, but in no event more than one hour later,
notify each CAF Loan Bank which has made such an offer of the aggregate amount
of such CAF Loans to be made on such Borrowing Date for each maturity date and
of the acceptance or rejection of any offers to make such CAF Loans made by
such CAF Loan Bank. Each CAF Loan Bank which is to make a CAF Loan shall,
before 12:00 Noon, New York City time, on the Borrowing Date specified in the
CAF Loan Request applicable thereto, make available to the Agent at its office
set forth in subsection 10.2 the amount of CAF Loans to be made by such CAF
Loan Bank, in immediately available funds. The Agent will make such funds
available to the Company as soon as practicable on such date at the Agent's
aforesaid address. As soon as practicable after each Borrowing Date, the Agent
shall notify each Bank of the aggregate amount of CAF Loans advanced on such
Borrowing Date and the respective maturity dates thereof.
(c) Within the limits and on the conditions set forth in this
subsection 2.2, the Company may from time to time borrow under this
subsection 2.2, repay pursuant to paragraph (d) below, and reborrow under this
subsection 2.2.
(d) The Company shall repay to the Agent for the account of each
CAF Loan Bank which has made a CAF Loan (or the CAF Loan Assignee in respect
thereof, as the case may be) on the maturity date of each CAF Loan (such
maturity date being that specified by the Company for repayment of such CAF
Loan in the related CAF Loan Request) the then unpaid principal amount of
such CAF Loan. The Company shall not have the right to prepay any principal
amount of any CAF Loan.
(e) The Company shall pay interest on the unpaid principal
amount of each CAF Loan from the Borrowing Date to the stated maturity
date thereof, at the rate of interest determined pursuant to paragraph (b)
above (calculated on the basis of a 360-day year for actual days elapsed),
payable on the interest payment date or dates specified by the Company for such
CAF Loan in the related CAF Loan Request as provided in the CAF Loan Note
evidencing such CAF Loan. If all or a portion of the principal amount of any
CAF Loan or any interest or other amount payable hereunder in respect thereof
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall, without limiting any rights of any Bank
under this Agreement, bear interest from the date on which such payment was due
at a rate per annum which is 2% above the rate which would otherwise be
applicable pursuant to the CAF Loan Note evidencing such CAF Loan until the
scheduled maturity date with respect thereto as set forth in the CAF Loan Note
evidencing such CAF Loan, and for each day thereafter at rate per annum which
is 2% above the Alternate Base Rate until paid in full (as well after as before
judgment).
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(f) The CAF Loans made by each CAF Loan Bank shall be evidenced
initially by a promissory note of the Company, substantially in the form of
Exhibit B with appropriate insertions (a "Grid CAF Loan Note"), payable to the
order of such CAF Loan Bank and representing the obligation of the Company to
pay the unpaid principal amount of all CAF Loans made by such CAF Loan Bank,
with interest on the unpaid principal amount from time to time outstanding of
each CAF Loan evidenced thereby as prescribed in subsection 2.2 (e). Each
CAF Loan Bank is hereby authorized to record the date and amount of each CAF
Loan made by such Bank, the maturity date thereof, the date and amount of each
payment of principal thereof and the interest rate with respect thereto on the
schedule annexed to and constituting part of its Grid CAF Loan Note, and any
such recordation shall constitute prima facie evidence of the accuracy of the
information so recorded; provided, however, that the failure to make any such
recordation shall not affect the obligations of the Company hereunder or
under any Grid CAF Loan Note. Each Grid CAF Loan Note shall be dated the
Closing Date and each CAF Loan evidenced thereby shall bear interest for the
period from and including the Borrowing Date thereof on the unpaid principal
amount thereof from time to time outstanding at the applicable rate per annum
determined as provided in, and such interest shall be payable as specified in,
subsection 2.2(e).
(g) Amounts advanced by a CAF Loan Bank pursuant to this
subsection 2.2 on a Borrowing Date which have the same maturity date and
interest rate shall be deemed to constitute one CAF Loan so long as such
amounts remain evidenced by the Grid CAF Loan Note of such CAF Loan Bank; any
such CAF Loan Bank that wishes such amounts to constitute more than one CAF
Loan and to have each such CAF Loan evidenced by a separate promissory note
payable to such CAF Loan Bank, substantially in the form of Exhibit C with
appropriate insertions as to Borrowing Date, principal amount and interest rate
(an "Individual CAF Loan Note"), shall notify the CAF Loan Agent and the
Company by facsimile transmission of the respective principal amounts of the
CAF Loans (which principal amounts shall not be less than $5,000,000 for any of
such CAF Loans) to be evidenced by each such Individual CAF Loan Note. Not
later than three Business Days after receipt of such notice, the Company shall
deliver to such CAF Loan Bank an Individual CAF Loan Note payable to the order
of such CAF Loan Bank in the principal amount of each such CAF Loan and
otherwise conforming to the requirements of this Agreement. Upon receipt of
such Individual CAF Loan Note, such CAF Loan Bank shall endorse on the schedule
attached to its Grid CAF Loan Note the transfer of such CAF Loan from Grid CAF
Loan Note to such Individual CAF Loan Note.
2.3 Fees. (a) The Company agrees to pay to the Agent, for the
account of each Bank, a facility fee computed at the rate of .175% per annum on
the average daily amount of the Commitment of such Bank during the period for
which payment is made, payable quarterly in arrears on the last day of each
March, June,
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September and December and on any earlier date on which the Commitments shall
terminate as provided herein and the Revolving Credit Loans shall have been
repaid in full, commencing on the first of such dates to occur after the date
hereof.
(b) The Company agrees to pay to the Agent the other fees in the
amounts, and on the dates, agreed to by the Company and the Agent in the fee
letter, dated November 29, 1993, between the Agent and the Company.
2.4 Termination, Reduction or Extension of Commitments. (a)
The Company shall have the right, upon not less than five Business Days' notice
to the Agent, to terminate the Commitments or, from time to time, to reduce
ratably the amount of the Commitments, provided that no such termination or
reduction shall be permitted if, after giving effect thereto and to any
prepayments of the Loans made on the effective date thereof, the then
outstanding principal amount of the Loans, when added to the then L/C
Obligations, would exceed the amount of the Commitments then in effect. Any
such reduction shall be in an amount of $10,000,000 or a whole multiple of
$1,000,000 in excess thereof, and shall reduce permanently the amount of the
Commitments then in effect.
(b) The Company may request, in a notice given as herein
provided to the Agent and each of the Banks not less than 90 days and not
more than 120 days prior to the second anniversary of the Closing Date, that
the Termination Date be extended, which notice shall specify that the
requested extension is to be effective (the "Effective Date") on the second
anniversary of the Closing Date, and that the new Termination Date to be in
effect following such extension (the "Requested Termination Date") is to be
the fifth anniversary of the Closing Date. Each Bank shall, not later than
30 days following such notice, notify the Company and the Agent of its
election to extend or not to extend the Termination Date with respect to its
Commitment. The Company may, not later than 15 days following such notice
from the Banks, revoke its request to extend the Termination Date. If the
Required Banks elect to extend the Termination Date with respect
to their Commitments and the Company has not revoked its request to extend
the Termination Date, then, subject to the provisions of this subsection 2.4,
the Termination Date shall be extended for two years. Notwithstanding any
provision of this Agreement to the contrary, any notice by any Bank of its
willingness to extend the Termination Date with respect to its Commitment
shall be revocable by such Bank in its sole and absolute discretion at any
time prior to the Effective Date. Any Bank which shall not notify the Company
and the Agent of its election to extend the Termination Date within 30 days
following such notice shall be deemed to have elected not to extend the
Termination Date with respect to its Commitment.
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(c) Provided that the Required Banks shall have elected to
extend their Commitments as provided in this subsection 2.4, if any Bank shall
timely notify the Company and the Agent pursuant to subsection 2.4 (b) of its
election not to extend its Commitment or its revocation of any extension, or
shall be deemed to have elected not to extend its Commitments, (any such Bank
being called a "Terminating Bank"), then the remaining Banks (the "Continuing
Banks") or any of them shall have the right (but not the obligation), upon
notice to the Company and the Agent not later than 30 Business Days preceding
the Effective Date to increase their Commitments, by an amount up to, in the
aggregate, the Commitments of any Terminating Banks. If, in the aggregate, any
of the Remaining Banks elect to increase their Commitments by an amount in
excess of the aggregate Commitments of the Terminating Banks, then the
Commitment of each such Bank shall be increased pro rata on the relative basis
of the amount of increase it so elected such that the aggregate amount of all
such increases shall be equal to the aggregate Commitments of the Terminating
Banks. Each increase in the Commitment of a Continuing Bank shall be evidenced
by a written instrument executed by such Continuing Bank, the Company and the
Agent, and shall take effect on the Effective Date. Notwithstanding any
provision of this Agreement to the contrary, any notice by any Continuing Bank
of its willingness to increase its Commitment as provided in this subsection
2.4(c) shall be revocable by such Bank in its sole and absolute discretion at
any time prior to the Effective Date.
(d) In the event the aggregate Commitments of any Terminating
Banks shall exceed the aggregate amount by which the Continuing Banks have
agreed to increase their Commitments pursuant to subsection 2.4(c), the Company
may, with the approval of the Agent, designate one or more other banking
institutions willing to extend Commitments until the Requested Termination Date
in an aggregate amount not greater than such excess. Any such banking
institution (an "Additional Bank") shall, on the Effective Date, execute and
deliver to the Company and the Agent a Commitment Transfer Supplement,
satisfactory to the Company and the Agent, setting forth the amount of such
Additional Bank's Commitment and containing its agreement to become, and to
perform all the obligations of, a Bank hereunder, and the Commitment of such
Additional Bank shall become effective on the Effective Date. Notwithstanding
any provision of this Agreement to the contrary, any notice by any Additional
Bank of its willingness to become a Bank hereunder shall be revocable by such
Additional Bank in its sole and absolute discretion at any time prior to the
Effective Date.
(e) The Company shall deliver to each Continuing Bank and each
Additional Bank, on the Effective Date, in exchange for the Notes held by such
Bank, new Notes, maturing on the Requested Termination Date, in the principal
amount of such Bank's Commitment after giving effect to the adjustments made
pursuant to this subsection 2.4.
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(f) If the Required Banks shall have elected to extend their
Commitments as provided in this subsection 2.4 and the Company has not revoked
its request to extend the Termination Date as provided in this subsection 2.4,
then (i) the Commitments of the Continuing Banks and any Additional Banks shall
continue until the Requested Termination Date specified in the notice from the
Company, and as to such Banks the term "Termination Date", as used herein shall
mean such Requested Termination Date; (ii) the Commitments of any Terminating
Bank shall continue until the Effective Date, and shall then terminate (as to
any Terminating Bank, the term "Termination Date", as used herein, shall mean
the Effective Date) upon the payment in full of the outstanding principal
amount, together with accrued interest to such date and any other amounts owed
by the Company to such Terminating Bank pursuant to any Loan Document of the
Loans of such Terminating Bank; and (iii) from and after the Effective Date, the
term "Banks" shall be deemed to include the Additional Banks and (except with
respect to subsections 2.15 and 10.5 to the extent the rights under such
subsections arise after the Termination Date in respect of Terminating Banks)
to exclude the Terminating Banks.
2.5 Optional Prepayments. The Company may on the last day of
the relevant Interest Period if the Revolving Credit Loans to be prepaid are in
whole or in part Eurodollar Loans, or at any time and from time to time if the
Revolving Credit Loans to be prepaid are Alternate Base Rate Loans, prepay the
Revolving Credit Loans, in whole or in part, without premium or penalty, upon
at least three Business Days' irrevocable notice to the Agent, specifying the
date and amount of prepayment and whether the prepayment is of Eurodollar Loans
or Alternate Base Rate Loans or a combination thereof, and if of a combination
thereof, the amount of prepayment allocable to each. Upon receipt of such
notice the Agent shall promptly notify each Bank thereof. If such notice is
given, the payment amount specified in such notice shall be due and payable on
the date specified therein, together with accrued interest to such date on the
amount prepaid. Partial prepayments shall be in an aggregate principal amount
of $5,000,000, or a whole multiple thereof, and may only be made if, after
giving effect thereto, subsection 2.6(c) shall not have been contravened.
2.6 Conversion Options; Minimum Amount of Loans.
(a) The Company may elect from time to time to convert Eurodollar Loans to
Alternate Base Rate Loans by giving the Agent at least two Business Days' prior
irrevocable notice of such election (given before 10:00 A.M., New York City
time, on the date on which such notice is required), provided that any such
conversion of Eurodollar Loans shall, subject to the fourth following sentence,
only be made on the last day of an Interest Period with respect thereto. The
Company may elect from time to time to convert Alternate Base Rate Loans to
Eurodollar Loans by giving the Agent at least three Business Days' prior
irrevocable notice of such election (given before 11:30 A.M., New York City
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time, on the date on which such notice is required). Upon receipt of such
notice, the Agent shall promptly notify each Bank thereof. Promptly following
the date on which such conversion being made each Bank shall take such action
as is necessary to transfer its portion of such Revolving Credit Loans to its
Domestic Lending Office or its Eurodollar Lending Office, as the case may be.
All or any part of outstanding Eurodollar Loans and Alternate Base Rate Loans
may be converted as provided herein, provided that, unless the Majority Banks
otherwise agree, (i) no Revolving Credit Loan may be converted into a
Eurodollar Loan when any Event of Default has occurred and is continuing, (ii)
partial conversions shall be in an aggregate principal amount of $5,000,000 or
a whole multiple thereof, and (iii) any such conversion may only be made if,
after giving effect thereto, subsection 2.6(c) shall not have bean contravened.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of an Interest Period with respect thereto by compliance by the
Company with the notice provisions contained in subsection 2.6(a); provided
that, unless the Majority Banks otherwise agree, no Eurodollar Loan may be
continued as such when any Event of Default has occurred and is continuing, but
shall be automatically converted to an Alternate Base Rate Loan on the last day
of the then current Interest Period with respect thereto. The Agent shall
notify the Banks promptly that such automatic conversion contemplated by this
subsection 2.6 (b) will occur.
(c) All borrowings, conversions, payments, prepayments and
selection of Interest Periods hereunder shall be in such amounts and be made
pursuant to such elections so that, after giving effect thereto, the aggregate
principal amount of the Loans comprising any Eurodollar Tranche shall not be
less than $10,000,000. At no time shall there be more than 6 Eurodollar
Tranches.
2.7 Interest Rate and Payment Dates for Revolving Credit Loans.
(a) The Eurodollar Loans comprising each Eurodollar Tranche
shall bear interest for each day during each Interest Period with respect
thereto on the unpaid principal amount thereof at a rate per annum equal to
the Eurodollar Rate plus the Applicable Margin.
(b) Alternate Base Rate Loans shall bear interest for each day
from and including the date thereof on the unpaid principal amount thereof at a
rate per annum equal to the Altermate Base Rate plus the Applicable Margin.
(c) If all or a portion of the (i) principal amount of any
Loans, (ii) any interest payable thereon or (iii) any fee or other amount
payable hereunder shall not be paid when due (whether at the stated maturity,
by acceleration or otherwise), such overdue amount shall bear interest at a
rate per annum which is 2% above the Alternate Base Rate, and any overdue
interest or
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other amount payable hereunder shall bear interest at a rate per annum which is
2% above the Alternate Base Rate, in each case from the date of such
non-payment until paid in full (after as well as before judgment). If all or a
portion of the principal amount of any Loans shall not be paid when due
(whether at stated maturity, by acceleration or otherwise), each Eurodollar
Loan shall, unless the Majority Banks otherwise agree, be converted to an
Alternate Base Rate Loan at the end of the last Interest Period with respect
thereto.
(d) Interest shall be payable in arrears on each Interest
Payment Date.
2.8 Computation of Interest and Fees. (a) Interest in respect
of Alternate Base Rate Loans shall be calculated on the basis of a (i) 365-day
(or 366-day, as the case may be) year for the actual days elapsed when such
Alternate Base Rate Loans are based on the Prime Rate, and (ii) a 360-day year
for the actual days elapsed when based on the Base CD Rate or the Federal Funds
Effective Rate. Interest in respect of Eurodollar Loans shall be calculated on
the basis of a 360-day year for the actual days elapsed. The Agent shall as
soon as practicable notify the Company and the Banks of each determination of a
Eurodollar Rate. Any change in the interest rate on a Revolving Credit Loan
resulting from a change in the Alternate Base Rate or the Applicable Margin or
the Eurocurrency Reserve Requirements shall become effective as of the opening
of business on the day on which such change in the Alternate Base Rate is
announced, such Applicable Margin changes as provided herein or such change in
or the Eurocurrency Reserve Requirements shall become effective, as the case
may be. The Agent shall as soon as practicable notify the Company and the
Banks of the effective date and the amount of each such change.
(b) Each determination of an interest rate by the Agent pursuant
to any provision of this Agreement shall be conclusive and binding on the
Company and the Banks in the absence of manifest error. The Agent shall, at
the request of the Company, deliver to the Company a statement showing the
quotations used by the Agent in determining any interest rate pursuant to
subsection 2.7(a) or (c).
(c) If any Reference Bank's Commitment shall terminate
(otherwise than on termination of all the Commitments), or its Revolving Credit
Loans shall be assigned for any reason whatsoever, such Reference Bank shall
thereupon cease to be a Reference Bank, and if, as a result of the foregoing,
there shall only be one Reference Bank remaining, then the Agent (after
consultation with the Company and the Banks) shall, by notice to the Company
and the Banks, designate another Bank as a Reference Bank so that there shall
at all times be at least two Reference Banks.
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(d) Each Reference Bank shall use its best efforts to furnish
quotations of rates to the Agent as contemplated hereby. If any of the
Reference Banks shall be unable or otherwise fails to supply such rates to the
Agent upon its request, the rate of interest shall be determined on the basis
of the quotations of the remaining Reference Banks or Reference Bank.
(e) Facility fees shall be computed on the basis of a 365-day
year for the actual days elapsed.
2.9 Inability to Determine Interest Rate. In the event that:
(i) the Agent shall have determined (which determination shall
be conclusive and binding upon the Company) that, by reason of
circumstances affecting the interbank eurodollar market generally,
adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for any requested Interest Period;
(ii) only one of the Reference Banks is able to obtain bids
for its Dollar deposits for such Interest Period in the manner
contemplated by the term "Eurodollar Rate"; or
(iii) the Agent shall have received notice prior to the first
day of such Interest Period from Banks constituting the Majority Banks
that the interest rate determined pursuant to subsection 2.7(a) for
such Interest Period does not accurately reflect the cost to such
Banks (as conclusively certified by such Banks) of making or
maintaining their affected Loans during such Interest Period;
with respect to (A) proposed Revolving Credit Loans that the Company has
requested be made as Eurodollar Loans, (B) Eurodollar Loans that will result
from the requested conversion of Alternate Base Rate Loans into Eurodollar
Loans or (C) the continuation of Eurodollar Loans beyond the expiration of the
then current Interest Period with respect thereto, the Agent shall forthwith
give facsimile or telephonic notice of such determination to the Company and
the Banks at least one day prior to, as the case may be, the requested
Borrowing Date for such Eurodollar Loans, the conversion date of such Loans or
the last day of such Interest Period. If such notice is given (x) any
requested Eurodollar Loans shall be made as Alternate Base Rate Loans, (y) any
Alternate Base Rate Loans that were to have been converted to Eurodollar Loans
shall be continued as Alternate Base Rate Loans and (z) any outstanding
Eurodollar Loans shall be converted, on the last day of the then current
Interest Period with respect thereto, to Alternate Base Rate Loans. Until such
notice has been withdrawn by the Agent, no further Eurodollar Loans shall be
made, nor shall the Company have the right to convert Alternate Base Rate Loans
to Eurodollar Loans. The Agent shall withdraw
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such notice upon its determination that the event or events which gave rise to
such notice no longer exist.
2.10 Pro Rata Borrowinqs and Payments. (a) Each borrowing by
the Company of Revolving Credit Loans shall be made ratably from the Banks in
accordance with their Commitment Percentages.
(b) Whenever any payment received by the Agent under this
Agreement or any Note is insufficient to pay in full all amounts then due and
payable to the Agent and the Banks under this Agreement and the Notes, and the
Agent has not received a Payment Sharing Notice (or if the Agent has received a
Payment Sharing Notice but the Event of Default specified in such Payment
Sharing Notice has been cured or waived), such payment shall be distributed and
applied by the Agent and the Banks in the following order: first, to the
payment of fees and expenses due and payable to the Agent under and in
connection with this Agreement; second, to the payment of all expenses due and
payable under subsection 10.5(a), ratably among the Banks in accordance with
the aggregate amount of such payments owed to each such Bank; third, to the
payment of fees due and payable under subsection 2.3, ratably among the Banks
in accordance with their Commitment Percentages; fourth, to the payment of
interest then due and payable under the Notes, ratably among the Banks in
accordance with the aggregate amount of interest owed to each such Bank; and
fifth, to the payment of the principal amount of the Notes which is then due
and payable, ratably among the Banks in accordance with the aggregate principal
amount owed to each such Bank.
(c) After the Agent has received a Payment Sharing Notice which
remains in effect, all payments received by the Agent under this Agreement
or any Note shall be distributed and applied by the Agent and the Banks in the
following order: first, to the payment of all amounts described in clauses
first through third of the foregoing paragraph (b), in the order set
forth therein; and second, to the payment of the interest accrued on and the
principal amount of all of the Notes, regardless of whether any such amount is
then due and payable, ratably among the Banks in accordance with the aggregate
accrued interest plus the aggregate principal amount owed to such Bank.
(d) all payments (including prepayments) to be made by the
Company on account of principal, interest and fees shall be made without
set-off or counterclaim and shall be made to the Agent, for the account of the
Banks, at the Agent's office set forth in subsection 10.2, in lawful money of
the United States of America and in immediately available funds. The Agent
shall distribute such payments to the Banks promptly upon receipt in like funds
as received. If any payment hereunder (other than payments on the CAF Loans
made pursuant to a LIBOR Auction Advance Request) becomes due and payable on a
day other than a Business Day, such payment shall be extended to the next
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succeeding Business Day, and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension. If
any payment on a CAF Loan made pursuant to a LIBOR Auction Advance Request
becomes due and payable on a day other than a Working Day, the maturity thereof
shall be extended to the next succeeding Working Day unless the result of such
extension would be to extend such payment into another calendar month in which
event such payment shall be made on the immediately preceding Working Day.
(e) Unless the Agent shall have been notified in writing by any
Bank prior to a Borrowing Date that such Bank will not make the amount which
would constitute its Commitment Percentage of the borrowing of Revolving Credit
Loans on such date available to the Agent, the Agent may assume that such Bank
has made such amount available to the Agent on such Borrowing Date, and the
Agent may, in reliance upon such assumption, make available to the Company a
corresponding amount. If such amount is made available to the Agent on a date
after such Borrowing Date, such Bank shall pay to the Agent on demand an amount
equal to the product of (i) the daily average Federal Funds Effective Rate
during such period as quoted by the Agent, times (ii) the amount of such Bank's
Commitment Percentage of such borrowing, times (iii) a fraction the numerator
of which is the number of days that elapse from and including such Borrowing
Date to the date on which such Bank's Commitment Percentage of such borrowing
shall have become immediately available to the Agent and the denominator of
which is 360. A certificate of the Agent submitted to any Bank with respect to
any amounts owing under this subsection 2.10 (e) shall be conclusive, absent
manifest error. If such Bank's Commitment Percentage of such borrowing is not
in fact made available to the Agent by such Bank within three Business Days of
such Borrowing Date, the Agent shall be entitled to recover such amount with
interest thereon at the rate per annum applicable to Alternate Base Rate Loans
hereunder, on demand, from the Company.
2.11 Illegality. Notwithstanding any other provisions herein,
if after the date hereof the adoption of or any change in any Requirement of
Law or in the interpretation or application thereof shall make it unlawful for
any Bank to make or maintain Eurodollar Loans as contemplated by this
Agreement, (a) the Bank shall, within 30 Working Days after it becomes aware of
such fact, notify the Company, through the Agent, of such fact, (b) the
commitment of such Bank hereunder to make Eurodollar Loans or convert Alternate
Base Rate Loans to Eurodollar Loans shall forthwith be cancelled and (c) such
Bank's Revolving Credit Loans then outstanding as Eurodollar Loans, if any,
shall be converted automatically to Alternate Base Rate Loans on the respective
last days of the then current Interest Periods for such Revolving Credit Loans
or within such earlier period as required by law. Each Bank shall take such
action as may be reasonably available to it without legal or financial
disadvantage (including changing its Eurodollar Lending Office) to prevent the
adoption of or any
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change in any such Requirement of Law from becoming applicable to it.
2.12 Requirements of Law. (a) If after the date hereof the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof or compliance by any Bank with any request or directive
(whether or not having the force of law) after the date hereof from any central
bank or other Governmental Authority:
(i) shall subject any Bank to any tax of any kind whatsoever
with respect to this Agreement, any Revolving Credit Note, any Letter
of Credit, any Application or any Eurodollar Loans made by it, or
change the basis of taxation of payments to such Bank of principal,
facility fee, interest or any.other amount payable hereunder in
respect of Revolving Credit Loans (except for changes in the rate of
tax on the overall net income of such Bank);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against
assets held by, or deposits or other liabilities in or for the account
of, advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Bank which are not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank, by
any amount which such Bank deems to be material, of making, renewing or
maintaining advances or extensions of credit (including, without limitation,
issuing or participating in Letters of Credit) or to reduce any amount
receivable hereunder, in each case, in respect thereof, then, in any such case,
the Company shall promptly pay such Bank, upon its demand, any additional
amounts necessary to compensate such Bank for such additional cost or reduced
amount receivable. If a Bank becomes entitled to claim any additional amounts
pursuant to this subsection 2.12(a), it shall, within 30 Business Days after it
becomes aware of such fact, notify the Company, through the Agent, of the event
by reason of which it has become so entitled. A certificate as to any
additional amounts payable pursuant to the foregoing sentence submitted by such
Bank, through the Agent, to the Company shall be conclusive in the absence of
manifest error. Each Bank shall take such action as may be reasonably
available to it without legal or financial disadvantage (including changing its
Eurodollar Lending Office) to prevent any such Requirement of Law or change
from becoming applicable to it. This covenant shall survive the termination of
this Agreement and payment of the outstanding Revolving Credit Notes and all
other amounts payable hereunder.
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(b) In the event that after the date hereof a Bank is required
to maintain reserves of the type contemplated by the definition of "Eurocurrency
Reserve Requirements", such Bank may require the Company to pay, promptly after
receiving notice of the amount due, additional interest on the related
Eurodollar Loan of such Bank at a rate per annum determined by such Bank up to
but not exceeding the excess of (i) (A) the applicable Eurodollar Rate divided
by (B) one minus the Eurocurrency Reserve Requirements over (ii) the applicable
Eurodollar Rate. Any Bank wishing to require payment of any such additional
interest on account of any of its Eurodollar Loans shall notify the Company no
more than 30 Working Days after each date on which interest is payable on such
Eurodollar Loan of the amount then due it under this subsection 2.12 (b), in
which case such additional interest on such Eurodollar Loan shall be payable to
such Bank at the place indicated in such notice. Each such notification shall
be accompanied by such information as the Company may reasonably request.
2.13 Capital Adequacy. If any Bank shall have determined that
after the date hereof the adoption of or any change in any Requirement of Law
regarding capital adequacy or in the interpretation or application thereof or
compliance by such Bank or any corporation controlling such Bank with any
request or directive after the date hereof regarding capital adequacy (whether
or not having the force of law) from any central bank or Governmental
Authority, does or shall have the effect of reducing the rate of return on such
Bank's or such corporation's capital as a consequence of its obligations
hereunder or under any Letter of Credit to a level below that which such Bank
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Bank's or such corporation's
policies with respect to capital adequacy) by an amount which is reasonably
deemed by such Bank to be material, then from time to time, promptly after
submission by such Bank, through the Agent, to the Company of a written request
therefor (such request shall include details reasonably sufficient to establish
the basis for such additional amounts payable and shall be submitted to the
Company within 30 Working Days after it becomes aware of such fact), the
Company shall promptly pay to such Bank such additional amount or amounts as
will compensate such Bank for such reduction. The agreements in this
subsection 2.13 shall survive the termination of this Agreement and payment of
the Loans and the Notes and all other amounts payable hereunder.
2.14 Taxes. (a) All payments made by the Company under this
Agreement shall be made free and clear of, and without reduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority excluding, in the case of the Agent and each Bank, net income and
franchise taxes imposed on the Agent or
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such Bank by the jurisdiction under the laws of which the Agent or such Bank is
organized or any political subdivision or taxing authority thereof or therein,
or by any jurisdiction in which such Bank's Domestic Lending Office or
Eurodollar Lending Office, as the case may be, is located or any political
subdivision or taxing authority thereof or therein (all such non-excluded
taxes, levies, imposts, deductions, charges or withholdings being hereinafter
called "Taxes"). If any Taxes are required to be withheld from any amounts
payable to the Agent or any Bank hereunder or under the Notes, the amounts so
payable to the Agent or such Bank shall be increased to the extent necessary to
yield to the Agent or such Bank (after payment of all Taxes) interest or any
such other amounts payable hereunder at the rates or in the amounts specified
in this Agreement and the Notes. Whenever any Taxes are payable by the
Company, as promptly as possible thereafter, the Company shall send to the
Agent for its own account or for the account of such Bank, as the case may be,
a certified copy of an original official receipt received by the Company
showing payment thereof. If the Company fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Agent the required
receipts or other required documentary evidence, the Company shall indemnify
the Agent and the Banks for any incremental taxes, interest or penalties that
may become payable by the Agent or any Bank as a result of any such failure.
(b) 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 the
Company and the Agent (i) two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224 or successor applicable form, as the case may
be, certifying in each case that such Bank is entitled to receive payments
under this Agreement and the Notes payable to it, without deduction or
withholding of any United States federal income taxes, and (ii) Internal Revenue
Service Form W-8 or W-9 or successor applicable form, as the case may be, to
establish an exemption from United States backup withholding tax. Each Bank
which delivers to the Company and the Agent a Form 1001 or 4224 and Form W-8 or
W-9 pursuant to the next preceding sentence further undertakes to deliver to
the Company and the Agent two further copies of the said letter and Form 1001
or 4224 and Form W-8 or W-9, or successor applicable forms, or other manner of
certification, as the case may be, on or before the date that any such letter
or form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent letter and form previously delivered by
it to the Company, and such extensions or renewals thereof as may reasonably be
requested by the Company, certifying in the case of a Form 1001 or 4224 that
such Bank is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes, unless in
any such cases 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
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inapplicable or which would prevent such Bank from duly completing and
delivering any such letter or form with respect to it and such Bank advises the
Company that it is not capable of receiving payments without any deduction or
withholding of United States federal income tax, and in the case of a Form W-8
or W-9, establishing an exemption from United States backup withholding tax.
(c) The agreements in subsection 2.14 shall survive the
termination of this Agreement and the payment of the Notes and all other
amounts payable hereunder.
2.15 Indemnity. The Company agrees to indemnify each Bank and
to hold each Bank harmless from any loss or expense (other than any loss of
anticipated margin or profit) which such Bank may sustain or incur as a
consequence of (a) default by the Company in payment when due of the principal
amount of or interest on any Eurodollar Loans of such Bank, (b) default by the
Company in making a borrowing or conversion after the Company has given a
notice of borrowing in accordance with subsection 2.1 (c) or a notice of
continuation or conversion pursuant to subsection 2.6, (c) default by the
Company in making any prepayment after the Company has given a notice in
accordance with subsection 2.5 or (d) the making of a prepayment of a
Eurodollar Loan on a day which is not the last day of an Interest Period with
respect thereto, including, without limitation, in each case, any such loss or
expense arising from the reemployment of funds obtained by it to maintain its
Eurodollar Loans hereunder or from fees payable to terminate the deposits from
which such funds were obtained. Any Bank claiming any amount under this
subsection 2.15 shall provide calculations, in reasonable detail, of the amount
of its loss or expense. This covenant shall survive termination of this
Agreement and payment of the outstanding Notes and all other amounts payable
hereunder.
2.16 Application of Proceeds of Loans. Subject to the
provisions of the following sentence, the Company may use the proceeds of the
Loans for any lawful corporate purpose. The Company will not, directly or
indirectly, apply any part of the proceeds of any such Loan for the purpose of
"purchasing" or "carrying" any "margin stock" within the respective meanings of
each of the quoted terms under Regulation U, or to refund any indebtedness
incurred for such purpose.
2.17 Notice of Certain Circumstances; Assignment of Commitments
Under Certain Circumstances. (a) Any Bank claiming any additional amounts
payable pursuant to subsections 2.12, 2.13 or 2.14 or exercising its rights
under subsection 2.11, shall, in accordance with the respective provisions
thereof, provide notice to the Company and the Agent. Such notice to the
Company and the Agent shall include details reasonably sufficient to establish
the basis for such additional amounts payable or the rights to be exercised by
the Bank.
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(b) Any Bank claiming any additional amounts payable pursuant to
subsections 2.12, 2.13 or 2.14 or exercising its rights under subsection 2.11,
shall use reasonable efforts (consistent with legal and regulatory
restrictions) to file any certificate or document requested by the Company or
to change the jurisdiction of its applicable lending office if the making of
such filing or change would avoid the need for or reduce the amount of any such
additional amounts which may thereafter accrue or avoid the circumstances
giving rise to such exercise and would not, in the sole determination of such
Bank, be otherwise disadvantageous to such Bank.
(c) In the event that the Company shall be required to make
any additional payments to any Bank pursuant to subsections 2.12, 2.13
or 2.14 or any Bank shall exercise its rights under subsection 2.11, the
Company shall have the right at its own expense, upon notice to such Bank and
the Agent, to require such Bank to transfer and to assign without recourse (in
accordance with and subject to the terms of subsection 10.6) all its interest,
rights and obligations under this Agreement to another financial institution
(including any Bank) acceptable to the Agent (which approval shall not be
unreasonably withheld) which shall assume such obligations; provided that (i) no
such assignment shall conflict with any Requirement of Law and (ii) such
assuming financial institution shall pay to such Bank in immediately available
funds on the date of such assignment the outstanding principal amount of such
Bank's Notes together with accrued interest thereon and all other amounts
accrued for its account or owed to it hereunder, including, but not limited to
additional amounts payable under subsections 2.3, 2.11, 2.12, 2.13, 2.14 and
2.15.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Sublimit. (a) Subject to the terms and conditions
hereof, the Issuing Bank, in reliance on the agreements of the other
Banks set forth in subsection 3.4 (a), agrees to issue letters of credit
("Letters of Credit") for the account of the Company on any Business Day during
the Commitment Period in such form as may be approved from time to time by the
Issuing Bank; provided that the Issuing Bank shall have no obligation to issue
any Letter of Credit if, after giving effect to such issuance, (i) the L/C
Obligations would exceed the L/C Sublimit or (ii) the Available Commitment
would be less than zero. Each Letter of Credit shall (i) be denominated in
Dollars, (ii) be a standby letter of credit issued to support obligations of
the Company or its Subsidiaries, contingent or otherwise (a "Standby Letter of
Credit") and (iii) expire no later than the Termination Date.
(b) Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the
State of New York.
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(c) The Issuing Bank shall not at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with, or cause
the Issuing Bank or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
(d) No Letter of Credit shall have an expiry date more than 365
days after its date of issuance.
3.2 Procedure for Issuance of Letters of Credit. The Company
may from time to time request that the Issuing Bank issue a Letter of Credit by
delivering to the Issuing Bank at its address for notices specified herein an
Application therefor, completed to the satisfaction of the Issuing Bank, and
such other certificates, documents and other papers and information as the
Issuing Bank may request. Upon receipt of any Application, the Issuing Bank
will process such Application and the certificates, documents and other papers
and information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall the Issuing Bank be required to issue any Letter
of Credit earlier than three Business Days after its receipt of the
Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed by the
Issuing Bank and the Company. The Issuing Bank shall furnish a copy of such
Letter of Credit to the Company promptly following the issuance thereof.
3.3 Fees, Commissions and Other Charges. (a) The Company
shall pay to the Agent, for the account of the Issuing Bank and the L/C
Participants, a letter of credit commission with respect to each Letter of
Credit, computed for the period from the date of issuance to the expiry date
thereof at the rate of .45% per annum, calculated on the basis of a 365-day (or
366-day, as the case may be) year, on the face amount of each such Letter of
Credit, of which .125% per annum shall be payable to the Issuing Bank and .325%
per annum shall be payable to the L/C Participants to be shared ratably among
them in accordance with their respective Commitment Percentages. Such fee
shall be payable in advance on the date of issuance of each Letter of Credit
and on each L/C Fee Payment Date to occur thereafter and shall be
nonrefundable.
(b) In addition to the foregoing fees, the Company shall pay or
reimburse the Issuing Bank for such normal and customary costs and expenses as
are incurred or charged by the Issuing Bank in issuing, effecting payment
under, amending or otherwise administering any Letter of Credit.
(c) The Agent shall, promptly following its receipt thereof,
distribute to the Issuing Bank and the L/C Participants
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all fees received by the Agent for their respective accounts pursuant to this
subsection.
3.4 L/C Participation. (a) The Issuing Bank irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to
induce the Issuing Bank to issue Letters of Credit hereunder, each L/C
Participant irrevocably agrees to accept and purchase and hereby accepts and
purchases from the Issuing Bank, on the terms and conditions hereinafter
stated, for such L/C Participant's own account and risk an undivided interest
equal to such L/C Participant's Commitment Percentage in the Issuing Bank's
obligations and rights under each Letter of Credit issued hereunder and the
amount of each draft paid by the Issuing Bank thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Bank that, if a draft
is paid under any Letter of Credit for which the Issuing Bank is not reimbursed
in full by the Company in accordance with the terms of this Agreement, such L/C
Participant shall pay to the Issuing Bank upon demand at the Issuing Bank's
address for notices specified herein an amount equal to such L/C Participant's
Commitment Percentage of the amount of such draft, or any part thereof, which
is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to
the Issuing Bank pursuant to subsection 3.4(a) in respect of any unreimbursed
portion of any payment made by the Issuing Bank under any Letter of Credit is
paid to the Issuing Bank within three Business Days after the date such payment
is due, such L/C Participant shall pay to the Issuing Bank on demand an amount
equal to the product of (i) such amount, times (ii) the daily average Federal
funds rate, as quoted by the Issuing Bank, during the period from and including
the date such payment is required to the date on which such payment is
immediately available to the Issuing Bank, times (iii) a fraction the numerator
of which is the number of days that elapse during such period and the
denominator of which is 360. If any such amount required to be paid by any
L/C Participant pursuant to subsection 3.4(a) is not in fact made available to
the Issuing Bank by such L/C Participant within three Business Days after the
date such payment is due, the Issuing Bank shall be entitled to recover from
such L/C Participant, on demand, such amount with interest thereon calculated
from such due date at the rate per annum applicable to Revolving Credit Loans
that are Alternate Base Rate Loans hereunder. A certificate of the Issuing Bank
submitted to any L/C Participant with respect to any amounts owing under this
subsection shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Bank has made
payment under any Letter of Credit and has received from any L/C Participant
its pro rata share of such payment in accordance with subsection 3.4(a), the
Issuing Bank receives any payment related to such Letter of Credit (whether
directly from the Company or otherwise, including proceeds of collateral, if
any, applied thereto by the Issuing Bank), or any payment of interest
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on account thereof, the Issuing Bank will distribute to such L/C Participant
its pro rata share thereof; provided, however, that in the event that any such
payment received by the Issuing Bank shall be required to be returned by the
Issuing Bank, such L/C Participant shall return to the Issuing Bank the portion
thereof previously distributed by the Issuing Bank to it.
3.5 Reimbursement Obligation of the Borrower. The Company
agrees to reimburse the Issuing Bank on each date on which the Issuing Bank
notifies the Company of the date and amount of a draft presented under any
Letter of Credit and paid by the Issuing Bank for the amount of (a) such draft
so paid and (b) any taxes, fees, charges or other costs or expenses incurred by
the Issuing Bank in connection with such payment. Each such payment shall be
made to the Issuing Bank at its address for notices specified herein in lawful
money of the United States of America and in immediately available funds.
Interest shall be payable on any and all amounts remaining unpaid by the
Company under this subsection from the date such amounts become payable
(whether at stated maturity, by acceleration or otherwise) until payment in
full at a rate per annum equal to the Alternate Base Rate plus 2%.
3.6 Obligations Absolute. The Company's obligations under
this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which the Company may have or have had against the Issuing Bank or any
beneficiary of a Letter of Credit. The Company also agrees with the Issuing
Bank that the Issuing Bank shall not be responsible for, and the Company's
Reimbursement Obligations under subsection 3.5 shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Company and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Company against any
beneficiary of such Letter of Credit or any such transferee. The Issuing Bank
shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions caused by the Issuing Bank's gross negligence or willful misconduct.
The Company agrees that any action taken or omitted by the Issuing Bank under
or in connection with any Letter of Credit or the related drafts or documents,
if done in the absence of gross negligence of willful misconduct and in
accordance with the standards of care specified in the Uniform Commercial Code
of the State of New York, shall be binding on the Company and shall not result
in any liability of the Issuing Bank to the Company.
3.7 Letter of Credit Payments. If any draft shall be presented
for payment under any Letter of Credit, the Issuing
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Bank shall promptly notify the Company of the date and amount thereof. The
responsibility of the Issuing Bank to the Company in connection with any draft
presented for payment under any Letter of Credit shall, in addition to any
payment obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are in conformity with
such Letter of Credit.
3.8 Application. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants that:
4.1 Corporate Existence; Compliance with Law. Each of the
Company and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
the corporate power and authority, and the legal right, to make, deliver and
perform the Loan Documents to which it is a party, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification and (d) is in compliance with all Requirements of
Law, including, without limitation, HMO Regulations and Insurance Regulations,
except to the extent that the failure to be so qualified or to comply therewith
could not have a Material Adverse Effect.
4.2 No Legal Obstacle to Agreement; Enforceability. Neither the
execution and delivery of any Loan Document, nor the making by the Company of
any borrowings hereunder, nor the consummation of any transaction herein or
therein referred to or contemplated hereby or thereby nor the fulfillment of
the terms hereof or thereof or of any agreement or instrument referred to in
this Agreement, has constituted or resulted in or will constitute or result in
a breach of any Requirement of Law, including without limitation, HMO
Regulations and Insurance Regulations, or any Contractual Obligation of the
Company or any of its Subsidiaries, or result in the creation under any
agreement or instrument of any security interest, lien, charge or encumbrance
upon any of the assets of the Company or any of its Subsidiaries. No approval,
authorization or other action by any Governmental Authority, including, without
limitation, HMO Regulators and Insurance Regulators, or any other Person is
required to be obtained by the Company or any of its Subsidiaries in connection
with the execution, delivery and performance of
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this Agreement or the other Loan Documents or the transactions contemplated
hereby or thereby, or the making of any borrowing by the Company hereunder.
This Agreement has been, and each other Loan Document will be, duly executed
and delivered on behalf of the Company. This Agreement constitutes, and each
other Loan Document when executed and delivered will constitute, a legal, valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
4.3 Litigation. Except as disclosed in the Company's
Annual Report on Form 10-K for its fiscal year ended August 31, 1992 and the
Company's Quarterly Reports on Form 10-Q for its fiscal quarters ended March 31,
1993, June 30, 1993 and September 30, 1993 filed with the Securities and
Exchange Commission and previously distributed to the Banks, there is
no litigation, at law or in equity, or any proceeding before any federal,
state, provincial or municipal board or other governmental or administrative
agency, including without limitation, HMO Regulators and Insurance Regulators,
pending or to the knowledge of the Company threatened which, after giving
effect to any applicable insurance, may involve any material risk of a Material
Adverse Effect or which seeks to enjoin the consummation of any of the
transactions contemplated by this Agreement or any other Loan Document, and no
judgment, decree, or order of any federal, state, provincial or municipal
court, board or other governmental or administrative agency, including without
limitation, HMO Regulators and Insurance Regulators, has been issued against
the Company or any Subsidiary which has, or may involve, a material risk of a
Material Adverse Effect. The Company does not believe that the final
resolution of the matters disclosed in its Annual Report on Form 10-K for its
fiscal year ended August 31, 1992 and the Company's Quarterly Reports on
Form 10-Q for its fiscal quarters ended March 31, 1993, June 30, 1993 and
September 30, 1993 filed with the Securities and Exchange Commission and
previously distributed to the Banks, will have a Material Adverse Effect.
4.4 Disclosure. Neither this Agreement nor any agreement,
document, certificate or statement furnished to the Banks by the Company in
connection herewith (including, without limitation, the information
relating to the Company and its Subsidiaries included in the Confidential
Information Memorandum dated December 1993 delivered in connection with the
syndication of the credit facilities hereunder) contains any untrue statement
of material fact or, taken as a whole together with all other information
furnished to Banks by the Company, omits to state a material fact necessary in
order to make the statements contained herein or therein not misleading. All
pro forma financial statements made available to Banks have been prepared in
good
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faith based upon reasonable assumptions. There is no fact known to the Company
which materially adversely affects or in the future may (so far as the Company
can now foresee) materially adversely affect the business, operations, affairs
or condition of the Company and its Subsidiaries on a consolidated basis,
except to the extent that they may be affected by future general economic
conditions.
4.5 Defaults. Neither the Company nor any of its Subsidiaries is
in default under or with respect to any Requirement of Law or Contractual
Obligation in any respect which has had, or may have, a Material Adverse
Effect. No Default or Event of Default has occurred and is continuing.
4.6 Financial Condition. The Company has furnished to the
Agent and each Bank copies of the following:
(a) The Annual Report of the Company on Form 10-K for the
fiscal year ended August 31, 1992;
(b) the Quarterly Reports of the Company on Form 10-Q for each
of the fiscal quarters ended November 30, 1992, March 31, 1993, June
30, 1993 and September 30, 1993; and
(c) the Proxy Statement of the Company dated January 22, 1993.
The financial statements included therein, including the related schedules and
notes thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as disclosed therein). As of the date
of such financial statements, neither the Company nor any of its Subsidiaries
had any known contingent liabilities of any significant amount which in
accordance with GAAP are required to be referred to in said financial
statements or in the notes thereto which could reasonably be expected to have a
Material Adverse Effect. During the period from August 31, 1992 to and
including the date hereof, there has been no sale, transfer or other
disposition by the Company or any of its consolidated Subsidiaries of any asset
reflected on the balance sheet referred to above that would have been a
material part of its business or property (excluding the spin-off of the
Company's hospital business as described in the Proxy Statement referred to in
subsection 4.6(c)) and no purchase or other acquisition of any business or
property (including any capital stock of any other Person) material in relation
to the consolidated financial condition of the Company and its consolidated
Subsidiaries at August 31, 1992.
4.7 Changes in Condition. Since August 31, 1992, there has been
no development or event nor any prospective development or event, which has
had, or may have, a Material Adverse Effect.
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4.8 Assets. The Company and each Subsidiary have good and
marketable title to all material assets carried on their books and reflected in
the financial statements referred to in subsection 4.6 or furnished pursuant to
subsection 6.4, except for assets held on Financing Leases or purchased subject
to security devices providing for retention of title in the vendor, and except
for assets disposed of as permitted by this Agreement.
4.9 Tax Returns. The Company and each of its Subsidiaries have
filed all tax returns which are required to be filed and have paid, or made
adequate provision for the payment of, all taxes which have or may become due
pursuant to said returns or to assessments received. All federal tax returns
of the Company and its Subsidiaries through their fiscal years ended in 1987
have been audited by the Internal Revenue Service or are not subject to such
audit by virtue of the expiration of the applicable period of limitations, and
the results of such audits are fully reflected in the balance sheets referred
to in subsection 4.6. The Company knows of no material additional assessments
since said date for which adequate reserves appearing in the said balance sheet
have not been established.
4.10 Contracts, etc. Attached hereto as Schedule III is a
statement of outstanding Indebtedness of the Company and its Subsidiaries for
borrowed money in excess of $1,000,000 as of the date set forth therein, and a
complete and correct list of all agreements, contracts, indentures,
instruments, documents and amendments thereto to which the Company or any
Subsidiary is a party or by which it is bound pursuant to which any such
Indebtedness of the Company and its Subsidiaries is outstanding on the date
hereof. Said Schedule III also includes a complete and correct list of all
such Indebtedness of the Company and its Subsidiaries outstanding on the date
indicated in respect of Guarantee Obligations in excess of $1,000,000 and
letters of credit in excess of $1,000,000, and there have been no increases in
such Indebtedness since said date other than as permitted by this Agreement.
4.11 Subsidiaries. As of the date hereof, the Company has only
the Subsidiaries set forth in Schedule IV, all of the outstanding capital stock
of each of which is duly authorized, validly issued, fully paid and
nonassessable and owned as set forth in said Schedule IV. Schedule IV
indicates all Subsidiaries of the Company which are not Wholly-Owned
Subsidiaries and the percentage ownership of the Company and its Subsidiaries
in each such Subsidiary. The capital stock and securities owned by the Company
and its Subsidiaries in each of the Company's Subsidiaries are owned free and
clear of any mortgage, pledge, lien, encumbrance, charge or restriction on the
transfer thereof other than restrictions on transfer imposed by applicable
securities laws and restrictions, liens and encumbrances outstanding on the
date hereof and listed in said Schedule IV.
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4.12 Burdensome Obligations. Neither the Company nor any
Subsidiary is a party to or bound by any agreement, deed, lease or other
instrument, or subject to any charter, by-law or other corporate restriction
which, in the opinion of the management thereof, is so unusual or burdensome as
to in the foreseeable future have a Material Adverse Effect. The Company does
not presently anticipate that future expenditures of the Company and its
Subsidiaries needed to meet the provisions of any federal or state statutes,
orders, rules or regulations will be so burdensome as to have a Material
Adverse Effect.
4.13 Pension Plans. Each Plan maintained by the Company, any
Subsidiary or any Control Group Person or to which any of them makes or will
make contributions is in material compliance with the applicable provisions of
ERISA and the Code. Neither the Company nor any Subsidiary nor any Control
Group Person maintains, contributes to or participates in any Plan that is a
"defined benefit plan" as defined in ERISA. Neither the Company, any
Subsidiary, nor any Control Group Person has since August 31, 1987 maintained,
contributed to or participated in any Multiemployer Plan, with respect to which
a complete withdrawal would result in any withdrawal liability. The Company
and its Subsidiaries have met all of the funding standards applicable to all
Plans that are not Multiemployer Plans, and there exists no event or condition
which would permit the institution of proceedings to terminate any Plan that is
not a Multiemployer Plan. The current value of the benefits guaranteed under
Title IV of ERISA of each Plan that is not a Multiemployer Plan does not exceed
the current value of such Plan's assets allocable to such benefits.
4.14 Environmental and Public and Employee Health and Safety
Matters. The Company and each Subsidiary has complied with all applicable
Federal, state, and other laws, rules and regulations relating to environmental
pollution or to environmental regulation or control or to public or employee
health or safety, except to the extent that the failure to so comply would not
be reasonably likely to result in a Material Adverse Effect. The Company's and
the Subsidiaries' facilities do not contain, and have not previously contained,
any hazardous wastes, hazardous substances, hazardous materials, toxic
substances or toxic pollutants regulated under the Resource Conservation and
Recovery Act, the Comprehensive Environmental Response Compensation and
Liability Act, the Hazardous Materials Transportation Act, the Toxic Substance
Control Act, the Clean Air Act, the Clean Water Act or any other applicable law
relating to environmental pollution or public or employee health and safety, in
violation of any such law, or any rules or regulations promulgated pursuant
thereto, except for violations that would not be reasonably likely to result in
a Material Adverse Effect. The Company is aware of no events, conditions or
circumstances involving environmental pollution or contamination or public or
employee health or safety, in each case applicable to it or its
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Subsidiaries, that would be reasonably likely to result in a Material Adverse
Effect.
4.15 Federal Regulations. No part of the proceeds of any Loans
will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U as now and
from time to time hereafter in effect or for any purpose which violates the
provisions of the Regulations of the Board of Governors of the Federal Reserve
System. If requested by any Bank or the Agent, the Company will furnish to the
Agent and each Bank a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in said Regulation U.
4.16 Investment Company Act; Other Regulations. The Company is
not an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
The Company is not subject to regulation under any Federal or State statute or
regulation which limits its ability to incur Indebtedness.
4.17 Solvency. Each of the Company, and the Company and its
Subsidiaries taken as a whole, is Solvent.
4.18 Casualties. Neither the businesses nor the properties of
the Company or any of its Subsidiaries are affected by any fire, explosion,
accident, strike, lockout or other material labor dispute, drought, storm,
hail, earthquake, embargo, act of God or of the public enemy or other casualty
(whether or not covered by insurance) that could reasonably be expected to have
a Material Adverse Effect.
4.19 Business Activity. Neither the Company nor any of its
Subsidiaries is engaged in any line of business that is not related to the
healthcare industry other than the sale of life insurance in connection with
the sale of medical insurance or other healthcare services or any business or
activity which is immaterial to the Company and its Subsidiaries on a
consolidated basis.
4.20 Purpose of Loans. The proceeds of the Loans shall be used
by the Company for general corporate purposes.
SECTION 5. CONDITIONS
5.1 Conditions to the Closing Date. The obligations of each Bank
to make the Loans contemplated by subsections 2.1 and 2.2 and of the Issuing
Bank to issue Letters of Credit contemplated by subsection 3.1 shall be subject
to the compliance by the Company with its agreements herein contained and to
the satisfaction of the following conditions on or before the Closing Date:
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(a) Loan Documents. The Agent shall have received (i) this
Agreement, executed and delivered by a duly authorized officer of the
Company, with a counterpart for each Bank and (ii) for the account of
each Bank, a Revolving Credit Note and a Grid CAF Loan Note conforming
to the requirements hereof and executed by a duly authorized officer
of the Company.
(b) Legal Opinions. On the Closing Date and on any Borrowing
Date as the Agent shall request, each Bank shall have received from
any general, associate, or assistant general counsel to the Company,
such opinions as the Agent shall have reasonably requested with
respect to the transactions contemplated by this Agreement.
(c) Closing Certificate. The Agent shall have received, with
a counterpart for each Bank, a Closing Certificate, substantially in
the form of Exhibit H and dated the Closing Date, executed by a
Responsible Officer of the Company.
(d) Legality, etc. The consummation of the transactions
contemplated hereby shall not contravene, violate or conflict with,
nor involve the Agent, the Issuing Bank or any Bank in any violation
of, any Requirement of Law including, without limitation, HMO
Regulations and Insurance Regulations, and all necessary consents,
approvals and authorizations of any Governmental Authority or any
Person to or of such consummation shall have been obtained and shall
be in full force and effect.
(e) Fees. The Agent shall have received the fees to be
received on the Closing Date referred to in subsection 2.3.
(f) Corporate Proceedings. The Agent shall have received,
with a counterpart for each Bank, a copy of the resolutions, in form
and substance satisfactory to the Agent, of the Board of Directors of
the Company authorizing (i) the execution, delivery and performance of
this Agreement, the Notes and the other Loan Documents, and (ii) the
borrowings contemplated hereunder, certified by the Secretary or an
Assistant Secretary of the Company as of the Closing Date, which
certificate shall state that the resolutions thereby certified have
not been amended, modified, revoked or rescinded and shall be in form
and substance satisfactory to the Agent.
(g) Corporate Documents. The Agent shall have received, with
a counterpart for each Bank, true and complete copies of the
certificate of incorporation and by-laws of the Company, certified as
of the Closing Date as complete and correct copies thereof by the
Secretary or an Assistant Secretary of the Company.
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(h) No Material Litigation. Except as previously disclosed to
the Agent and the Banks pursuant to subsection 4.3, no litigation,
inquiry, investigation, injunction or restraining order (including
any proposed statute, rule or regulation) shall be pending, entered
or threatened which, in the reasonable judgment of the Majority
Banks, could reasonably be expected to have a Material Adverse Effect.
(i) Incumbency Certificate. The Agent shall have received,
with a counterpart for each Bank, a certificate of the Secretary or
an Assistant Secretary of the Company, dated the Closing Date, as to
the incumbency and signature of the officers of the Company executing
each Loan Document and any certificate or other document to be
delivered by it pursuant hereto and thereto, together with evidence of
the incumbency of such Secretary or Assistant Secretary.
(j) Good Standing Certificates. The Agent shall have
received, with a copy for each Bank, copies of certificates dated as
of a recent date from the Secretary of State or other appropriate
authority of such jurisdiction, evidencing the good standing of the
Company in its jurisdiction of incorporation and in Kentucky.
(k) No Change. There shall not have occurred any change, or
development of event involving a prospective change, and a Bank shall
not have become aware of any previously undisclosed information,
which in either case in the reasonable judgment of the Majority Banks
could reasonably be expected to have a Material Adverse Effect.
5.2 Conditions to Each Loan. The agreement of each Bank to make
any extension of credit requested to be made by it on any date is subject to
the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Company and its
Subsidiaries in or pursuant to the Loan Documents shall be true and
correct in all material respects on and as of such date as if made on
and as of such date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Loans requested to be made on such date.
(c) Additional Matters. All corporate and other proceedings,
and all documents, instruments and other legal matters in connection
with the transactions contemplated by this Agreement and the other
Loan Documents shall be satisfactory in form and substance to the
Agent, and the Agent shall have received such other documents,
instruments, legal opinions or other items of information reasonably
requested by it, including, without limitation, copies of
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any debt instruments, security agreements or other material
contracts to which the Company may be a party in respect of any aspect
or consequence of the transactions contemplated hereby or thereby as
it shall reasonably request.
Each borrowing by the Company hereunder shall constitute a representation and
warranty by the Company as of the date of such extension of credit that the
conditions contained in this subsection 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Company hereby agrees that, from and after the Closing Date
and so long as the Commitments remain in effect, any Note or Letter of Credit
remains outstanding and unpaid or any other amount is owing to any Bank or the
Agent hereunder, the Company shall and (except in the case of delivery of
financial information, reports and notices) shall cause each of its
Subsidiaries to:
6.1 Taxes, Indebtedness, etc. Duly pay, discharge or otherwise
satisfy, or cause to be paid, discharged or otherwise satisfied, before the
same shall become in arrears, all taxes, assessments, levies and other
governmental charges imposed upon such corporation and its properties, sales
and activities, or any part thereof, or upon the income or profits therefrom;
provided, however, that any such tax, assessment, charge or levy need not be
paid if the validity or amount thereof shall currently be contested in good
faith by appropriate proceedings and if the Company or the Subsidiary in
question shall have set aside on its books appropriate reserves in conformity
with GAAP with respect thereto. Each of the Company and its Subsidiaries will
promptly pay when due, or in conformance with customary trade terms, all other
Indebtedness, liabilities and other obligations of whatever nature incident to
its operations; provided, however, that any such Indebtedness, liability or
obligation need not be paid if the validity or amount thereof shall currently
be contested in good faith and if the Company or the Subsidiary in question
shall have set aside on its books appropriate reserves in conformity with GAAP
with respect thereto.
6.2 Maintenance of Properties; Maintenance of Existence. Keep
its material properties in good repair, working order and condition and will
from time to time make all necessary and proper repairs, renewals,
replacements, additions and improvements thereto and will comply at all times
with the provisions of all material leases and other material agreements to
which it is a party so as to prevent any loss or forfeiture thereof or
thereunder unless compliance therewith is being contested in good faith by
appropriate proceedings and if the Company or the Subsidiary in question shall
have set aside on its books appropriate reserves in conformity with GAAP with
respect thereto; and in the case of the Company or any Subsidiary of the
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Company while such Person remains a Subsidiary, will do all things necessary to
preserve, renew and keep in full force and effect and in good standing its
corporate existence and all rights, privileges and franchises necessary or
desirable to continue such businesses.
6.3 Insurance. Maintain or cause to be maintained, with
financially sound and reputable insurers including any Subsidiary which is
engaged in the business of providing insurance protection, insurance
(including, without limitation, public liability insurance, business
interruption insurance, reinsurance for medical claims and professional
liability insurance against claims for malpractice) with respect to its
material properties and business and the properties and business of its
Subsidiaries in at least such amounts and against at least such risks as are
customarily carried under similar circumstances by other corporations engaged
in the same or a similar business; and furnish to each Bank, upon written
request, full information as to the insurance carried. Such insurance may be
subject to co-insurance, deductibility or similar clauses which, in effect,
result in self-insurance of certain losses, and the Company may self-insure
against such loss or damage, provided that adequate insurance reserves are
maintained in connection with such self-insurance.
6.4 Financial Statements. The Company will and will cause each
of its Subsidiaries to maintain a standard modern system of accounting in which
full, true and correct entries will be made of all dealings or transactions in
relation to its business and affairs in accordance with GAAP consistently
applied, and will furnish the following to each Bank (in duplicate if so
requested):
(a) Annual Statements. As soon as available, and in any event
within 120 days after the end of each fiscal year, the consolidated
balance sheet as at the end of each fiscal year and consolidated
statements of profit and loss and of retained earnings for such fiscal
year of the Company and its Subsidiaries, together with comparative
consolidated figures for the next preceding fiscal year, accompanied
by reports or certificates of Coopers & Xxxxxxx, or, if they cease to
be the auditors of the Company, of other independent public
accountants of national standing and reputation, to the effect that
such balance sheet and statements were prepared in accordance with
GAAP consistently applied and fairly present the financial position of
the Company and its Subsidiaries as at the end of such fiscal year and
the results of their operations and changes in financial position for
the year then ended and the statement of such accountants and of the
treasurer of the Company that such said accountants and treasurer have
caused the provisions of this Agreement to be reviewed and that
nothing has come to their attention to lead them to believe that any
Default exists hereunder or, if such is not
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the case, specifying such Default or possible Default and the
nature thereof. In addition, such financial statements shall be
accompanied by a certificate of the treasurer of the Company
containing computations showing compliance with subsections 7.1, 7.2,
7.3 and 7.5.
(b) Quarterly Statements. As soon as available, and in any
event within 60 days after the close of each of the first three fiscal
quarters of the Company and its Subsidiaries in each year,
consolidated balance sheets as at the end of such fiscal quarter and
consolidated profit and loss and retained earnings statements for the
portion of the fiscal year then ended, of the Company and its
Subsidiaries, together with computations showing compliance with
subsections 7.1, 7.2, 7.3 and 7.5, accompanied by a certificate of the
treasurer of the Company that such statements and computations have
been properly prepared in accordance with GAAP, consistently applied,
and fairly present the financial position of the Company and its
Subsidiaries as at the end of such fiscal quarter and the results of
their operations and changes in financial position for such quarter
and for the portion of the fiscal year then ended, subject to normal
audit and year-end adjustments, and to the further effect that he has
caused the provisions of this Agreement and all other agreements to
which the Company or any of its Subsidiaries is a party and which
relate to Indebtedness to be reviewed, and has no knowledge that any
Default has occurred under this Agreement or under any such other
agreement, or, if said treasurer has such knowledge, specifying such
Default and the nature thereof.
(c) ERISA Reports. The Company will furnish the Agent with
copies of any request for waiver of the funding standards or extension
of the amortization periods required by Sections 303 and 304 of ERISA
or Section 412 of the Code promptly after any such request is
submitted by the Company to the Department of Labor or the Internal
Revenue Service, as the case may be. Promptly after a Reportable
Event occurs, or the Company or any of its Subsidiaries receives
notice that the PBGC or any Control Group Person has instituted or
intends to institute proceedings to terminate any pension or other
Plan, or prior to the Plan administrator's terminating such Plan
pursuant to Section 4041 of ERISA, the Company will notify the Agent
and will furnish to the Agent a copy of any notice of such Reportable
Event which is required to be filed with the PBGC, or any notice
delivered by the PBGC evidencing its institution of such proceedings
or its intent to institute such proceedings, or any notice to the PBGC
that a Plan is to be terminated, as the case may be. The Company will
promptly notify each Bank upon learning of the occurrence of any of
the following events with respect to any Plan which is a Multiemployer
Plan: a partial or complete withdrawal from
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any Plan which may result in the incurrence by the Company or
any of is Subsidiaries of withdrawal liability in excess of $1,000,000
under Subtitle E of Title IV of ERISA, or of the termination,
insolvency or reorganization status of any Plan under such Subtitle E
which may result in liability to the Company or any of its
Subsidiaries in excess of $1,000,000. In the event of such a
withdrawal, upon the request of the Agent or any Bank, the
Company will promptly provide information with respect to the scope
and extent of such liability, to the best of the Company's knowledge.
6.5 Certificates; Other Information. Furnish to each
Bank:
(a) within five days after the same are sent, copies of all
financial statements and reports which the Company sends to its
stockholders, and within five days after the same are filed, copies
of all financial statements and reports which the Company may make
to, or file with, the Securities and Exchange Commission;
(b) not later than thirty days prior to the end of each fiscal
year of the Company, the Company shall deliver to the Agent and
the Banks a schedule of the Company's insurance coverage and such
supplemental schedules with respect thereto as the Agent and the Banks
may from time to time reasonably request; and
(c) promptly, such additional financial and other information
as any Bank may from time to time reasonably request.
6.6 Compliance with ERISA. Each of the Company and its
Subsidiaries will meet, and will cause all Control Group Persons to meet, all
minimum funding requirements applicable to any Plan imposed by ERISA or the
Code (without giving effect to any waivers of such requirements or extensions
of the related amortization periods which may be granted), and will at all
times comply, and will cause all Control Group Persons to comply, in all
material respects with the provisions of ERISA and the Code which are
applicable to the Plans. At no time shall the aggregate actual and contingent
liabilities of the Company under Sections 4062, 4063, 4064 and other provisions
of ERISA (calculated as if the 30% of collective net worth amount referred to
in Section 4062(b)(1)(A)(i)(II) of ERISA exceeded the actual total amount of
unfunded guaranteed benefits referred to in Section 4062 (B)(1)(A)(i)(I) of
ERISA) with respect to all Plans (and all other pension plans to which the
Company, any Subsidiary, or any Control Group Person made contributions prior
to such time) exceed $5,000,000. Neither the Company nor its Subsidiaries will
permit any event or condition to exist which could permit any Plan which is not
a Multiemployer Plan to be terminated under circumstances which would cause the
lien
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provided for in Section 4068 of ERISA to attach to the assets of the Company or
any of its Subsidiaries.
6.7 Compliance with Laws. Comply with all Contractual
Obligations and Requirements of Law (including, without limitation, the HMO
Regulations, Insurance Regulations and laws relating to the protection of the
environment), except where compliance therewith shall be contested in good
faith by appropriate proceedings, the Company or the Subsidiary in question
shall have set aside on its books appropriate reserves in conformity with GAAP
with respect thereto, and the failure to comply therewith could not, in the
aggregate, have a Material Adverse Effect.
6.8 Inspection of Property; Books and Records; Discussions. Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP, all Requirements of Law, including but not limited to,
HMO Regulations and Insurance Regulations, and the terms hereof shall be made
of all dealings and transactions in relation to its business and activities;
and permit representatives of any Bank to visit and inspect any of its
properties and examine and make abstracts from any of its books and
records at any reasonable time and as often as may reasonably be desired and to
discuss the business, operations, properties and financial and other condition
of the Company and its Subsidiaries with officers and employees of the Company
and its Subsidiaries and with its independent certified public accountants.
6.9 Notices. Promptly give notice to the Agent and each Bank of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Company or any of its Subsidiaries or (ii)
litigation, investigation or proceeding which may exist at any time
between the Company or any of its Subsidiaries and any Governmental
Authority (including, without limitation, HMO Regulators and Insurance
Regulators), which in either case, if not cured or if adversely
determined, as the case may be, could reasonably be expected to have a
Material Adverse Effect;
(c) any litigation or proceeding affecting the Company or any
of its Subsidiaries in which the amount involved is $5,000,000 or more
and not covered by insurance or in which material injunctive or
similar relief is sought;
(d) a material development or material change in any ongoing
litigation or proceeding affecting the Company or any of its
Subsidiaries in which the amount involved is $5,000,000 or more and
not covered by insurance or in which material injunctive or similar
relief is sought;
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(e) the following events, as soon as possible and in any event
within 30 days after the Company knows or has reason to know thereof:
(i) the occurrence or expected occurrence of any Reportable Event with
respect to any Plan, or any withdrawal from, or the termination,
Reorganization or Insolvency of any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the
PBGC or the Company or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
terminating, Reorganization or Insolvency of, any Plan;
(f) a development or event which could have a Material Adverse
Effect;
(g) the material non-compliance or potential material
non-compliance with any Contractual Obligation or Requirement of Law,
including, without limitation, HMO Regulations and Insurance
Regulations that is not currently being contested in good faith by
appropriate proceedings;
(h) the revocation of any material license, permit,
authorization, certificate, qualification or accreditation of the
Company or any Subsidiary by any Governmental Authority, including,
without limitation, the HMO Regulators and Insurance Regulators; and
(i) any significant change in or material additional
restriction placed on the ability of a Significant Subsidiary to
continue business as usual, including, without limitation, its ability
to pay dividends to the Company, by any Governmental Authority,
including, without limitation, the HMO Regulators and Insurance
Regulators.
Each notice pursuant to this subsection shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Company proposes to take with respect
thereto.
6.10 Maintenance of Accreditation, Etc. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, all
licenses, permits, authorizations, certifications and qualifications
(including, without limitation, those qualifications with respect to solvency
and capitalization) required under the HMO Regulations or the Insurance
Regulations in connection with the ownership or operation of HMO's or insurance
companies except were the failure to do so would not result in a Material
Adverse Effect.
6.11 Further Assurances. Execute any and all further documents,
and take all further action which the Majority Banks or the Agent may
reasonably request in order to effectuate the transactions contemplated by the
Loan Documents.
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SECTION 7. NEGATIVE COVENANTS
The Company hereby agrees that, from and after the Closing Date
and so long as the Commitments remain in effect, any Note or Letter of Credit
remains outstanding and unpaid or any other amount is owing to any Bank or the
Agent hereunder, the Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly:
7.1 Financial Condition Covenants.
(a) Maintenance of Net Worth. Permit Consolidated Net Worth
at any time to be less than 80% of its Consolidated Net Worth of the
Company and its consolidated subsidiaries as at September 30, 1993
plus 75% of the Company's Consolidated Net Income determined on an
after-extraordinary items basis for each full fiscal quarter after the
Closing Date (without any deduction for any such fiscal quarter in
which Consolidated Net Income is a negative number).
(b) Fixed Charge Coverage. Permit, on the last day of any
fiscal quarter of the Company, the ratio of (i) Consolidated Earnings
before Interest and Taxes for the four consecutive fiscal quarters of
the Company ending on such date to (ii) Consolidated Interest Expense
during such period, to be less than 3.0 to 1.0.
(c) Maximum Leverage Ratio. Permit the Leverage Ratio on the
last day of any full fiscal quarter of the Company to be more than 3.0
to 1.0.
7.2 Limitation on Subsidiary Indebtedness. The Company shall
not permit any of the Subsidiaries of the Company to create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness of any Subsidiary to the Company or any other
Subsidiary;
(b) Indebtedness of a corporation which becomes a Subsidiary
after the date hereof, provided that (i) such indebtedness existed at
the time such corporation became a Subsidiary and was not created in
anticipation thereof and (ii) immediately before and after giving
effect to the acquisition of such corporation by the Company no
Default or Event of Default shall have occurred and be continuing; and
(c) additional Indebtedness of Subsidiaries of the Company not
exceeding $75,000,000 in aggregate principal amount at any one time
outstanding.
7.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
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(a) Liens, if any, securing the obligations of the Company
under this Agreement and the Notes;
(b) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of
the Company or its Subsidiaries, as the case may be, in conformity
with GAAP;
(c) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days or
which are being contested in good faith by appropriate proceedings;
(d) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation;
(e) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(f) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Company or such Subsidiary;
(g) Liens in existence on the Closing Date listed on Schedule
V, securing Indebtedness in existence on the Closing Date, provided
that no such Lien is spread to cover any additional property after the
Closing Date and that the amount of Indebtedness secured thereby is
not increased;
(h) Liens securing Indebtedness of the Company and its
Subsidiaries not prohibited hereunder incurred to finance the
acquisition of fixed or capital assets, provided that (i) such Liens
shall be created substantially simultaneously with the acquisition of
such fixed or capital assets, (ii) such Liens do not at any time
encumber any property other than the property financed by such
Indebtedness and (iii) the principal amount of Indebtedness secured by
any such Lien shall at no time exceed 80% of the original purchase
price of such property;
(i) Liens on the property or assets of a corporation which
becomes a Subsidiary after the date hereof securing Indebtedness
permitted by subsection 7.2(b), provided that (i) such Liens existed
at the time such corporation became a
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Subsidiary and were not created in anticipation thereof, (ii)
any such Lien is not spread to cover any property or assets of such
corporation after the time such corporation becomes a Subsidiary and
(iii) the amount of Indebtedness secured thereby is not increased;
(j) Liens on the Headquarters; and
(k) Liens not otherwise permitted under this subsection 7.3
securing obligations in an aggregate amount not exceeding at any time
10% of Consolidated Net Tangible Assets as at the end of the
immediately preceding fiscal quarter of the Company.
7.4 Limitations on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or make any material change in its
method of conducting business, or purchase or otherwise acquire all or
substantially all of Capital Stock, or the property, business or assets, of any
other Person (other than any Subsidiary) or any business division thereof
except:
(a) any Subsidiary of the Company may be merged or
consolidated with or into the Company (provided that the Company shall
be the continuing or surviving corporation) and any Subsidiary of the
Company (except a Subsidiary the Indebtedness with respect to which is
referred to in subsection 7.2 (b)) may be merged or consolidated with
or into any one or more wholly owned Subsidiaries of the Company
(provided that the wholly owned Subsidiary or Subsidiaries shall be
the continuing or surviving corporation);
(b) the Company may merge into another corporation owned by
the Company for the purpose of causing the Company to be incorporated
in a different jurisdiction; and
(c) the Company may merge with another corporation, provided
that (i) the Company shall be the continuing or surviving corporation
of such merger and (ii) immediately before and after giving effect to
such merger no Default or Event of Default shall have occurred and be
continuing.
7.5 Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, except:
(a) obsolete or worn out property disposed of in the ordinary
course of business;
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(b) the sale or discount without recourse of accounts
receivable arising in the ordinary course of business in connection
with the compromise or collection thereof;
(c) the sale or other disposition of the Headquarters; and
(d) the sale or other disposition of securities held for
investment purposes in the ordinary course of business;
(e) any wholly owned Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Company or any other wholly owned
Subsidiary of the Company (except to a Subsidiary referred to in
subsection 7.2(b)); and
(f) the sale or other disposition of any other property,
provided that the aggregate book value of all assets so sold or
disposed of in any fiscal year of the Company shall not exceed in the
aggregate 12% of the Consolidated Assets of the Company and its
Subsidiaries as at the end of the immediately preceding fiscal year of
the Company.
7.6 Limitation on Distributions. The Company shall not make any
Distribution except that, so long as no Event of Default exists or would exist
after giving effect thereto, the Company may make a Distribution.
7.7 Transactions with Affiliates. Enter into any transaction,
including, without limitation, any purchase, sale, lease or exchange of
property or the rendering of any service, with any Affiliate (other than the
Company and its Subsidiaries) unless such transaction is otherwise permitted
under this Agreement, is in the ordinary course of the Company's or such
Subsidiary's business and is upon fair and reasonable terms no less favorable
to the Company or such Subsidiary, as the case may be, than it would obtain in
an arm's length transaction.
7.8 Sale and Leaseback. Enter into any arrangement with any
Person providing for the leasing by the Company or any Subsidiary of real or
personal property which has been or is to be sold or transferred by the Company
or such Subsidiary to such Person or to any other Person to whom funds have
been or are to be advanced by such Person on the security of such property or
rental obligations of the Company or such Subsidiary, unless such arrangement
is upon fair and reasonable terms no less favorable to the Company or such
Subsidiary than would be obtained in a comparable arm's length transaction
between an informed and willing seller or lessor under no compulsion to sell or
lease and an informed and willing buyer or lessee under no compulsion to buy or
lease.
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7.9 Limitation on Negative Pledge Clauses. Enter into any
agreement, other than any industrial revenue bonds, purchase money mortgages or
Financing Leases permitted by this Agreement (in which cases, any prohibition
or limitation may only be with respect to the real or personal property which
is the subject thereof and other property reasonably related thereto), with any
Person other than the Banks pursuant hereto which prohibits or limits the
ability of the Company or any of its Subsidiaries to create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired.
SECTION 8. DEFAULTS
8.1 Events of Default. Upon the occurrence of any of
the following events:
(a) any default shall be made by the Company in any payment in
respect of: (i) interest on any of the Notes, any Reimbursement
Obligation or any facility fee payable hereunder as the same shall
become due and such default shall continue for a period of five days;
or (ii) any Reimbursement Obligation or principal of the Indebtedness
evidenced by the Notes as the same shall become due, whether at
maturity, by prepayment, by acceleration or otherwise; or
(b) any default shall be made by either the Company or any
Subsidiary of the Company in the performance or observance of any of
the provisions of subsections 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 7.8 and
7.9; or
(c) any default shall be made in the due performance or
observance of any other covenant, agreement or provision to be
performed or observed by the Company under this Agreement, and such
default shall not be rectified or cured to the satisfaction of the
Majority Banks within a period expiring 30 days after written notice
thereof by the Agent to the Company; or
(d) any representation or warranty made or deemed made by the
Company herein or in any other Loan Document or which is contained in
any certificate, document or financial or other statement furnished at
any time under or in connection with this Agreement shall have been
untrue in any material respect on or as of the date made and the facts
or circumstances to which such representation or warranty relates
shall not have been subsequently corrected to make such representation
or warranty no longer incorrect; or
(e) any default shall be made in the payment of any item of
Indebtedness of the Company or any Subsidiary or under the terms of
any agreement relating to such Indebtedness and such default shall
continue without having been duly cured, waived or consented to,
beyond the period
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of grace, if any, therein specified; provided, however, that
such default shall not constitute an Event of Default unless (i) the
outstanding principal amount of such item of Indebtedness exceeds
$5,000,000, or (ii) the aggregate outstanding principal amount of such
item of Indebtedness and all other items of Indebtedness of the
Company and its Subsidiaries as to which such defaults exist and have
continued without being duly cured, waived or consented to beyond the
respective periods of grace, if any, therein specified exceeds
$15,000,000, or (iii) such default shall have continued without being
rectified or cured to the satisfaction of the Majority Banks for a
period of 30 days after written notice thereof by the Agent to the
Company; or
(f) either the Company or any Subsidiary shall be involved in
financial difficulties as evidenced:
(i) by its commencement of a voluntary case under Title
11 of the United States Code as from time to time in effect, or
by its authorizing, by appropriate proceedings of its board of
directors or other governing body, the commencement of such a
voluntary case;
(ii) by the filing against it of a petition commencing an
involuntary case under said Title 11 which shall not have been
dismissed within 60 days after the date on which said petition is
filed or by its filing an answer or other pleading within said
60-day period admitting or failing to deny the material
allegations of such a petition or seeking, consenting or
acquiescing in the relief therein provided;
(iii) by the entry of an order for relief in any involuntary
case commenced under said Title 11;
(iv) by its seeking relief as a debtor under any applicable
law, other than said Title 11, of any jurisdiction relating to
the liquidation or reorganization of debtors or to the
modification or alteration of the rights of creditors, or by its
consenting to or acquiescing in such relief;
(v) by the entry of an order by a court of competent
jurisdiction (i) finding it to be bankrupt or insolvent, (ii)
ordering or approving its liquidation, reorganization or any
modification or alteration of the rights of its creditors, or
(iii) assuming custody of, or appointing a receiver or other
custodian for, all or a substantial part of its property; or
(vi) by its making an assignment for the benefit of, or
entering into a composition with, its creditors, or appointing or
consenting to the appointment of a
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receiver or other custodian for all or a substantial part of its
property; or
(g) a Change in Control of the Company shall occur;
(h) (i) any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of
the Code) involving any Plan, (ii) any "accumulated funding
deficiency" (as defined in Section 302 of ERISA), whether or not
waived, shall exist with respect to any Plan, (iii) a Reportable Event
shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or
to terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Majority Banks, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of
ERISA, (v) the Company or any Commonly Controlled Entity shall, or in
the reasonable opinion of the Majority Banks is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other event or
condition shall occur or exist, with respect to a Plan; and in each
case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, could
subject the Company or any of its Subsidiaries to any tax, penalty or
other liabilities which in the aggregate could have a Material Adverse
Effect; or
(i) one or more judgments or decrees shall be entered against
the Company or any of its Subsidiaries and such judgments or decrees
shall not have been vacated, discharged, stayed or bonded pending
appeal within 45 days from the entry thereof that (i) involves in the
aggregate a liability (not paid or fully covered by insurance) of
$15,000,000 or more, or (ii) could reasonably be expected to have a
Material Adverse Effect; or
(j) (i) any material non-compliance by the Company or any
Significant Subsidiary with any term or provision of the HMO
Regulations or Insurance Regulations pertaining to fiscal soundness,
solvency or financial condition; or (ii) the assertion in writing by
an HMO Regulator or Insurance Regulator that it intends to take
administrative action against the Company or any Significant
Subsidiary to revoke or modify any contract of insurance, license,
permit, certification, authorization, accreditation or charter or to
enforce the fiscal soundness, solvency or financial provisions or
requirements of the HMO Regulations or Insurance Regulations against
any of such entities which could reasonably be expected to have a
Material Adverse Effect; or
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(k) on or after the Closing Date, (i) for any reason any
Loan Document ceases to be or is not in full force and effect or (ii)
the Company shall assert that any Loan Document has ceased to be or is
not in full force and effect;
then, and in any such event, (A) if such event is an Event of Default
specified in paragraph (f) above with respect to the Company, automatically the
Commitments shall immediately terminate and the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement and the
Notes (including, without limitation, all amounts of L/C Obligations, whether
or not the beneficiaries of the then outstanding Letters of Credit have
presented the documents required thereunder) shall immediately become due and
payable, and (B) if such event is any other Event of Default, either or both of
the following actions may be taken: (i) with the consent of the Majority
Banks, the Agent may, or upon the request of the Majority Banks, the Agent
shall, by notice to the Company declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate; and (ii) with
the consent of the Majority Banks, the Agent may, or upon the request of the
Majority Banks, the Agent shall, by notice of default to the Company, declare
the Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement and the Notes (including, without limitation, all amounts
of L/C Obligations, whether or not the beneficiaries of the then outstanding
Letters of Credit shall have presented the documents required thereunder) (the
"Bank Obligation") to be due and payable forthwith, whereupon the same shall
immediately become due and payable.
With respect to all Letters of Credit as to which presentment for
honor shall not have occurred at the time of an acceleration pursuant to the
preceding paragraph, the Company shall at such time deposit in a cash
collateral account opened by the Agent an amount equal to the aggregate then
undrawn and unexpired amount of such Letters of Credit. Amounts held in such
cash collateral account shall be applied by the Agent to the payment of drafts
drawn under such Letters of Credit, and the unused portion thereof after all
such Letters of Credit shall have expired or been fully drawn upon, if any,
shall be applied to repay other obligations of the Company hereunder and under
the Notes. After all such Letters of Credit shall have expired or been fully
drawn upon, all Reimbursement Obligations shall have been satisfied and all
other obligations of the Company hereunder and under the Notes shall have been
paid in full, the balance, if any, in such cash collateral account shall be
returned to the Company.
Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
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8.2 Annulment of Defaults. An Event of Default shall not be deemed to
be in existence for any purpose of this Agreement if the Agent, with the
consent of or at the direction of the Majority Banks, subject to subsection
10.1, shall have waived such event in writing or stated in writing that the
same has been cured to its reasonable satisfaction, but no such waiver shall
extend to or affect any subsequent Event of Default or impair any rights of the
Agent or the Banks upon the occurrence thereof.
8.3 Waivers. The Company hereby waives to the extent permitted by
applicable law (a) all presentments, demands for performance, notices of
nonperformance (except to the extent required by the provisions hereof),
protests, notices of protest and notices of dishonor in connection with any
Reimbursement Obligation or any of the Indebtedness evidenced by the Notes,
(b) any requirement of diligence or promptness on the part of any Bank in the
enforcement of its rights under the provisions of this Agreement, any Letter of
Credit or any Note, and (c) any and all notices of every kind and description
which may be required to be given by any statute or rule of law and any defense
of any kind which the Company may now or hereafter have with respect to its
liability under this Agreement, any Letter of Credit or any Note.
8.4 Course of Dealing. No course of dealing between the Company and
any Bank shall operate as a waiver of any of the Banks' rights under this
Agreement or any Note. No delay or omission on the part of any Bank in
exercising any right under this Agreement or any Note or with respect to any of
the Bank Obligations shall operate as a waiver of such right or any other right
hereunder. A waiver on any one occasion shall not be construed as a bar to or
waiver of any right or remedy on any future occasion. No waiver or consent
shall be binding upon any Bank unless it is in writing and signed by the Agent
or such of the Banks as may be required by the provisions of this Agreement.
The making of a Loan or issuance of a Letter of Credit hereunder during the
existence of a Default shall not constitute a waiver thereof.
SECTION 9. THE AGENT
9.1 Appointment. Each Bank hereby irrevocably designates and appoints
Chemical Bank as the Agent and CAF Loan Agent of such Bank under this
Agreement, and each such Bank irrevocably authorizes Chemical Bank, as the
Agent and CAF Loan Agent for such Bank, to take such action on its behalf under
the provisions of this Agreement and to exercise such powers and perform such
duties as are expressly delegated to the Agent or CAF Loan Agent, as the case
may be, by the terms of this Agreement, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, neither the Agent nor the
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CAF Loan Agent shall have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Bank, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against the
Agent or the CAF Loan Agent.
9.2 Delegation of Duties. The Agent or the CAF Loan Agent may execute
any of its duties under this Agreement by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. Neither the Agent nor the CAF Loan Agent
shall be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither the Agent nor the CAF Loan Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (a) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement (except
for its or such Person's own gross negligence or willful misconduct), or (b)
responsible in any manner to any of the Banks for any recitals, statements,
representations or warranties made by the Company or any officer thereof
contained in this Agreement or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent or the CAF
Loan Agent under or in connection with, this Agreement or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or the Notes or for any failure of the Company to perform its
obligations hereunder. Neither the Agent nor the CAF Loan Agent shall be under
any obligation to any Bank to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement, or to inspect the properties, books or records of the Company.
9.4 Reliance by Agent. The Agent and the CAF Loan Agent shall be
entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to the
Company), independent accountants and other experts selected by the Agent or
the CAF Loan Agent. The Agent may deem and treat the payee of any Note as the
owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Agent. The
Agent and the CAF Loan Agent shall be fully justified in failing or refusing to
take any action under this Agreement unless it shall first receive such advice
or concurrence of the Majority Banks as it deems appropriate or it shall first
be indemnified to its satisfaction by the Banks against any and all
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liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agent and the CAF Loan Agent shall in
all cases be fully protected in acting, or in refraining from acting, under
this Agreement and the Notes in accordance with a request of the Majority
Banks, and such request and any action taken or failure to act pursuant thereto
shall be binding upon all the Banks and all future holders of the Notes.
9.5 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received notice from a Bank or the Company
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the Agent
receives such a notice, the Agent shall promptly give notice thereof to the
Banks. The Agent shall take such action with respect to such Default or Event
of Default as shall be reasonably directed by the Majority Banks; provided
that, unless and until the Agent shall have received such directions, the Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Banks.
9.6 Non-Reliance on Agent and Other Banks. Each Bank expressly
acknowledges that neither the Agent nor the CAF Loan Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the Agent or
the CAF Loan Agent hereinafter taken, including any review of the affairs
of the Company, shall be deemed to constitute any representation or warranty by
the Agent to any Bank. Each Bank represents to the Agent and the CAF Loan Agent
that it has, independently and without reliance upon the Agent or the CAF Loan
Agent or any other Bank, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Company and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Bank also represents that it
will, independently and without reliance upon the Agent or the CAF Loan Agent
or any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement, and to make
such investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Company. Except for notices, reports and other documents expressly
required to be furnished to the Banks by the Agent or the CAF Loan Agent
hereunder, neither the Agent nor the CAF Loan Agent shall have any duty or
responsibility to provide any Bank with any credit or other information
concerning the business, operations, property, financial and other condition or
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creditworthiness of the Company which may come into the possession of the Agent
or the CAF Loan Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
9.7 Indemnification. The Banks agree to indemnify the Agent and the
CAF Loan Agent in its capacity as such (to the extent not reimbursed by the
Company and without limiting the obligation of the Company to do so),
ratably according to the respective amounts of their then existing Commitments,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including without limitation at any time
following the payment of the Notes) be imposed on, incurred by or asserted
against the Agent or the CAF Loan Agent in any way relating to or arising out
of this Agreement, or any documents contemplated by or referred to herein or the
transactions contemplated hereby or any action taken or omitted by the Agent or
the CAF Loan Agent under or in connection with any of the foregoing; provided
that no Bank shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting solely from the Agent's or
the CAF Loan Agent's gross negligence or willful misconduct. The agreements in
this subsection shall survive the payment of the Notes and all other amounts
payable hereunder.
9.8 Agent and CAF Loan Agent in Its Individual Capacity. The Agent
and the CAF Loan Agent and its Affiliates may make loans to, accept deposits
from and generally engage in any kind of business with the Company as though
the Agent or the CAF Loan Agent were not the Agent or the CAF Loan Agent
hereunder. With respect to its Loans made or renewed by it and any Note issued
to it and with respect to any Letter of Credit issued or participated in by it,
the Agent and the CAF Loan Agent shall have the same rights and powers under
this Agreement as any Bank and may exercise the same as though it were not the
Agent, and the terms "Bank" and "Banks" shall include the Agent or the CAF Loan
Agent in its individual capacity.
9.9 Successor Agent and CAF Loan Agent. The Agent or the CAF Loan
Agent may resign as Agent or CAF Loan Agent, as the case may be, upon 10 days'
notice to the Banks. If the Agent or the CAF Loan Agent shall resign as Agent
or CAF Loan Agent, as the case may be, under this Agreement, then the Majority
Banks shall appoint from among the Banks a successor agent for the Banks which
successor agent shall be approved by the Company, whereupon such successor
agent shall succeed to the rights, powers and duties of the Agent or CAF Loan
Agent, as the case may be, and the term "Agent" or "CAF Loan Agent", as the
case may be, shall mean such successor agent effective upon its appointment,
and the former Agent's or CAF Loan Agent's rights, powers and duties as Agent
or CAF Loan Agent shall be terminated, without any other or further act or deed
on the part of such former Agent
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or CAF Loan Agent or any of the parties to this Agreement or any holders of the
Notes. After any retiring Agent's or CAF Loan Agent's resignation hereunder as
Agent or CAF Loan Agent, the provisions of this subsection 9.9 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent or CAF Loan Agent under this Agreement.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement, any
Note, nor any terms hereof or thereof may be amended, supplemented or modified
except in accordance with the provisions of this subsection. With the written
consent of the Majority Banks, the Agent and the Company may, from time to
time, enter into written amendments, supplements or modifications hereto for
the purpose of adding any provisions to this Agreement or the Notes or changing
in any manner the rights of the Banks or of the Company hereunder or thereunder
or waiving, on such terms and conditions as the Agent may specify in such
instrument, any of the requirements of this Agreement or the Notes or any
Default or Event of Default and its consequences; provided, however, that no
such waiver and no such amendment, supplement or modification shall (a) extend
the maturity (whether as stated, by acceleration or otherwise) of any Note
(subject to the extension provisions of subsection 2.4 hereof), or reduce the
rate or extend the time of payment of interest thereon, or reduce any fee
payable to the Banks hereunder, or reduce the principal amount thereof, or
change the amount of any Bank's Commitment or amend, modify or waive any
provision of this subsection 10.1 or reduce the percentage specified in the
definition of Required Banks or Majority Banks, or consent to the assignment
or transfer by the Company of any of its rights and obligations under this
Agreement, in each case without the written consent of all the Banks, or (b)
amend, modify or waive any provision of Section 9 without the written consent
of the then Agent. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Banks and shall be binding upon
the Company, the Banks, the Agent and all future holders of the Notes. In the
case of any waiver, the Company, the Banks and the Agent shall be restored to
their former position and rights hereunder and under the outstanding Notes, and
any Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice,
when sent, confirmation of receipt received, addressed as follows
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in the case of the Company, the Agent, and the CAF Loan Agent and as set forth
in Schedule I in the case of the other parties hereto, or to such other address
as may be hereafter notified by the respective parties hereto and any future
holders of the Notes:
The Company: Humana Inc.
The Humana Building
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxx,
Vice President,
Investments and
Treasurer
Telecopy: (000) 000-0000
The Agent and
CAF Loan Agent: Chemical Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx,
Managing Director
Telecopy: (000) 000-0000
with a copy to: Chemical Bank Agency Services
Corporation
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx,
Vice President
Telecopy: (000) 000-0000
provided that any notice, request or demand to or upon the Agent or the Banks
pursuant to Section 2 shall not be effective until received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Agent or any Bank, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies, powers
and privileges provided by law.
10.4 Survival of Representations and Warranties. All representations
and warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement and the Notes.
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10.5 Payment of Expenses and Taxes; Indemnity. (a) The Company agrees
(i) to pay or reimburse the Agent for all its reasonable out-of-pocket costs and
expenses incurred in connection with the development, preparation and execution
of, and any amendment, supplement or modification to, this Agreement and the
Notes and any other documents prepared in connection herewith, and the
consummation of the transactions contemplated hereby and thereby, including,
without limitation, the reasonable fees and disbursements of counsel to the
Agent, (ii) to pay or reimburse each Bank and the Agent for all their
reasonable costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the Notes and any such other
documents, including, without limitation, reasonable fees and disbursements of
counsel to the Agent and to the several Banks, and (iii) to pay, indemnify, and
hold each Bank and the Agent harmless from, any and all recording and filing
fees and any and all liabilities with respect to, or resulting from any delay in
paying, stamp, excise and other taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the Notes and any such other documents.
(b) The Company will indemnify each of the Agent and the Banks and the
directors, officers and employees thereof and each Person, if any, who controls
each one of the Agent and the Banks (any of the foregoing, an "Indemnified
Person") and hold each Indemnified Person harmless from and against any and all
claims, damages, liabilities and expenses (including without limitation all
fees and disbursements of counsel with whom an Indemnified Person may
consult in connection therewith and all expenses of litigation or preparation
therefor) which an Indemnified Person may incur or which may be asserted
against it in connection with any litigation or investigation involving this
Agreement, the use of any proceeds of any Loans under this Agreement by the
Company or any Subsidiary, any officer, director or employee thereof, other
than litigation commenced by the Company against any of the Agent or the Banks
which (i) seeks enforcement of any of the Company's right hereunder and (ii) is
determined adversely to any of the Agent or the Banks.
(c) The agreements in this subsection 10.5 shall survive repayment of
the Notes and all other amounts payable hereunder.
10.6 Successors and Assigns; Participations; Purchasing Banks. (a)
This Agreement shall be binding upon and inure to the benefit of the Company,
the Banks, the Agent, all future holders of the Notes and their respective
successors and assigns, except that the Company may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of each Bank.
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(b) Any Bank may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or more
banks or other entities ("Participants") participating interests in any Loans
owing to such Bank, any Notes held by such Bank, any Commitments of such Bank or
any other interests of such Bank hereunder and under the other Loan Documents.
In the event of any such sale by a Bank of a participating interest to a
Participant, such Bank's obligations under this Agreement to the other parties
under this Agreement shall remain unchanged, such Bank shall remain solely
responsible for the performance thereof, such Bank shall remain the holder of
any such Notes for all purposes under this Agreement, and the Company and the
Agent shall continue to deal solely and directly with such Bank in connection
with such Bank's rights and obligations under this Agreement and under the other
Loan Documents. The Company agrees that if amounts outstanding under this
Agreement and the Notes are due or unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of offset in respect of its
participating interest in amounts owing under this Agreement and any Notes to
the same extent as if the amount of its participating interest were owing
directly to it as a Bank under this Agreement or any Notes, provided that such
right of offset shall be subject to the obligation of such Participant to share
with the Banks, and the Banks agree to share with such Participant, as provided
in subsection 10.7. The Company also agrees that each Participant shall be
entitled to the benefits of subsections 2.12, 2.13 and 2.15 with respect to its
participation in the Commitments and the Eurodollar Loans outstanding from time
to time; provided that no Participant shall be entitled to receive any greater
amount pursuant to such subsections than the transferor Bank would have been
entitled to receive in respect of the amount of the participation transferred by
such transferor Bank to such Participant had no such transfer occurred. No
Participant shall be entitled to consent to any amendment, supplement,
modification or waiver of or to this Agreement or any Note, unless the same is
subject to clause (a) of the proviso to subsection 10.1.
(c) Any Bank may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time assign to one or
more banks or other entities ("CAF Loan Assignees") any CAF Loan owing to such
Bank and any Individual CAF Loan Note held by such Bank evidencing such CAF
Loan, pursuant to a CAF Loan Assignment executed by the assignor Bank and the
CAF Loan Assignee. Upon such execution, from and after the date of such CAF
Loan Assignment, the CAF Loan Assignee shall, to the extent of the assignment
provided for in such CAF Loan Assignment, be deemed to have the same rights and
benefits of payment and enforcement with respect to such CAF Loan and Individual
CAF Loan Note and the same rights of offset pursuant to subsection 8.1 and under
applicable law and obligation to share pursuant to subsection 10.7 as it would
have had if it were
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a Bank hereunder; provided that unless such CAF Loan Assignment shall otherwise
specify and a copy of such CAF Loan Assignment shall have been delivered to the
Agent for its acceptance and recording in the Register in accordance with
subsection 10.6(f), the assignor thereunder shall act as collection agent for
the CAF Loan Assignee thereunder, and the Agent shall pay all amounts received
from the Company which are allocable to the assigned CAF Loan or Individual CAF
Loan Note directly to such assignor without any further liability to such CAF
Loan Assignee. A CAF Loan Assignee under a CAF Loan Assignment shall not, by
virtue of such CAF Loan Assignment, become a party to this Agreement or have
any rights to consent to or refrain from consenting to any amendment, waiver or
other modification of any provision of this Agreement or any related document;
provided that if a copy of such CAF Loan Assignment shall have been delivered
to the Agent for its acceptance and recording in the Register in accordance
with subsection 10.6(f), neither the principal amount of, the interest rate on,
nor the maturity date of any CAF Loan or Individual CAF Loan Note assigned to
the CAF Loan Assignee thereunder will be modified without the written consent
of such CAF Loan Assignee. If a CAF Loan Assignee has caused a CAF Loan
Assignment to be recorded in the Register in accordance with subsection
10.6(f), such CAF Loan Assignee may thereafter, in the ordinary course of its
business and in accordance with applicable law, assign such Individual CAF Loan
Note to any Bank, to any affiliate or subsidiary of such CAF Loan Assignee or
to any other financial institution that has total assets in excess of
$1,000,000,000 and that in the ordinary course of its business extends credit
of the type evidenced by such Individual CAF Loan Note, and the foregoing
provisions of this subsection 10.6(c) shall apply, mutatis mutandis, to any
such assignment by a CAF Loan Assignee. Except in accordance with the
preceding sentence, CAF Loans and Individual CAF Loan Notes may not be further
assigned by a CAF Loan Assignee, subject to any legal or regulatory requirement
that the CAF Loan Assignee's assets must remain under its control.
(d) Any Bank may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to any Bank or
any affiliate thereof, and, with the consent of the Company and the Agent
(which in each case shall not be unreasonably withheld) to one or more
additional banks or financial institutions ("Purchasing Banks") all or any part
of its rights and obligations under this Agreement and the Notes pursuant to a
Commitment Transfer Supplement, executed by such Purchasing Bank, such
transferor Bank and the Agent (and, in the case of a Purchasing Bank that is
not then a Bank or an affiliate thereof, by the Company); provided, however,
that (i) the Commitments purchased by such Purchasing Bank that is not then a
Bank shall be equal to or greater than $10,000,000 and (ii) the transferor Bank
which has transferred less than all of its Loans and Commitments to any such
Purchasing Bank shall retain a minimum Commitment, after giving effect to such
sale, equal to or greater than $10,000,000. Upon (i) such execution of
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such Commitment Transfer Supplement, (ii) delivery of an executed copy thereof
to the Company and (iii) payment by such Purchasing Bank, such Purchasing Bank
shall for all purposes be a Bank party to this Agreement and shall have all the
rights and obligations of a Bank under this Agreement, to the same extent as if
it were an original party hereto with the Commitment Percentage of the
Commitments set forth in such Commitment Transfer Supplement. Such Commitment
Transfer Supplement shall be deemed to amend this Agreement to the extent, and
only to the extent, necessary to reflect the addition of such Purchasing Bank
and the resulting adjustment of Commitment Percentages arising from the
purchase by such Purchasing Bank of all or a portion of the rights and
obligations of such transferor Bank under this Agreement and the Notes. Upon
the consummation of any transfer to a Purchasing Bank, pursuant to this
subsection 10.6(d), the transferor Bank, the Agent and the Company shall make
appropriate arrangements so that, if required, replacement Notes are issued to
such transferor Bank and new Notes or, as appropriate, replacement Notes, are
issued to such Purchasing Bank, in each case in principal amounts reflecting
their Commitment Percentages or, as appropriate, their outstanding Loans as
adjusted pursuant to such Commitment Transfer Supplement.
(e) The Agent shall maintain at its address referred to in subsection
10.2 a copy of each CAF Loan Assignment and each Commitment Transfer Supplement
delivered to it and a register (the "Register") for the recordation of (i) the
names and addresses of the Banks and the Commitment of, and principal amount of
the Loans owing to, each Bank from time to time, and (ii) with respect to each
CAF Loan Assignment delivered to the Agent, the name and address of the CAF Loan
Assignee and the principal amount of each CAF Loan owing to such CAF Loan
Assignee. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Company, the Agent and the Banks may treat each Person
whose name is recorded in the Register as the owner of the Loan recorded therein
for all purposes of this Agreement. The Register shall be available for
inspection by the Company or any Bank or CAF Loan Assignee at any reasonable
time and from time to time upon reasonable prior notice.
(f) Upon its receipt of a CAF Loan Assignment executed by an assignor
Bank and a CAF Loan Assignee, together with payment to the Agent of a
registration and processing fee of $1,000, the Agent shall promptly accept such
CAF Loan Assignment, record the information contained therein in the Register
and give notice of such acceptance and recordation to the assignor Bank, the CAF
Loan Assignee and the Company. Upon its receipt of a Commitment Transfer
Supplement executed by a transferor Bank and a Purchasing Bank (and, in the case
of a Purchasing Bank that is not then a Bank or an affiliate thereof, by the
Company and the Agent) together with payment to the Agent of a registration and
processing fee of $2,500, the Agent shall (i) promptly accept such Commitment
Transfer Supplement (ii) on the Transfer
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Effective Date determined pursuant thereto record the information contained
therein in the Register and give notice of such acceptance and recordation to
the Banks and the Company.
(g) The Company authorizes each Bank to disclose to any Participant,
CAF Loan Assignee or Purchasing Bank (each, a "Transferee") and any prospective
Transferee any and all financial information in such Bank's possession
concerning the Company which has been delivered to such Bank by the Company
pursuant to this Agreement or which has been delivered to such Bank by the
Company in connection with such Bank's credit evaluation of the Company prior to
entering into this Agreement.
(h) If, pursuant to this subsection 10.6, any interest in this
Agreement or any Note is transferred to any Transferee which is organized under
the laws of any jurisdiction other than the United States or any State thereof,
the transferor Bank shall cause such Transferee, concurrently with the
effectiveness of such transfer, (i) to represent to the transferor Bank (for
the benefit of the transferor Bank, the Agent and the Company) that under
applicable law and treaties no taxes will be required to be withheld by the
Agent, the Company or the transferor Bank with respect to any payments to be
made to such Transferee in respect of the Loans, (ii) to furnish to the
transferor Bank (and, in the case of any Purchasing Bank and any CAF Loan
Assignee registered in the Register, the Agent and the Company) either U.S.
Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form 1001
(wherein such Transferee claims entitlement to complete exemption from U.S.
federal withholding tax on all interest payments hereunder) and (iii) to agree
(for the benefit of the transferor Bank, the Agent and the Company) to provide
the transferor Bank (and, in the case of any Purchasing Bank and any CAF Loan
Assignee registered in the Register, the Agent and the Company) a new Form 4224
or Form 1001 upon the obsolescence of any previously delivered form and
comparable statements in accordance with applicable U.S. laws and regulations
and amendments duly executed and completed by such Transferee, and to comply
from time to time with all applicable U.S. laws and regulations with regard to
such withholding tax exemption.
(i) Nothing herein shall prohibit any Bank or any Affiliate thereof
from pledging or assigning any Note to any Federal Reserve Bank in accordance
with applicable law.
10.7 Adjustments; Set-off. If any Bank (a "Benefitted Bank") shall at
any time receive any payment of all or part of its Loans or the Reimbursement
Obligations owing to it, or interest thereon, or receive any collateral in
respect thereof (whether voluntarily or involuntarily, by offset, pursuant to
events or proceedings of the nature referred to in subsection 8.1(f), or
otherwise) in a greater proportion than any such payment to and collateral
received by any other Bank, if any, in respect of such other Bank's Loans or the
Reimbursement Obligations owing to it, or interest thereon, such Benefitted
76
72
Bank shall purchase for cash from the other Banks such portion of each such
other Bank's Loans or the Reimbursement Obligations owing to it, or
shall provide such other Banks with the benefits of any such collateral, or the
proceeds thereof, as shall be necessary to cause such Benefitted Bank to share
the excess payment or benefits of such collateral or proceeds ratably with each
of the Banks; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such Benefitted Bank, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest. The Company agrees that
each Bank so purchasing a portion of another Bank's Loan may exercise all rights
of a payment (including, without limitation, rights of offset) with respect to
such portion as fully as if such Bank were the direct holder of such portion.
10.8 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Company and the Agent.
10.9 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
10.10 WAIVERS OF JURY TRIAL. THE COMPANY, THE AGENT, THE CAF LOAN
AGENT AND THE BANKS EACH HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, THE NOTES OR
ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.11 Submission To Jurisdiction; Waivers. The Company hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement, or for recognition and
enforcement of any judgement in respect thereof, to the non-exclusive
general jurisdiction of the Courts of the State of New York, the courts of
the United States of America for the Southern District of New York, and
appellate courts from any thereof; and
(b) consents that any such action or proceeding may be brought in
such courts, and waives any objection that it may now or hereafter have
to the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same.
10.12 Confidentiality of Information. Each Bank acknowledges that some
of the information furnished to such Bank
77
73
pursuant to this Agreement may be received by such Bank prior to the time such
information shall have been made public, and each Bank agrees that it will keep
all information so furnished confidential and shall make no use of such
information until it shall have become public, except (a) in connection with
matters involving operations under or enforcement of this Agreement or the
Notes, (b) in accordance with each Bank's obligations under law or pursuant to
subpoenas or other process to make information available to governmental
agencies and examiners or to others, (c) to each Bank's corporate Affiliates
and Transferees and prospective Transferees so long as such Persons agree to be
bound by this subsection 10.12 and (d) with the prior consent of the Company.
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74
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
HUMANA INC.
By: /s/ XXXXX X. XXXXXXXX
--------------------------------------------
Name: Xxxxx X. Xxxxxxxx
--------------------------------------
Title: V.P. Investments & Treasurer
--------------------------------------
CHEMICAL BANK, as Agent, as CAF
Loan Agent and as a Bank
By: /s/ XXXXX XXXXXXXX
--------------------------------------------
Name: Xxxxx Xxxxxxxx
--------------------------------------
Title: V.P.
--------------------------------------
CITIBANK, N.A.
By: /s/ XXXXXXX X. XXXXX
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------------
Title: Vice President
--------------------------------------
NATIONSBANK OF GEORGIA, N.A.
By: /s/ XXXXXX X. XXXXXXXX
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
--------------------------------------
Title: Vice President
--------------------------------------
NATIONAL CITY BANK, KENTUCKY
By: /s/ XXXXXXX X. XXXXX
-------------------------------------------
Name: Xxxxxxx X. Xxxxx
-------------------------------------
Title: Senior Vice President
-------------------------------------
PNC BANK, KENTUCKY, INC.
By: /s/ XXXXXXXXX X. XXXXX
-------------------------------------------
Name: Xxxxxxxxx X. Xxxxx
-------------------------------------
Title: V.P.
-------------------------------------
79
75
WACHOVIA BANK OF GEORGIA, N.A.
By: /S/ XXXXX X. XXXXXX
--------------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: SENIOR VICE PRESIDENT
--------------------------------------
BANK OF AMERICA NATIONAL TRUST
& SAVINGS ASSOCIATION
By: /s/ XXXXXXXXX XXXXXXXX
--------------------------------------------
Name: Xxxxxxxxx XxXxxxxx
--------------------------------------
Title: Vice President
--------------------------------------
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H XXXXX
--------------------------------------------
Name: F.C.H. Xxxxx
--------------------------------------
Title: Senior Manager Loan Operations
--------------------------------------
THE CHASE MANHATTAN BANK, N.A.
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------------------
Title: Vice President
--------------------------------------
FIRST INTERSTATE BANK OF CALIFORNIA
By: /s/ XXXXX X. XXXXXXXX
-------------------------------------------
Name: Xxxxx X. XxXxxxxx
-------------------------------------
Title: Vice President
-------------------------------------
LIBERTY NATIONAL BANK AND TRUST
CO. OF KENTUCKY
By: /s/ XXXX X. XXXXXX
-------------------------------------------
Name: Xxxx X. Xxxxxx
-------------------------------------
Title: S.V.P.
-------------------------------------
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76
THE TORONTO-DOMINION BANK
By: /S/ X.X. XXXXXX
--------------------------------------------
Name: X.X. Xxxxxx
--------------------------------------
Title: Mgr. Cr. Admin.
--------------------------------------
THE SANWA BANK, LIMITED,
ATLANTA AGENCY
By: /s/ XXXXX X. XXXXXX
--------------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: Senior Vice President and Senior Manager
--------------------------------------
BANK OF LOUISVILLE & TRUST COMPANY
By: /s/ XXXX X. XXXX
--------------------------------------------
Name: Xxxx X. Xxxx
--------------------------------------
Title: Executive Vice President
--------------------------------------
XXXXXXX BANK OF BROWARD
COUNTY, N.A.
By: /s/ XXXXXXX XXXXXX
--------------------------------------------
Name: Xxxxxxx Xxxxxx
--------------------------------------
Title: Vice President
--------------------------------------
THE BOATMEN'S NATIONAL BANK OF
ST. LOUIS
By: /s/ XXXXXXX X. XXXXXXXXXXX
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
-------------------------------------
Title: Corporate Banking Officer
-------------------------------------
SHAWMUT BANK CONNECTICUT, N.A.
By: /s/ XXXXXXX X. XXXXXXXXX
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Title: Vice President
-------------------------------------
81
AGREEMENT AND AMENDMENT
AGREEMENT AND AMENDMENT, dated as of October 27, 1994, among HUMANA
INC., a Delaware corporation (the "Company"), the several banks and other
financial institutions from time to time parties hereto (the "Banks") and
CHEMICAL BANK, a New York banking corporation, as agent for the Banks hereunder
(in such capacity, the "Agent") and as CAF Loan agent (in such capacity, the
"CAF Loan Agent").
W I T N E S S E T H :
WHEREAS, the Company, the Agent, the CAF Loan Agent and certain banks
and other financial institutions (the "Original Banks") are parties to the
Credit Agreement, dated as of January 12, 1994 (as amended, supplemented or
otherwise modified to the date hereof, the "Original Credit Agreement"),
pursuant to which the Original Banks committed to make loans to the Company for
a period of three years;
WHEREAS, effective as of the Closing Date (as defined below), the
Company intends to terminate the Commitments (as defined in the Original Credit
Agreement) of the Original Banks under the Original Credit Agreement pursuant to
subsection 2.4(a) thereof;
WHEREAS, the Company has requested that the Agent, the CAF Loan Agent
and the Banks enter into a new agreement adopting and incorporating by reference
all of the terms and provisions of the Original Credit Agreement with certain
amendments and modifications thereto; and
WHEREAS, the Agent, the CAF Loan Agent and the Banks are willing to
so enter into a new agreement, but only upon the terms and subject to the
conditions set forth below;
NOW THEREFORE, in consideration of the premises and mutual agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by each of the parties hereto, the
parties hereto hereby agree as follows:
SECTION 1. Adoption and Incorporation of Original Credit Agreement.
Subject to the amendments and modifications set forth in Sections 3 through 13
of this Agreement, all of the terms and provisions of the Original Credit
Agreement are hereby adopted and incorporated by reference into this Agreement,
with the same force and effect as if fully set forth herein. This Agreement
shall not constitute an amendment or waiver of any provision of the Original
Credit Agreement not expressly referred to herein and shall not be construed as
an amendment, waiver or consent to any action on the part of the Company that
would
82
2
require an amendment, waiver or consent of the Agent or the Banks except as
expressly stated herein. Except as expressly amended hereby, the provisions of
the Original Credit Agreement as adopted and incorporated by reference into
this Agreement are and shall remain in full force and effect.
SECTION 2. Definitions. As used in this Agreement, terms defined
herein are used as so defined and, unless otherwise defined herein, terms
defined in the Original Credit Agreement are used herein as therein defined.
SECTION 3. Defined Terms. For purposes of this Agreement, subsection
1.1 of the Original Credit Agreement as adopted and incorporated by reference
into this Agreement is hereby amended as follows:
(a) by deleting the defined terms "Level I Utilization Period",
"Level II Utilization Period" and "Level III Utilization Period" in their
entirety.
(b) by deleting the defined terms "Agreement", "Applicable Margin",
"Closing Date", "L/C Sublimit" and "Termination Date" in their entirety and
substituting in lieu thereof the following:
"`Agreement': this Credit Agreement as adopted and incorporated by
reference into the Agreement and Amendment, as amended by the Agreement
and Amendment and as further amended, supplemented or otherwise modified
from time to time.";
"`Applicable Margin': for each Type of Revolving Credit Loan, for any
fiscal quarter, the applicable rate per annum set forth in Schedule 2
hereto opposite the Consolidated Capitalization Ratio then in effect. Such
Applicable Margin shall be in effect for the period beginning the first
Business Day following the date to which the Consolidated Capitalization
Ratio Certificate is applicable.
"`Closing Date': the date on which all of the conditions precedent
for the Closing Date set forth in Section 14 of the Agreement and
Amendment shall have been fulfilled; provided, however, that for purposes
of Section 5 of the Original Credit Agreement, the term "Closing Date"
shall mean the Original Closing Date.";
"`L/C Sublimit': $100,000,000."; and
"`Termination Date': the date one day before the fifth anniversary of
the Closing Date (or, if such date is not a Business Day, the next
succeeding Business Day), or such other Business Day to which the
Termination Date may be changed pursuant to subsection 2.4 of the Original
Credit
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3
Agreement as adopted and incorporated by reference into the Agreement
and Amendment).".
(c) by inserting in said subsection 1.1 of the Original Credit
Agreement in the appropriate alphabetical order the following defined terms:
"`Agreement and Amendment': the Agreement and Amendment, dated as of
October 27, 1994, among the Company, the Banks, the Agent and the CAF Loan
Agent.";
"`Average Quarterly Commitment': as defined in subsection 2.3(a)
hereto.";
"`Banks': the several banks and other financial institutions (which
may include certain Original Banks) from time to time parties to the
Agreement and Amendment.";
"`Consolidated Capitalization Ratio': as at the end of any fiscal
quarter, the ratio of (i) Consolidated Total Debt to (ii) the sum of (A)
Consolidated Total Debt and (B) Consolidated Net Worth, in each case at
such date.";
"`Consolidated Capitalization Ratio Certificate': as defined in
subsection 6.4(b) hereto.";
"`Original Banks': as defined in the recitals to the Agreement and
Amendment.";
"`Original Closing Date': January 12, 1994."; and
"`Original Credit Agreement': as defined in the recitals to the
Agreement and Amendment.".
SECTION 4. Fees.
For purposes of this Agreement, subsection 2.3(a) of the Original
Credit Agreement as adopted and incorporated by reference into this Agreement is
hereby amended by deleting such subsection in its entirety and substituting in
lieu thereof the following:
"(a) The Company agrees to pay to the Agent, for the account of
each Bank, on the last day of each fiscal quarter, a facility fee in
respect of the average daily amount of the Commitment of such Bank
during such fiscal quarter (such amount, the "Average Quarterly
Commitment"). Such fee shall be computed at the rate per annum set
forth in the table below opposite the Consolidated Capitalization
Ratio then in effect (as determined in accordance with the definition
of Applicable Margin).
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Consolidated Facility Fee
Capitalization Ratio (Rate Per Annum)
------------------------------ ----------------
less than .20 .1250%
at least .20 but less than .30 .1750%
at least .30 but less than .40 .2250%
at least .40 .3125%.".
SECTION 5. Extension of Commitments. For purposes of this Agreement,
subsection 2.4(b) of the Original Credit Agreement as adopted and incorporated
by reference into this Agreement is hereby amended by deleting the word "fifth"
in the ninth line thereof and substituting in lieu thereof the word "seventh".
SECTION 6. Letters of Credit. For purposes of this Agreement,
subsection 3.3(a) of the Original Credit Agreement as adopted and incorporated
by reference into this Agreement is hereby amended by deleting such subsection
in its entirety and substituting in lieu thereof the following:
"(a) The Company shall pay to the Agent, for the account of the
Issuing Bank and the L/C Participants, a letter of credit commission with
respect to each Letter of Credit, computed at the rate per annum set forth
in the table below opposite the Consolidated Capitalization Ratio then in
effect (as determined in accordance with the definition of Applicable
Margin), of which .125% per annum shall be payable to the Issuing Bank and
the balance shall be payable to the L/C Participants to be shared ratably
among them in accordance with their respective Commitment Percentages.
Such fee shall be payable on each L/C Fee Payment Date and shall be
nonrefundable.".
Consolidated L/C Commission
Capitalization Ratio (Rate per Annum)
------------------------------ ----------------
less than .20 .3750%
at least .20 but less than .30 .4500%
at least .30 but less than .40 .5000%
at least .40 .5625%.".
SECTION 7. Litigation. For purposes of this Agreement, subsection 4.3
of the Original Credit Agreement as adopted and incorporated by reference into
this Agreement is hereby amended by deleting such subsection in its entirety and
substituting in lieu thereof the following:
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5
"4.3 Litigation. Except as disclosed in the Company's Annual Report
on Form 10-K for its fiscal year ended December 31, 1993 and the Company's
Quarterly Reports on Form 10-Q for its fiscal quarters ended March 31,
1994 and June 30, 1994 filed with the Securities and Exchange Commission
and previously distributed to the Banks, there is no litigation, at law or
in equity, or any proceeding before any federal, state, provincial or
municipal board or other governmental or administrative agency, including
without limitation, HMO Regulators and Insurance Regulators, pending or to
the knowledge of the Company threatened which, after giving effect to any
applicable insurance, may involve any material risk of a Material Adverse
Effect or which seeks to enjoin the consummation of any of the
transactions contemplated by this Agreement or any other Loan Document,
and no judgment, decree, or order of any federal, state, provincial or
municipal court, board or other governmental or administrative agency,
including without limitation, HMO Regulators and Insurance Regulators, has
been issued against the Company or any Subsidiary which has, or may
involve, a material risk of a Material Adverse Effect. The Company does
not believe that the final resolution of the matters disclosed in its
Annual Report on Form 10-K for its fiscal year ended December 31, 1993 and
the Company's Quarterly Reports on Form 10-Q for its fiscal quarters ended
March 31, 1994 and June 30, 1994 filed with the Securities and Exchange
Commission and previously distributed to the Banks, will have a Material
Adverse Effect.
SECTION 8. Financial Condition. For purposes of this Agreement,
subsection 4.6 of the Original Credit Agreement as adopted and incorporated by
reference into this Agreement is hereby amended by deleting such subsection
in its entirety and substituting in lieu thereof the following:
"4.6 Financial Condition. The Company has furnished to the Agent and
each Bank copies of the following:
(a) The Annual Report of the Company on Form 10-K for the fiscal
year ended December 31, 1993; and
(b) the Quarterly Reports of the Company on Form 10-Q for each
of the fiscal quarters ended March 31, 1994 and June 30, 1994.".
The financial statements included therein, including the related schedules
and notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the
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6
periods involved (except as disclosed therein). As of the date of such
financial statements, neither the Company nor any of its Subsidiaries had
any known contingent liabilities of any significant amount which in
accordance with GAAP are required to be referred to in said financial
statements or in the notes thereto which could reasonably be expected to
have a Material Adverse Effect. During the period from December 31, 1993
to and including the date hereof, there has been no sale, transfer or
other disposition by the Company or any of its consolidated Subsidiaries
of any asset reflected on the balance sheet referred to above that would
have been a material part of its business or property and no purchase or
other acquisition of any business or property (including any capital stock
of any other Person) material in relation to the consolidated financial
condition of the Company and its consolidated Subsidiaries at December 31,
1993.".
SECTION 9. Changes in Condition. For purposes of this Agreement,
subsection 4.7 of the Original Credit Agreement as adopted and incorporated by
reference into this Agreement is hereby amended by deleting such subsection in
its entirety and substituting in lieu thereof the following:
"4.7 Changes in Condition. Since December 31, 1993, there has been no
development or event nor any prospective development or event, which has
had, or may have, a Material Adverse Effect.".
SECTION 10. Financial Statements. For purposes of this Agreement,
subsection 6.4(b) of the Original Credit Agreement as adopted and incorporated
by reference into this Agreement is hereby amended adding the following sentence
to the end thereof:
"At such time that annual statements or quarterly statements, as the
case may be, are furnished to each Bank pursuant to subsections 6.4(a) and
6.4(b), respectively, herein, the treasurer of the Company shall deliver
to the Agent and the CAF Loan Agent a certificate showing the Consolidated
Capitalization Ratio (the " Consolidated Capitalization Ratio
Certificate") as of the last day of such fiscal quarter.".
SECTION 11. Financial Condition Covenants. For purposes of this
Agreement, subsection 7.1(a) of the Original Credit Agreement as adopted and
incorporated by reference into this Agreement is hereby amended by deleting the
phrase "the Closing Date" in the sixth and seventh lines thereof and
substituting in lieu thereof the phrase "September 30, 1993".
SECTION 12. Commitment Amounts and Percentages; Lending Offices;
Addresses for Notice. For purposes of this
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Agreement, Schedule 1 to the Original Credit Agreement as adopted and
incorporated by reference into this Agreement is hereby amended by deleting
such Schedule in its entirety and substituting in lieu thereof Schedule 1 to
this Agreement.
SECTION 13. Applicable Margins. For purposes of this Agreement,
Schedule 2 to the Original Credit Agreement as adopted and incorporated by
reference into this Agreement is hereby amended by deleting such Schedule in its
entirety and substituting in lieu thereof Schedule 2 to this Agreement.
SECTION 14. Conditions Precedent. The obligations of each Bank to
make the Loans contemplated by subsections 2.1 and 2.2 and of the Issuing Bank
to issue Letters of Credit contemplated by Section 3 of the Original Credit
Agreement as adopted and incorporated by reference into this Agreement shall be
subject to the compliance by the Company with its agreements herein contained
(including its agreements contained in the Original Credit Agreement as adopted
and incorporated by reference into this Agreement) and to the satisfaction on or
before the Closing Date of the following further conditions:
(a) Loan Documents. The Agent shall have received (i) this
Agreement, executed and delivered by a duly authorized officer of the
Company, with a counterpart for each Bank, and (ii) for the account
of each Bank, a Revolving Credit Note and a Grid CAF Loan Note
conforming to the requirements hereof and executed by a duly
authorized officer of the Company.
(b) Legal Opinions. On the Closing Date as the Agent shall
request, each Bank shall have received from any general, associate,
or assistant general counsel to the Company, such opinions as the
Agent shall have reasonably requested with respect to the
transactions contemplated by this Agreement.
(c) Company Officers' Certificate. The representations and
warranties contained in Section 4 of the Original Credit Agreement as
adopted and incorporated by reference into, and as amended by, this
Agreement shall be true and correct on the Closing Date with the same
force and effect as though made on and as of such date; on and as of
the Closing Date and after giving effect to this Agreement, no
Default shall have occurred (except a Default which shall have been
waived in writing or which shall have been cured) and no Default
shall exist after giving effect to the Loan to be made; and the Agent
shall have received a certificate containing a representation
88
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to these effects dated the Closing Date and signed by a Responsible
Officer.
SECTION 15. Expenses. The Company agrees to pay or reimburse the
Agent for all of its reasonable out-of-pocket costs and expenses incurred in
connection with the development, preparation and execution of, and any
amendment, supplement or modification to, this Agreement and the Notes and any
other documents prepared in connection herewith, and the consummation of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Agent.
SECTION 16. GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
SECTION 17. Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Company and the Agent.
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9
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
HUMANA INC.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Title: Vice President-Investments &
Treasurer
CHEMICAL BANK, as Agent, as CAF
Loan Agent and as a Bank
By: /s/ B. Xxxxxx Xxxxxx
------------------------------------
Title: Managing Director
CITIBANK, N.A.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Title: Vice President
NATIONSBANK OF GEORGIA, N.A.
By: /s/ Xxxx X. Xxxx
------------------------------------
Title: Senior Vice President
NATIONAL CITY BANK, KENTUCKY
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Title: Senior Vice President
PNC BANK, KENTUCKY, INC.
By: /s/ Xxxxxxx B. V....
------------------------------------
Title: Senior Vice President
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WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ X.X. Xxxxxx
------------------------------------
Title: Senior Vice President
BANK OF AMERICA NATIONAL TRUST
& SAVINGS ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ Xxxx Xxxxxxx
------------------------------------
Title: Relationship Manager
THE CHASE MANHATTAN BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Title: Vice Prseident
FIRST INTERSTATE BANK OF CALIFORNIA
By: /s/ Xxxxxx X. Xxx
------------------------------------
Title: Vice President
By: /s/ Xxxxx X.X. Xxxxxxx
------------------------------------
Title: Vice President
LIBERTY NATIONAL BANK AND TRUST
CO. OF KENTUCKY
By: /s/ Xxxx X. Xxxxxx, Xx.
------------------------------------
Title: Senior Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxx X. Xxxxxxxx
------------------------------------
Title: Corporate Banking Officer
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THE SUMITOMO BANK, LTD.,
NEW YORK BRANCH
By: /s/ Xxxxxxxxx Xxxxxxxx
---------------------------------
Title: Joint General Manager
THE TORONTO-DOMINION BANK
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Title: Manager Credit
THE SANWA BANK, LIMITED,
ATLANTA AGENCY
By: /s/ Xxxxx Xxxxxx
---------------------------------
Title: Assistant Vice President
BANK OF LOUISVILLE & TRUST COMPANY
By: /s/ Xxx X. Xxxxxxx Xx.
---------------------------------
Title: Senior Vice President
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XXXXXXX BANK OF BROWARD
COUNTY, N.A.
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Title: Vice President
THE BOATMEN'S NATIONAL BANK OF
ST. LOUIS
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
---------------------------------
Title: Corporate Banking Officer
SHAWMUT BANK CONNECTICUT, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Title: Managing Director
93
SCHEDULE 1
Commitment Amounts and Percentages;
Lending Offices; Address for Notices
A. Commitment Amounts and Percentages
Commitment Commitment
Name of Bank Amount Percentage
------------ ---------- ----------
Chemical Bank $ 31,000,000 8.857%
Citibank, N.A. $ 25,000,000 7.143%
NationsBank of Georgia, N.A. $ 25,000,000 7.143%
National City Bank, Kentucky $ 25,000,000 7.143%
PNC Bank, Kentucky, Inc. $ 25,000,000 7.143%
Wachovia Bank of Georgia, N.A $ 25,000,000 7.143%
Bank of America National Trust & Savings Association $ 18,000,000 5.143%
The First National Bank of Chicago $ 18,000,000 5.143%
The Chase Manhattan Bank, N.A. $ 18,000,000 5.143%
First Interstate Bank of California $ 18,000,000 5.143%
Liberty National Bank and Trust Co. of Kentucky $ 18,000,000 5.143%
The Sumitomo Bank, Ltd., $ 18,000,000 5.143%
New York Branch
The Toronto-Dominion Bank $ 18,000,000 5.143%
The Sanwa Bank, Limited, Atlanta Agency $ 18,000,000 5.143%
The Bank of Nova Scotia $ 10,000,000 2.857%
Bank of Louisville & Trust Company $ 10,000,000 2.857%
Xxxxxxx Bank of Broward County, N.A. $ 10,000,000 2.857%
The Boatmen's National Bank of St. Louis $ 10,000,000 2.857%
Shawmut Bank Connecticut, N.A. $ 10,000,000 2.857%
------------ -----
94
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TOTAL $350,000,000 100.00%
============ ======
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B. LENDING OFFICES; ADDRESSES FOR NOTICES
CHEMICAL BANK
Domestic Lending Office Chemical Bank
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Eurodollar Lending Office Chemical Bank
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Address for Notices Chemical Bank
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxx
Telecopy: (000) 000-0000
CITIBANK, N.A.
Domestic Lending Office Citibank, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Eurodollar Lending Office Citibank, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Address for Notices Citicorp North America, Inc.
0000 Xxxx Xxx., Xxxxx 0000
Xxxxxx, XX 00000
Attn: X. Xxxx Aston
Telecopy: (000) 000-0000
NATIONSBANK OF GEORGIA, N.A.
Domestic Lending Office NationsBank of Georgia, N.A.
000 Xxxxxxxxx Xxxxxx, X.X.
00xx Xxxxx
Xxxxxxx, XX 00000
Eurodollar Lending Office NationsBank of Georgia, N.A.
000 Xxxxxxxxx Xxxxxx, X.X.
00xx Xxxxx
Xxxxxxx, XX 00000
Address for Notices NationsBank of Georgia, N.A.
0 XxxxxxxXxxx Xxxxx
Xxxxxxxxx Xxxxxxx Xxxx.
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
96
3
NATIONAL CITY BANK, KENTUCKY
Domestic Lending Office National City Bank, Kentucky
000 X. Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Eurodollar Lending Office National City Bank, Kentucky
000 X. Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Address for Notices National City Bank, Kentucky
000 X. Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
PNC BANK, KENTUCKY, INC.
Domestic Lending Office PNC Bank, Kentucky, Inc.
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Eurodollar Lending Office PNC Bank, Kentucky, Inc.
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Address for Notices PNC Bank, Kentucky, Inc.
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Telecopy: (000) 000-0000
WACHOVIA BANK OF GEORGIA, N.A.
Domestic Lending Office Wachovia Corporate Services, Inc.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Eurodollar Lending Office Wachovia Corporate Services, Inc.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Address for Notices Wachovia Corporate Services, Inc.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telecopy: (000) 000-0000
97
4
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION
Domestic Lending Office Bank of America
0000 Xxxxxxx Xxxx., 0xx Xxxxx
Xxxxxxx, XX 00000
Eurodollar Lending Office Bank of America
0000 Xxxxxxx Xxxx., 0xx Xxxxx
Xxxxxxx, XX 00000
Address for Notices Bank of America
000 X. Xxxxxx Xxxxxx, 00xx Xxxxx
Mail Code 5618
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telecopy: (000) 000-0000
THE FIRST NATIONAL BANK OF CHICAGO
Domestic Lending Office
The First National Bank of Chicago
0 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Eurodollar Lending Office
The First National Bank of Chicago
0 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
The First National Bank of Chicago
Address of Notices 0 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxxx Childe
Telecopy : (000) 000-0000
98
0
XXX XXXX XX XXXX XXXXXX
Domestic Lending Office The Bank of Nova Scotia,
Atlanta Agency
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, XX 00000
Eurodollar Lending Xxxxxx Xxx Xxxx xx Xxxx Xxxxxx,
Xxxxxxx Agency
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, XX 00000
Address for Notices The Bank of Nova Scotia
Atlanta Agency
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Telecopy: (000) 000-0000
THE CHASE MANHATTAN BANK, N.A.
Domestic Lending Office The Chase Manhattan Bank, N.A.
1 Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Eurodollar Lending Office The Chase Manhattan Bank, N.A.
1 Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Address for Notices The Chase Manhattan Bank, N.A.
1 Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telecopy: (000) 000-0000
FIRST INTERSTATE BANK OF CALIFORNIA
Domestic Lending Office First Interstate Bank of California
Commercial Loan Service Center, B10-6
0000 Xxxxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000
Eurodollar Lending Office First Interstate Bank of California
Commercial Loan Service Center, B10-6
0000 Xxxxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000
99
6
Address for Notices First Interstate Bank of California
000 Xxxxxxxx Xxxx., X00-00
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx X. XxXxxxxx
Telecopy: (000) 000-0000
LIBERTY NATIONAL BANK AND TRUST CO. OF KENTUCKY
Domestic Lending Office Liberty National Bank and Trust
Co. of Kentucky
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Eurodollar Lending Office Liberty National Bank and Trust
Co. of Kentucky
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Address for Notices Liberty National Bank and Trust
Co. of Kentucky
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx, Xx.
Telecopy: (000) 000-0000
THE SUMITOMO BANK, LTD.,
NEW YORK BRANCH
Domestic Lending Office The Sumitomo Bank, Ltd.,
New York Branch
Xxx Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Eurodollar Lending Office The Sumitomo Bank, Ltd.,
New York Branch
Xxx Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Address for Notices The Sumitomo Bank, Ltd.,
New York Branch
Xxx Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Telecopy: (000) 000-0000
100
7
THE TORONTO-DOMINION BANK
Domestic Lending Office The Toronto-Dominion Bank
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Eurodollar Lending Office The Toronto-Dominion Bank
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Address for Notices The Toronto-Dominion Bank
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
THE SANWA BANK, LIMITED, ATLANTA AGENCY
Domestic Lending Office The Sanwa Bank, Limited,
Atlanta Agency
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Eurodollar Lending Office The Sanwa Bank, Limited,
Atlanta Agency
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Address for Notices The Sanwa Bank, Limited,
Atlanta Agency
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Telecopy: (000) 000-0000
101
8
BANK OF LOUISVILLE & TRUST COMPANY
Domestic Lending Office Bank of Louisville & Trust Company
000 Xxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Eurodollar Lending Office Bank of Louisville & Trust Company
000 Xxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Address for Notices Bank of Louisville & Trust Company
000 Xxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxx X. Xxxxxxx, Xx.
Telecopy: (000) 000-0000
XXXXXXX BANK OF BROWARD COUNTY, N.A.
Domestic Lending Office Xxxxxxx Bank of Broward County, N.A.
One East Broward Blvd., 2nd Floor
Ft. Xxxxxxxxxx, XX 00000
Eurodollar Lending Office Xxxxxxx Bank of Broward County, N.A.
One East Broward Blvd., 2nd Floor
Ft. Xxxxxxxxxx, XX 00000
Address for Notices Xxxxxxx Bank
00 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Telecopy: (000) 000-0000
102
9
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS
Domestic Lending Office The Boatmen's National Bank
of Xx. Xxxxx
000 Xxxxxx Xxxxxx
X.X. Xxx 000
Xx. Xxxxx, XX 00000-0000
Eurodollar Lending Office The Boatmen's National Bank
of St. Louis
000 Xxxxxx Xxxxxx
X.X. Xxx 000
Xx. Xxxxx, XX 00000-0000
Address for Notices The Boatmen's National Bank
of Xx. Xxxxx
000 Xxxxxx Xxxxxx
X.X. Xxx 000
Xx. Xxxxx, XX 00000-0000
Attention: Xxxx Xxxxxxxxxxx
Telecopy: (000) 000-0000
SHAWMUT BANK CONNECTICUT, N.A.
Domestic Lending Office Shawmut Bank Connecticut, N.A.
000 Xxxx Xxxxxx
XXX 000
Xxxxxxxx, XX 00000
Eurodollar Lending Office Shawmut Bank Connecticut, N.A.
000 Xxxx Xxxxxx
XXX 000
Xxxxxxxx, XX 00000
Address for Notices Shawmut Bank Connecticut, N.A.
000 Xxxx Xxxxxx
XXX 000
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
103
SCHEDULE 2
Applicable Margins
REVOLVING CREDIT LOANS
Consolidated Capitalization Alternate Base
Ratio Rate Loans Eurodollar Loans
--------------------------- -------------- ----------------
less than .20
.000% .2500%
at least .20 but
less than .30 .000% .3250%
at least .30 but
less than .40 .000% .3750%
at least .40
.000% .4375%
104
AMENDMENT, dated as of August 1, 1995 (this "August 1995
Amendment"), to the Agreement and Amendment, dated as of October 27, 1994 (as
further amended, supplemented or otherwise modified from time to time, the
"Agreement and Amendment"), among HUMANA INC., a Delaware corporation (the
"Company"), the several banks and other financial institutions from time to
time parties hereto (the "Banks") and CHEMICAL BANK, a New York banking
corporation, as agent for the Banks thereunder (in such capacity, the "Agent")
and as CAF Loan agent (in such capacity, the "CAF Loan Agent").
W I T N E S S E T H :
WHEREAS, pursuant to the Agreement and Amendment, the Banks
have agreed to make, and have made, certain loans and other extensions of
credit to the Company;
WHEREAS, the Company has requested that the Agent, the CAF
Loan Agent and the Banks amend the Agreement and Amendment to permit proceeds
of Loans to be used by the Company to purchase margin stock (as defined in
Regulation U); and
WHEREAS, the Agent, the CAF Loan Agent and the Banks are
willing to so amend the Agreement and Amendment, but only upon the terms and
subject to the conditions set forth below;
NOW THEREFORE, in consideration of the premises and mutual
agreements herein contained and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by each of the parties
hereto, the parties hereto hereby agree as follows:
I. Amendments to Agreement and Amendment.
1. Definitions. (a) Unless otherwise defined in this
Section I, terms which are defined in the Agreement and Amendment and used
herein are so used as so defined. Unless otherwise indicated, all Section,
subsection and Schedule references are to the Agreement and Amendment.
(b) Subsection 1.1 of the Original Credit Agreement, as
adopted and incorporated by reference into the Agreement and Amendment pursuant
to Section 1 thereof, is hereby amended by adding thereto, in the appropriate
alphabetical order, the following new defined terms:
"`Margin Stock': as defined in Regulation U."
105
2
"`Margin Stock Collateral': all Margin Stock (other than
Portfolio Margin Stock) of the Company and its Subsidiaries by which
the Loans are deemed "indirectly secured" within the meaning of
Regulation U."
"`Other Collateral': all assets of the Company and its
Subsidiaries (other than Margin Stock) by which the Loans are deemed
"indirectly secured" within the meaning of Regulation U."
"`Portfolio Margin Stock': Margin Stock held by Insurance
Subsidiaries or HMO Subsidiaries as portfolio investments."
"`Regulation X': Regulation X of the Board of Governors of
the Federal Reserve System."
2. Amendment to Subsection 2.16 of the Agreement and
Amendment (Application of Proceeds of Loans). Subsection 2.16 of the Original
Credit Agreement, as adopted and incorporated by reference into the Agreement
and Amendment pursuant to Section 1 thereof, is hereby amended by deleting such
subsection in its entirety and substituting in lieu thereof the following:
"2.16 Application of Proceeds of Loans. Subject to
the provisions of the following sentence, the Company may use the
proceeds of the Loans for any lawful corporate purpose. The Company
will not, directly or indirectly, apply any part of the proceeds of any
such Loan for the purpose of "purchasing" or "carrying" any Margin
Stock within the respective meanings of each of the quoted terms under
Regulation U, or to refund any indebtedness incurred for such purpose,
provided that the Company may use the proceeds of Loans for such
purposes, if (i) such usage does not violate Regulation U as now and
from time to time hereafter in effect and (ii) the Board of Directors
of the issuer of the Margin Stock being purchased has expressly
approved such transaction and expressly recommended such transaction to
its shareholders.".
3. Addition of Subsection 2.18. The Original Credit
Agreement, as adopted and incorporated by reference into the Agreement and
Amendment pursuant to Section 1 thereof, is hereby amended by adding thereto
the following new subsection 2.18:
"2.18 Regulation U. (a) If at any time the Company shall
use the proceeds of any Loans for the purpose of "purchasing" or
"carrying" any Margin Stock within the respective meanings of each of
the quoted terms under Regulation U, or to refund any indebtedness
incurred for such purpose, the Company shall give notice thereof to
the Agent and the Banks, and thereafter the Loans made by each Bank
shall at all times be treated for purposes of Regulation U, as two
separate extensions of credit (the "A
106
3
Credit" and the "B Credit" of such Bank and, collectively, the "A
Credits" and the "B Credits"), as follows:
(i) the aggregate amount of the A Credit of such
Bank shall be an amount equal to such Bank's pro rata share
(based on the amount of its Commitment Percentage) of the
maximum loan value (as determined in accordance with
Regulation U), of all Margin Stock Collateral; and
(ii) the aggregate amount of the B Credit of such
Bank shall be an amount equal to such Bank's pro rata share
(based on the amount of its Commitment Percentage) of all
Loans outstanding hereunder minus such Bank's A Credit.
In the event that any Margin Stock Collateral is acquired or sold, the
amount of the A Credit of such Bank shall be adjusted (if necessary),
to the extent necessary by prepayment, to an amount equal to such
Bank's pro rata share (based on the amount of its Commitment
Percentage) of the maximum loan value (determined in accordance with
Regulation U) as of the date of such acquisition or sale) of the
Margin Stock Collateral immediately after giving effect to such
acquisition or sale. Nothing contained in this subsection 2.18 shall
be deemed to permit any sale of Margin Stock Collateral in violation
of any other provisions of this Agreement.
(b) Each Bank will maintain its records to identify the A
Credit of such Bank and the B Credit of such Bank, and, solely for the
purposes of complying with Regulation U, the A and B Credits shall be
treated as separate extensions of credit. Each Bank hereby represents
and warrants that the loan value of the Other Collateral is sufficient
for such Bank to lend its pro rata share of the B Credit.
(c) The benefits of the indirect security in Margin Stock
Collateral created by any provisions of this Agreement, shall be
allocated first to the benefit and security of the payment of the
principal of and interest on the A Credits of the Banks and of all
other amounts payable by the Company under this Agreement in
connection with the A Credits (collectively, the "A Credit Amounts")
and second, only after the payment in full of the A Credit Amounts, to
the benefit and security of the payment of the principal of and
interest on the B Credits of the Banks and of all other amounts
payable by the Company under this Agreement in connection with the B
Credits (collectively, the " B Credit Amounts"). The benefits of the
indirect security in Other Collateral created by any provisions of
this Agreement, shall be allocated first to the benefit and security
of the payment of the B Credit Amounts and second, only after the
107
4
payment in full of the B Credit Amounts, to the benefit and security
of the payment of the A Credit Amounts.
(d) The Company shall furnish to each Bank at the time of
each acquisition and sale of Margin Stock Collateral such information
and documents as the Agent or such Bank may require to determine the A
and B Credits, and at any time and from time to time, such other
information and documents as the Agent or such Bank may reasonably
require to determine compliance with Regulation U or Regulation G, as
applicable.
(e) Each Bank shall be responsible for its own compliance
with and administration of the provisions of this subsection 2.18 and
Regulation U, and the Agent shall have no responsibility for any
determinations or allocations made or to be made by any Bank as
required by such provisions."
4. Amendment to Subsection 4.15 of the Agreement and
Amendment (Federal Regulations). Subsection 4.15 of the Original Credit
Agreement, as adopted and incorporated by reference into the Agreement and
Amendment pursuant to Section 1 thereof, is hereby amended by deleting such
subsection in its entirety and substituting in lieu thereof the following:
"4.15 Federal Regulations. No part of the proceeds of any
Loans will be used in any transaction or for any purpose which
violates the provisions of Regulation U as now and from time to time
hereafter in effect. If requested by any Bank or the Agent, the
Company will furnish to the Agent and each Bank a statement to the
foregoing effect in conformity with the requirements of Form FR U-1
referred to in said Regulation U.".
4. Amendment to Subsection 4.20 of the Agreement and
Amendment (Purpose of Loans). Subsection 4.20 of the Original Credit
Agreement, as adopted and incorporated by reference into the Agreement and
Amendment pursuant to Section 1 thereof, is hereby amended by deleting such
subsection in its entirety and substituting in lieu thereof the following:
"4.20 Purpose of Loans. The proceeds of the Loans shall be
used for general corporate purposes provided that no part of the
proceeds of any Loans will be used in any transaction or for any
purpose which violates the provisions of Regulation U as now and from
time to time hereafter in effect.".
5. Amendment to Subsection 5.2 of the Agreement and Amendment
(Conditions to Each Loan). Subsection 5.2 of the Original Credit Agreement, as
adopted and incorporated by reference into the Agreement and Amendment pursuant
to Section 1
108
5
thereof, is hereby amended by adding the following paragraphs (d) and (e) to
the end thereof:
"(d) Form FR U-1. In the case of any Loan the proceeds of
which will be used, in whole or in part, to purchase or carry Margin
Stock, the Company shall have executed and delivered to the Agent and
each Bank a statement on Form FR U-1 referred to in Regulation U,
showing compliance with Regulation U after giving effect to such Loan.
(e) Legal Opinion. In the case of any Loan the proceeds of
which will be used, in whole or in part, to purchase or carry Margin
Stock, the Agent shall have received, with a copy for each Bank, a
written legal opinion of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx,
counsel to the Company, to the effect that such Loan and the Company's
use of the proceeds thereof does not violate Regulation U or
Regulation X.".
II. Miscellaneous Provisions.
1. Conditions Precedent. This August 1995 Amendment shall
become effective as of the date (the "August 1995 Amendment Effective Date")
that each of the conditions precedent set forth below shall have been fulfilled
to the satisfaction of the Agent and the Majority Banks:
(a) August 1995 Amendment. The Agent shall have received
counterparts of this August 1995 Amendment, duly executed by the
Company, the Agent and the Majority Banks.
(b) No Default or Event of Default. On and as of the August
1995 Amendment Effective Date and after giving effect to this August
1995 Amendment, no Default or Event of Default shall have occurred and
be continuing.
(c) Representations and Warranties. The representations and
warranties made by the Company in the Agreement and Amendment after
giving effect to this August 1995 Amendment and the transactions
contemplated hereby shall be true and correct on and as of the August
1995 Amendment Effective Date as if made on such date, except where
such representations and warranties relate to an earlier date in which
case such representations and warranties shall be true and correct as
of such earlier date; provided that all references to the Agreement
and Amendment in such representations and warranties shall be and are
deemed to mean this August 1995 Amendment as well as the Agreement and
Amendment as amended hereby.
(d) Certificate. The Agent shall have received a Certificate
of a Responsible Officer of the Company, dated
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6
the August 1995 Amendment Effective Date, certifying the matters
referred to in paragraphs (b) and (c) above.
(e) Other. The Agent shall have received copies of opinions,
certificates, or agreements reasonably requested by the Agent or the
Majority Banks.
2. Expenses. The Company agrees to pay or reimburse the
Agent for all of its reasonable out-of-pocket costs and expenses incurred in
connection with the development, preparation and execution of this August 1995
Amendment and any other documents prepared in connection herewith, including,
without limitation, the reasonable fees and disbursements of counsel to the
Agent.
3. Continuing Effect; No Other Amendments. Except as
expressly amended hereby, all of the terms and provisions of the Agreement and
Amendment are and shall remain in full force and effect.
5. GOVERNING LAW. THIS AUGUST 1995 AMENDMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES UNDER THIS AUGUST 1995 AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
5. Counterparts. This August 1995 Amendment may be executed
by one or more of the parties to this August 1995 Amendment on any number of
separate counterparts and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
110
7
IN WITNESS WHEREOF, the parties hereto have caused this August
1995 Amendment to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
HUMANA INC.
By:_____________________________________
Name:________________________________
Title:_______________________________
CHEMICAL BANK, as Agent, as CAF
Loan Agent and as a Bank
By:_____________________________________
Name:________________________________
Title:_______________________________
CITIBANK, N.A.
By:_____________________________________
Name:________________________________
Title: ______________________________
NATIONSBANK OF GEORGIA, N.A.
By:_____________________________________
Name:________________________________
Title: ______________________________
NATIONAL CITY BANK, KENTUCKY
By:_____________________________________
Name:________________________________
Title:_______________________________
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8
PNC BANK, KENTUCKY, INC.
By:_____________________________________
Name:________________________________
Title:_______________________________
WACHOVIA BANK OF GEORGIA, N.A.
By:_____________________________________
Name:________________________________
Title:_______________________________
BANK OF AMERICA NATIONAL TRUST
& SAVINGS ASSOCIATION
By:_____________________________________
Name:________________________________
Title:_______________________________
THE BANK OF NOVA SCOTIA
By:_____________________________________
Name:________________________________
Title:_______________________________
THE CHASE MANHATTAN BANK, N.A.
By:_____________________________________
Name:________________________________
Title:_______________________________
112
0
XXXXX XXXXXXXXXX XXXX XX XXXXXXXXXX
By:_____________________________________
Name:________________________________
Title:_______________________________
By:_____________________________________
Name:________________________________
Title:_______________________________
LIBERTY NATIONAL BANK AND TRUST
CO. OF KENTUCKY
By:_____________________________________
Name:________________________________
Title:_______________________________
THE FIRST NATIONAL BANK OF CHICAGO
By:_____________________________________
Name:________________________________
Title:_______________________________
THE SUMITOMO BANK, LTD.,
NEW YORK BRANCH
By:_____________________________________
Name:________________________________
Title:_______________________________
THE TORONTO-DOMINION BANK
By:_____________________________________
Name:________________________________
Title:_______________________________
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THE SANWA BANK, LIMITED,
ATLANTA AGENCY
By:_____________________________________
Name:________________________________
Title:_______________________________
BANK OF LOUISVILLE & TRUST COMPANY
By:_____________________________________
Name:________________________________
Title:_______________________________
XXXXXXX BANK OF BROWARD
COUNTY, N.A.
By:_____________________________________
Name:________________________________
Title:_______________________________
THE BOATMEN'S NATIONAL BANK OF
ST. LOUIS
By:_____________________________________
Name:________________________________
Title:_______________________________
SHAWMUT BANK CONNECTICUT, N.A.
By:_____________________________________
Name:________________________________
Title:_______________________________
