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CREDIT AGREEMENT
by and among
MEDPARTNERS, INC.
as Borrower,
NATIONSBANK, NATIONAL ASSOCIATION (SOUTH),
as Administrative Agent
THE FIRST NATIONAL BANK OF CHICAGO,
as Documentation Agent
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
September 5, 1996
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Terms
1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2. Rules of Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
1.3. Classes and Types of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE II
The Revolving Credit Facility
2.1. Revolving Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2.2. Competitive Bid Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
2.3. Payment of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
2.4. Payment of Principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
2.5. Manner of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
2.6. Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
2.7. Pro Rata Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
2.8. Reductions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
2.9. Conversions and Elections of Subsequent Interest
Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
2.10. Increase and Decrease in Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
2.11. Unused Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
2.12. Deficiency Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
2.13. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
2.14. Swing Line . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE III
Letters of Credit
3.1. Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
3.2. Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
3.3. Letter of Credit Facility Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
3.4. Administrative Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE IV
Yield Protection and Illegality
4.1. Additional Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
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4.2. Suspension of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
4.3. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
4.4. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
4.5. Alternate Loan and Lender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
4.6. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
4.7. Certain Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE V
Conditions to Execution of Loan Documents,
Making Loans and Issuing Letters of Credit
5.1. Conditions to Execution of Loan Documents, Making
Loans and Issuing Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
5.2. Conditions of Revolving Loans and Letter of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE VI
Representations and Warranties
6.1. Organization and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.2. No Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.3. Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
6.4. Subsidiaries and Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
6.5. Ownership Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
6.6. Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
6.7. Title to Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
6.8. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
6.9. Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
6.10. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
6.11. Margin Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
6.12. Investment Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
6.13. Patents, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
6.14. No Untrue Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
6.15. No Consents, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
6.16. Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
6.17. No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
6.18. Hazardous Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
6.19. Employment Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
6.20. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
6.21. Existing Settlement Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
6.22. Related Acquisition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
6.23. Representations and Warranties from the Related
Acquisition Transaction Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
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ARTICLE VII
Affirmative Covenants
7.1. Financial Reports, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
7.2. Maintain Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
7.3. Existence, Qualification, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
7.4. Regulations and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
7.5. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
7.6. True Books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
7.7. Right of Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
7.8. Observe all Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
7.9. Governmental Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
7.10. Covenants Extending to Other Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
7.11. Officer's Knowledge of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
7.12. Suits or Other Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
7.13. Notice of Discharge of Hazardous Material or
Environmental Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
7.14. Environmental Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
7.15. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
7.16. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
7.17. Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
7.18. Continued Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
7.19. New Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
7.20. Caremark Excess Cash Flow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
ARTICLE VIII
Negative Covenants
8.1. Financial Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
8.2. Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
8.3. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
8.4. Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
8.5. Transfer of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
8.6. Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
8.7. Merger or Consolidation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
8.8. Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
8.9. Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
8.10. Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
8.11. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
8.12. Dissolution, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
8.13. Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
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8.14. Rate Hedging Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
8.15. Negative Pledge Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
8.16. Prepayments or Amendments of Settlement Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
8.17. Dividend Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
8.18. Indenture Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
ARTICLE IX
Events of Default and Acceleration
9.1. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
9.2. Administrative Agent to Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
9.3. Cumulative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
9.4. No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
9.5. Allocation of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
ARTICLE X
The Administrative Agent
10.1. Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
10.2. Attorneys-in-fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
10.3. Limitation on Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
10.4. Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
10.5. Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
10.6. No Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
10.7. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
10.8. Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
10.9. Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
10.10. Sharing of Payments, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
10.11. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
10.12. Documentation Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
ARTICLE XI
Miscellaneous
11.1. Assignments and Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
11.2. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
11.3. Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
11.4. Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
11.5. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
11.6. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
11.7. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
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11.8. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
11.9. Indemnification; Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
11.10. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
11.11. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
11.12. Agreement Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
11.13. Usury Savings Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
11.14. Governing Law; Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
EXHIBIT A Applicable Commitment Percentages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B Form of Assignment and Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
EXHIBIT C Notice of Appointment (or Revocation)
of Authorized Representative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . X-0
XXXXXXX X-0 Form of Borrowing Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . X-0
XXXXXXX X-0 Form of Borrowing Notice--Swing Line Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D-3
EXHIBIT E Form of Interest Rate Selection Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E-1
EXHIBIT F-1 Form of Competitive Bid Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F-1
EXHIBIT F-2 Form of Revolving Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F-2
EXHIBIT F-3 SWING LINE NOTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F-4
EXHIBIT G Form of Competitive Bid Quote Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . G-1
EXHIBIT H Form of Competitive Bid Quote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . H-1
EXHIBIT I Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-1
EXHIBIT J Form of Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J-1
EXHIBIT K Form of Opinion of Borrower's Counsel
(Closing Date) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . K-1
Schedule 1.1 Assumed Debt
Schedule 1.1 Closing Date Prepayable Debt
Schedule 1.1 Designated Caremark Litigation
Schedule 1.1 Additional Settlement Agreements
Schedule 1.1 Insurer Settlement Agreements
Schedule 1.1 OIG Settlement Agreements
Schedule 1.1 Existing Letters of Credit
Schedule 6.4 Subsidiaries and Investments in Other Persons
Schedule 6.6 Other Indebtedness
Schedule 6.7 Liens
Schedule 6.8 Tax Matters
Schedule 6.10 Litigation
Schedule 6.19 Employment Matters
Schedule 7.5 Insurance
Schedule 8.4 Indebtedness at Closing Date
v
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of September 5, 1996 (the
"Agreement"), is made by and among MEDPARTNERS, INC. (formerly
"MedPartners/Xxxxxxxx, Inc."), a Delaware corporation having its principal
place of business in Birmingham, Alabama (the "Borrower"), NATIONSBANK,
NATIONAL ASSOCIATION (SOUTH), a national banking association organized and
existing under the laws of the United States, in its capacity as a Lender
("NationsBank"), THE FIRST NATIONAL BANK OF CHICAGO, a national banking
association organized and existing under the laws of the United States, in its
capacity as a lender ("First Chicago"), and each other financial institution
executing and delivering a signature page hereto and each other financial
institution which may hereafter execute and deliver an instrument of assignment
and acceptance with respect to this Agreement pursuant to Section 11.1
(hereinafter such financial institutions may be referred to individually as a
"Lender" or collectively as the "Lenders"), NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH), in its capacity as administrative agent for the Lenders (in such
capacity, and together with any successor administrative agent appointed in
accordance with the terms of Section 10.9, the "Administrative Agent"), and THE
FIRST NATIONAL BANK OF CHICAGO, in its capacity as documentation agent for the
Lenders (in such capacity, the "Documentation Agent" and, together with the
Administrative Agent, the "Agents");
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders make available to
the Borrower a revolving credit facility of up to $1,000,000,000, the proceeds
of which are to be used for general corporate purposes, including working
capital, the funding of capital expenditures and acquisitions to the extent
permitted hereunder and the repayment, acquisition or defeasance of certain
indebtedness as herein specified, and which shall include a letter of credit
facility of up to $50,000,000 for the issuance of standby letters of credit and
a swing line facility of up to $25,000,000; and
WHEREAS, the Lenders are willing to make such revolving credit, letter
of credit, and swing line facilities available to the Borrower upon the terms
and conditions set forth herein;
NOW, THEREFORE, the Borrower, the Lenders and the Agents hereby agree
as follows:
8
ARTICLE I
Definitions and Terms
1.1. Definitions. For the purposes of this Agreement, in addition to
the definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Absolute Rate" shall have the meaning assigned to such term
in Section 2.2(c)(ii)(D).
"Absolute Rate Auction" shall mean a solicitation of
Competitive Bid Quotes setting forth Absolute Rates pursuant to
Section 2.2.
"Absolute Rate Loans" shall mean the Competitive Bid Loans the
interest rates on which are determined on the basis of Absolute Rates
set at Absolute Rate Auctions.
"Acquisition" means the acquisition of (i) a controlling
equity interest in another Person (including the purchase of an
option, warrant or convertible or similar type security to acquire
such a controlling interest at the time it becomes exercisable by the
holder thereof), whether by purchase of such equity interest or upon
exercise of an option or warrant for, or conversion of securities
into, such equity interest, or (ii) assets of another Person which
constitute all or substantially all of the assets of such Person or of
a line or lines of business conducted by such Person.
"Additional Disclosure Letter" means the letter dated as of
the Closing Date from the Borrower addressed to the Administrative
Agent and the Lenders and identifying itself as the "Additional
Disclosure Letter" referred to herein.
"Advance" means a borrowing under the Revolving Credit
Facility consisting of the aggregate principal amount of a Revolving
Loan or a Competitive Bid Loan.
"Affiliate" means a Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or
is under common control with the Borrower; (ii) which beneficially
owns or holds 5% or more of any class of the outstanding Voting Stock
(or in the case of a Person which is not a corporation, 5% or more of
the equity interest) of the Borrower; or (iii) 5% or more of any class
of the outstanding Voting Stock (or in the case of a Person which is
not a corporation, 5% or more of the equity interest) of which is
beneficially owned or held by the Borrower. The term "control" means
the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person,
whether through ownership of Voting Stock, by contract or otherwise.
"Applicable Commitment Percentage" means, with respect to each
Lender at any time, that percentage of the Total Revolving Credit
Commitment set forth opposite the name of such Lender in Exhibit A;
provided, however, that the Applicable Commitment
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9
Percentage of each Lender shall be increased or decreased to reflect
any assignments to or by such Lender effected in accordance with
Section 11.1.
"Applicable Margin" means, with respect to each Eurodollar
Rate Loan, except as set forth below in this definition (i) from the
Closing Date through the date of receipt by the Administrative Agent
of a Compliance Certificate in respect of the fiscal period of the
Borrower and its Subsidiaries ending on December 31, 1996, .875% per
annum and (ii) thereafter for each period beginning on the date of
receipt by the Administrative Agent of a Compliance Certificate in
respect of any quarterly fiscal period of the Borrower and its
Subsidiaries ending on or after March 31, 1997 and ending on the date
next following date of receipt by the Administrative Agent of a
Compliance Certificate in respect of a subsequent fiscal quarter, that
percent per annum set forth below opposite the Consolidated Leverage
Ratio applicable to the Four-Quarter Period of the Borrower and its
Subsidiaries then ended as reflected in the applicable Compliance
Certificate:
Applicable
Consolidated Leverage Ratio Margin
--------------------------- ----------
Less than .75 to 1.00 .375%
Greater than or equal to .75 to 1.00
and less than 1.50 to 1.00 .500%
Greater than or equal to 1.50 to 1.00
and less than 2.00 to 1.00 .625%
Greater than or equal to 2.00 to 1.00
and less than 2.50 to 1.00 .750%
Greater than or equal to 2.50 to 1.00
and less than 3.00 to 1.00 .875%
Greater than or equal to 3.00 to 1.00 1.125%
, provided however, if the Borrower shall fail to deliver any such
Compliance Certificate within the time period required by Section 7.1,
then the Applicable Margin shall be 1.125% until the appropriate
Compliance Certificate is so delivered; and provided further, however,
that if at any time after December 31, 1996 the Borrower's long term
senior unsecured, unenhanced debt shall be rated "BB+" or better by
S&P and "Ba1" or better by Xxxxx'x (collectively, the "Threshold
Ratings"), then the Borrower may elect, by notice to the
Administrative Agent and the Lenders, effective upon receipt (but
subject to confirmation) by the Administrative Agent, to have the
Applicable Margin determined as set forth below based on such ratings
for the period from the date of receipt of such notice by the
Administrative Agent through the date on which either of the Threshold
Ratings are no longer in effect with respect to such debt of the
Borrower (in which event the method for determining Applicable Margin
as set forth above shall apply):
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Applicable
Tier Margin S&P Xxxxx'x
---- ------ --- -------
I .625% BB+ Ba1
II .475% BBB- Baa3
III .350% BBB Baa2
IV .300% BBB+ or higher Baa1 or higher
If, during any period when the Applicable Margin is determined by
reference to ratings by S&P and Xxxxx'x of long term senior unsecured,
unenhanced debt of the Borrower as provided above, the respective
ratings of each of S&P and Xxxxx'x shall be contained in different
Tiers, then, provided that both ratings shall constitute Threshold
Ratings, (i) the higher Tier shall apply for purposes of determining
the Applicable Margin if the ratings are in consecutive Tiers, and
(ii) the Tier next higher than the Tier containing the lower rating
shall apply for purposes of determining the Applicable Margin if the
ratings are not in consecutive Tiers.
"Applicable Unused Fee" means, except as set forth below in
this definition, (i) from the Closing Date through the date of receipt
by the Administrative Agent of a Compliance Certificate in respect of
the fiscal period of the Borrower and its Subsidiaries ending on
December 31, 1996, .25% per annum and (ii) thereafter for each period
beginning on the date of receipt by the Administrative Agent of a
Compliance Certificate in respect of any quarterly fiscal period of
the Borrower and its Subsidiaries ending on or after March 31, 1997
and ending on the date next following date of receipt by the
Administrative Agent of a Compliance Certificate in respect of a
subsequent fiscal quarter, that percent per annum set forth below
opposite the Consolidated Leverage Ratio applicable to the
Four-Quarter Period of the Borrower and its Subsidiaries then ended as
reflected in the applicable Compliance Certificate:
Applicable
Consolidated Leverage Ratio Unused Fee
--------------------------- ----------
Less than .75 to 1.00 .150%
Greater than or equal to .75 to 1.00
and less than 1.50 to 1.00 .200%
Greater than or equal to 1.50 to 1.00
and less than 2.00 to 1.00 .225%
Greater than or equal to 2.00 to 1.00
and less than 2.50 to 1.00 .250%
Greater than or equal to 2.50 to 1.00
and less than 3.00 to 1.00 .250%
Greater than or equal to 3.00 to 1.00 .300%
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11
, provided however, if the Borrower shall fail to deliver any such
Compliance Certificate within the time period required by Section 7.1,
then the Applicable Unused Fee shall be .30% until the appropriate
Compliance Certificate is so delivered; and provided further, however,
that if at any time after December 31, 1996 the Borrower's long term
senior unsecured, unenhanced debt shall be rated "BB+" or better by
S&P and "Ba1" or better by Xxxxx'x (collectively, the "Threshold
Ratings"), then the Borrower may elect, by notice to the
Administrative Agent and the Lenders, effective upon receipt (but
subject to confirmation) by the Administrative Agent, to have the
Applicable Unused Fee determined as set forth below based on such
ratings for the period from the date of receipt of such notice by the
Administrative Agent through the date on which either of the Threshold
Ratings are no longer in effect with respect to such debt of the
Borrower (in which event the method for determining Applicable Unused
Fee set forth above shall apply):
Applicable
Tier Unused Fee S&P Xxxxx'x
---- ---------- --- -------
I .225% BB+ Ba1
II .175% BBB- Baa3
III .125% BBB Baa2
IV .100% BBB+ or higher Baa1 or higher
If, during any period when the Applicable Unused Fee is determined by
reference to ratings by S&P and Xxxxx'x of long term senior unsecured,
unenhanced debt of the Borrower as provided above, the respective
ratings of each of S&P and Xxxxx'x shall be contained in different
Tiers, then, provided that both ratings shall constitute Threshold
Ratings, (i) the higher rating shall apply for purposes of determining
the Applicable Unused Fee if the ratings are in consecutive Tiers and
(ii) the Tier next higher than the Tier containing the lower rating
shall apply for purposes of determining the Applicable Unused Fee if
the ratings are not in consecutive Tiers.
"Applications and Agreements for Letters of Credit" means,
collectively, the Applications and Agreements for Letters of Credit,
or similar documentation, executed by the Borrower from time to time
and delivered to the Issuing Bank to support the issuance of Letters
of Credit.
"Assignment and Acceptance" shall mean an Assignment and
Acceptance in the form of Exhibit B (with blanks appropriately filled
in) delivered to the Administrative Agent in connection with an
assignment of a Lender's interest under this Agreement pursuant to
Section 11.1.
"Assumed Debt" means Indebtedness of a member of the Caremark
Group as in existence immediately prior to the Closing Date the
obligations under which either (i) continue in effect in accordance
with their terms without default, right of acceleration,
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12
or payment of any penalty or premium or creation of any additional
Lien securing the same notwithstanding the consummation of the Related
Acquisition and the other transactions contemplated by this Agreement,
or (ii) are, with the consent of the relevant obligee or obligees,
assumed or guaranteed by the Borrower or a Subsidiary, in all cases
having such terms as shall be disclosed to and acceptable to the
Administrative Agent and the Lenders in their discretion, which
Indebtedness is more particularly described on Schedule 1.1--Assumed
Debt.
"Authorized Representative" means any of the President or
Executive Vice Presidents or Vice Presidents of the Borrower or, with
respect to financial matters, the Treasurer or chief financial officer
of the Borrower, or any other Person expressly designated by the Board
of Directors of the Borrower (or the appropriate committee thereof) as
an Authorized Representative of the Borrower, as set forth from time
to time in a certificate in the form of Exhibit C.
"Base Rate" means the per annum rate of interest equal to the
greater of (i) the Prime Rate or (ii) the Federal Funds Effective Rate
plus one-half of one percent (.50%). Any change in the Base Rate
resulting from a change in the Prime Rate or the Federal Funds
Effective Rate shall become effective as of 12:01 A.M. of the Business
Day on which each such change occurs. The Base Rate is a reference
rate used by the Administrative Agent in determining interest rates on
certain loans and is not intended to be the lowest rate of interest
charged on any extension of credit to any debtor.
"Base Rate Loan" means a Loan for which the rate of interest
is determined by reference to the Base Rate.
"Base Rate Refunding Loan" means a Base Rate Loan made either
to (i) satisfy Reimbursement Obligations arising from a drawing under
a Letter of Credit or (ii) pay NationsBank in respect of Swing Line
Outstandings.
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body).
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with a Revolving Loan or a Swing Line
Loan, in the forms of Exhibits D-1 and D-2, respectively.
"Business Day" means, (i) with respect to any Base Rate Loan,
any day which is not a Saturday, Sunday or a day on which banks in the
States of New York and North Carolina are authorized or obligated by
law, executive order or governmental decree to be closed and, (ii)
with respect to any Eurodollar Rate Loan, any day which is a Business
Day, as described above, and on which the relevant international
financial markets are open for the transaction of business
contemplated by this Agreement in London, England, New York, New York
and Charlotte, North Carolina.
6
13
"Capital Expenditures" means for any period the sum of
(without duplication) (i) all expenditures (whether paid in cash or
accrued as liabilities) by the Borrower or any Subsidiary during that
period that are for items that would be classified as "property, plant
or equipment" or comparable items on the balance sheet of the Borrower
or such Subsidiary, plus (ii) with respect to any Capital Lease
entered into by the Borrower or any Subsidiary during such period, the
present value of the lease payments due under such Capital Lease over
the term of such Capital Lease applying a discount rate equal to the
interest rate provided in such lease (or if such interest rate is not
set forth in such lease, the interest rate assumed in the preparation
of the financial statements of the Borrower and its Subsidiaries
described in Sections 6.6(a) and 7.1(a)), excluding, however, the
amount of any Capital Expenditures paid for with proceeds of casualty
insurance.
"Capital Leases" means all leases which have been or should be
capitalized in accordance with GAAP as in effect from time to time
including Statement No. 13 of the Financial Accounting Standards Board
and any successor thereof.
"Caremark" means Caremark International Inc., a Delaware
corporation and its successors.
"Caremark Counsel" means Wachtell, Lipton, Xxxxx & Xxxx,
counsel to the Caremark Group in connection with the Related
Acquisition.
"Caremark Excess Cash Flow" means, with respect to Caremark
and its Subsidiaries (determined for all purposes of this definition
as if each reference to "Borrower" in the definition of "Subsidiary"
in this Section 1.1 were a reference to "Caremark") for any period of
determination thereof, (1) the sum of (i) the gross revenues from
operations of Caremark and its Subsidiaries for such period (including
payments received by Caremark and its Subsidiaries of (A) interest
income, and (B) dividends and distributions made in the ordinary
course of their businesses by Persons in which investment is permitted
pursuant to this Agreement and not related to an extraordinary event),
less all operating and non-operating expenses of Caremark and its
Subsidiaries including taxes on income, plus (ii) all noncash charges
applicable to Caremark and its Subsidiaries for such period, minus (2)
Capital Expenditures (determined for all purposes of this definition
as if each reference to "Borrower" in the definition of "Capital
Expenditures" in this Section 1.1 were a reference to "Caremark") for
such period, all determined on a consolidated basis in accordance with
GAAP applied on a Consistent Basis.
"Caremark Group" means, collectively, Caremark and the
Caremark Subsidiaries; a "member" of the Caremark Group shall mean any
one of such Persons.
"Caremark Inc. Guaranty Limitation" means the sentence
contained in Section 2 of the Guaranty of Caremark Inc. which reads as
follows: "Notwithstanding the foregoing provisions of this Section 2,
so long as the Indenture shall limit the incurrence
7
14
of certain Indebtedness by the Guarantor, the liability of the
Guarantor with respect to the Guarantors' Obligations shall not exceed
the lesser of (1) the Maximum Amount (as defined above) or (2) the
maximum amount payable hereunder by the Guarantor without giving rise
to a default or event of default under Section 4.07(b) of the
Indenture."
"Caremark Subsidiaries" means the Subsidiaries (determined as
if each reference to "Borrower" in the definition of "Subsidiary" in
this Section 1.1 were a reference to "Caremark") of Caremark as at the
Closing Date, which Persons are more particularly described in
Schedule 6.4.
"Change of Control" means, at any time:
(i) any "person" or "group" (each as used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act) either (A) becomes
the "beneficial owner" (as defined in Rule 13d-3 of the
Exchange Act ), directly or indirectly, of Voting Stock of the
Borrower (or securities convertible into or exchangeable for
such Voting Stock) representing 25% or more of the combined
voting power of all Voting Stock of the Borrower (on a fully
diluted basis) or (B) otherwise has the ability, directly or
indirectly, to elect a majority of the board of directors of
the Borrower;
(ii) during any period of up to 24 consecutive months,
commencing on the Closing Date, individuals who at the
beginning of such 24-month period were directors of the
Borrower shall cease for any reason (other than the death,
disability or retirement of an officer of the Borrower that is
serving as a director at such time so long as another officer
of the Borrower replaces such Person as a director) to
constitute a majority of the board of directors of the
Borrower; or
(iii) any Person or two or more Persons acting in concert
shall have acquired by contract or otherwise, or shall have
entered into a contract or arrangement that, upon consummation
thereof, will result in its or their acquisition of the power
to exercise, directly or indirectly, a controlling influence
on the management or policies of the Borrower.
"Closing Date" means the date as of which this Agreement is
executed by the Borrower, the Lenders and the Agents and on which the
conditions set forth in Section 5.1 have been satisfied.
"Closing Date Prepayable Debt" means the Indebtedness
described on Schedule 1.1--Closing Date Prepayable Debt.
"Code" means the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder.
"Combination Parties" means those corporations and
partnerships whose financial statements are described on pages F-1
through F-4 of the Borrower's Registration
8
15
Statement filed on Form S-4, Registration No. 33-96978, as filed with
the Securities and Exchange Commission on September 14, 1995, as
amended.
"Common Stock" means the Borrower's common stock, $.001 par
value per share.
"Competitive Bid Borrowing" shall have the meaning assigned to
such term in Section 2.2(b).
"Competitive Bid Loans" shall mean the Loans provided for by
Section 2.2.
"Competitive Bid Notes" shall mean the promissory notes
provided for by Section 2.6(b) substantially in the form of Exhibit
F-1 and all promissory notes delivered in substitution or exchange
therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"Competitive Bid Quote" shall mean an offer in accordance with
Section 2.2(c) by a Lender to make a Competitive Bid Loan with one
single specified interest rate.
"Competitive Bid Quote Request" shall have the meaning
assigned to such term in Section 2.2(b).
"Compliance Certificate" means a certificate of an Authorized
Representative in the form attached hereto as Exhibit I.
"Compliance Report" means a report detailing all Reportable
Conduct which has occurred since the last such Compliance Report, the
most recent such report as delivered to the Administrative Agent on or
prior to the Closing Date being dated January 31, 1996.
"Consistent Basis" in reference to the application of GAAP
means the accounting principles observed in the period referred to are
comparable in all material respects to those applied in the
preparation of the audited financial statements of the Borrower
referred to in Section 6.6(a).
"Consolidated EBITDA" means, with respect to the Borrower and
its Subsidiaries for the Four-Quarter Period ending on the date of
computation thereof, the sum of, without duplication, (i) Consolidated
Net Income (adjusted by (A) adding back up to $250,000,000 of actual
expenses incurred in connection with the Related Acquisition for the
Four-Quarter Periods ending on or before September 30, 1997, (B)
adding back up to $100,000,000 of actual expenses incurred in
connection with the acquisition of the Combination Parties and the
PPSI Acquisition for the two Four-Quarter Periods ending September 30,
1996 and December 31, 1996, (C) excluding the effect of any gains or
losses with respect to either or both of the Coram Notes, and (D)
excluding from the calculation the after tax amounts of any OIG
Settlement Costs and Insurer Settlement
9
16
Costs paid or incurred on or after June 13, 1995 and March 18, 1996,
respectively (not to exceed the respective amounts set forth in the
definitions of "OIG Settlement Costs" and "Insurer Settlement Costs"
in this Section 1.1) plus (ii) Consolidated Interest Expense accrued
during such period, plus (iii) taxes on income accrued during such
period, plus (iv) amortization accrued during such period, plus (v)
without duplication, depreciation during such period, all determined
on a consolidated basis in accordance with GAAP applied on a
Consistent Basis; provided, however, that with respect to an
Acquisition which is accounted for as a "purchase", the computation of
Consolidated EBITDA shall include the results of operations of the
Person or assets so acquired which amounts shall be determined on a
historical pro forma basis for the Four-Quarter Period preceding or
including the date of such Acquisition as if such Acquisition had been
consummated as a "pooling of interest".
"Consolidated Fixed Charge Ratio" means, with respect to the
Borrower and its Subsidiaries for any Four-Quarter Period ending as at
the date of computation thereof, the ratio of (i) Consolidated EBITDA
plus Consolidated Lease Payments for such period to (ii) Consolidated
Fixed Charges for such period.
"Consolidated Fixed Charges" means, with respect to Borrower
and its Subsidiaries for any Four-Quarter Period ending as at the date
of computation thereof, the sum of, without duplication, (i)
Consolidated Interest Expense accrued during such period plus (ii)
Consolidated Lease Payments for such period, all determined in
accordance with GAAP on a Consistent Basis; provided, however, that
with respect to an Acquisition which is accounted for as a "purchase",
the computation of Consolidated Fixed Charges shall include the
results of operations of the Person or assets so acquired which
amounts shall be determined on a historical pro forma basis for the
Four-Quarter Period preceding or including the date of such
Acquisition as if such Acquisition had been consummated as a "pooling
of interest".
"Consolidated Indebtedness" means all Indebtedness of the
Borrower and its Subsidiaries, all determined on a consolidated basis;
provided, however, for purposes of determining Consolidated Leverage
Ratio, there shall be included during each "Relevant Period" (as
defined below) in the determination of the amount of "Consolidated
Indebtedness", without duplication, the sum of Designated Caremark
Litigation Costs plus $100,000,000. For purposes of this definition,
"Relevant Period" means the period from the first date of any award,
judgment or settlement (whether or not subject to any right of appeal
or further review) pursuant to the terms of which the Borrower or any
Subsidiary is to make any payment to any Person in respect of any
Designated Caremark Litigation, until such award, judgment or
settlement is fully and finally (subject to no further right of
appeal) reversed or set aside in its entirety, or satisfied.
"Consolidated Interest Expense" means, with respect to any
period of computation thereof, the gross interest expense of the
Borrower and its Subsidiaries, including without limitation (i) the
current amortized portion of debt discounts to the extent included in
gross interest expense, (ii) the current amortized portion of all fees
(including fees
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17
payable in respect of any Swap Agreement) payable in connection with
the incurrence of Indebtedness to the extent included in gross
interest expense, (iii) the portion of any payments made in connection
with Capital Leases allocable to interest expense, and (iv) all fees,
charges, discounts and other costs incurred in connection with any
Permitted Receivables Securitization, all determined on a consolidated
basis in accordance with GAAP applied on a Consistent Basis.
"Consolidated Lease Payments" means the gross amount of all
lease or rental payments, whether or not characterized as rent, of the
Borrower and its Subsidiaries, excluding payments in respect of
Capital Leases constituting Indebtedness, all determined on a
consolidated basis in accordance with GAAP applied on a Consistent
Basis.
"Consolidated Leverage Ratio" means, as at the date of
computation thereof, the ratio of Consolidated Indebtedness
(determined as at such date) to Consolidated EBITDA (for the
Four-Quarter Period ending on (or most recently ended prior to) such
date).
"Consolidated Net Income" means, for any period of computation
thereof, the gross revenues from operations of the Borrower and its
Subsidiaries (including payments received by the Borrower and its
Subsidiaries of (i) interest income, and (ii) dividends and
distributions made in the ordinary course of their businesses by
Persons in which investment is permitted pursuant to this Agreement
and not related to an extraordinary event), less all operating and
non-operating expenses of the Borrower and its Subsidiaries including
taxes on income, all determined on a consolidated basis in accordance
with GAAP applied on a Consistent Basis; but excluding (for all
purposes other than compliance with Section 8.1(a) hereof) as income:
(i) net gains on the sale, conversion or other disposition of capital
assets, (ii) net gains on the acquisition, retirement, sale or other
disposition of capital stock or other securities of the Borrower or
its Subsidiaries, (iii) net gains on the collection of proceeds of
life insurance policies, (iv) any write-up of any asset, and (v) any
other net gain or credit of an extraordinary nature as determined in
accordance with GAAP applied on a Consistent Basis; provided, however,
that there shall be added back (to the extent deducted in computing
Consolidated Net Income but for this proviso) non-recurring expenses
accrued during the period of computation and arising in conjunction
with an Acquisition, in an amount not to exceed ten percent (10%) of
the related Cost of Acquisition.
"Consolidated Net Worth" means, as of any date on which the
amount thereof is to be determined, Consolidated Shareholders' Equity
minus (without duplication of deductions in respect of items already
deducted in arriving at surplus and retained earnings) all reserves
(other than contingency reserves not allocated to any particular
purpose), including without limitation reserves for depreciation,
depletion, amortization, obsolescence, deferred income taxes,
insurance and inventory valuation, all as determined on a consolidated
basis in accordance with GAAP applied on a Consistent Basis.
"Consolidated Shareholders' Equity" means, as of any date on
which the amount thereof is to be determined, the sum of the following
in respect of the Borrower and its
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Subsidiaries (determined on a consolidated basis and excluding any
upward adjustment after the Closing Date due to revaluation of
assets): (i) the amount of issued and outstanding share capital, plus
(ii) the amount of additional paid-in capital and retained earnings
(or, in the case of a deficit, minus the amount of such deficit), plus
(iii) the amount of any foreign currency translation adjustment (if
positive, or, if negative, minus the amount of such translation
adjustment), minus (iv) the amount of any treasury stock, all as
determined in accordance with GAAP applied on a Consistent Basis.
"Consolidated Total Assets" means, as of any date on which the
amount thereof is to be determined, the net book value of all assets
of the Borrower and its Subsidiaries as determined on a consolidated
basis in accordance with GAAP applied on a Consistent Basis.
"Contingent Obligation" of any Person means all contingent
liabilities required (or which, upon the creation or incurring
thereof, would be required) to be included in the financial statements
(including footnotes) of such Person in accordance with GAAP applied
on a Consistent Basis, including Statement No. 5 of the Financial
Accounting Standards Board, all Rate Hedging Obligations and any
obligation of such Person guaranteeing or in effect guaranteeing any
Indebtedness, dividend or other obligation of any other Person (the
"primary obligor") in any manner, whether directly or indirectly,
including obligations of such Person however incurred:
(1) to purchase such Indebtedness or other
obligation or any property or assets constituting security
therefor;
(2) to advance or supply funds in any manner (i) for
the purchase or payment of such Indebtedness or other
obligation, or (ii) to maintain a minimum working capital, net
worth or other balance sheet condition or any income statement
condition of the primary obligor;
(3) to grant or convey any lien, security interest,
pledge, charge or other encumbrance on any property or assets
of such Person to secure payment of such Indebtedness or other
obligation;
(4) to lease property or to purchase securities or
other property or services primarily for the purpose of
assuring the owner or holder of such Indebtedness or
obligation of the ability of the primary obligor to make
payment of such Indebtedness or other obligation; or
(5) otherwise to assure the owner of the
Indebtedness or such obligation of the primary obligor against
loss in respect thereof.
Such liabilities shall be computed at the amount which, in light of
all the facts and circumstances existing at the time, represent the
present value of the amount which can reasonably be expected to become
an actual or matured liability.
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"Coram" means Coram Healthcare Corporation and its successors.
"Coram Litigation" means, collectively, (i) the civil action
by Coram against Caremark and other members of the Caremark Group in
the California Superior Court, County of San Francisco, Case No.
972431, and (ii) all other actions, suits or proceedings by Coram now
or hereafter brought against any member of the Caremark Group alleging
or arising out of facts or claims similar in substance to any of those
contained in the litigation described in clause (i).
"Coram Notes" means, collectively, (i) the $25,000,000 Coram
Healthcare Corporation 12% Non-Convertible Subordinated Note due
October 1, 2005 issued as of April 1, 1995 to Caremark, (ii) the
$75,000,000 Coram Healthcare Corporation 7% Convertible Subordinated
Note due October 1, 2005 issued as of April 1, 1995 to Caremark and
(iii) any other uncollected proceeds and payment in kind notes payable
to Caremark (not to exceed $13,000,000 in the aggregate principal
amount) associated with the Caremark sale of assets to Coram on April
6, 1995.
"Corporate Integrity Agreement" means the Corporate Integrity
Agreement entered into by members of the Caremark Group in connection
with the OIG Settlement Agreements, a copy of which has been furnished
to the Administrative Agent, as the same may be amended, modified or
supplemented.
"Cost of Acquisition" means the sum of (i) the amount of cash
paid by the Borrower and its Subsidiaries in connection with such
Acquisition, (ii) the Stock Consideration issued or given in such
Acquisition, (iii) the amount (determined by using the face amount or
the amount payable at maturity, whichever is greater) of all
Indebtedness incurred, assumed or acquired in connection with such
Acquisition, (iv) all additional purchase price amounts in the form of
earnouts and other contingent obligations that should be recorded on
the financial statements of the Borrower and its Subsidiaries in
connection with GAAP, (v) all amounts paid in respect of covenants not
to compete, consulting agreements and other affiliated contracts in
connection with such Acquisition that should be recorded on financial
statements of the Borrower and its Subsidiaries in connection with
GAAP, and (vi) the aggregate fair market value of all other
consideration given by the Borrower and its Subsidiaries in connection
with such Acquisition.
"Credit Party" means, collectively, the Borrower and each
Guarantor.
"Default" means any event or condition which, with the giving
or receipt of notice or lapse of time or both, would constitute an
Event of Default hereunder.
"Default Rate" means (i) with respect to each Fixed Rate Loan,
until the end of the Interest Period applicable thereto, a rate of two
percentage points (2%) above the Fixed Rate applicable to such Loan,
and thereafter a rate of interest per annum which shall be two
percentage points (2%) above the Base Rate, (ii) with respect to Base
Rate
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Loans, a rate of interest per annum which shall be two percentage
points (2%) above the Base Rate and (iii) in any case, the maximum
rate permitted by applicable law, if lower.
"Designated Caremark Litigation" means, collectively, (i) the
Coram Litigation, (ii) those actions, suits, claims, settlements or
other proceedings more particularly described on Schedule
1.1--Designated Caremark Litigation, and (iii) any other action,
suit, claim or proceeding by any Person (including arbitration or
mediation proceedings and any investigation by any Governmental
Authority) against any member of the Caremark Group or (in connection
with claims and investigations not then the subject of litigation to
which a member of the Caremark Group is a party) as to which a member
of the Caremark Group is a subject or target, which alleges or is
otherwise based in whole or in part upon actual or alleged conduct of
any member of the Caremark Group prior to the Closing Date similar in
substance to actual or alleged conduct giving rise to any of the
matters referred to in clauses (i) and (ii) of this definition.
"Designated Caremark Litigation Costs" means the aggregate
amount to be paid by the Borrower or any Subsidiary pursuant to all
judgments, awards or settlements (whether or not subject to further
right of appeal or review) in respect of Designated Caremark
Litigation; provided, however, (i) there shall be excluded from such
determination the amount of any such judgment, award or settlement to
be paid or satisfied by reduction of amounts owing to any member of
the Caremark Group under either or both of the Coram Notes, and (ii)
the amount of Designated Caremark Litigation Costs shall be reduced
from time to time by payments made in satisfaction of such judgments,
awards and settlements.
"Designated Officer" shall have the meaning therefor provided
in Section 7.11.
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United
States of America.
"Eligible Securities" means the following obligations and any
other obligations previously approved in writing by the Administrative
Agent:
(a) Government Securities;
(b) obligations of any corporation organized
under the laws of any state of the United States of America or
under the laws of any other nation, payable in Dollars in the
United States of America, expressed to mature not later than
90 days following the date of issuance thereof and rated in an
investment grade rating category by S&P and Xxxxx'x;
(c) interest bearing demand or time deposits
issued by any Lender or certificates of deposit maturing
within one year from the date of issuance thereof and issued
by a bank or trust company organized under the laws of the
United States or of any state thereof having capital surplus
and undivided profits
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aggregating at least $1,000,000,000 and being rated "A" or
better by S&P and "A-2" or better by Xxxxx'x;
(d) Repurchase Agreements;
(e) Municipal Obligations;
(f) Pre-Refunded Municipal Obligations;
(g) shares of mutual funds which invest in
obligations described in paragraphs (a) through (f) above, the
shares of which mutual funds are at all times rated "AAA" by
S&P;
(h) tax-exempt or taxable adjustable rate
preferred stock issued by a Person having a rating of its long
term unsecured debt of "A" or better by S&P or "A-2" or better
by Xxxxx'x; and
(i) asset-backed remarketed certificates of
participation representing a fractional undivided interest in
the assets of a trust, which certificates are rated at least
"A-1" by S&P and "P- 1" by Xxxxx'x.
"Employee Benefit Plan" means any employee benefit plan within
the meaning of Section 3(3) of ERISA which (i) is maintained for
employees of the Borrower or any of its ERISA Affiliates or is assumed
by the Borrower or any of its ERISA Affiliates in connection with any
Acquisition or (ii) has at any time been maintained for the employees
of the Borrower or any current or former ERISA Affiliate.
"Environmental Laws" means, collectively, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, the Superfund Amendments and Reauthorization Act of 1986, the
Resource Conservation and Recovery Act, the Toxic Substances Control
Act, as amended, the Clean Air Act, as amended, the Clean Water Act,
as amended, any other "Superfund" or "Superlien" law or any other
federal, or applicable state or local statute, law, ordinance, code,
rule, regulation, order or decree regulating, relating to, or imposing
liability or standards of conduct concerning, any pollutant,
contaminant, or hazardous, toxic or dangerous waste, substance or
material.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute and all
rules and regulations promulgated thereunder.
"ERISA Affiliate", as applied to the Borrower, means any
Person or trade or business which is a member of a group which is
under common control with the Borrower, who together with the
Borrower, is treated as a single employer within the meaning of
Section 414(b) and (c) of the Code.
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"Eurodollar Auction" shall mean a solicitation of Competitive
Bid Quotes setting forth Eurodollar Margins based on the Interbank
Offered Rate pursuant to Section 2.2.
"Eurodollar Margin" shall have the meaning assigned to such
term in Section 2.2(c)(ii)(C).
"Eurodollar Market Loans" shall mean Competitive Bid Loans
interest rates on which are determined on the basis of Interbank
Offered Rate pursuant to a Eurodollar Auction.
"Eurodollar Rate Loan" means a Revolving Loan for which the
rate of interest is determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means the interest rate per annum calculated
according to the following formula:
Eurodollar = Interbank Offered Rate + Applicable
Rate 1- Eurodollar Reserve Percentage Margin
"Eurodollar Reserve Percentage" means, for any day, that
percentage (expressed as a decimal) which is in effect from time to
time under Regulation D or any successor regulation, as the maximum
reserve requirement (including any basic, supplemental, emergency,
special, or marginal reserves) applicable with respect to Eurocurrency
liabilities as that term is defined in Regulation D (or against any
other category of liabilities that includes deposits by reference to
which the interest rate of Eurodollar Rate Loans is determined),
whether or not the Administrative Agent or any Lender has any
Eurocurrency liabilities subject to such requirements, without
benefits of credits or proration, exceptions or offsets that may be
available from time to time to the Administrative Agent or any Lender.
The Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Eurodollar Reserve Percentage.
"Event of Default" means any of the occurrences set forth as
such in Section 9.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the regulations promulgated thereunder.
"Exclusion Event" means the occurrence of one or more of the
following events: (i) the OIG excludes the Borrower or any of its
Material Subsidiaries (or any healthcare facilities material to the
operations of any Material Subsidiary) from participation in the
Medicare or Medicaid program; (ii) any other federal administrative or
regulatory body obtains a similar remedy; (iii) an administrative law
judge shall enter a judgment or a decision which excludes the Borrower
or any of its Material Subsidiaries (or any healthcare facilities
material to the operations of any Material Subsidiary) from
participation in the Medicare or Medicaid program or (iv) any
administrative or regulatory body of a State of the United States in
which the Borrower and its
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Subsidiaries, on a consolidated basis, have at least 10% of their
total net sales during the most recently ended fiscal quarter, obtains
or invokes a similar remedy.
"Existing Letters of Credit" means, collectively, the
irrevocable letters of credit issued for the benefit of one or more
members of the Caremark Group by The First National Bank of Chicago
prior to the Closing Date and remaining outstanding as of the Closing
Date, all as more particularly described on Schedule 1.1 - Existing
Letters of Credit.
"Existing Settlement Agreements" means, collectively, the OIG
Settlement Agreements, the Insurer Settlement Agreements, and the
other agreements more particularly described on Schedule
1.1--Additional Settlement Agreements.
"Facility Termination Date" means the date on which the
Revolving Credit Termination Date shall have occurred, no Letters of
Credit shall remain outstanding, the Borrower shall have fully,
finally and irrevocably paid and satisfied all Obligations, and no
Person shall have any continuing obligation to make Loans or to issue
Letters of Credit.
"Fair Market Value" means, with respect to any capital stock
or other ownership interests issued or given by the Borrower or any
Subsidiary in connection with an Acquisition, (i) in the case of
capital stock that is Common Stock and such Common Stock is then
designated as a national market system security by the National
Association of Securities Dealers, Inc. ("NASDAQ") or is listed on a
national securities exchange, the average of the last reported bid and
ask quotations or prices reported thereon for Common Stock or such
other value as may be ascribed to the Common Stock in a definitive
merger or acquisition agreement provided such value is determined
according to customary methods for like transactions and is approved
(to the extent required by Borrower's charter or bylaws) by the
Borrower's board of directors or (ii) in the case of capital stock
that is not Common Stock or in the event that Common Stock is not so
designated on NASDAQ or listed on such national exchange, or in the
case of any other ownership interests, the determination of the fair
market value thereof in good faith by a majority of disinterested
members of the board of directors of the Borrower or such Subsidiary,
in each case effective as of the close of business on the Business Day
immediately preceding the closing date of such Acquisition.
"Federal Funds Effective Rate" means, for any day, the rate
per annum (rounded upward to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers on such day, as published by the Federal Reserve Bank of New
York on the Business Day next succeeding such day, provided that (a)
if such day is not a Business Day, the Federal Funds Effective Rate
for such day shall be such rate on such transactions on the next
preceding Business Day, and (b) if no such rate is so published on
such next succeeding Business Day, the Federal Funds Effective Rate
for such day shall be the average rate quoted to the Administrative
Agent by federal
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funds dealers selected by the Agent on such day on such transaction as
determined by the Administrative Agent.
"Fiscal Year" means the 12 month period of the Borrower
commencing on January 1 of each calendar year and ending on December
31 of each calendar year.
"Fixed Rate" shall mean the Absolute Rate, the Eurodollar
Rate, or the Interbank Offered Rate plus the Eurodollar Margin, as the
case may be.
"Fixed Rate Loan" means a Loan for which the rate of interest
is determined by reference to the Fixed Rate.
"Foreign Benefit Law" means any applicable statute, law,
ordinance, code, rule, regulation, order or decree of any foreign
nation or any province, state, territory, protectorate or other
political subdivision thereof regulating, relating to, or imposing
liability or standards of conduct concerning, any Employee Benefit
Plan.
"Four-Quarter Period" means a period of four full consecutive
fiscal quarters of the Borrower and its Subsidiaries, taken together
as one accounting period.
"GAAP" or "Generally Accepted Accounting Principles" means
generally accepted accounting principles, being those principles of
accounting set forth in pronouncements of the Financial Accounting
Standards Board, the American Institute of Certified Public
Accountants or which have other substantial authoritative support and
are applicable in the circumstances as of the date of a report.
"Government Securities" means direct obligations of, or
obligations the timely payment of principal and interest on which are
fully and unconditionally guaranteed by, the United States of America.
"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a
foreign governmental entity.
"Guarantors" means, at the Closing Date, the Material
Subsidiaries at such date, and at any later date, the Material
Subsidiaries who are required to be parties to a Guaranty at such
date.
"Guaranty" means each Guaranty and Suretyship Agreement
between one or more Guarantors and the Administrative Agent for the
benefit of the Lenders, delivered as of the Closing Date and otherwise
pursuant to Section 7.19, in the form of Exhibit J, as the same may be
amended, modified or supplemented; provided, however, (i) the Guaranty
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of Caremark, Inc. may contain the Caremark, Inc. Guaranty Limitation
which remains in effect until the Guaranty Limitation Release Date,
and (ii) the Guaranty of Caremark may contain the additional covenant
of Caremark to make, until the Guaranty Limitation Release Date, the
distributions to the Borrower of Caremark Excess Cash Flow provided
for in Section 7.20.
"Guaranty Limitation Release Date" means the date upon which
the Borrower shall furnish to the Administrative Agent (i) evidence
satisfactory to the Administrative Agent that the Caremark Inc.
Guaranty Limitation is no longer required by the Indenture, which
shall include the opinion of counsel to Caremark, Inc. addressed to
the Administrative Agent and the Lenders substantially to that effect,
and (ii) the written acknowledgement by the Borrower and Caremark,
Inc. addressed to the Administrative Agent and the Lenders stating
that the Caremark, Inc. Guaranty Limitation is deemed deleted and of
no further force and effect.
"Hazardous Material" means and includes any pollutant,
contaminant, hazardous, toxic or dangerous waste, substance or
material (including petroleum products, asbestos-containing materials
and lead), the management, generation, handling, storage,
transportation, disposal, treatment, release, discharge or emission of
which is subject to any Environmental Law.
"Indebtedness" means with respect to any Person, without
duplication, all Indebtedness for Money Borrowed, all indebtedness of
such Person for the acquisition of property, all indebtedness secured
by any Lien on the property of such Person whether or not such
indebtedness is assumed, all Letter of Credit Outstandings, all
liability of such Person by way of endorsements (other than for
collection or deposit of negotiable instruments in the ordinary course
of business), all Contingent Obligations and Off Balance Sheet
Liabilities, that portion of obligations with respect to Capital
Leases and other items which in accordance with GAAP are classified as
a liability on a balance sheet; but excluding all accounts payable in
the ordinary course of business so long as payment therefor is due
within one year; provided that in no event shall the term Indebtedness
include shareholders' capital, surplus and retained earnings, minority
interest in Subsidiaries, lease obligations not constituting either
Capital Leases or Off Balance Sheet Liabilities, reserves for deferred
income taxes and investment credits, other deferred credits and
reserves, and deferred compensation obligations.
"Indebtedness for Money Borrowed" means all indebtedness in
respect of money borrowed, including without limitation all Capital
Leases and the deferred purchase price of any property or asset,
evidenced by a promissory note, bond, debenture or similar written
obligation for the payment of money (including conditional sales or
similar title retention agreements).
"Indenture" means the Indenture dated as of August 1, 1993
between Caremark, as issuer, and Bank America National Trust Company,
as trustee.
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"Indenture Note Purchases" means the acquisition, redemption
or defeasance of the Indenture Notes by the Borrower or any Guarantor
other than Caremark, Inc..
"Indenture Notes" means the notes issued and outstanding from
time to time under the Indenture.
"Indenture Notes Purchase Sublimit" means, until the Guaranty
Limitation Release Date, $100,000,000.
"Insurer Settlement Agreements" means, collectively, the
agreements more particularly described in Schedule 1.1--Insurer
Settlement Agreements.
"Insurer Settlement Costs" means the sum of all amounts to be
paid by any member of the Caremark Group pursuant to the Insurer
Settlement Agreements; provided, however, the aggregate after tax
amount of all such amounts, fees, costs and expenses under Insurer
Settlement Agreements shall not exceed the "Original After Tax Cost
Amount" as described in the Additional Disclosure Letter.
"Interbank Offered Rate" means, with respect to any Eurodollar
Rate Loan or Eurodollar Market Loan for any Interest Period applicable
thereto, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor
page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such
Interest Period. If for any reason such rate is not available, the
term "Interbank Offered Rate" shall mean, with respect to any
Eurodollar Rate Loan or Eurodollar Market Loan for any Interest Period
applicable thereto, the rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as
the London interbank offered rate for deposits in Dollars at
approximately 11:00 A.M. (London time) two Business Days, in the case
of a Eurodollar Rate Loan and four Business Days in the case of a
Eurodollar Market Loan, prior to the first day of such Interest Period
for a term comparable to such Interest Period; provided, however, if
more than one rate is specified on Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates.
"Interest Period" means,
(i) with respect to each Eurodollar Rate Loan, a period
commencing on the date such Eurodollar Rate Loan is made or converted
and ending on the numerically corresponding day in the first, second,
third or sixth calendar month thereafter, as the Borrower may select
as provided in Section 2.1(c), except that each Interest Period that
commences on the last Business Day of a calendar month (or any day for
which there is no numerically corresponding day in the appropriate
subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month;
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(ii) with respect to any Absolute Rate Loan, the period
commencing on the date such Absolute Rate Loan is made and ending on
any Business Day not less than 7 and not more than 180 days
thereafter, as the Borrower may select as provided in Section 2.2(b);
and
(iii) with respect to any Eurodollar Market Loan, the period
commencing on the date such Eurodollar Market Loan is made and ending
on the numerically corresponding day in the first, second, third or
sixth calendar month thereafter, as the Borrower may select as
provided in Section 2.2(b), except that each Interest Period that
commences on the last Business Day of a calendar month (or any day for
which there is no numerically corresponding day in the appropriate
subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month;
provided, however, that notwithstanding the foregoing: (i) if any
Interest Period would otherwise end after the Stated Termination Date,
such Interest Period shall end on the Stated Termination Date; (ii)
each Interest Period that would otherwise end on a day which is not a
Business Day shall end on the next succeeding Business Day (or, in the
case of an Interest Period for a Eurodollar Rate Loan or a Eurodollar
Market Loan, if such next succeeding Business Day falls in the next
succeeding calendar month, on the next preceding Business Day); (iii)
notwithstanding clauses (i) and (ii) above, no Interest Period for any
Loan (other than an Absolute Rate Loan) shall have a duration of less
than one month and, if the Interest Period for any Eurodollar Rate
Loan or Eurodollar Market Loan would otherwise be a shorter period,
such Loan shall not be available hereunder for such period, and (iv)
there shall not be more than twelve (12) Interest Periods in effect on
any day.
"Interest Rate Selection Notice" means the written request of
an Authorized Representative, delivered by telefacsimile transmission
to the Administrative Agent and effective upon receipt, to elect a
subsequent Interest Period for or to convert a Revolving Loan or
Revolving Loans of any Type hereunder, as such election or conversion
shall be otherwise permitted herein. Any Interest Rate Selection
Notice shall be binding on and irrevocable by the Borrower and shall
be in the form attached hereto as Exhibit E.
"Issuing Bank" means (i) NationsBank as issuer of Letters of
Credit under Article III, and (ii) The First National Bank of Chicago
only with respect to the Existing Letters of Credit.
"LC Account Agreement" means the LC Account Agreement dated as
of the date hereof between the Borrower and the Administrative Agent,
as amended, modified or supplemented from time to time.
"Lending Office" means, as to each Lender, the Lending Office
of such Lender designated on the signature pages hereof or in an
Assignment and Acceptance or such other office of such Lender (or of
an affiliate of such Lender) as such Lender may from
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time to time specify to the Authorized Representative and the
Administrative Agent as the office by which its Loans are to be made
and maintained.
"Letters of Credit" means standby letters of credit issued by
the Issuing Bank for the account of the Borrower in favor of a Person
advancing credit or securing an obligation on behalf of the Borrower,
and shall include the Existing Letters of Credit.
"Letter of Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to acquire Participations in
respect of Letters of Credit and Reimbursement Obligations up to an
aggregate amount at any one time outstanding equal to such Lender's
Applicable Commitment Percentage of the Total Letter of Credit
Commitment as the same may be increased or decreased from time to time
pursuant to this Agreement.
"Letter of Credit Facility" means the facility described in
Article III providing for the issuance by the Issuing Bank of Letters
of Credit (including the Existing Letters of Credit) in an aggregate
stated amount at any time outstanding not exceeding the Total Letter
of Credit Commitment.
"Letter of Credit Outstandings" means, as of any date of
determination, the aggregate amount remaining undrawn under all
Letters of Credit (including the Existing Letters of Credit) plus the
principal amount of all Reimbursement Obligations then outstanding.
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, the Borrower and any
Subsidiary shall be deemed to be the owner of any property which it
has acquired or holds subject to a conditional sale agreement,
financing lease, or other arrangement pursuant to which title to the
property has been retained by or vested in some other Person for
security purposes.
"Loan" or "Loans" means any Revolving Loans, Swing Line Loans,
Competitive Bid Loans and Reimbursement Obligations, and all
extensions and renewals thereof.
"Loan Documents" means this Agreement, the Notes, the
Guaranties, the LC Account Agreement, the Applications and Agreements
for Letter of Credit, and all other instruments and documents
heretofore or hereafter executed or delivered to or in favor of any
Lender or the Administrative Agent in connection with the Loans made
and transactions contemplated under this Agreement, as the same may be
amended, supplemented or replaced from time to time.
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"Material Adverse Effect" means a material adverse effect on
(i) the business, properties, operations or condition, financial or
otherwise, of the Borrower and its Subsidiaries, taken as a whole,
(ii) the ability of any Credit Party to pay or perform its respective
obligations, liabilities and indebtedness under the Loan Documents as
such payment or performance becomes due in accordance with the terms
thereof, or (iii) the rights, powers and remedies of the
Administrative Agent or any Lender under any Loan Document or the
validity, legality or enforceability thereof (including for purposes
of clauses (ii) and (iii) the imposition of materially burdensome
conditions thereon).
"Material Subsidiary" means any direct or indirect Subsidiary
of the Borrower which (i) has total assets equal to or greater than 5%
of Consolidated Total Assets (calculated as of the most recent fiscal
period with respect to which the Administrative Agent shall have
received financial statements required to be delivered pursuant to
Sections 7.1(a) or (b) (or if prior to delivery of any financial
statements pursuant to such Sections, then calculated with respect to
the Fiscal Year end financial statements referenced in Section 6.6)
(the "Required Financial Information")) or (ii) has income equal to or
greater than 5% of Consolidated Net Income (calculated for the most
recent period for which the Administrative Agent has received the
Required Financial Information); provided, however, that
notwithstanding the foregoing, the term "Material Subsidiaries" shall
mean Subsidiaries of the Borrower that together have assets equal to
not less than 80% of Consolidated Total Assets (calculated as
described above) or net income of not less than 80% of Consolidated
Net Income (calculated as described above); provided further that if
more than one combination of Subsidiaries satisfies such threshold,
then those Subsidiaries so determined to be "Material Subsidiaries"
shall be specified by the Borrower.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate is making, or is accruing an obligation to make,
contributions or has made, or been obligated to make, contributions
within the preceding six (6) Fiscal Years.
"Municipal Obligations" means general obligations issued by,
and supported by the full taxing authority of, any state of the United
States of America or of any municipal corporation or other public body
organized under the laws of any such state which are rated in the
highest investment rating category by both S&P and Moody's.
"NCMI" means NationsBanc Capital Markets, Inc. and its
successors.
"Net Proceeds" from the issuance of equity or Indebtedness
means cash payments received therefrom as and when received, net of
all legal, accounting, banking, underwriting, title and recording fees
and expenses, commissions, discounts and other issuance expenses
incurred in connection therewith and all taxes required to be paid or
accrued as a consequence of such transaction.
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"Notes" means, collectively, the Revolving Notes, the
Competitive Bid Notes, and the Swing Line Note.
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrower with respect to (i) the principal and
interest on the Loans as evidenced by the Notes, (ii) the
Reimbursement Obligations and otherwise in respect of the Letters of
Credit, (iii) all liabilities of Borrower to any Lender which arise
under a Swap Agreement, and (iv) the payment and performance of all
other obligations, liabilities and Indebtedness of the Borrower to the
Lenders, the Administrative Agent or NCMI hereunder, under any one or
more of the other Loan Documents or with respect to the Loans.
"Off Balance Sheet Liabilities" means, with respect to the
Borrower and its Subsidiaries, (a) any repurchase obligation or
liability of the Borrower or any Subsidiary with respect to accounts
or notes receivable sold by the Borrower or any Subsidiary, (b) the
face amount of accounts receivable pursuant to a Permitted Receivables
Securitization, (c) any repurchase obligation or liability of the
Borrower or any Subsidiary with respect to property leased by such
Person as lessee, (d) obligations arising with respect to any other
transaction which is the functional equivalent of or takes the place
of borrowing but which does not constitute a liability on the
consolidated balance sheets of the Borrower and its Subsidiaries
excluding therefrom operating leases which do not require payment by
or due from such Person: (i) at the scheduled termination of such
operating lease, (ii) pursuant to a required purchase by such Person
of the leased property, or (iii) under any guaranty by such Person of
the value of the leased property or (e) net liabilities under any Rate
Hedging Obligations.
"OIG" means the Office of Inspector General of the U.S.
Department of Health and Human Services or any other regulatory body
which succeeds to the functions thereof.
"OIG Proceedings" means all investigations, proceedings and
litigation described in the first three paragraphs of "Item 3. Legal
Proceedings" of Caremark's Form 10-K for the year ended December 31,
1994.
"OIG Settlement Agreements" means, collectively, the
agreements more particularly described on Schedule 1.1--OIG Settlement
Agreements.
"OIG Settlement Costs" means the sum of (i) all amounts to be
paid by any member of the Caremark Group pursuant to the OIG
Settlement Agreements and (ii) all fees, costs and expenses paid or
payable by any member of the Caremark Group to any Person in
connection with the OIG Settlement Agreements or the proceedings from
which such OIG Settlement Agreements arose; provided, however, the
aggregate after tax amount of all such amounts, fees, costs and
expenses under clauses (i) and (ii) shall not exceed $145,009,000.
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"Participation" means, (i) with respect to any Lender (other
than the Issuing Bank) and a Letter of Credit, the extension of credit
represented by the participation of such Lender hereunder in the
liability of the Issuing Bank in respect of a Letter of Credit issued
by the Issuing Bank in accordance with the terms hereof and (ii) with
respect to any Lender (other than NationsBank) and a Swing Line Loan,
the extension of credit represented by the participation of such
Lender hereunder in the liability of NationsBank in respect of a Swing
Line Loan made by NationsBank in accordance with the terms hereof.
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor thereto.
"Pension Plan" means any employee pension benefit plan within the
meaning of Section 3(2) of ERISA, other than a Multiemployer Plan,
which is subject to the provisions of Title IV of ERISA or Section 412
of the Code and which (i) is maintained for employees of the Borrower
or any of its ERISA Affiliates or is assumed by the Borrower or any of
its ERISA Affiliates in connection with any Acquisition or (ii) has at
any time been maintained for the employees of the Borrower or any
current or former ERISA Affiliate.
"Permitted Receivables Securitization" means limited recourse
or non-recourse sales and assignments of accounts receivable of the
Borrower or its Subsidiaries to one or more entities, the proceeds of
which shall be made available to the Borrower or its Subsidiaries;
provided, however, that the maximum face amount of accounts receivable
which may be sold is $100,000,000 and the minimum price which shall be
paid for receivables is 70% of the face amount thereof.
"Person" means an individual, partnership, corporation, trust,
unincorporated organization, association, joint venture or a
government or agency or political subdivision thereof.
"PPSI Acquisition" means the consummated acquisition by the
Borrower of Pacific Physician Services, Inc. pursuant to that certain
Plan and Agreement of Merger and Reorganization dated as of December
11, 1995 between such Persons.
"Pre-Refunded Municipal Obligations" means obligations of any
state of the United States of America or of any municipal corporation
or other public body organized under the laws of any such state which
are rated, based on the escrow, in the highest investment rating
category by both S&P and Moody's and which have been irrevocably
called for redemption and advance refunded through the deposit in
escrow of Government Securities or other debt securities which are (i)
not callable at the option of the issuer thereof prior to maturity,
(ii) irrevocably pledged solely to the payment of all principal and
interest on such obligations as the same becomes due and (iii) in a
principal amount and bear such rate or rates of interest as shall be
sufficient to pay in full all principal of,
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interest, and premium, if any, on such obligations as the same becomes
due as verified by a nationally recognized firm of certified public
accountants.
"Prime Rate" means the rate of interest per annum announced
publicly by the Administrative Agent as its prime rate from time to
time. The Prime Rate is not necessarily the best or the lowest rate
of interest offered by the Administrative Agent.
"Principal Office" means the office of the Administrative
Agent at NationsBank, National Association, Xxxxxxxxxxxx Xxxxxx, 00xx
Xxxxx, XX0 000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Agency Services, or such other office and address as the
Administrative Agent may from time to time designate.
"Pro Forma Historical Statements" means (i) the pro forma
consolidated balance sheet as at March 31, 1996, and (ii) the pro
forma consolidated income statements for the Fiscal Years ended
December 31, 1993, December 31, 1994 and December 31, 1995, prepared
in accordance with GAAP by independent certified public accountants of
national reputation, of the Borrower and its Subsidiaries, giving
historical pro forma effect to the Related Acquisition, which shall be
furnished to the Administrative Agent and the Lenders prior to the
Closing Date.
"Quotation Date" shall have the meaning assigned to such term
in Section 2.1(b)(v).
"Rate Hedging Obligations" means any and all obligations of
the Borrower or any Subsidiary, whether absolute or contingent and
howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and
substitutions therefor), under (a) any and all agreements, devices or
arrangements designed to protect at least one of the parties thereto
from the fluctuations of interest rates, exchange rates or forward
rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, Dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection
agreements, forward rate currency or interest rate options, puts,
warrants and those commonly known as interest rate "swap" agreements;
and (b) any and all cancellations, buybacks, reversals, terminations
or assignments of any of the foregoing.
"Registration Statement" means the Borrower's Registration
Statement on Form S-4, Registration No. 333- 09767, as filed with the
Securities and Exchange Commission on August 16, 1996, as amended.
"Regulation D" means Regulation D of the Board as the same may
be amended or supplemented from time to time.
"Regulatory Change" means any change effective after the
Closing Date in United States federal or state laws or regulations
(including Regulation D and capital adequacy
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regulations) or foreign laws or regulations or the adoption or making
after such date of any interpretations, directives or requests
applying to a class of banks, which includes any of the Lenders, under
any United States federal or state or foreign laws or regulations
(whether or not having the force of law) by any court or governmental
or monetary authority charged with the interpretation or
administration thereof or compliance by any Lender with any request or
directive regarding capital adequacy, including those relating to
"highly leveraged transactions," whether or not having the force of
law, and whether or not failure to comply therewith would be unlawful.
"Reimbursement Obligation" means, at any time, the obligation
of the Borrower with respect to any Letter of Credit to reimburse the
Issuing Bank and the Lenders to the extent of their respective
Participations (including by the receipt by the Issuing Bank of
proceeds of Loans) for amounts theretofore paid by the Issuing Bank
pursuant to a drawing under such Letter of Credit.
"Related Acquisition" means the acquisition by the Borrower of
the Caremark Group in accordance with the terms of the Related
Acquisition Agreement, as such transaction is further described in the
Registration Statement.
"Related Acquisition Agreement" means that certain Plan and
Agreement of Merger dated as of May 13, 1996 by and among the
Borrower, Caremark and PPM Merger Corporation, and all schedules,
annexes and exhibits thereto, as the same may be amended or
supplemented in a manner acceptable to the Administrative Agent and
the Required Lenders in their discretion.
"Related Acquisition Transaction Documents" means the Related
Acquisition Agreement and each document, agreement, instrument,
opinion or certificate incorporated therein or delivered in connection
therewith, including in each case all annexes, schedules and exhibits
thereto, as any of the same may be amended or supplemented in a manner
acceptable to the Administrative Agent and the Required Lenders in
their discretion.
"Reportable Conduct" shall have the meaning provided therefor
in the Corporate Integrity Agreement as in effect as of the Closing
Date.
"Repurchase Agreement" means a repurchase agreement entered
into with any financial institution whose debt obligations or
commercial paper are rated "A" or better by S&P and "A-2" or better by
Moody's and "A-1" by S&P and "P-1" by Moody's, respectively.
"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating at least 51% of
the aggregate Credit Exposures of all the Lenders on such date. For
purposes of the preceding sentence, the amount of the "Credit
Exposure" of each Lender shall be equal to the aggregate principal
amount of the Loans owing to such Lender (without regard to any Swing
Line Outstandings or, so long as there shall not exist any Event of
Default which shall have resulted in the
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commitments of the Lenders to make additional Revolving Loans or Swing
Line Loans being terminated, any Competitive Bid Loan owing to such
Lender) plus, so long as there shall not exist any Event of Default
which shall have resulted in the commitments of the Lenders to make
additional Revolving Loans or Swing Line Loans being terminated, the
aggregate unutilized amounts of such Lender's Revolving Credit
Commitment, plus the amount of such Lender's Applicable Commitment
Percentage of Letter of Credit Outstandings; provided that, (i) if any
Lender shall have failed to pay to the Issuing Bank its Applicable
Commitment Percentage of any drawing under any Letter of Credit
resulting in an outstanding Reimbursement Obligation, such Lender's
Credit Exposure attributable to Letters of Credit and Reimbursement
Obligations shall be deemed to be held by the Issuing Bank for
purposes of this definition and (ii) if any Lender shall have failed
to pay to NationsBank its Applicable Commitment Percentage of any
Swing Line Loan, such Lender's Credit Exposure attributable to all
Swing Line Outstandings shall be deemed to be held by NationsBank for
purposes of this definition.
"Revolving Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to make Revolving Loans to the
Borrower up to an aggregate principal amount at any one time
outstanding equal to such Lender's Applicable Commitment Percentage of
the Total Revolving Credit Commitment.
"Revolving Credit Facility" means the facility described in
Article II hereof providing for Loans to the Borrower by the Lenders
in the aggregate principal amount of the Total Revolving Credit
Commitment.
"Revolving Credit Outstandings" means, as of any date of
determination, the aggregate principal amount of all Revolving Loans
then outstanding.
"Revolving Credit Termination Date" means (i) the Stated
Termination Date or (ii) such earlier date of termination of Lenders'
obligations pursuant to Section 9.1 upon the occurrence of an Event of
Default, or (iii) such date as the Borrower may voluntarily and
permanently terminate the Revolving Credit Facility by payment in full
of all Revolving Credit Outstandings, Swing Line Outstandings,
Competitive Bid Loans, and Letter of Credit Outstandings, together
with all accrued and unpaid interest thereon and other Obligations
incurred in connection therewith, and cancellation of all Letters of
Credit.
"Revolving Loan" means any borrowing pursuant to an Advance
under the Revolving Credit Facility in accordance with Section 2.1(a).
"Revolving Notes" means, collectively, the promissory notes of
the Borrower evidencing Revolving Loans executed and delivered to the
Lenders as provided in Section 2.6(a) substantially in the form of
Exhibit F-2, with appropriate insertions as to amounts, dates and
names of Lenders.
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx
Companies.
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"Single Employer Plan" means any employee pension benefit plan
covered by Title IV of ERISA in respect of which the Borrower or any
Subsidiary is an "employer" as described in Section 4001(b) of ERISA
and which is not a Multiemployer Plan.
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(i) the fair value of its assets (both at fair
valuation and at present fair saleable value on an orderly
basis) is in excess of the total amount of its liabilities,
including Contingent Obligations;
(ii) it is then able and expects to be able to
pay its debts as they mature; and
(iii) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted.
"Stated Termination Date" means September 5, 2001.
"Stock Consideration" means, with respect to an Acquisition,
the Fair Market Value of all capital stock or other ownership
interests of the Borrower or any Subsidiary issued or given in
connection with such Acquisition.
"Subsidiary" means any corporation or other entity in which
more than 50% of its outstanding voting stock or more than 50% of all
equity interests is owned directly or indirectly by the Borrower
and/or by one or more of the Borrower's Subsidiaries.
"Swap Agreement" means one or more agreements between the
Borrower and any Person with respect to Indebtedness evidenced by any
or all of the Notes, on terms mutually acceptable to the Borrower and
such Person and approved by each of the Lenders, which agreements
create Rate Hedging Obligations; provided, however, that no such
approval of the Lenders shall be required to the extent such
agreements are entered into between the Borrower and any Lender.
"Swing Line" means the revolving line of credit established by
NationsBank in favor of the Borrower pursuant to Section 2.14.
"Swing Line Loans" means loans made by NationsBank to the
Borrower pursuant to Section 2.14.
"Swing Line Note" means the promissory note of the Borrower
evidencing Swing Line Loans executed and delivered to NationsBank as
provided in Section 2.14, substantially in the form of Exhibit F-3.
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"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal amount of all Swing Line Loans
then outstanding.
"Termination Event" means: (i) a "Reportable Event" described in
Section 4043 of ERISA and the regulations issued thereunder (unless
the notice requirement has been waived by applicable regulation); or
(ii) the withdrawal of the Borrower or any ERISA Affiliate from a
Pension Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA or was deemed such
under Section 4068(f) of ERISA; or (iii) the termination of a Pension
Plan, the filing of a notice of intent to terminate a Pension Plan or
the treatment of a Pension Plan amendment as a termination under
Section 4041 of ERISA; or (iv) the institution of proceedings to
terminate a Pension Plan by the PBGC; or (v) any other event or
condition which would constitute grounds under Section 4042(a) of
ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan; or (vi) the partial or complete
withdrawal of the Borrower or any ERISA Affiliate from a Multiemployer
Plan; or (vii) the imposition of a Lien pursuant to Section 412 of the
Code or Section 302 of ERISA; or (viii) any event or condition which
results in the reorganization or insolvency of a Multiemployer Plan
under Section 4241 or Section 4245 of ERISA, respectively; or (ix) any
event or condition which results in the termination of a Multiemployer
Plan under Section 4041A of ERISA or the institution by the PBGC of
proceedings to terminate a Multiemployer Plan under Section 4042 of
ERISA.
"Total Letter of Credit Commitment" means an amount not to
exceed $50,000,000.
"Total Revolving Credit Commitment" means a principal amount
equal to (i) from the Closing Date through December 31, 1996,
$750,000,000, and (ii) thereafter, $1,000,000,000, as reduced from
time to time in accordance with Section 2.8.
"Voting Stock" means shares of capital stock issued by a
corporation, or equivalent interests in any other Person, the holders
of which are ordinarily, in the absence of contingencies, entitled to
vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been
suspended by the happening of such a contingency.
1.2. Rules of Interpretation.
(a) All accounting terms not specifically defined herein
shall have the meanings assigned to such terms by, and shall be
interpreted in accordance with, GAAP applied on a Consistent Basis.
(b) Each term defined in Article 1 or 9 of the North Carolina
Uniform Commercial Code shall have the meaning given therein unless
otherwise defined herein, except to the extent that the Uniform
Commercial Code of another jurisdiction is
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controlling, in which case such terms shall have the meaning given in
the Uniform Commercial Code of the applicable jurisdiction.
(c) The headings, subheadings and table of contents used
herein or in any other Loan Document are solely for convenience of
reference and shall not constitute a part of any such document or
affect the meaning, construction or effect of any provision thereof.
(d) Except as otherwise expressly provided, references herein
to articles, sections, paragraphs, clauses, annexes, appendices,
exhibits and schedules are references to articles, sections,
paragraphs, clauses, annexes, appendices, exhibits and schedules in or
to this Agreement.
(e) All definitions set forth herein or in any other Loan
Document shall apply to the singular as well as the plural form of
such defined term, and all references to the masculine gender shall
include reference to the feminine or neuter gender, and vice versa, as
the context may require.
(f) When used herein or in any other Loan Document, words
such as "hereunder", "hereto", "hereof" and "herein" and other words
of like import shall, unless the context clearly indicates to the
contrary, refer to the whole of the applicable document and not to any
particular article, section, subsection, paragraph or clause thereof.
(g) References to "including" means including without
limiting the generality of any description preceding such term, and
for purposes hereof the rule of ejusdem generis shall not be
applicable to limit a general statement, followed by or referable to
an enumeration of specific matters, to matters similar to those
specifically mentioned.
(h) All dates and times of day specified herein shall refer
to such dates and times at Charlotte, North Carolina.
(i) Each of the parties to the Loan Documents and their
counsel have reviewed and revised, or requested (or had the
opportunity to request) revisions to, the Loan Documents, and any rule
of construction that ambiguities are to be resolved against the
drafting party shall be inapplicable in the construing and
interpretation of the Loan Documents and all exhibits, schedules and
appendices thereto.
(j) Any reference to an officer of the Borrower or any
other Person by reference to the title of such officer shall be deemed
to refer to each other officer of such Person, however titled,
exercising the same or substantially similar functions.
(k) All references to any agreement or document as
amended, modified or supplemented, or words of similar effect, shall
mean such document or agreement, as the
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case may be, as amended, modified or supplemented from time to time
only as and to the extent permitted therein and in the Loan Documents.
1.3. Classes and Types of Loans. Loans hereunder are distinguished
by "Class" and by "Type". The "Class" of a Loan refers to whether such Loan is
a Competitive Bid Loan or a Revolving Loan, each of which constitutes a Class.
The "Type" of a Loan refers to whether such Loan is a Base Rate Loan, a
Eurodollar Rate Loan, an Absolute Rate Loan or a Eurodollar Market Loan, each
of which constitutes a Type. Loans may be identified by both Class and Type.
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ARTICLE II
The Revolving Credit Facility
2.1. Revolving Loans.
(a) Commitment. Subject to the terms and conditions of
this Agreement, each Lender severally agrees to make Advances to the Borrower
under the Revolving Credit Facility from time to time from the Closing Date
until the Revolving Credit Termination Date on a pro rata basis as to the total
borrowing requested by the Borrower on any day determined by such Lender's
Applicable Commitment Percentage up to but not exceeding the Revolving Credit
Commitment of such Lender, provided, however, that the Lenders will not be
required and shall have no obligation to make any such Advance (i) so long as a
Default or an Event of Default has occurred and is continuing or (ii) if the
Administrative Agent has terminated the commitments of the Lenders to make
Revolving Credit Loans or accelerated the maturity of any of the Notes as a
result of an Event of Default; provided further, however, that immediately
after giving effect to each such Advance, (A) the principal amount of Revolving
Credit Outstandings plus Letter of Credit Outstandings plus Swing Line
Outstandings plus outstanding Competitive Bid Loans shall not exceed the Total
Revolving Credit Commitment, and (B) until the Guaranty Limitation Release
Date, the principal amount of Revolving Credit Outstandings plus Letter of
Credit Outstandings plus Swing Line Outstandings plus outstanding Competitive
Bid Loans (excluding Advances, Loans and Letters of Credit used directly or
indirectly to effect Indenture Note Purchases) shall not exceed the Total
Revolving Credit Commitment minus the Indenture Notes Purchase Sublimit.
Within such limits, the Borrower may borrow, repay and reborrow under the
Revolving Credit Facility on a Business Day from the Closing Date until, but
(as to borrowings and reborrowings) not including, the Revolving Credit
Termination Date; provided, however, that (x) no Eurodollar Rate Loan shall be
made which has an Interest Period that extends beyond the Stated Termination
Date and (y) each Eurodollar Rate Loan may be repaid only on the last day of
the Interest Period with respect thereto unless such payment is accompanied by
the additional payment, if any, required by Section 4.4.
(b) Amounts. The aggregate unpaid principal amount of
the Revolving Credit Outstandings plus Letter of Credit Outstandings plus Swing
Line Outstandings plus outstanding Competitive Bid Loans shall not exceed at
any time the Total Revolving Credit Commitment, and until the Guaranty
Limitation Release Date, the aggregate principal amount of Revolving Credit
Outstandings plus Letter of Credit Outstandings plus Swing Line Outstandings
plus outstanding Competitive Bid Loans (excluding Advances, Loans and Letters
of Credit used directly or indirectly to effect Indenture Note Purchases) shall
not exceed at any time the Total Revolving Credit Commitment minus the
Indenture Notes Purchase Sublimit, and, in the event there shall be outstanding
any such excess, the Borrower shall immediately make such payments and
prepayments as shall be necessary to comply with this restriction. Each
Revolving Loan hereunder, other than Base Rate Refunding Loans, and each
conversion under Section 2.9, shall be in an amount of at least $5,000,000,
and, if greater than $5,000,000, an integral multiple of $500,000.
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(c) Advances. (i) An Authorized Representative shall
give the Administrative Agent (1) prior to 11:00 A.M. at least three (3)
Business Days' irrevocable written notice by telefacsimile transmission of a
Borrowing Notice or Interest Rate Selection Notice (as applicable) with
appropriate insertions, effective upon receipt, of each Revolving Loan that is
a Eurodollar Rate Loan (whether representing an additional borrowing hereunder
or the conversion of a borrowing hereunder from Base Rate Loans to Eurodollar
Rate Loans) and (2) irrevocable written notice by telefacsimile transmission of
a Borrowing Notice or Interest Rate Selection Notice (as applicable) with
appropriate insertions, effective upon receipt, of each Revolving Loan (other
than Base Rate Refunding Loans to the extent the same are effected without
notice pursuant to Section 2.1(c)(iv)) that is a Base Rate Loan (whether
representing an additional borrowing hereunder or the conversion of borrowing
hereunder from Eurodollar Rate Loans to Base Rate Loans) prior to 11:00 A.M. on
the Business Day of such proposed Revolving Loan. Each such notice shall
specify the amount of the borrowing, the Type of Revolving Loan (Base Rate or
Eurodollar Rate), the date of borrowing and, if a Eurodollar Rate Loan, the
Interest Period to be used in the computation of interest. Notice of receipt
of such Borrowing Notice or Interest Rate Selection Notice, as the case may be,
together with the amount of each Lender's portion of an Advance requested
thereunder, shall be provided by the Administrative Agent to each Lender by
telefacsimile transmission with reasonable promptness, but (provided the
Administrative Agent shall have received such notice by 11:00 A.M. and if not
so received, such notice shall be deemed to have been received by the
Administrative Agent on the next succeeding Business Day) not later than 1:00
P.M. on the same day as the Administrative Agent's receipt of such notice.
Notwithstanding the foregoing: (1) the Borrower may obtain one or more
Eurodollar Rate Loans on the Closing Date provided that: (x) the Administrative
Agent shall receive the Borrowing Notice therefor in the manner specified in
this Section 2.1(c)(i) not later than 11:00 A.M. on the third Business Day
preceding the Closing Date and (y) the conditions to making Loans and issuing
Letters of Credit in Article V shall be satisfied as of the Closing Date; and
(2) the delivery by the Borrower of the Borrowing Notice described in clause
(1)(x) of this sentence shall constitute the Borrower's irrevocable agreement
to be bound by the terms of Article IV with respect to the funds requested
under such Borrowing Notice, whether or not Eurodollar Rate Loans are made
available to the Borrower on the date requested in the Borrowing Notice, and
for that purpose the failure of such Eurodollar Rate Loans to be made as a
result of any condition thereto not being satisfied shall constitute a failure
of the Borrower to borrow a Fixed Rate Loan as described in Section 4.4(b).
(ii) Not later than 3:00 P.M. on the date specified for each
borrowing under this Section 2.1, each Lender shall, pursuant to the terms and
subject to the conditions of this Agreement, make the amount of the Loan or
Loans to be made by it on such day available to the Administrative Agent, by
depositing or transferring the proceeds thereof in immediately available funds
at the Principal Office. The amount so received by the Administrative Agent
shall, subject to the terms and conditions of this Agreement, be made available
to or for the benefit of the Borrower by delivery of the proceeds thereof to
the Borrower or a designated Subsidiary as shall be directed in the applicable
Borrowing Notice by the Authorized Representative.
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(iii) The Borrower shall have the option to elect the duration of the
initial and any subsequent Interest Periods and to convert the Revolving Loans
in accordance with Section 2.9. Eurodollar Rate Loans and Base Rate Loans may
be outstanding at the same time, provided, however, there shall not be
outstanding at any one time Loans (whether Revolving Loans or Competitive Bid
Loans) having more than twelve (12) different Interest Periods. If the
Administrative Agent does not receive a Borrowing Notice or an Interest Rate
Selection Notice giving notice of election of the duration of an Interest
Period or of conversion of any Loan to or continuation of a Loan as a
Eurodollar Rate Loan by the time prescribed by Section 2.1(c) or 2.9, the
Borrower shall be deemed to have elected to convert such Revolving Loan to (or
continue such Revolving Loan as) a Base Rate Loan until the Borrower notifies
the Administrative Agent in accordance with Section 2.9.
(iv) Notwithstanding the foregoing, if a drawing is made under any
Letter of Credit, such drawing is honored by the Issuing Bank prior to the
Stated Termination Date, and the Borrower shall not immediately fully reimburse
the Issuing Bank in respect of such drawing, (A) provided that the conditions
to making a Revolving Loan as herein provided shall then be satisfied, the
Reimbursement Obligation arising from such drawing shall be paid to the Issuing
Bank by the Administrative Agent without the requirement of notice to or from
the Borrower from immediately available funds which shall be advanced as a Base
Rate Refunding Loan by each Lender under the Revolving Credit Facility in an
amount equal to such Lender's Applicable Commitment Percentage of such
Reimbursement Obligation, and (B) if the conditions to making a Revolving Loan
as herein provided shall not then be satisfied, each of the Lenders shall fund
by payment to the Administrative Agent (for the benefit of the Issuing Bank) in
immediately available funds the purchase from the Issuing Bank of their
respective Participations in the related Reimbursement Obligation based on
their respective Applicable Commitment Percentages of the Total Letter of
Credit Commitment. If a drawing is presented under any Letter of Credit in
accordance with the terms thereof and the Borrower shall not immediately
reimburse the Issuing Bank in respect thereof, then notice of such drawing or
payment shall be provided promptly by the Issuing Bank to the Administrative
Agent and the Administrative Agent shall provide notice to each Lender by
telephone or telefacsimile transmission. If notice to the Lenders of a drawing
under any Letter of Credit is given by the Administrative Agent at or before
12:00 noon on any Business Day, each Lender shall, pursuant to the conditions
specified in this Section 2.1(c)(iv), either make a Base Rate Refunding Loan or
fund the purchase of its Participation in the amount of such Lender's
Applicable Commitment Percentage of such drawing or payment and shall pay such
amount to the Administrative Agent for the account of the Issuing Bank at the
Principal Office in Dollars and in immediately available funds before 2:30 P.M.
on the same Business Day. If notice to the Lenders of a drawing under a Letter
of Credit is given by the Administrative Agent after 12:00 noon on any Business
Day, each Lender shall, pursuant to the conditions specified in this Section
2.1(c)(iv), either make a Base Rate Refunding Loan or fund the purchase of its
Participation in the amount of such Lender's Applicable Commitment Percentage
of such drawing or payment and shall pay such amount to the Administrative
Agent for the account of the Issuing Bank at the Principal Office in Dollars
and in immediately available funds before 12:00 noon on the next following
Business Day. Any such Base Rate Refunding Loan shall be advanced as, and
shall continue as, a Base Rate Loan
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unless and until the Borrower converts such Base Rate Loan in accordance with
the terms of Section 2.9.
2.2. Competitive Bid Loans.
(a) In addition to borrowings of Revolving Loans, at any
time from the Closing Date prior to the Revolving Credit Termination Date the
Borrower may, as set forth in this Section 2.2, request the Lenders to make
offers to make Competitive Bid Loans to the Borrower in Dollars. The Lenders
may, but shall have no obligation to, make such offers and the Borrower may,
but shall have no obligation to, accept any such offers in the manner set forth
in this Section 2.2. Competitive Bid Loans may be Eurodollar Market Loans or
Absolute Rate Loans (each a "Type" of Competitive Bid Loan), provided that:
(i) the aggregate amount of outstanding
Competitive Bid Loans shall not exceed the Total Revolving
Credit Commitment less the sum of the principal amount of
Revolving Credit Outstandings plus Letter of Credit
Outstandings plus Swing Line Outstandings;
(ii) there may be no more than twelve (12)
different Interest Periods for both Revolving Loans and
Competitive Bid Loans outstanding at the same time (for which
purpose Interest Periods described in different lettered
clauses of the definition of the term "Interest Period" shall
be deemed to be different Interest Periods even if they are
coterminous);
(iii) the aggregate amount of outstanding
Competitive Bid Loans of a Lender shall not exceed at any time
an amount equal to the Total Revolving Credit Commitment; and
(iv) no Competitive Bid Loan shall have a maturity
date subsequent to the Revolving Credit Termination Date.
(b) When the Borrower wishes to request offers to make
Competitive Bid Loans, it shall give the Administrative Agent (which shall
promptly notify the Lenders) notice (a "Competitive Bid Quote Request") to be
received no later than 11:00 A.M. on (x) the fourth Business Day prior to the
date of borrowing proposed therein, in the case of a Eurodollar Auction or (y)
the Business Day next preceding the date of borrowing proposed therein, in the
case of an Absolute Rate Auction (or, in any such case, such other time and
date as the Borrower and the Administrative Agent, with the consent of the
Required Lenders, may agree). The Borrower may request offers to make
Competitive Bid Loans for up to three (3) different Interest Periods in a
single notice (for which purpose Interest Periods in different lettered clauses
of the definition of the term "Interest Period" shall be deemed to be different
Interest Periods even if they are coterminous); provided that the request for
each separate Interest Period shall be deemed to be a separate Competitive Bid
Quote Request for a separate borrowing (a "Competitive Bid Borrowing") and
there shall not be outstanding at any one time more than
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twelve (12) Competitive Bid Borrowings. Each such Competitive Bid Quote
Request shall be substantially in the form of Exhibit G and shall specify as to
each Competitive Bid Borrowing:
(i) the proposed date of such Competitive Bid
Borrowing, which shall be a Business Day;
(ii) the aggregate amount of such Competitive Bid
Borrowing, which shall be at least $5,000,000 (or a larger
integral multiple of $500,000) but shall not cause the limits
specified in Section 2.2(a) to be violated;
(iii) the duration of the Interest Period applicable
thereto;
(iv) whether the Competitive Bid Quotes requested
for a particular Interest Period are seeking quotes for
Eurodollar Market Loans or Absolute Rate Loans; and
(v) if the Competitive Bid Quotes requested are
seeking quotes for Absolute Rate Loans, the date on which the
Competitive Bid Quotes are to be submitted if it is before the
proposed date of borrowing (the date on which such Competitive
Bid Quotes are to be submitted is called the "Quotation
Date").
Except as otherwise provided in this Section 2.2(b), no Competitive Bid Quote
Request shall be given within five (5) Business Days (or such other number of
days as the Borrower and the Administrative Agent, with the consent of the
Required Lenders, may agree) of any other Competitive Bid Quote Request.
(c) (i) Each Lender may submit one or more Competitive
Bid Quotes, each containing an offer to make a Competitive Bid Loan in response
to any Competitive Bid Quote Request; provided that, if the Borrower's request
under Section 2.2(b) specified more than one Interest Period, such Lender may
make a single submission containing one or more Competitive Bid Quotes for each
such Interest Period. Each Competitive Bid Quote must be submitted to the
Administrative Agent not later than (x) 2:00 P.M. on the fourth Business Day
prior to the proposed date of borrowing, in the case of a Eurodollar Auction or
(y) 10:00 A.M. on the Quotation Date, in the case of an Absolute Rate Auction
(or, in any such case, such other time and date as the Borrower and the
Administrative Agent, with the consent of the Required Lenders, may agree);
provided that any Competitive Bid Quote may be submitted by NationsBank (or its
Applicable Lending Office) only if NationsBank (or such Applicable Lending
Office) notifies the Borrower of the terms of the offer contained therein not
later than (x) 1:00 P.M. on the fourth Business Day prior to the proposed date
of borrowing, in the case of a Eurodollar Auction or (y) 9:45 A.M. on the
Quotation Date, in the case of an Absolute Rate Auction. Subject to Article
IV, Article VI and Article IX, any Competitive Bid Quote so made shall be
irrevocable except with the consent of the Administrative Agent given on the
instructions of the Borrower.
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(ii) Each Competitive Bid Quote shall be substantially in
the form of Exhibit H and shall specify:
(A) the proposed date of borrowing and
the Interest Period therefor;
(B) the principal amount of the
Competitive Bid Loan for which each such Competitive
Bid Quote is being made, which principal amount shall
be at least $5,000,000 (or a larger integral multiple
of $500,000); provided that the aggregate principal
amount of all Competitive Bid Loans for which a
Lender submits Competitive Bid Quotes (x) may not
exceed the Total Revolving Credit Commitment and (y)
may not exceed the principal amount of the
Competitive Bid Borrowing for a particular Interest
Period for which offers were requested;
(C) in the case of a Eurodollar Auction,
the margin above or below the applicable Interbank
Offered Rate adjusted for any Eurodollar Reserve
Percentage (the "Eurodollar Margin") offered for each
such Competitive Bid Loan, expressed as a percentage
(rounded upwards, if necessary, to the nearest
1/10,000th of 1%) to be added to or subtracted from
the applicable Interbank Offered Rate as so adjusted;
(D) in the case of an Absolute Rate Auction,
the rate of interest per annum (rounded upwards, if
necessary, to the nearest 1/10,000th of 1%) offered
for each such Competitive Bid Loan (the "Absolute
Rate"); and
(E) the identity of the quoting Lender.
Unless otherwise agreed by the Administrative Agent and the Borrower, no
Competitive Bid Quote shall contain qualifying, conditional or similar language
or propose terms other than or in addition to those set forth in the applicable
Competitive Bid Quote Request and, in particular, no Competitive Bid Quote may
be conditioned upon acceptance by the Borrower of all (or some specified
minimum) of the principal amount of the Competitive Bid Loan for which such
Competitive Bid Quote is being made.
(d) The Administrative Agent shall (x) in the case of a
Eurodollar Auction, by 4:00 P.M. on the day a Competitive Bid Quote is
submitted or (y) in the case of an Absolute Rate Auction, as promptly as
practicable after the Competitive Bid Quote is submitted (but in any event not
later than 11:00 A.M. on the Quotation Date), notify the Borrower of the terms
(i) of any Competitive Bid Quote submitted by a Lender that is in accordance
with Section 2.2(c) and (ii) of any Competitive Bid Quote that amends, modifies
or is otherwise inconsistent with a previous Competitive Bid Quote submitted by
such Lender with respect to the same Competitive Bid Quote Request. Any such
subsequent Competitive Bid Quote shall be disregarded by the Administrative
Agent unless such subsequent Competitive Bid Quote is
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submitted solely to correct a manifest error in such former Competitive Bid
Quote. The Administrative Agent's notice to the Borrower shall specify (A) the
aggregate principal amount of the Competitive Bid Borrowing for which
Competitive Bid Quotes have been received and (B) the respective principal
amounts and Eurodollar Margins or Absolute Rates, as the case may be, so
offered by each Lender (identifying the Lender that made each Competitive Bid
Quote).
(e) Not later than 11:00 A.M. on (x) the third Business
Day prior to the proposed date of borrowing, in the case of a Eurodollar
Auction or (y) the Quotation Date, in the case of an Absolute Rate Auction (or,
in any such case, such other time and date as the Borrower and the
Administrative Agent, with the consent of the Required Lenders, may agree), the
Borrower shall notify the Administrative Agent of its acceptance or
nonacceptance of the offers so notified to it pursuant to Section 2.2(d) (and
the failure of the Borrower to give such notice by such time shall constitute
nonacceptance) and the Administrative Agent shall promptly notify each affected
Lender. In the case of acceptance, such notice shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The
Borrower may accept any Competitive Bid Quote in whole or in part (provided
that any Competitive Bid Quote accepted in part shall be at least $5,000,000 or
a larger integral multiple of $500,000); provided that:
(i) the aggregate principal amount of each
Competitive Bid Borrowing may not exceed the applicable amount
set forth in the related Competitive Bid Quote Request;
(ii) the aggregate principal amount of each
Competitive Bid Borrowing shall be at least $5,000,000 (or a
larger integral multiple of $500,000) but shall not cause the
limits specified in Section 2.2(a) to be violated;
(iii) acceptance of offers may be made only in
ascending order of Eurodollar Margins or Absolute Rates, as
the case may be, in each case beginning with the lowest rate
so offered; provided, however, that the Borrower, in its sole
discretion, may accept other than the lowest rate where
acceptance of the lowest rate will result in an increase in
the fee payable by Borrower under Section 2.11; and
(iv) the Borrower may not accept any offer where the
Administrative Agent has correctly advised the Borrower that
such offer fails to comply with Section 2.2(c)(ii) or
otherwise fails to comply with the requirements of this
Agreement (including, without limitation, Section 2.2(a)).
If offers are made by two or more Lenders with the same Eurodollar Margins or
Absolute Rates, as the case may be, for a greater aggregate principal amount
than the amount in respect of which offers are permitted to be accepted for the
related Interest Period after the acceptance of all offers, if any, of all
lower Eurodollar Margins or Absolute Rates, as the case may be, offered by any
Lender for such related Interest Period, the principal amount of Competitive
Bid Loans in respect of which such offers are accepted shall be allocated by
the Borrower among such
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Lenders as nearly as possible (in amounts of at least $5,000,000 or larger
integral multiples of $500,000) in proportion to the aggregate principal amount
of such offers. Determinations by the Borrower of the amounts of Competitive
Bid Loans and the lowest bid after adjustment as provided in Section
2.2(e)(iii) shall be conclusive in the absence of manifest error. The Borrower
shall pay to the Administrative Agent an administrative fee for each
Competitive Bid Borrowing in an amount to be agreed upon by the Borrower and
the Administrative Agent.
(f) Any Lender whose offer to make any Competitive Bid
Loan has been accepted shall, not later than 1:00 P.M. on the date specified
for the making of such Loan, make the amount of such Loan available to the
Administrative Agent at the Principal Office in Dollars and in immediately
available funds, for account of the Borrower. The amount so received by the
Administrative Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Borrower on such date by depositing the
same, in Dollars and in immediately available funds, in an account of the
Borrower maintained at the Principal Office.
2.3. Payment of Interest. (a) The Borrower shall pay interest to
the Administrative Agent for the account of each Lender on the outstanding and
unpaid principal amount of each Loan made by such Lender for the period
commencing on the date of such Loan until such Loan shall be paid, continued or
converted, as the case may be, at the then applicable Base Rate for Base Rate
Loans or applicable Fixed Rate for Fixed Rate Loans, as designated by the
Authorized Representative pursuant to Sections 2.1 or 2.2; provided, however,
that if any amount shall not be paid when due (at maturity, by acceleration or
otherwise), all amounts outstanding hereunder shall bear interest thereafter at
the Default Rate.
(b) Interest on each Loan shall be computed on the basis
of a year of 360 days and calculated in each case for the actual number of days
elapsed. Interest on each Revolving Loan shall be paid (i) quarterly in
arrears on the last Business Day of each March, June, September and December,
commencing September 30, 1996 for each Base Rate Loan, (ii) on the last day of
the applicable Interest Period for each Fixed Rate Loan and, if such Interest
Period extends for more than three (3) months, at intervals of three (3) months
after the first day of such Interest Period, and (iii) upon the Revolving
Credit Termination Date.
2.4. Payment of Principal. The principal amount of each Revolving
Loan shall be due and payable to the Administrative Agent for the benefit of
each Lender in full on the Revolving Credit Termination Date, or earlier as
specifically provided herein. The principal amount of each Competitive Bid
Loan shall be due and payable to the Administrative Agent for the benefit of
the applicable Lender in full on the last day of the Interest Period applicable
thereto, or earlier as specifically provided herein. The principal amount of
any Base Rate Loan may be prepaid in whole or in part at any time. The
principal amount of any Fixed Rate Loan may be prepaid only at the end of the
applicable Interest Period unless the Borrower shall pay to the Administrative
Agent for the account of the Lenders the additional amount, if any, required
under Section 4.4. All prepayments of Revolving Loans made by the Borrower
shall be upon not less than three (3) Business Days prior written notice to the
Administrative Agent, effective upon receipt, and shall be in the amount of
$5,000,000 or such greater amount which is an
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integral multiple of $500,000, or the amount equal to all Revolving Credit
Outstandings, or such other amount as necessary to comply with Section 2.1(b)
or Article IV.
2.5. Manner of Payment. (a) Each payment of principal (including
any prepayment) and payment of interest and fees, and any other amount required
to be paid to the Lenders with respect to the Loans, shall be made to the
Administrative Agent at the Principal Office, for the account of each Lender,
in Dollars and in immediately available funds before 12:30 P.M. on the date
such payment is due. The Administrative Agent may, but shall not be obligated
to, debit the amount of any such payment which is not made by such time to any
ordinary deposit account, if any, of the Borrower with the Administrative
Agent.
(b) The Administrative Agent shall deem any payment made by or on
behalf of the Borrower hereunder that is not made both in Dollars and in
immediately available funds and prior to 12:30 P.M. to be a non-conforming
payment. Any such payment shall not be deemed to be received by the
Administrative Agent until the later of (i) the time such funds become
available funds and (ii) the next Business Day. Any non-conforming payment may
constitute or become a Default or Event of Default. Interest shall continue to
accrue on any principal as to which a non-conforming payment is made until the
later of (x) the date such funds become available funds or (y) the next
Business Day at the Default Rate from the date such amount was due and payable.
(c) In the event that any payment hereunder or under the Notes
becomes due and payable on a day other than a Business Day, then such due date
shall be extended to the next succeeding Business Day unless provided otherwise
in the definition of "Interest Period"; provided that interest shall continue
to accrue during the period of any such extension and provided further, that in
no event shall any such due date be extended beyond the Revolving Credit
Termination Date.
2.6. Notes. (a) Revolving Loans made by each Lender shall be
evidenced by the Revolving Note payable to the order of such Lender in the
respective amount of its Applicable Commitment Percentage of the Revolving
Credit Commitment, which Revolving Note shall be dated the Closing Date and
shall be duly completed, executed and delivered by the Borrower.
(b) Competitive Bid Loans made by each Lender shall be evidenced
by the Competitive Bid Note payable to the order of such Lender and
representing the obligation of the Borrower to pay the lesser of (a) the
aggregate amount of the Total Revolving Credit Commitment and (b) the unpaid
principal amount of all Competitive Bid Loans made by such Lender, with
interest on the unpaid principal amount from time to time outstanding of each
Competitive Bid Loan evidenced thereby as prescribed in Section 2.3. Each
Lender is hereby authorized to record the date and amount of each Competitive
Bid Loan made by such Lender, the maturity date thereof, the date and amount of
each payment of principal thereof and the interest rate with respect thereto on
the schedule attached to and constituting part of its Competitive Bid 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 Borrower hereunder or
under any Competitive
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Bid Note. Each Competitive Bid Note shall be dated the Closing Date or a later
date pursuant to an Assignment and Acceptance and shall be duly completed,
executed and delivered by the Borrower.
2.7. Pro Rata Payments. Except as otherwise provided herein, (a)
each payment on account of the principal of and interest on the Revolving Loans
and the fees described in Sections 2.11 and 3.3 shall be made to the
Administrative Agent for the account of the Lenders pro rata based on their
Applicable Commitment Percentages, (b) all payments to be made by the Borrower
for the account of each of the Lenders on account of principal, interest and
fees, shall be made without diminution, setoff, recoupment or counterclaim, and
(c) the Administrative Agent will promptly distribute to the Lenders in
immediately available funds payments received in fully collected, immediately
available funds from the Borrower.
2.8. Reductions. The Borrower shall, by notice from an Authorized
Representative, have the right from time to time (but not more frequently than
once during each fiscal quarter), upon not less than three (3) Business Days'
written notice to the Administrative Agent, effective upon receipt, to reduce
the Total Revolving Credit Commitment. The Administrative Agent shall give each
Lender, within one (1) Business Day of receipt of such notice, telefacsimile
notice, or telephonic notice (confirmed in writing), of such reduction. Each
such reduction shall be in the aggregate amount of $25,000,000 or such greater
amount which is in an integral multiple of $5,000,000, or the entire remaining
Total Revolving Credit Commitment, and shall permanently reduce the Total
Revolving Credit Commitment. No such reduction shall result in the payment of
any Fixed Rate Loan other than on the last day of the Interest Period of such
Loan unless such prepayment is accompanied by amounts due, if any, under
Section 4.4. Each reduction of the Total Revolving Credit Commitment shall be
accompanied by payment of the Loans to the extent that the principal amount of
Revolving Credit Outstandings plus Letter of Credit Outstandings plus Swing
Line Outstandings plus outstanding Competitive Bid Loans exceeds the Total
Revolving Credit Commitment after giving effect to such reduction, together
with accrued and unpaid interest on the amounts prepaid.
2.9. Conversions and Elections of Subsequent Interest Periods.
Provided that no Default or Event of Default shall have occurred and be
continuing, the Borrower may:
(a) upon delivery, effective upon receipt, of a properly
completed Interest Rate Selection Notice to the Administrative Agent on or
before 11:00 A.M. on any Business Day, convert all or a part of Fixed Rate
Loans to Base Rate Loans on the last day of the Interest Period for such Fixed
Rate Loans; and
(b) upon delivery, effective upon receipt, of a properly
completed Interest Rate Selection Notice to the Administrative Agent on or
before 11:00 A.M. three (3) Business Days' prior to the date of such election
or conversion:
(i) elect a subsequent Interest Period for all or
a portion of Eurodollar Rate Loans to begin on the last day of
the then current Interest Period for such Eurodollar Rate
Loans; and
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(ii) convert Base Rate Loans under the Revolving
Credit Facility to Eurodollar Rate Loans on any Business Day,
or convert any other Fixed Rate Loan to a Eurodollar Rate Loan
on the last day of the Interest Period for such Fixed Rate
Loan.
Each election and conversion pursuant to this Section 2.9 shall be
subject to the limitations on Eurodollar Rate Loans set forth in the definition
of "Interest Period" herein and in Sections 2.1 and 2.2 and Article IV. Notice
of receipt of each such notice of election or conversion shall be provided by
the Administrative Agent to each Lender by telefacsimile transmission with
reasonable promptness, but (provided the Administrative Agent shall have
received such notice by 11:00 A.M. and if not so received, such notice shall be
deemed to have been received by the Administrative Agent on the next succeeding
Business Day) not later than 1:00 P.M. on the same Business Day as the
Administrative Agent's receipt of such notice. All such continuations or
conversions of Loans shall be effected pro rata based on the Applicable
Commitment Percentages of the Lenders.
2.10. Increase and Decrease in Amounts. The amount of the Total
Revolving Credit Commitment which shall be available to the Borrower as
Advances shall be reduced by the aggregate amount of Outstanding Letters of
Credit and Outstanding Swing Line Loans.
2.11. Unused Fee. For the period beginning on the Closing Date and
ending on the Revolving Credit Termination Date, the Borrower agrees to pay to
the Administrative Agent, for the benefit of the Lenders based on their
Applicable Commitment Percentages, an unused fee equal to, as to each Lender,
the Applicable Unused Fee multiplied by the average daily amount by which the
Revolving Credit Commitment of such Lender (calculated without giving effect to
clause (i) of the definition of "Total Revolving Credit Commitment") exceeds
the sum of (i) such Lender's pro rata share of (x) Revolving Credit
Outstandings (without giving effect to Swing Line Outstandings or outstanding
Competitive Bid Loans) plus (y) Letter of Credit Outstandings plus (ii) the
outstanding principal amount of all Competitive Bid Loans then held by such
Lender; provided that in no event shall such amount as to any Lender be a
negative number. Such fees shall be due in arrears on the last Business Day of
each March, June, September and December commencing September 30, 1996 to and
on the Revolving Credit Termination Date. Notwithstanding the foregoing, so
long as any Lender fails to make available any portion of its Revolving Credit
Commitment when required to do so in accordance with this Agreement, such
Lender shall not be entitled to receive payment of its pro rata share of such
fee until such Lender shall make available such portion. Such fee shall be
calculated on the basis of a year of 360 days for the actual number of days
elapsed.
2.12. Deficiency Advances. No Lender shall be responsible for any
default of any other Lender in respect to such other Lender's obligation to
make any Loan or fund its purchase of any Participation hereunder nor shall the
Revolving Credit Commitment of any Lender hereunder be increased as a result of
such default of any other Lender. Without limiting the generality of the
foregoing, in the event any Lender shall fail to advance funds to the Borrower
as herein provided, the Administrative Agent may in its discretion, but shall
not be obligated to, advance under the Revolving Note in its favor as a Lender
all or any portion of such amount or amounts
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(each, a "deficiency advance") and shall thereafter be entitled to payments of
principal of and interest on such deficiency advance in the same manner and at
the same interest rate or rates to which such other Lender would have been
entitled had it made such advance under its Revolving Note; provided that, upon
payment to the Administrative Agent from such other Lender of the entire
outstanding amount of each such deficiency advance, together with accrued and
unpaid interest thereon, from the most recent date or dates interest was paid
to the Administrative Agent by the Borrower on each Revolving Loan comprising
the deficiency advance at the interest rate per annum for overnight borrowing
by the Administrative Agent from the Federal Reserve Bank of Richmond,
Virginia, then such payment shall be credited against the applicable Revolving
Note of the Administrative Agent in full payment of such deficiency advance and
the Borrower shall be deemed to have borrowed the amount of such deficiency
advance from such other Lender as of the most recent date or dates, as the case
may be, upon which any payments of interest were made by the Borrower thereon.
2.13. Use of Proceeds. The proceeds of the Loans made pursuant to
the Revolving Credit Facility hereunder shall be used by the Borrower to repay
in full the Closing Date Prepayable Debt, for working capital and general
corporate needs of the Borrower, including the funding of Acquisitions
permitted hereunder and Capital Expenditures, and to fund Indenture Note
Purchases to the extent permitted hereunder.
2.14. Swing Line. (a) Notwithstanding any other provision of this
Agreement to the contrary, in order to administer the Revolving Credit Facility
in an efficient manner and to minimize the transfer of funds between the
Administrative Agent and the Lenders, NationsBank shall make available Swing
Line Loans to the Borrower from the Closing Date and prior to the Revolving
Credit Termination Date. NationsBank shall not make any Swing Line Loan
pursuant hereto (i) if to the actual knowledge of NationsBank the Borrower is
not in compliance with all the conditions to the making of Revolving Loans set
forth in this Agreement, (ii) if after giving effect to such Swing Line Loan,
the Swing Line Outstandings exceed $25,000,000, or (iii) if after giving effect
to such Swing Line Loan, the sum of the Swing Line Outstandings, Revolving
Credit Outstandings, Letter of Credit Outstandings and outstanding Competitive
Bid Loans exceeds the Total Revolving Credit Commitment. The Company may
borrow, repay and reborrow under this Section 2.14. Unless notified to the
contrary by NationsBank, borrowings under the Swing Line shall be made in the
minimum amount of $1,000,000 or, if greater, in amounts which are integral
multiples of $100,000, or in the amount necessary to effect a Base Rate
Refunding Loan, upon written request by telefacsimile transmission, effective
upon receipt, by an Authorized Representative of the Borrower made to
NationsBank not later than 12:30 P.M. on the Business Day of the requested
borrowing. Each such Borrowing Notice shall specify the amount of the
borrowing and the date of borrowing, and shall be in the form of Exhibit D-2,
with appropriate insertions. Unless notified to the contrary by NationsBank,
each repayment of a Swing Line Loan shall be in an amount which is an integral
multiple of $100,000 or the aggregate amount of all Swing Line Outstandings.
If the Borrower instructs NationsBank to debit any demand deposit account of
the Borrower in the amount of any payment with respect to a Swing Line Loan, or
NationsBank otherwise receives repayment, after 12:30 P.M. on a Business Day,
such payment shall be deemed received on the next Business Day.
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(b) Swing Line Loans shall bear interest at the Base Rate or at such
other rate or rates as the Borrower and NationsBank may agree from time to
time, the interest payable on Swing Line Loans is solely for the account of
NationsBank, and all accrued and unpaid interest on Swing Line Loans shall be
payable on the dates and in the manner provided in Sections 2.3 with respect to
interest on Base Rate Loans (except as NationsBank and the Borrower may
otherwise agree in connection with any particular Swing Line Loan). The Swing
Line Loans shall be evidenced by the Swing Line Note.
(c) Upon the making of a Swing Line Loan, each Lender shall be deemed
to have purchased from NationsBank a Participation therein in an amount equal
to that Lender's Applicable Commitment Percentage of such Swing Line Loan.
Upon demand made by NationsBank, each Lender shall, according to its Applicable
Commitment Percentage of such Swing Line Loan, promptly provide to NationsBank
its purchase price therefor in an amount equal to its Participation therein
and, upon any such demand by NationsBank, such Swing Line Loan shall without
further action be converted to a Base Rate Loan. Any Advance made by a Lender
pursuant to demand of NationsBank of the purchase price of its Participation
shall be deemed (i) provided that the conditions to making Revolving Loans
shall be satisfied, a Base Rate Refunding Loan under Section 2.1 until the
Borrower converts such Base Rate Loan in accordance with the terms of Section
2.9, and (ii) in all other cases, the funding by each Lender of the purchase
price of its Participation in such Swing Line Loan. The obligation of each
Lender to so provide its purchase price to NationsBank shall be absolute and
unconditional and shall not be affected by the occurrence of an Event of
Default or any other occurrence or event.
The Borrower, at its option and subject to the terms hereof, may
request an Advance pursuant to and of a denomination permitted under Section
2.1 in an amount sufficient to repay Swing Line Outstandings on any date and
the Administrative Agent shall provide from the proceeds of such Advance to
NationsBank the amount necessary to repay such Swing Line Outstandings (which
NationsBank shall then apply to such repayment) and credit any balance of the
Advance in immediately available funds in the manner directed by the Borrower
pursuant to Section 2.1(c)(ii). The proceeds of such Advances shall be paid to
NationsBank for application to the Swing Line Outstandings and the Lenders
shall then be deemed to have made Loans in the amount of such Advances. The
Swing Line shall continue in effect until the Revolving Credit Termination
Date, at which time all Swing Line Outstandings and accrued interest thereon
shall be due and payable in full.
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ARTICLE III
Letters of Credit
3.1. Letters of Credit. The Issuing Bank agrees, subject to the
terms and conditions of this Agreement, upon request of the Borrower to issue
from time to time for the account of the Borrower Letters of Credit upon
delivery to the Issuing Bank of an Application and Agreement for Letter of
Credit relating thereto in form and content acceptable to the Issuing Bank;
provided, that (i) the Letter of Credit Outstandings shall not exceed the Total
Letter of Credit Commitment and (ii) no Letter of Credit shall be issued if,
after giving effect thereto, (A) Letter of Credit Outstandings plus Revolving
Credit Outstandings plus Swing Line Outstandings plus outstanding Competitive
Bid Loans shall exceed the Total Revolving Credit Commitment, or (B) until the
Guaranty Limitation Release Date, Letter of Credit Outstandings plus Revolving
Credit Outstandings plus Swing Line Outstandings plus outstanding Competitive
Bid Loans (excluding Advances, Loans and Letters of Credit used directly or
indirectly to effect the Indenture Note Purchases) shall exceed the Total
Revolving Credit Commitment minus the Indenture Notes Purchase Sublimit. No
Letter of Credit shall have an expiry date (including all rights of the
Borrower or any beneficiary named in such Letter of Credit to require renewal)
or payment date occurring later than the earlier to occur of one year after the
date of its issuance or the fifth Business Day prior to the Stated Termination
Date. The First National Bank of Chicago shall act as Issuing Bank only with
respect to Existing Letters of Credit as in effect as of the Closing Date, but
excluding any renewals or reissuances thereof, whether or not permitted by the
terms of the Existing Letters of Credit as in effect on the Closing Date.
3.2. Reimbursement.
(a) The Borrower hereby unconditionally agrees to pay to
the Issuing Bank immediately on demand at the Principal Office all amounts
required to pay all drafts drawn or purporting to be drawn under the Letters of
Credit and all reasonable administrative expenses incurred by the Issuing Bank
in connection with the Letters of Credit, and in any event and without demand
to place in possession of the Issuing Bank (which shall include Advances under
the Revolving Credit Facility if permitted by Section 2.1 and Swing Line Loans
if permitted by Section 2.14) sufficient funds to pay all debts and liabilities
arising under any Letter of Credit. The Issuing Bank agrees to give the
Borrower prompt notice of any request for a draw under a Letter of Credit. The
Issuing Bank may charge any account the Borrower may have with it for any and
all amounts the Issuing Bank pays under a Letter of Credit, plus charges and
reasonable expenses as from time to time agreed to by the Issuing Bank and the
Borrower; provided that to the extent permitted by Section 2.1(c)(iv) and
Section 2.14, amounts shall be paid pursuant to Advances under the Revolving
Credit Facility or, if the Borrower shall elect, by Swing Line Loans. The
Borrower agrees to pay the Issuing Bank interest on any Reimbursement
Obligations not paid when due hereunder at the Base Rate plus two percentage
points (2.0%), or the maximum rate permitted by applicable law, if lower, such
rate to be calculated on the basis of a year of 360 days for actual days
elapsed.
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(b) In accordance with the provisions of Section 2.1(c),
the Issuing Bank shall notify the Administrative Agent of any drawing under any
Letter of Credit promptly following the receipt by the Issuing Bank of such
drawing.
(c) Each Lender (other than the Issuing Bank) shall
automatically acquire on the date of issuance thereof (or as to the Existing
Letters of Credit, on the Closing Date), a Participation in the liability of
the Issuing Bank in respect of each Letter of Credit in an amount equal to such
Lender's Applicable Commitment Percentage of such liability, and to the extent
that the Borrower is obligated to pay the Issuing Bank under Section 3.2(a),
each Lender (other than the Issuing Bank) thereby shall absolutely,
unconditionally and irrevocably assume, and shall be unconditionally obligated
to pay to the Issuing Bank as hereinafter described, its Applicable Commitment
Percentage of the liability of the Issuing Bank under such Letter of Credit.
(i) Each Lender (including the Issuing Bank in its
capacity as a Lender) shall, subject to the terms and conditions of
Article II, pay to the Administrative Agent for the account of the
Issuing Bank at the Principal Office in Dollars and in immediately
available funds, an amount equal to its Applicable Commitment
Percentage of any drawing under a Letter of Credit, such funds to be
provided in the manner described in Section 2.1(c)(iv).
(ii) Simultaneously with the making of each payment
by a Lender to the Issuing Bank pursuant to Section 2.1(c)(iv)(B),
such Lender shall, automatically and without any further action on the
part of the Issuing Bank or such Lender, acquire a Participation in an
amount equal to such payment (excluding the portion thereof
constituting interest accrued prior to the date the Lender made its
payment) in the related Reimbursement Obligation of the Borrower. The
Reimbursement Obligations of the Borrower shall be immediately due and
payable whether by Advances made in accordance with Section
2.1(c)(iv), Swing Line Loans made in accordance with Section 2.14, or
otherwise.
(iii) Each Lender's obligation to make payment to
the Administrative Agent for the account of the Issuing Bank pursuant
to Section 2.1(c)(iv) and this Section 3.2(c), and the right of the
Issuing Bank to receive the same, shall be absolute and unconditional,
shall not be affected by any circumstance whatsoever and shall be made
without any offset, abatement, withholding or reduction whatsoever.
If any Lender is obligated to pay but does not pay amounts to the
Administrative Agent for the account of the Issuing Bank in full upon
such request as required by Section 2.1(c)(iv) or this Section 3.2(c),
such Lender shall, on demand, pay to the Administrative Agent for the
account of the Issuing Bank interest on the unpaid amount for each day
during the period commencing on the date of notice given to such
Lender pursuant to Section 2.1(c) until such Lender pays such amount
to the Administrative Agent for the account of the Issuing Bank in
full at the interest rate per annum for overnight borrowing by the
Administrative Agent from the Federal Reserve Bank of Richmond,
Virginia.
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(iv) In the event the Lenders have purchased
Participations in any Reimbursement Obligation as set forth in clause
(ii) above, then at any time payment (in fully collected, immediately
available funds) of such Reimbursement Obligation, in whole or in
part, is received by the Issuing Bank from the Borrower, the Issuing
Bank shall promptly pay to each Lender an amount equal to its
Applicable Commitment Percentage of such payment from the Borrower.
(d) Promptly following the end of each calendar quarter,
the Issuing Bank shall deliver to the Administrative Agent a notice describing
the aggregate undrawn amount of all Letters of Credit at the end of such
quarter. Upon the request of any Lender from time to time, the Issuing Bank
shall deliver to the Administrative Agent, and the Administrative Agent shall
deliver to such Lender, any other information reasonably requested by such
Lender with respect to each Letter of Credit outstanding.
(e) The issuance by the Issuing Bank of each Letter of
Credit shall, in addition to the conditions precedent set forth in Article V,
be subject to the conditions that such Letter of Credit be in such form and
contain such terms as shall be reasonably satisfactory to the Issuing Bank
consistent with the then current practices and procedures of the Issuing Bank
with respect to similar letters of credit, and the Borrower shall have executed
and delivered such other instruments and agreements relating to such Letters of
Credit as the Issuing Bank shall have reasonably requested consistent with such
practices and procedures. All Letters of Credit shall be issued pursuant to
and subject to the Uniform Customs and Practice for Documentary Credits, 1993
revision, International Chamber of Commerce Publication No. 500 and all
subsequent amendments and revisions thereto.
(f) The Borrower agrees that Issuing Bank may, in its
sole discretion, accept or pay, as complying with the terms of any Letter of
Credit, any drafts or other documents otherwise in order which may be signed or
issued by an administrator, executor, trustee in bankruptcy, debtor in
possession, assignee for the benefit of creditors, liquidator, receiver,
attorney in fact or other legal representative of a party who is authorized
under such Letter of Credit to draw or issue any drafts or other documents.
(g) Without limiting the generality of the provisions of
Section 11.9, the Borrower hereby agrees to indemnify and hold harmless the
Issuing Bank, each other Lender and the Administrative Agent from and against
any and all claims and damages, losses, liabilities, reasonable costs and
expenses which the Issuing Bank, such other Lender or the Administrative Agent
may incur (or which may be claimed against the Issuing Bank, such other Lender
or the Administrative Agent) by any Person by reason of or in connection with
the issuance or transfer of or payment or failure to pay under any Letter of
Credit; provided that the Borrower shall not be required to indemnify the
Issuing Bank, any other Lender or the Administrative Agent for any claims,
damages, losses, liabilities, costs or expenses to the extent, but only to the
extent, (i) caused by the willful misconduct or gross negligence of the party
to be indemnified or (ii) caused by the failure of the Issuing Bank to pay
under any Letter of Credit after the presentation to it of a request for
payment strictly complying with the terms and conditions of such Letter of
Credit, unless such payment is prohibited by any law, regulation,
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court order or decree. The indemnification and hold harmless provisions of this
Section 3.2(g) shall survive the Facility Termination Date.
(h) Without limiting Borrower's rights as set forth in
Section 3.2(g), the obligation of the Borrower to immediately reimburse the
Issuing Bank for drawings made under Letters of Credit and the Issuing Bank's
right to receive such payment shall be absolute, unconditional and irrevocable,
and such obligations of the Borrower shall be performed strictly in accordance
with the terms of this Agreement and such Letters of Credit and the related
Applications and Agreement for any Letter of Credit, under all circumstances
whatsoever, including the following circumstances:
(i) any lack of validity or enforceability of the
Letter of Credit, the obligation supported by the Letter of Credit or
any other agreement or instrument relating thereto (collectively, the
"Related LC Documents");
(ii) any amendment or waiver of or any consent to or
departure from all or any of the Related LC Documents;
(iii) the existence of any claim, setoff, defense
(other than the defense of payment in accordance with the terms of
this Agreement) or other rights which the Borrower may have at any
time against any beneficiary or any transferee of a Letter of Credit
(or any persons or entities for whom any such beneficiary or any such
transferee may be acting), the Administrative Agent, the Lenders or
any other Person, whether in connection with the Loan Documents, the
Related LC Documents or any unrelated transaction;
(iv) any breach of contract or other dispute between
the Borrower and any beneficiary or any transferee of a Letter of
Credit (or any persons or entities for whom such beneficiary or any
such transferee may be acting), the Administrative Agent, the Lenders
or any other Person;
(v) any draft, statement or any other document
presented under the Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect whatsoever;
(vi) any delay, extension of time, renewal,
compromise or other indulgence or modification granted or agreed to by
the Administrative Agent, with or without notice to or approval by the
Borrower in respect of any of Borrower's Obligations under this
Agreement; or
(vii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing;
provided, however, that nothing contained in this Section 3.2(h) shall be
deemed to release NationsBank or any other Lender from any liability for actual
loss arising as a result of its gross
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negligence or willful misconduct or out of the wrongful dishonor by NationsBank
of a proper demand for payment made under and strictly complying with the terms
of any Letter of Credit.
3.3. Letter of Credit Facility Fees. The Borrower shall pay to the
Administrative Agent, for the pro rata benefit of the Lenders based on their
Applicable Commitment Percentages, a fee on the aggregate amount available to
be drawn on each outstanding Letter of Credit at a rate equal to the Applicable
Margin for Eurodollar Rate Loans. Such payment of fees shall be due with
respect to each Letter of Credit quarterly in arrears on the last Business Day
of each March, June, September and December, the first such payment to be made
on the first such date occurring after the date of issuance of a Letter of
Credit. The fees described in this Section 3.3 shall be calculated on the
basis of a year of 360 days for the actual number of days elapsed.
3.4. Administrative Fees. The Borrower shall pay to the Issuing Bank
such administrative fee and other fees, if any, in connection with the Letters
of Credit in such amounts and at such times as the Issuing Bank and the
Borrower shall agree from time to time.
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ARTICLE IV
Yield Protection and Illegality
4.1. Additional Costs. (a) The Borrower shall promptly pay to the
Administrative Agent for the account of a Lender from time to time, without
duplication, such amounts as such Lender may reasonably determine to be
necessary to compensate it for any costs incurred by such Lender which it
determines are attributable to its making or maintaining any Loan or its
obligation to make any Loans, or the issuance or maintenance by the Issuing
Bank of or any other Lender's Participation in any Letter of Credit issued or
Swing Line Loan extended hereunder, or any reduction in any amount receivable
by such Lender under this Agreement or the Notes in respect of any of such
Loans or the Letters of Credit, including reductions in the rate of return on a
Lender's capital (such increases in costs and reductions in amounts receivable
and returns being herein called "Additional Costs"), resulting from any
Regulatory Change which: (i) changes the basis of taxation of any amounts
payable to such Lender under this Agreement or the Notes in respect of any of
such Loans or the Letters of Credit (other than taxes imposed on or measured by
the income, revenues or assets of such Lender); or (ii) imposes or modifies any
reserve, special deposit, or similar requirements relating to any extensions of
credit or other assets of, or any deposits with or other liabilities of, such
Lender (other than any such reserve, deposit or requirement reflected in the
Eurodollar Rate); or (iii) has or would have the effect of reducing the rate of
return on capital of any such Lender to a level below that which the Lender
could have achieved but for such Regulatory Change (taking into consideration
such Lender's policies with respect to capital adequacy); or (iv) imposes any
other condition adversely affecting the Administrative Agent or the Lenders
under this Agreement, the Notes or the issuance or maintenance of, or any
Lender's Participation in, the Letters of Credit or Swing Line Loans (or any of
such extensions of credit or liabilities). Each Lender will notify the
Authorized Representative and the Administrative Agent of any event occurring
after the Closing Date which would entitle it to compensation pursuant to this
Section 4.1(a) as promptly as practicable after it obtains knowledge thereof
and determines to request such compensation.
(b) Without limiting the effect of the foregoing
provisions of this Section 4.1, in the event that, by reason of any Regulatory
Change, any Lender either (i) incurs Additional Costs based on or measured by
the excess above a specified level of the amount of a category of deposits or
other liabilities of the Lender which includes deposits by reference to which
the interest rate on Eurodollar Rate Loans or Eurodollar Market Loans is
determined as provided in this Agreement or a category of extensions of credit
or other assets of any Lender which includes Eurodollar Rate Loans or
Eurodollar Market Loans or (ii) becomes subject to restrictions on the amount
of such a category of liabilities or assets which it may hold, then, if the
Lender so elects by notice to the other Lenders, the obligation hereunder of
such Lender to make, and to convert Base Rate Loans into, Fixed Rate Loans that
are the subject of such restrictions shall be suspended until the date such
Regulatory Change ceases to be in effect and the Borrower shall, on the last
day(s) of the then current Interest Period(s) for outstanding Eurodollar Rate
Loans or Eurodollar Market Loans convert such Fixed Rate Loans into Base Rate
Loans or other Fixed Rate Loans not then subject to such restrictions;
provided, however, that the suspension of such obligation and the conversion of
any Fixed Rate Loans into Base
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Rate Loans or other Fixed Rate Loans not then subject to such restrictions
shall apply only to any Lender who is affected by such restrictions and who has
provided such notice to the other Lenders, and the obligation of the other
Lenders to make, and to convert Base Rate Loans into, Fixed Rate Loans shall
not be affected by such restrictions. In the event that the obligation of
some, but not all, of the Lenders to make, or to convert Base Rate Loans into,
Eurodollar Rate Loans is suspended, then any request by the Borrower during the
pendency of such suspension for a Eurodollar Rate Loan shall be deemed a
request for such Eurodollar Rate Loan from the Lender(s) not subject to such
suspension and for a Base Rate Loan from the Lender(s) who are subject to such
suspension, in each case in the respective amounts based on the Lenders'
respective Applicable Commitment Percentages.
(c) Determinations by any Lender for purposes of this
Section 4.1 of the effect of any Regulatory Change on its costs of making or
maintaining, or being committed to make Loans, or by NationsBank as issuer of
any Letter of Credit of the effect of any Regulatory Change on its costs in
connection with the issuance or maintenance of, or any other Lender's
Participation in, any Letter of Credit issued or Swing Line Loan extended
hereunder, or the effect of any Regulatory Change on amounts receivable by any
Lender in respect of Loans or Letters of Credit, and of the additional amounts
required to compensate the Lender in respect of any Additional Costs, shall be
made taking into account such Lender's policies, or the policies of the parent
corporation of such Lender, as to the allocation of capital, costs and other
items and shall be conclusive absent manifest error. The Lender requesting
such compensation shall furnish to the Authorized Representative and the
Administrative Agent within one hundred eighty (180) days of the incurrence of
any Additional Costs for which compensation is sought, and at or prior to its
request for a specific amount of compensation under this Section 4.1, an
explanation of the Regulatory Change and calculations, in reasonable detail,
setting forth such Lender's determination of any such Additional Costs.
4.2. Suspension of Loans. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any interest rate for
any Eurodollar Rate Loan or Eurodollar Market Loan for any Interest Period, the
Administrative Agent determines (which determination made on a reasonable basis
shall be conclusive absent manifest error) that:
(a) quotations of interest rates for the relevant
deposits referred to in the definition of "Interbank Offered Rate" in
Section 1.1 are not being provided in the relevant amounts or for the
relevant maturities for purposes of determining the rate of interest
for such Fixed Rate Loan as provided in this Agreement; or
(b) the relevant rates of interest referred to in the
definition of "Interbank Offered Rate" in Section 1.1 upon the basis
of which the Eurodollar Rate for such Interest Period is to be
determined do not adequately reflect the cost to the Lenders of making
or maintaining such Fixed Rate Loan for such Interest Period;
then the Administrative Agent shall give the Authorized Representative prompt
notice thereof, and so long as such condition remains in effect, the Lenders
shall be under no obligation to make Eurodollar Rate Loans that are subject to
such condition, or to convert Base Rate Loans
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or other Loans into Eurodollar Rate Loans, and the Borrower shall on the last
day(s) of the then current Interest Period(s) for outstanding Eurodollar Rate
Loans or Eurodollar Market Loans, as applicable, convert such Loans into
another Fixed Rate Loan if such Fixed Rate Loan is not subject to the same or
similar condition, or Base Rate Loans, if available hereunder. The
Administrative Agent shall give the Authorized Representative notice describing
in reasonable detail any event or condition described in this Section 4.2
promptly following the determination by the Administrative Agent that the
availability of Eurodollar Rate Loans or Eurodollar Market Loans is, or is to
be, suspended as a result thereof.
4.3. Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender to honor its
obligation to make or maintain Eurodollar Rate Loans or Eurodollar Market Loans
hereunder, then such Lender shall promptly notify the Borrower thereof (with a
copy to the Administrative Agent) and such Lender's obligation to make or
continue Eurodollar Rate Loans or Eurodollar Market Loans, or to convert Base
Rate Loans or other Loans into Eurodollar Rate Loans, shall be suspended until
such time as such Lender may again make and maintain Eurodollar Rate Loans or
Eurodollar Market Loans, and such Lender's outstanding Eurodollar Rate Loans or
Eurodollar Market Loans shall be converted into Base Rate Loans or other Type
of Loan not subject to such restrictions in accordance with Section 2.9 or
earlier if required by applicable law. The conversion of any Eurodollar Rate
Loans or Eurodollar Market Loan into Base Rate Loans or other Type of Loan
shall apply only to any Lender who is affected by such restrictions and who has
provided written notice thereof to the Borrower and the Administrative Agent,
and the obligation of the other Lenders to make, and to convert Base Rate Loans
or other Loans into, Eurodollar Rate Loans shall not be affected by such
restrictions. In the event that the obligation of some, but not all, of the
Lenders to make, or to convert Base Rate Loans or other Loans into, Eurodollar
Rate Loans is so suspended, then any request by the Borrower during the
pendency of such suspension for a Revolving Loan that is a Eurodollar Rate
Loan shall be deemed a request for such Eurodollar Rate Loan from the Lender(s)
not subject to such suspension and for a Base Rate Loan from the Lender(s) who
are subject to such suspension, in each case in the respective amounts based on
the Lenders' respective Applicable Commitment Percentages.
4.4. Compensation. The Borrower shall promptly pay to each Lender,
upon the request of such Lender, such amount or amounts as shall be sufficient
(in the reasonable determination of such Lender) to compensate it for any loss,
cost or expense incurred by it as a result of:
(a) any payment, prepayment or conversion of a Fixed Rate
Loan on a date other than the last day of the Interest Period for such
Fixed Rate Loan, including without limitation any conversion required
pursuant to Sections 4.1, 4.2 or 4.3; or
(b) any failure by the Borrower to borrow or convert a
Fixed Rate Loan on the date for such borrowing or conversion specified
in the relevant Borrowing Notice, Interest Rate Selection Notice, or
acceptance of any Competitive Bid Quote under Article II;
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such compensation to include, without limitation, an amount equal to the
excess, if any, of (i) the amount of interest which would have accrued on the
principal amount so paid, prepaid or converted or not borrowed for the period
from the date of such payment, prepayment or conversion or failure to borrow or
convert to the last day of the then current Interest Period for such Loan (or,
in the case of a failure to borrow or convert, the Interest Period for such
Loan which would have commenced on the date scheduled for such borrowing or
conversion) at the applicable rate of interest for such Fixed Rate Loan
provided for herein over (ii) the Interbank Offered Rate (as to Eurodollar Rate
Loans or Eurodollar Market Loans) or other appropriate cost of funds (in the
case of Absolute Rate Loans), in each case as reasonably determined by such
Lender, for Dollar deposits of amounts comparable to such principal amount and
maturities comparable to such period. A determination of a Lender as to the
amounts payable pursuant to this Section 4.4 shall be conclusive, provided that
such determinations are made on a reasonable basis. The Lender requesting
compensation under this Section 4.4 shall promptly furnish to the Authorized
Representative and the Administrative Agent calculations in reasonable detail
setting forth such Lender's determination of the amount of such compensation.
4.5. Alternate Loan and Lender. In the event any Lender suspends the
making of any Eurodollar Rate Loan or Eurodollar Market Loan pursuant to this
Article IV (herein a "Restricted Lender"), the Restricted Lender's Commitment
Percentage of any Eurodollar Rate Loan shall bear interest at the Base Rate
until the Restricted Lender once again makes available the applicable
Eurodollar Rate Loan. Notwithstanding the provisions of Sections 2.3, interest
shall be payable to the Restricted Lender in respect of Loans to which the
suspension applies at the time and manner as paid to those Lenders making
available Eurodollar Rate Loans.
4.6. Taxes. (a) All payments by the Borrower of principal of, and
interest on, the Loans and all other amounts payable hereunder shall be made
free and clear of and without deduction for any present or future excise, stamp
or other taxes, fees, duties, levies, imposts, charges, deductions,
withholdings or other charges of any nature whatsoever imposed by any taxing
authority, but excluding (i) franchise taxes, (ii) any taxes (other than
withholding taxes) that would not be imposed but for a connection between a
Lender or the Administrative Agent and the jurisdiction imposing such taxes
(other than a connection arising solely by virtue of the activities of such
Lender or the Administrative Agent pursuant to or in respect of this Agreement
or any other Loan Document), (iii) any taxes imposed on or measured by any
Lender's assets, net income, receipts or branch profits, and (iv) any taxes
arising after the Closing Date solely as a result of or attributable to a
Lender changing its designated lending office after the date such Lender
becomes a party hereto (such non-excluded items being collectively called
"Taxes"). In the event that any withholding or deduction from any payment to
be made by the Borrower hereunder is required in respect of any Taxes pursuant
to any applicable law, rule or regulation, then the Borrower will (after
written notice thereof together with an explanation of the nature of such
Taxes):
(x) pay directly to the relevant authority the full
amount required to be so withheld or deducted;
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(y) promptly forward to the Administrative Agent an
official receipt or other documentation satisfactory to the
Administrative Agent evidencing such payment to such authority; and
(z) pay to the Administrative Agent for the account of
each Lender such additional amount or amounts as is necessary to
ensure that the net amount actually received by each Lender will equal
the full amount such Lender would have received had no such
withholding or deduction been required.
(b) Prior to the date that any Lender or participant organized under
the laws of a jurisdiction outside the United States becomes a party hereto,
such Person shall deliver to the Borrower and the Administrative Agent such
certificates, documents or other evidence, as required by the Code or Treasury
Regulations issued pursuant thereto (including Internal Revenue Service Forms
4224 or 1001, as applicable, or appropriate successor forms), properly
completed, currently effective and duly executed by such Lender or participant
establishing that payments to it hereunder and under the Notes are (i) not
subject to United States Federal backup withholding tax or (ii) not subject to
United States Federal withholding tax under the Code because such payment is
either effectively connected with the conduct by such Lender or participant of
a trade or business in the United States or totally exempt from United States
Federal withholding tax by reason of the application of the provisions of a
treaty to which the United States is a party or such Lender is otherwise
exempt.
(c) If the Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent, for
the account of the respective Lender, the required receipts or other required
documentary evidence, the Borrower shall indemnify the Lenders for any
incremental Taxes, interest or penalties that may become payable by any Lender
as a result of any such failure. For purposes of this Section 4.6, a
distribution hereunder by the Administrative Agent or any Lender to or for the
account of any Lender shall be deemed a payment by or on behalf of the
Borrower.
4.7. Certain Assignments. In the event that any Lender shall make a
demand for compensation for Additional Costs (in a non-deminimis amount)
pursuant to Section 4.1 or shall not be obligated to make or maintain
Eurodollar Rate Loans or Eurodollar Market Loans pursuant to Section 4.3 (a
"Qualified Lender"), then, so long as such Lender is a Qualified Lender and
provided that a Default or Event of Default shall not exist, the Borrower, with
the consent of the Administrative Agent (which consent shall not be
unreasonably withheld) and on not less than three (3) Business Days prior
written notice to the Administrative Agent and the Qualified Lender, may demand
that the Qualified Lender assign, and subject to the terms hereof the Qualified
Lender shall assign, to another bank or financial institution specified by the
Borrower in such notice, all (but not less than all) of the Qualified Lender's
right and obligations under the Loan Documents in accordance with Section 11.1;
provided, however: (i) the obligation of the Qualified Lender to assign its
rights under this Section 4.7 shall be subject to receipt by the Qualified
Lender of payment of all outstanding principal and accrued interest owing to
such Qualified Lender in respect of Loans and Participations hereunder, (ii)
the proposed assignee shall satisfy the requirements of a Lender, including
those set forth in Sections
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11.1 and 4.6, and (iii) the Borrower shall remain obligated to the Qualified
Lender for all Obligations, including Additional Costs and amounts required to
be paid under Section 4.4 (the assignment of any Fixed Rate Loan constituting a
prepayment thereof) allocable to the period prior to the assignment by the
Qualified Lender.
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ARTICLE V
Conditions to Execution of Loan Documents,
Making Loans and Issuing Letters of Credit
5.1. Conditions to Execution of Loan Documents, Making Loans and
Issuing Letters of Credit. As conditions precedent to the execution and
delivery by the Agents and the Lenders of this Agreement and the other Loan
Documents to which they are a party, and to the obligations of the Lenders to
make the initial extension of credit hereunder, whether in the form of an
initial Advance by the Lenders, the initial Letter of Credit issued by the
Issuing Bank or the initial Swing Line Loan by NationsBank:
(a) the Administrative Agent shall have received on the
Closing Date, in form and substance satisfactory to the Administrative
Agent and the Lenders, the following:
(i) executed originals of each of this Agreement,
the Notes, the initial Guaranties, the LC Account Agreement
and the other Loan Documents, together with all schedules and
exhibits thereto;
(ii) the favorable written opinion or opinions
with respect to the Loan Documents, the Related Acquisition
Transaction Documents and the respective transactions
contemplated thereby of counsel (which may be or include
special counsel) to the Borrower and the other Credit Parties
dated the Closing Date, addressed to the Administrative Agent
and the Lenders and satisfactory to the Administrative Agent
and Xxxxx Xxxxx Mulliss & Xxxxx, L.L.P., special counsel to
the Administrative Agent, substantially in the form of Exhibit
K;
(iii) the favorable written opinion or opinions
with respect to the Related Acquisition Transaction Documents
and the respective transactions contemplated thereby of
counsel (which may be or include special counsel) to the
Borrower and the other Credit Parties and Caremark Counsel
dated the Closing Date, addressed to the Administrative Agent
and the Lenders (or expressly stating therein, or in a
separate letter of even date with such opinion and addressed
to the Administrative Agent and the Lenders, that the
Administrative Agent and the Lenders may rely on such opinion
as if they were addressees thereof), and satisfactory to the
Administrative Agent and Xxxxx Xxxxx Mulliss & Xxxxx, L.L.P.,
special counsel to the Administrative Agent;
(iv) resolutions of the boards of directors or
other appropriate governing body (or of the appropriate
committee thereof) of each Credit Party certified by its
secretary or assistant secretary as of the Closing Date,
approving and adopting the Loan Documents to be executed by
such Person, and authorizing the execution and delivery
thereof;
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(v) executed originals, or copies of executed
originals certified by the secretary or assistant secretary of
the Borrower, of the Related Acquisition Agreement and all
other material Related Acquisition Transaction Documents,
which shall evidence the corporate (and shareholder, if any)
authorization for and consummation of the Related Acquisition
as of the Closing Date on the terms provided in the Related
Acquisition Agreement and the Registration Statement;
(vi) specimen signatures of officers of each
Credit Party executing the Loan Documents on behalf of such
Credit Party, certified by the secretary or assistant
secretary of such Credit Party;
(vii) the charter documents of each Credit Party
certified as of a recent date by the Secretary of State of its
state of organization;
(viii) the bylaws of each Credit Party certified as
of the Closing Date as true and correct by its secretary or
assistant secretary;
(ix) certificates issued as of a recent date by
the Secretaries of State of the respective jurisdictions of
formation of each Credit Party as to the due existence and
good standing of each Credit Party;
(x) appropriate certificates of qualification to
do business, good standing and, where appropriate, authority
to conduct business under assumed name, issued in respect of
each Credit Party as of a recent date by the Secretary of
State or comparable official of each jurisdiction in which the
failure to be qualified to do business or authorized so to
conduct business would reasonably be expected to have a
Material Adverse Effect;
(xi) notice of appointment of the initial
Authorized Representative(s);
(xii) evidence of all insurance required by the
Loan Documents;
(xiii) a certificate of Borrower's President, chief
executive officer, Treasurer or chief financial officer dated
the Closing Date certifying that (A) as of the Closing Date
there does not exist any default or event of default under any
Indebtedness of the Borrower or any Subsidiary or any Assumed
Debt or under any of the Existing Settlement Agreements, (B)
as of the Closing Date and immediately after giving effect to
the Related Acquisition and all Advances made and Letters of
Credit issued as of the Closing Date (1) there does not exist
any Default or Event of Default or any default or event of
default under any Assumed Debt or under any of the Existing
Settlement Agreements and (2) the Borrower and each of the
other Credit Parties is Solvent;
(xiv) Pro Forma Historical Statements;
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(xv) Compliance Certificate of an Authorized
Representative dated the Closing Date demonstrating compliance
as at June 30, 1996 on a pro forma basis (giving effect to the
Related Acquisition) with the financial covenants contained in
Sections 8.1(a) through 8.1(c);
(xvi) an initial Borrowing Notice, if any, and, if
elected by the Borrower, an initial Interest Rate Selection
Notice;
(xvii) evidence satisfactory to the Administrative
Agent that all fees payable by the Borrower on the Closing
Date to the Administrative Agent, NCMI and the Lenders have
been paid in full;
(xviii) evidence satisfactory to the Administrative
Agent (which may include the appropriate written request or
direction of the Borrower to the Agent delivered as of the
Closing Date) of the use of Advances, together with other
funds supplied by the Borrower (if any), to the repayment in
full of the Closing Date Prepayable Debt (other than the
continuation hereunder of Reimbursement Obligations in respect
of the Existing Letters of Credit), and the making of
satisfactory arrangements for the effective release and
termination of all Liens securing any Closing Date Prepayable
Debt substantially simultaneously with such payment; and
(xix) evidence satisfactory to the Administrative
Agent that (A) the Borrower's name has been changed from
"MedPartners/Xxxxxxxx, Inc." to "MedPartners, Inc." and (B)
the Material Subsidiary whose name was "MedPartners, Inc."
prior to the Closing Date has been changed to "MP of Delaware,
Inc.";
(xx) such other documents, instruments,
certificates and opinions as the Administrative Agent or any
Lender may reasonably request on or prior to the Closing Date
in connection with the Related Acquisition or the transactions
contemplated hereby; and
(b) In the good faith judgment of the Administrative
Agent and the Lenders:
(i) there shall not have occurred or become known
to the Administrative Agent or the Lenders any event,
condition, situation or status (including any change in the
status of any Designated Caremark Litigation) since the date
of the information contained in the financial and business
projections, budgets, pro forma data and forecasts concerning
the Borrower and its Subsidiaries, including any member of the
Caremark Group, delivered to the Administrative Agent and the
Lenders prior to the Closing Date that has had or could
reasonably be expected to result in a Material Adverse Effect
or materially adversely affect the business, properties,
operations or condition, financial or otherwise, of the
Caremark Group, taken as a whole;
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(ii) no litigation, action, suit, investigation or
other arbitral, administrative or judicial proceeding shall be
pending or threatened which could reasonably be expected to
(x) result in a Material Adverse Effect or materially
adversely affect the business, properties, operations or
condition, financial or otherwise, of the Caremark Group,
taken as a whole, or (y) restrain or enjoin, impose materially
burdensome conditions on, or otherwise materially and
adversely affect the ability of any Person to fulfill their
respective obligations under the Related Acquisition
Transaction Documents;
(iii) the Borrower, its Subsidiaries, and the
Caremark Group shall have received all approvals, consents and
waivers (including the expiration or early termination of any
waiting period without notice of intent to challenge or
request for further information by any Governmental
Authority), and shall have made or given all necessary filings
and notices as shall be required to consummate the
transactions contemplated hereby and by the Related
Acquisition Transaction Documents without the occurrence of
any default under, conflict with or violation of (A) any
applicable law, rule, regulation, order or decree of any
Governmental Authority or arbitral authority or (B) any
agreement, document or instrument to which the Borrower or any
Subsidiary or any member of the Caremark Group is a party or
by which any of them or their respective properties is bound,
except for such approvals, consents, waivers, filings and
notices the receipt, making or giving of which would not
reasonably be likely to (A) have a Material Adverse Effect or
materially adversely affect the business, properties,
operations or condition, financial or otherwise, of the
Caremark Group, taken as a whole, or (B) restrain or enjoin,
impose materially burdensome conditions on, or otherwise
materially and adversely affect the ability of any Person to
fulfill its obligations under the Related Acquisition
Transaction Documents; and
(iv) there shall not have occurred or exist (A) an
engagement in hostilities by the United States of America or
other national or international emergency or calamity, (B) a
general suspension of or material limitation on trading on the
New York Stock Exchange or other national securities exchange,
(C) the declaration of a general banking moratorium by any
applicable Governmental Authority or the imposition by any
applicable Governmental Authority of any material limitation
on transactions of the type contemplated by the Loan
Documents, or (D) any other material disruption of financial
or capital markets that could reasonably be expected to
materially and adversely affect the transactions contemplated
under the Loan Documents.
5.2. Conditions of Revolving Loans and Letter of Credit. The
obligations of the Lenders to make any Revolving Loans or Competitive Bid
Loans, the Issuing Bank to issue Letters of Credit, and NationsBank to make
Swing Line Loans, hereunder on or subsequent to the Closing Date are subject to
the satisfaction of the following conditions:
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(a) the Administrative Agent or, in the case of Swing
Line Loans, NationsBank shall have received a Borrowing Notice if
required by Article II;
(b) the representations and warranties of the Borrower
and each Subsidiary set forth in Article VI and in each of the other
Loan Documents shall be true and correct in all material respects on
and as of the date of such Advance, Swing Line Loan, Competitive Bid
Loan or Letter of Credit issuance or renewal, as the case may be, with
the same effect as though such representations and warranties had been
made on and as of such date, except to the extent that such
representations and warranties expressly relate solely to an earlier
date (in which case such representations and warranties shall be true
and correct in all material respects on and as of such earlier date)
and except that the financial statements referred to in Section 6.6(a)
shall be deemed to be those financial statements most recently
delivered to the Administrative Agent and the Lenders pursuant to
Section 7.1 from the date financial statements are delivered to the
Administrative Agent and the Lenders in accordance with such Section;
(c) in the case of the issuance of a Letter of Credit,
the Borrower shall have executed and delivered to the Issuing Bank an
Application and Agreement for Letter of Credit in form and content
acceptable to the Issuing Bank together with such other instruments
and documents as it shall reasonably request;
(d) at the time of (and after giving effect to) each
Advance, Swing Line Loan, Competitive Bid Loan or the issuance or
renewal of a Letter of Credit, no Default or Event of Default
specified in Article IX shall have occurred and be continuing; and
(e) immediately after giving effect to:
(i) a Revolving Loan, the aggregate principal
balance of all outstanding Revolving Loans for each
Lender, together with all Participations of such
Lender, shall not exceed such Lender's Revolving
Credit Commitment;
(ii) a Letter of Credit or renewal thereof, the
aggregate principal balance of all outstanding
Participations in Letters of Credit and Reimbursement
Obligations (or in the case of the Issuing Bank, its
remaining interest after deduction of all
Participations in Letters of Credit and Reimbursement
Obligations of other Lenders) for each Lender and in
the aggregate shall not exceed, respectively, (X)
such Lender's Letter of Credit Commitment or (Y) the
Total Letter of Credit Commitment;
(iii) a Swing Line Loan, the Swing Line Outstandings
shall not exceed $25,000,000; and
(iv) a Revolving Loan, Swing Line Loan, Competitive
Bid Loan, or a Letter of Credit or renewal thereof,
the sum of Letter of Credit Outstandings plus
Revolving Credit Outstandings plus Swing Line
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Outstandings plus outstanding Competitive Bid Loans (i) shall not
exceed the Total Revolving Credit Commitment and (ii) prior to the
Guaranty Limitation Release Date and excluding Advances, Loans and
Letters of Credit used directly or indirectly to effect Indenture Note
Purchases, shall not exceed the Total Revolving Credit Commitment
minus the Indenture Notes Purchase Sublimit.
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ARTICLE VI
Representations and Warranties
The Borrower represents and warrants with respect to itself and to its
Subsidiaries (which representations and warranties shall survive the delivery
of the documents mentioned herein and the making of Loans) after giving effect
to the Related Acquisition (except where expressly otherwise provided), that:
6.1. Organization and Authority.
(a) The Borrower is a corporation duly organized and
validly existing under the laws of the jurisdiction of its
incorporation, and each Subsidiary is a corporation or partnership
duly organized and validly existing under the laws of the jurisdiction
of its formation;
(b) The Borrower and each Subsidiary (x) has the
requisite power and authority to own its properties and assets and to
carry on its business as now being conducted and as contemplated in
the Loan Documents, and (y) is qualified to do business in every
jurisdiction in which failure so to qualify would have a Material
Adverse Effect;
(c) The Borrower has the power and authority to execute,
deliver and perform this Agreement and the Notes, and to borrow
hereunder, and to execute, deliver and perform each of the other Loan
Documents and each of the Related Acquisition Transaction Documents to
which it is a party;
(d) Each Subsidiary has the power and authority to execute,
deliver and perform the Guaranty and each of the other Loan Documents
and each of the Related Acquisition Transaction Documents to which it
is a party; and
(e) When executed and delivered, each of the Loan Documents
and the Related Acquisition Transaction Documents to which the
Borrower or any Subsidiary is a party will be the legal, valid and
binding obligation or agreement, as the case may be, of the Borrower
or such Subsidiary, enforceable against the Borrower or such
Subsidiary in accordance with its terms, subject to the effect of any
applicable bankruptcy, moratorium, insolvency, reorganization or other
similar law affecting the enforceability of creditors' rights
generally and to the effect of general principles of equity (whether
considered in a proceeding at law or in equity);
6.2. No Conflict. The execution, delivery and performance by the
Borrower and each Subsidiary of each of the Loan Documents and Related
Acquisition Transaction Documents to which it is a party:
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(a) have been duly authorized by all requisite corporate
or partnership action (including any required shareholder or partner
approval) of the Borrower and each other Credit Party required for the
lawful execution, delivery and performance thereof;
(b) do not violate any provisions of (i) applicable law, rule
or regulation, (ii) any judgment, writ, order, determination, decree
or arbitral award of any Governmental Authority or arbitral authority
binding on the Borrower or any Subsidiary or its properties, or (iii)
the charter documents, partnership agreement or bylaws of the Borrower
or any Subsidiary;
(c) do not and will not be in conflict with, result in a
breach of or constitute an event of default, or an event which, with
notice or lapse of time or both, would constitute an event of default,
under any contract, indenture, agreement or other instrument or
document to which Borrower or any Subsidiary is a party, or by which
the properties or assets of Borrower or any Subsidiary are bound which
conflict, breach, event or default or default could reasonably be
expected to have a Material Adverse Effect; and
(d) do not and will not result in the creation or imposition
of any Lien upon any of the properties or assets of Borrower or any
Subsidiary except any Liens in favor of the Administrative Agent and
the Lenders created by the Loan Documents;
6.3. Solvency. The Borrower and each Subsidiary is Solvent after
giving effect to the transactions contemplated by the Loan Documents and the
Related Acquisition Transaction Documents;
6.4. Subsidiaries and Stockholders. The Borrower has no Subsidiaries
other than those Persons listed as Subsidiaries in Schedule 6.4 and additional
Subsidiaries created or acquired after the Closing Date in compliance with
Section 7.19; Schedule 6.4 states as of the date hereof and after giving effect
to the Related Acquisition the organizational form of each entity, the
authorized and issued capitalization of each Subsidiary listed thereon, the
number and/or percentage of outstanding shares or other equity interest
(including options, warrants and other rights to acquire any interest) of each
such class of capital stock or other equity interest owned by Borrower or by
any such Subsidiary, whether such Subsidiary is a Caremark Subsidiary, and
whether such Subsidiary is a Material Subsidiary; the outstanding shares or
other equity interests of each such Subsidiary have been duly authorized and
validly issued and are fully paid and nonassessable; and Borrower and each such
Subsidiary owns beneficially and of record all the shares and other interests
it is listed as owning in Schedule 6.4, free and clear of any Lien;
6.5. Ownership Interests. Borrower owns no interest in any Person
other than the Persons listed in Schedule 6.4, equity investments in Persons
not constituting Subsidiaries permitted under Section 8.6 and additional
Subsidiaries created or acquired after the Closing Date in compliance with
Section 7.19;
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6.6. Financial Condition.
(a) The Registration Statement contains therein the
financial statements described on pages F-4 through F-56. Such
financial statements (including the notes thereto) present fairly the
financial condition of (i) the Borrower and its Subsidiaries (before
giving effect to the Related Acquisition) and (ii) the Caremark Group
as of the end of the Fiscal Years and six month periods set forth and
results of their operations and the changes in their stockholders'
equity and cash flow for the Fiscal Years and six month periods then
ended, all in conformity with Generally Accepted Accounting Principles
applied on a Consistent Basis;
(b) since December 31, 1995 there has been no material
adverse change in the condition, financial or otherwise, of (i) the
Borrower or any of its Subsidiaries (before giving effect to the
Related Acquisition) or (ii) any member of the Caremark Group, or in
the businesses, properties, performance, prospects or operations of
(x) the Borrower or any of its Subsidiaries (before giving effect to
the Related Acquisition) or (y) any member of the Caremark Group, nor
have such businesses or properties been materially adversely affected
as a result of any fire, explosion, earthquake, accident, strike,
lockout, combination of workers, flood, embargo or act of God;
(c) except as set forth in the financial statements
referred to in Section 6.6(a) or in Schedule 6.6 or permitted by
Section 8.4, neither Borrower nor any Subsidiary has incurred, other
than in the ordinary course of business, any material Indebtedness or
other commitment or liability which remains outstanding or
unsatisfied;
(d) the Pro Forma Historical Statements provided to the
Administrative Agent and the Lenders accurately reflect in accordance
with GAAP the historical pro forma financial condition and results of
operations of the Borrower and its Subsidiaries for the respective
periods covered thereby, after giving pro forma effect to the Related
Acquisition; and
(e) the Pro Forma Projections provided to the
Administrative Agent and the Lenders were prepared by the Borrower in
good faith and are based upon assumptions which the Borrower believes
to have been reasonable as of the time of preparation thereof and as
of the Closing Date;
6.7. Title to Properties. The Borrower and each of its Subsidiaries
has good and marketable title to all its real and personal properties, subject
to no transfer restrictions or Liens of any kind, except for the transfer
restrictions and Liens described in Schedule 6.7 and Liens permitted by Section
8.3;
6.8. Taxes. Except as set forth in Schedule 6.8, the Borrower and
each of its Subsidiaries has filed or caused to be filed all federal, state and
local tax returns which are required to be filed by it and, except for taxes
and assessments being contested in good faith by appropriate proceedings
diligently conducted and against which reserves reflected in the financial
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statements described in Section 6.6(a) and satisfactory to the Borrower's
independent certified public accountants have been established, have paid or
caused to be paid all taxes as shown on said returns or on any assessment
received by it, to the extent that such taxes have become due;
6.9. Other Agreements. Neither the Borrower nor any Subsidiary is
(a) a party to or subject to any judgment, order, decree,
agreement, lease or instrument (including the Existing Settlement
Agreements), or subject to other restrictions, which individually or
in the aggregate could reasonably be expected to have a Material
Adverse Effect; or
(b) in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any
agreement or instrument (including the Existing Settlement Agreements)
to which the Borrower or any Subsidiary is a party, which default has,
or if not remedied within any applicable grace period could reasonably
be likely to have, a Material Adverse Effect;
6.10. Litigation. Except as set forth in Schedule 6.10, there is no
action, suit, investigation or proceeding (including the Designated Caremark
Litigation) at law or in equity or by or before any governmental
instrumentality or agency or arbitral body pending, or, to the knowledge of the
Borrower, threatened by or against the Borrower or any Subsidiary or affecting
the Borrower or any Subsidiary or any properties or rights of the Borrower or
any Subsidiary, which could reasonably be expected to result in an Exclusion
Event or otherwise to have a Material Adverse Effect;
6.11. Margin Stock. The proceeds of the borrowings made hereunder
will be used by the Borrower only for the purposes expressly authorized herein.
None of such proceeds will be used, directly or indirectly, for the purpose of
purchasing or carrying any margin stock or for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase or carry
margin stock or for any other purpose which might constitute any of the Loans
under this Agreement a "purpose credit" within the meaning of said Regulation U
or Regulation X (12 C.F.R. Part 224) of the Board. Neither the Borrower nor
any agent acting in its behalf has taken or will take any action which might
cause this Agreement or any of the documents or instruments delivered pursuant
hereto to violate any regulation of the Board or to violate the Securities
Exchange Act of 1934, as amended, or the Securities Act of 1933, as amended, or
any state securities laws, in each case as in effect on the date hereof;
6.12. Investment Company. Neither the Borrower nor any other
Subsidiary is an "investment company," or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended (15 U.S.C.
Section 80a-1, et seq.). The application of the proceeds of the Loans and
Letters of Credit and repayment thereof by the Borrower and the performance by
the Borrower and the other Credit Parties of the transactions contemplated by
the Loan Documents will not violate any provision of said Act, or any rule,
regulation or order issued by the Securities and Exchange Commission
thereunder, in each case as in effect on the date hereof;
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6.13. Patents, Etc. The Borrower and each Subsidiary owns or has the
right to use, under valid license agreements or otherwise, all material
patents, licenses, franchises, trademarks, trademark rights, trade names, trade
name rights, trade secrets and copyrights necessary to or used in the conduct
of its businesses as now conducted and as contemplated by the Loan Documents,
without known conflict with any patent, license, franchise, trademark, trade
secret, trade name, copyright, or other proprietary right of any other Person;
6.14. No Untrue Statement. Neither (a) this Agreement nor any other
Loan Document or certificate or document executed and delivered by or on behalf
of the Borrower or any other Credit Party in accordance with or pursuant to any
Loan Document nor (b) any statement, representation, or warranty provided to
the Administrative Agent in connection with the negotiation or preparation of
the Loan Documents (including such items pertaining to the Related Acquisition)
contains any misrepresentation or untrue statement of material fact or omits to
state a material fact necessary, in light of the circumstance under which it
was made, in order to make any such warranty, representation or statement
contained therein not misleading;
6.15. No Consents, Etc. Neither the respective businesses or
properties of the Borrower or any Subsidiary, nor any relationship between the
Borrower or any Subsidiary and any other Person, nor any circumstance in
connection with the execution, delivery and performance of the Loan Documents
and the Related Acquisition Transaction Documents and the transactions
contemplated thereby, is such as to require a consent, approval or
authorization of, or filing, registration or qualification with, any
Governmental Authority or any other Person on the part of the Borrower or any
Subsidiary as a condition to the execution, delivery and performance of, or
consummation of the transactions contemplated by the Loan Documents or the
Related Acquisition Transaction Documents which, if not obtained or effected,
would be reasonably likely to have a Material Adverse Effect or to materially
impair or impose materially burdensome conditions on the consummation of the
Related Acquisition in accordance with the Related Acquisition Transaction
Documents, or if so, such consent, approval, authorization, filing,
registration or qualification has been duly obtained or effected, as the case
may be;
6.16. Employee Benefit Plans.
(a) The Borrower and each ERISA Affiliate is in compliance
with all applicable provisions of ERISA and the regulations and
published interpretations thereunder and in compliance with all
Foreign Benefit Laws with respect to all Employee Benefit Plans except
for any required amendments for which the remedial amendment period as
defined in Section 401(b) of the Code has not yet expired. Each
Employee Benefit Plan that is intended to be qualified under Section
401(a) of the Code is so qualified, and each trust related to such
plan is exempt under Section 501(a) of the Code. No material
liability has been incurred by the Borrower or any ERISA Affiliate
which remains unsatisfied for any taxes or penalties with respect to
any Employee Benefit Plan or any Multiemployer Plan;
(b) Neither the Borrower nor any ERISA Affiliate has (i)
engaged in a nonexempt prohibited transaction described in Section
4975 of the Code or Section 406
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of ERISA affecting any of the Employee Benefit Plans or the trusts
created thereunder which could subject any such Employee Benefit Plan
or trust to a material tax or penalty on prohibited transactions
imposed under Internal Revenue Code Section 4975 or ERISA, (ii)
incurred any accumulated funding deficiency with respect to any
Employee Benefit Plan, whether or not waived, or any other liability
to the PBGC which remains outstanding other than the payment of
premiums and there are no premium payments which are due and unpaid,
(iii) failed to make a required contribution or payment to a
Multiemployer Plan, or (iv) failed to make a required installment or
other required payment under Section 412 of the Code, Section 302 of
ERISA or the terms of such Employee Benefit Plan;
(c) No Termination Event has occurred or is reasonably
expected to occur with respect to any Pension Plan or Multiemployer
Plan, and neither the Borrower nor any ERISA Affiliate has incurred
any unpaid withdrawal liability with respect to any Multiemployer
Plan;
(d) The present value of all vested accrued benefits under
each Employee Benefit Plan which is subject to Title IV of ERISA, did
not, as of the most recent valuation date for each such plan, exceed
the then current value of the assets of such Employee Benefit Plan
allocable to such benefits;
(e) To the best of the Borrower's knowledge, each Employee
Benefit Plan subject to Title IV of ERISA, maintained by the Borrower
or any ERISA Affiliate, has been administered in accordance with its
terms in all material respects and is in compliance in all material
respects with all applicable requirements of ERISA and other
applicable laws, regulations and rules;
(f) The consummation of the Loans and the issuance of the
Letters of Credit provided for herein will not involve any prohibited
transaction under ERISA which is not subject to a statutory or
administrative exemption; and
(g) No material proceeding, claim, lawsuit and/or
investigation exists or, to the best knowledge of the Borrower after
due inquiry, is threatened concerning or involving any Employee
Benefit Plan;
6.17. No Default. As of the date hereof, there does not exist any
Default or Event of Default hereunder;
6.18. Hazardous Materials. The Borrower and each Subsidiary is in
compliance with all applicable Environmental Laws in all material respects, and
has been issued and maintains all required federal, state and local permits,
licenses, certificates and approvals pertaining to Hazardous Materials that are
germane to the conduct of its business. Neither the Borrower nor any
Subsidiary has been notified of any pending or threatened action, suit,
proceeding or investigation which, and no Designated Officer of either the
Borrower or any Subsidiary is aware of any facts, which (i) calls into
question, or could reasonably be expected to call into
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question, compliance by the Borrower or any Subsidiary with any Environmental
Laws, (ii) seeks, or could reasonably be expected to form the basis of a
meritorious proceeding to seek, to suspend, revoke or terminate any material
license, permit, certification or approval pertaining to Hazardous Material
that is germane to the conduct of its business, or (iii) seeks to cause, or
could reasonably be expected to form the basis of a meritorious proceeding to
cause, any property of the Borrower or any Subsidiary to be subject to any
restrictions on ownership, use, occupancy or transferability under any
Environmental Law, and which in any such case could reasonably be expected to
have a Material Adverse Effect;
6.19. Employment Matters. (a) Except as described on Schedule 6.19,
none of the employees of the Borrower or any Subsidiary is subject to any
collective bargaining agreement and there are no strikes, work stoppages,
election or decertification petitions or proceedings, unfair labor charges,
equal opportunity proceedings, or other material labor/employee related
controversies or proceedings pending or, to the best knowledge of the Borrower,
threatened against the Borrower or any Subsidiary or between the Borrower or
any Subsidiary and any of its employees, other than employee grievances arising
in the ordinary course of business which could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect; and
(b) Except to the extent a failure to maintain compliance would not
have a Material Adverse Effect, the Borrower and each Subsidiary is in
compliance in all respects with all applicable laws, rules and regulations
pertaining to labor or employment matters, including without limitation those
pertaining to wages, hours, occupational safety and taxation and there is
neither pending or threatened any litigation, administrative proceeding nor, to
the knowledge of the Borrower, any investigation, in respect of such matters
which, if decided adversely, could reasonably be likely, individually or in the
aggregate, to have a Material Adverse Effect;
6.20. Compliance with Laws. Other than as to certain conduct giving
rise to the OIG Settlement Agreements, the Borrower and its Subsidiaries have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof, having jurisdiction over the conduct of their respective
businesses or the ownership of their respective property where non-compliance
could reasonably be expected to have a Material Adverse Effect. No Exclusion
Event has occurred and is continuing;
6.21. Existing Settlement Agreements. (a) The OIG Proceedings with
the federal governmental entities, state governmental entities and the District
of Columbia involved have been fully and finally settled through the OIG
Settlement Agreements. All claims and potential claims of other Persons a
party to or otherwise bound by any of the other Existing Settlement Agreements
which purport to be resolved by such other Existing Settlement Agreements have
been fully and finally settled through such Existing Settlement Agreements.
All actual or, to the knowledge of Borrower's officers, all threatened actions
by any federal governmental authority and, by any State (including the District
of Columbia) Governmental Authority which have been or could be brought based
upon the allegations which form the basis of the OIG Proceedings have been
fully and finally settled through the OIG Settlement Agreements. The Existing
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Settlement Agreements are in the respective forms thereof as furnished to the
Agents prior to the Closing Date, have not been terminated, revoked or
rescinded by any party thereto and remain in full force and effect. Neither the
Borrower nor any Subsidiary has defaulted in the performance, observance or
fulfillment of any of the terms or conditions of any of the Existing Settlement
Agreements;
(b) To the knowledge of the Borrower's officers, no events or facts
have occurred with respect to the Borrower or any of its Subsidiaries which
could give rise to review (other than in the ordinary course of business) by
any federal, state or local regulatory, enforcement or governmental body or
authority (i) of a nature similar to that involved with the OIG Proceedings or
similar to the claims and potential claims settled under the other Existing
Settlement Agreements and (ii) the outcome of which could reasonably be
expected to subject the Borrower and/or its Subsidiaries to liabilities,
individually or in the aggregate, in excess of $25,000,000;
6.22. Related Acquisition. The Related Acquisition, as described in
the Registration Statement, has been fully consummated in accordance with the
Related Acquisition Transaction Documents;
6.23. Representations and Warranties from the Related Acquisition
Transaction Documents. As of the Closing Date (and immediately prior to giving
effect to the Related Acquisition), each of the representations and warranties
made by the Borrower or any Subsidiary in the Related Acquisition Transaction
Documents are true and correct in all material respects as of the date hereof,
and the Borrower is not aware of any facts or circumstances indicating that any
of the representations or warranties of any member of the Caremark Group
contained in the Related Acquisition Transaction Documents are not true and
correct in all material respects as of the date hereof;
For purposes of this Article VI, the phrase "to the knowledge of
Borrower's officers" shall mean to the actual knowledge of any of (i) the
following officers of Borrower: (1) President or Chief Executive Officer, (2)
Executive Vice Presidents, (3) General Counsel, (4) Vice President of Legal
Services, (5) Regional Vice Presidents, (6) Treasurer, (7) Assistant Treasurer,
or (8) any successor position or title of (1) through (7), and (ii) with
respect to Sections 6.20, 6.21 and 6.22, (1) any officer of the Borrower
described in clause (i) or (2) any General Counsel of Caremark.
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ARTICLE VII
Affirmative Covenants
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will, and where applicable will
cause each Subsidiary to:
7.1. Financial Reports, Etc. (a) As soon as practical and in any
event within 95 days after the end of each Fiscal Year of the Borrower, deliver
or cause to be delivered to the Administrative Agent and each Lender (i) the
consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such Fiscal Year, and the notes thereto, and the related consolidated
statements of income, stockholders' equity and cash flows, and the respective
notes thereto, for such Fiscal Year, setting forth comparative financial
statements for the preceding Fiscal Year, all prepared in accordance with GAAP
applied on a Consistent Basis and containing, with respect to the consolidated
financial statements, opinions of Ernst & Young, or such other independent
certified public accountants as are selected by the Borrower and approved by
the Administrative Agent, which are unqualified as to the scope of the audit
performed and as to the "going concern" status of the Borrower and without any
exception not acceptable to the Lenders, and (ii) a Compliance Certificate of
an Authorized Representative demonstrating compliance with Sections 8.1;
(b) as soon as practical and in any event within 50 days after the
end of each fiscal quarter (except the last fiscal quarter of the Fiscal Year
of the Borrower), deliver to the Administrative Agent and each Lender (i) the
consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such fiscal quarter, and the related consolidated statements of income,
stockholders' equity and cash flows for such fiscal quarter and for the period
from the beginning of the then current Fiscal Year through the end of such
reporting period, setting forth comparative financial statements for the
comparable period in the preceding Fiscal Year, and accompanied by a
certificate of an Authorized Representative to the effect that such financial
statements present fairly the financial position of the Borrower and its
Subsidiaries as of the end of such fiscal period and the results of their
operations and cash flows for such fiscal period, in conformity with the
standards set forth in Section 6.6(a) with respect to interim financial
statements, and (ii) a Compliance Certificate of an Authorized Representative
containing computations for such quarter comparable to that required pursuant
to Section 7.1(a)(ii);
(c) together with each delivery of the financial statements
required by Section 7.1(a)(i), deliver to the Administrative Agent and each
Lender a letter from the Borrower's accountants specified in Section 7.1(a)(i)
stating that in performing the audit necessary to render an opinion on the
financial statements delivered under Section 7.1(a)(i), they obtained no
knowledge of any Default or Event of Default by the Borrower in the fulfillment
of the terms and provisions of this Agreement insofar as they relate to
financial matters (which at the date of such statement remains uncured); or if
the accountants have obtained knowledge of such Default or Event of Default, a
statement specifying the nature and period of existence thereof;
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(d) together with the financial statements required under Section
7.1(a), the Borrower shall deliver to the Administrative Agent and to
independent counsel for the Administrative Agent a current Compliance Report.
Such independent legal counsel shall promptly deliver to the Administrative
Agent (which the Administrative Agent shall promptly deliver to each Lender)
and Borrower (other than such portions thereof which are privileged or attorney
work product) an assessment report, in form and substance and containing such
detail as shall be acceptable to the Administrative Agent, of any matters
disclosed in such Compliance Report which such independent legal counsel, in
consultation with the Administrative Agent shall determine to be material.
Copies of the Compliance Reports will be maintained for review by any Lender at
the office of such independent counsel.
(e) promptly upon their becoming available to the Borrower, the
Borrower shall deliver to the Administrative Agent and each Lender a copy of
(i) all regular or special reports or effective registration statements which
the Borrower or any Subsidiary shall file with the Securities and Exchange
Commission (or any successor thereto) or any securities exchange, including
without limitation all reports on Form 10-K, 10-Q and 8-K, (ii) any proxy
statement distributed by the Borrower or any Subsidiary to its shareholders,
bondholders or the financial community in general, (iii) any management letter
submitted to the Borrower or any Subsidiary by independent accountants in
connection with any annual, interim or special audit of the Borrower or any
Subsidiary, and (iv) all material reports and other statements (other than
routine reports and other statements prepared in the ordinary course of
business that would not result in adverse action) that the Borrower or any
Subsidiary may render to or file with any Governmental Authority, including
without limitation such matters as pertain to compliance by any Person with
obligations or fulfillment or nonfulfillment of conditions under any of the
Existing Settlement Agreements;
(f) on a monthly basis not later than the fifth (5th) Business Day of
each month, the Borrower shall deliver to the Administrative Agent, the Lenders
and independent counsel for the Administrative Agent a report, in form and
substance and containing such detail as shall be acceptable to the
Administrative Agent, identifying all filings, all rulings and all depositions
which have occurred since the date of the last such monthly report in
connection with the Coram Litigation. At the request of the Administrative
Agent or any of the Lenders, the Borrower shall provide copies of any of such
publicly available pleadings filed or rulings issued. The Administrative Agent
may request from time to time that its independent counsel provide to it and
each of the Lenders such assessment of the status of the Coram Litigation as
may be derived by independent counsel from the information furnished to it
pertaining to the Coram Litigation.
(g) as soon as possible and in any event within 5 Business Days after
receipt by the Borrower or any Subsidiary, the Borrower shall deliver to the
Administrative Agent and each Lender a copy of any notice (issued by the OIG or
any other applicable Governmental Authority) of proposal or intent to exclude
the Borrower or any Subsidiary from participation in any Medicare or Medicaid
program or any comparable program administered by any Governmental Authority of
any State or the District of Columbia, or of any Exclusion Event;
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(h) as soon as possible and in any event within 5 Business Days after
the entry, filing or consummation of any award, judgment or settlement giving
rise to any Designated Caremark Litigation Costs, deliver to the
Administrative Agent (i) a copy of such award, judgment or settlement, and (ii)
a Compliance Certificate duly completed and executed by an Authorized
Representative and containing calculations with respect to financial covenant
compliance giving effect (in the manner specified in the definition of
"Consolidated Indebtedness" in Section 1.1) to such award, judgment or
settlement (together with all other awards, judgments and settlements then
affecting the computation of Consolidated Indebtedness) as of the most recent
fiscal quarter of the Borrower then ended; and
(i) promptly, from time to time, deliver or cause to be delivered to
the Administrative Agent and each Lender such other information regarding
Borrower's and any Subsidiary's operations, business affairs (including
litigation, subject to applicable privileges) and financial condition as the
Administrative Agent or such Lender may reasonably request;
The Administrative Agent and the Lenders are hereby authorized to
deliver a copy of any such financial or other information delivered hereunder
to the Lenders (or any affiliate of any Lender) or to the Administrative Agent,
to any Governmental Authority having jurisdiction over the Administrative Agent
or any of the Lenders pursuant to any written request therefor or in the
ordinary course of examination of loan files, or to any other Person who shall
acquire or consider the assignment of, or acquisition of any participation
interest in, any Obligation permitted by this Agreement;
7.2. Maintain Properties. Maintain all properties necessary to its
operations in good working order and condition, make all needed repairs,
replacements and renewals to such properties, and maintain free from Liens all
trademarks, trade names, patents, copyrights, trade secrets, know-how, and
other intellectual property and proprietary information (or adequate licenses
thereto), in each case to the extent reasonably necessary to conduct its
business as currently conducted or as contemplated hereby, all in accordance
with customary and prudent business practices;
7.3. Existence, Qualification, Etc. Except as otherwise expressly
permitted under Section 8.7, do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and all material
rights and franchises, and maintain its license or qualification to do business
as a foreign corporation and good standing in each jurisdiction in which its
ownership or lease of property or the nature of its business makes such license
or qualification necessary;
7.4. Regulations and Taxes. Comply in all material respects with or
contest in good faith all statutes and governmental regulations and pay all
taxes, assessments, governmental charges, claims for labor, supplies, rent and
any other obligation which, if unpaid, would become a Lien against any of its
properties except liabilities being contested in good faith by appropriate
proceedings diligently conducted and against which adequate reserves acceptable
to the Borrower's independent certified public accountants have been
established unless and until
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any Lien resulting therefrom attaches to any of its property and becomes
enforceable against its creditors;
7.5. Insurance. (a) Keep all of its insurable properties adequately
insured at all times with responsible insurance carriers against loss or damage
by fire and other hazards to the extent and in the manner as are customarily
insured against by similar businesses owning such properties similarly
situated, (b) maintain general public liability insurance and medical
malpractice insurance at all times with responsible insurance carriers against
liability on account of damage to persons and property and (c) maintain
insurance under all applicable workers' compensation laws (or in the
alternative, maintain required reserves if self-insured for workers'
compensation purposes), such policies of insurance to have such limits,
deductibles, exclusions, co-insurance and other provisions providing no less
coverages than that specified in Schedule 7.5, such insurance policies to be in
form reasonably satisfactory to the Administrative Agent. Each of the
policies of insurance described in this Section 7.5 shall provide that the
insurer shall give the Administrative Agent not less than thirty (30) days'
prior written notice before any such policy shall be terminated, lapse, or
altered in any manner so as to decrease coverage or increase deductible amounts
or copayment or similar obligations of any insured;
7.6. True Books. Keep true books of record and account in which
full, true and correct entries will be made of all of its dealings and
transactions, and set up on its books such reserves as may be required by GAAP
with respect to doubtful accounts and all taxes, assessments, charges, levies
and claims and with respect to its business in general, and include such
reserves in interim as well as year-end financial statements;
7.7. Right of Inspection. Permit any Person designated by any Lender
or the Administrative Agent to visit and inspect any of the properties,
corporate books and financial reports of the Borrower or any Subsidiary and to
discuss its affairs, finances and accounts with its principal officers and
independent certified public accountants, all at reasonable times, at
reasonable intervals and with reasonable prior notice;
7.8. Observe all Laws. Conform to and duly observe in all material
respects all laws, rules and regulations and all other valid requirements of
any Governmental Authority with respect to the conduct of its business,
including without limitation Titles XVIII and XIX of the Social Security Act,
regulations applicable to the Medicare and Medicaid programs and any comparable
programs of any State or the District of Columbia, and all laws, rules and
regulations of Governmental Authorities pertaining to the licensing of
professional and other health care providers;
7.9. Governmental Licenses. Obtain and maintain all licenses,
permits, certifications and approvals of all applicable Governmental
Authorities as are required for the conduct of its business as currently
conducted and as contemplated by the Loan Documents, in each case or
cumulatively where the failure to do so could reasonably be expected to have a
Material Adverse Effect;
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7.10. Covenants Extending to Other Persons. Cause each of its
Subsidiaries to do with respect to itself, its business and its assets, each of
the things required of the Borrower in Sections 7.2 through 7.9, and 7.18
inclusive;
7.11. Officer's Knowledge of Default. As promptly as practicable but
in any event within five (5) Business Days of any of the President, any Senior
or Executive Vice President, the Treasurer or any Assistant Treasurer, the
General Counsel, or any Vice President of Legal Services (or Person in any
successor position or title), or Authorized Representative of the Borrower
(each, a "Designated Officer") obtaining knowledge of (i) any Default or Event
of Default hereunder or under any other obligation of the Borrower or any
Subsidiary to any Lender, (ii) the failure of any Person party to or otherwise
bound by any of the Existing Settlement Agreements to observe, perform or
fulfill the obligations or conditions contained in any of the Existing
Settlement Agreements or the occurrence of any other default or event of
default thereunder, or (iii) any notice, claim or assertion by any Person party
to or otherwise bound by any of the Existing Settlement Agreements seeking the
revocation, termination or rescission of any of the Existing Settlement
Agreements, cause such officer or an Authorized Representative to promptly
notify the Administrative Agent of the nature thereof, the period of existence
thereof, and what action the Borrower or such Subsidiary proposes to take with
respect thereto;
7.12. Suits or Other Proceedings. Upon any Designated Officer
obtaining knowledge of any litigation or other proceedings being instituted
against the Borrower or any Subsidiary, or any attachment, levy, execution or
other process being instituted against any assets of the Borrower or any
Subsidiary, (i) which constitutes Designated Caremark Litigation within the
meaning of clause (iii) of the definition of such term in Section 1.1, (ii) an
adverse result in which could reasonably be expected to result in an Exclusion
Event, or (iii) making a claim or claims in any single litigation, proceeding
or other such process in an aggregate amount greater than $10,000,000 not
otherwise covered by insurance, promptly (or, in the case of any matter
described in clause (iii) of this Section 7.12, as promptly as practicable but
in any event within thirty (30) days) deliver to the Administrative Agent
written notice thereof stating the nature and status of such litigation,
dispute, proceeding, levy, execution or other process;
7.13. Notice of Discharge of Hazardous Material or Environmental
Complaint. Promptly provide to the Administrative Agent true, accurate and
complete copies of any and all notices, complaints, orders, directives, claims,
or citations received by the Borrower or any Subsidiary relating to any
material (a) violation or alleged violation by the Borrower or any Subsidiary
of any applicable Environmental Law; (b) release or threatened release by the
Borrower or any Subsidiary, or at any facility or property owned or leased or
operated by the Borrower or any Subsidiary, of any Hazardous Material, except
where occurring legally; or (c) liability or alleged liability of the Borrower
or any Subsidiary for the costs of cleaning up, removing, remediating or
responding to a release of Hazardous Materials;
7.14. Environmental Compliance. If the Borrower or any Subsidiary
shall receive any letter, notice, complaint, order, directive, claim or
citation alleging that the Borrower or any Subsidiary (i) has violated any
Environmental Law, (ii) has released or is about to release any
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Hazardous Material other than in compliance with all Environmental Laws (or
suffered or permitted such action by any other Person or in respect of property
owned or operated by the Borrower or any Subsidiary), or (iii) is liable for
the costs of cleaning up, removing, remediating or responding to a release of
Hazardous Materials, the Borrower shall within the time period permitted by the
applicable Environmental Law or the Governmental Authority responsible for
enforcing such Environmental Law, remove or remedy, or cause the applicable
Subsidiary to remove or remedy, such violation or release or satisfy such
liability, unless and only during the period that the applicability of the
Environmental Law, the fact of such violation or liability or what is required
to remove or remedy such violation is being contested by the Borrower or the
applicable Subsidiary by appropriate proceedings diligently conducted and all
reserves with respect thereto as may be required under Generally Accepted
Accounting Principles, if any, have been made, and no Lien in connection
therewith shall have attached to any property of the Borrower or the applicable
Subsidiary which shall have become enforceable against creditors of such
Person;
7.15. Indemnification. Without limiting the generality of Section
11.9, the Borrower hereby agrees to indemnify and hold the Administrative
Agent, the Lenders and NCMI, and their respective officers, directors,
employees and agents, harmless from and against any and all claims, losses,
penalties, liabilities, damages and expenses (including assessment and cleanup
costs and reasonable attorneys', consultants' and other experts' fees and
disbursements) arising directly or indirectly from, out of or by reason of (a)
the violation or alleged violation of any Environmental Law by the Borrower or
any Subsidiary or with respect to any property owned, operated or leased by the
Borrower or any Subsidiary or (b) the use, generation, handling, storage,
transportation, treatment, emission, release, discharge or disposal of any
Hazardous Materials by or on behalf of the Borrower or any Subsidiary or on or
with respect to property owned or leased or operated by the Borrower or any
Subsidiary. The provisions of this Section 7.15 shall survive the Facility
Termination Date and expiration or termination of this Agreement;
7.16. Further Assurances. At the Borrower's cost and expense, upon
request of the Administrative Agent, duly execute and deliver or cause to be
duly executed and delivered, to the Administrative Agent such further
instruments, documents and certificates, and do and cause to be done such
further acts that may be reasonably necessary or advisable in the reasonable
opinion of the Administrative Agent to carry out more effectively the
provisions and purposes of this Agreement and the other Loan Documents;
7.17. Employee Benefit Plans.
(a) Together with the financial statements required to be delivered
pursuant to Section 7.1(a) and 7.1(b), give notice to the Administrative Agent
of (a) the establishment of any new Pension Plan (which notice shall include a
copy of such plan), (b) the commencement of contributions to any Employee
Benefit Plan to which the Borrower or any of its ERISA Affiliates was not
previously contributing, (c) any material increase in the benefits of any
existing Employee Benefit Plan, (d) each funding waiver request filed with
respect to any Employee Benefit Plan and all communications received or sent by
the Borrower or any ERISA Affiliate with respect to such request and (e) the
failure of the Borrower or any ERISA Affiliate to make
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a required installment or payment under Section 302 of ERISA or Section 412 of
the Code by the due date;
(b) Promptly and in any event within fifteen (15) days of becoming
aware of the occurrence or forthcoming occurrence of any (a) Termination Event
or (b) nonexempt "prohibited transaction," as such term is defined in Section
406 of ERISA or Section 4975 of the Code, in connection with any Pension Plan
or any trust created thereunder, deliver to the Administrative Agent a notice
specifying the nature thereof, what action the Borrower or any ERISA Affiliate
has taken, is taking or proposes to take with respect thereto and, when known,
any action taken or threatened by the Internal Revenue Service, the Department
of Labor or the PBGC with respect thereto; and
(c) With reasonable promptness but in any event within fifteen (15)
days for purposes of clauses (i) and (ii), deliver to the Administrative Agent
copies of (i) any unfavorable determination letter from the Internal Revenue
Service regarding the qualification of an Employee Benefit Plan under Section
401(a) of the Code, (ii) all notices received by the Borrower or any ERISA
Affiliate of the PBGC's intent to terminate any Pension Plan or to have a
trustee appointed to administer any Pension Plan, and (iii) all notices
received by the Borrower or any ERISA Affiliate from a Multiemployer Plan
sponsor concerning the imposition or amount of withdrawal liability pursuant to
Section 4202 of ERISA. The Borrower will notify the Administrative Agent in
writing within five (5) Business Days of the Borrower or any ERISA Affiliate
obtaining knowledge or reason to know that the Borrower or any ERISA Affiliate
has filed or intends to file a notice of intent to terminate any Pension Plan
under a distress termination within the meaning of Section 4041(c) of ERISA;
7.18. Continued Operations. Continue at all times to conduct its
business and engage principally in the same line or lines of business
substantially as heretofore conducted;
7.19. New Subsidiaries. As soon as practicable and in any event
within thirty (30) days after the acquisition or creation of any Material
Subsidiary, or upon an existing Subsidiary becoming a Material Subsidiary,
cause to be delivered to the Administrative Agent for the benefit of the
Lenders each of the following:
(i) a Guaranty executed by such Subsidiary substantially in
the form of Exhibit J;
(ii) an opinion of counsel to the Subsidiary dated as of the
date of delivery of the Guaranty provided for in this Section 7.19 and
addressed to the Administrative Agent and the Lenders, in form and
substance reasonably acceptable to the Administrative Agent (which
opinion may include assumptions and qualifications of similar effect
to those contained in the opinions of counsel delivered pursuant to
Section 5.1(a)(ii)), to the effect that:
(A) such Subsidiary is duly organized, validly
existing and in good standing in the jurisdiction of its
formation, has the requisite power and authority
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to own its properties and conduct its business as then
owned and then conducted and proposed to be conducted, and is
duly qualified to transact business and is in good standing as
a foreign corporation or partnership in each other
jurisdiction in which the character of the properties owned or
leased, or the business carried on by it, requires such
qualification and the failure to be so qualified would
reasonably be likely to result in a Material Adverse Effect;
(B) the execution, delivery and performance of
the Guaranty described in this Section 7.19 to which such
Subsidiary is a signatory have been duly authorized by all
requisite corporate or partnership action (including any
required shareholder or partner approval), such agreement has
been duly executed and delivered and constitutes the valid and
binding agreement of such Subsidiary, enforceable against such
Subsidiary in accordance with its terms, subject to the effect
of any applicable bankruptcy, moratorium, insolvency,
reorganization or other similar law affecting the
enforceability of creditors' rights generally and to the
effect of general principles of equity (whether considered in
a proceeding at law or in equity); and
(C) neither the execution or delivery of, nor
performance by such Subsidiary of its obligations under, the
Guaranty described in this Section 7.19 (a) does or will
conflict with, violate or constitute a breach of (i) the
charter, partnership agreement (if any) or bylaws of such
Subsidiary, (ii) any laws, rules or regulations applicable to
such Subsidiary, or (iii) to the knowledge of such counsel,
any contract, agreement, indenture, lease, instrument, other
document, judgment, writ, determination, order, decree or
arbitral award to which such Subsidiary is a party or by which
such Subsidiary or any of its properties is bound, (b)
requires the prior consent of, notice to, license from or
filing with any Governmental Authority which has not been duly
obtained or made on or prior to the date hereof, or (c) does
or will result in the creation or imposition of any lien,
pledge, charge or encumbrance of any nature upon or with
respect to any of the properties of such Subsidiary, except
for the Liens expressly created pursuant to the Loan
Documents;
(iii) current copies of the charter documents, including
partnership agreements and certificate of limited partnership, if
applicable, and bylaws of such Subsidiary, minutes of duly called and
conducted meetings (or duly effected consent actions) of the Board of
Directors, partners, or appropriate committees thereof (and, if
required by such charter documents, bylaws or by applicable law, of
the shareholders) of such Subsidiary authorizing the actions and the
execution and delivery of documents described in this Section 7.19.
7.20. Caremark Excess Cash Flow. Until the Guaranty Limitation
Release Date, cause Caremark to distribute to the Borrower in respect of each
fiscal quarter of each Fiscal Year, the Caremark Excess Cash Flow for such
fiscal quarter, the distribution with respect to each such fiscal quarter to be
made no later than the first date on which financial statements of the Borrower
and its Subsidiaries that include such fiscal quarter are required to be
delivered pursuant to Section 7.1(a) or (b).
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ARTICLE VIII
Negative Covenants
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will not, nor will it permit any
Subsidiary to:
8.1. Financial Covenants.
(a) Consolidated Net Worth. Permit Consolidated Net Worth to be less
than (i) $560,000,000 at the Closing Date and through September 29, 1996, and
(ii) as at the last day of each fiscal quarter of the Borrower ending on or
after September 30, 1996 and until (but excluding) the last day of the next
following fiscal quarter of the Borrower, the sum of (A) the amount of
Consolidated Net Worth required to be maintained pursuant to this Section
8.1(a) as at the end of the immediately preceding fiscal quarter, plus (B) 50%
of Consolidated Net Income (with no reduction for net losses during any period)
for the fiscal quarter of the Borrower ending on such day (including in
Consolidated Net Income for purposes of this Section 8.1(a) only any net gain
or credit of an extraordinary nature), plus (C) 100% of the aggregate amount of
all increases in the stated capital and additional paid-in capital accounts of
the Borrower resulting from the issuance of equity securities or other capital
investments.
(b) Consolidated Leverage Ratio. Permit at any time during the
respective periods set forth below the Consolidated Leverage Ratio to be
greater than that set forth opposite each such period:
Consolidated
Period Leverage Ratio
------ --------------
Closing Date through 3.50 to 1.00
December 31, 1997
January 1, 1998 through 3.25 to 1.00
December 31, 1998
January 1, 1999 and thereafter 3.00 to 1.00
(c) Consolidated Fixed Charge Ratio. Permit at any time during the
respective periods set forth below the Consolidated Fixed Charge Ratio to be
less than that set forth opposite each such period:
Consolidated
Period Fixed Charge Ratio
------ ------------------
Closing Date through 2.00 to 1.00
December 31, 1997
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January 1, 1998 through 2.25 to 1.00
December 31, 1998
January 1, 1999 and thereafter 2.50 to 1.00
8.2. Acquisitions. Permit or effect any Acquisition, unless:
(i) the Person to be (or whose assets are to be) acquired does not
oppose such Acquisition and the line or lines of business of the
Person to be acquired are substantially the same as one or more line
or lines of business conducted by the Borrower and its Subsidiaries,
(ii) no Default or Event of Default shall have occurred and be
continuing either immediately prior to or immediately after giving
effect to such Acquisition,
(iii) if the Cost of Acquisition is in excess of $75,000,000, the
Borrower shall have furnished to the Administrative Agent and the
Lenders (A) pro forma historical financial statements as of the end of
the most recently completed fiscal quarter giving effect to such
Acquisition and (B) a Compliance Certificate prepared on a historical
pro forma basis giving effect to such Acquisition, which certificate
shall demonstrate that no Default or Event of Default would exist
immediately after giving effect thereto,
(iv) the Person acquired shall be a Subsidiary and not less than 80%
of every class of equity interest (on a fully diluted basis) of such
Subsidiary is owned beneficially or of record by the Borrower or a
Subsidiary, or be merged into the Borrower or a wholly-owned
Subsidiary not less than 80% of every class of equity interest (on a
fully diluted basis) of such Subsidiary is owned beneficially or of
record by the Borrower or a Subsidiary, immediately upon consummation
of the Acquisition (or if assets are being acquired, the acquiror
shall be the Borrower or a wholly-owned Subsidiary); provided,
however, that (A) in the event the Person acquired shall be, or shall
be merged into, a Subsidiary other than a wholly-owned Subsidiary of
the Borrower, no Person having minority interests in the resulting
entity shall have rights to control the policies, affairs or business
operations, or rights to representation on any Board of Directors or
similar entity, or any committee thereof, which are disproportionately
greater than its equity interest in the resulting entity, and (B)
until the Coram Litigation shall be fully and finally adjudicated or
settled subject to no further right of appeal, no member of the
Caremark Group shall acquire the equity interests or assets of any
Person pursuant to an Acquisition, except that members of the Caremark
Group can effect Acquisitions (1) of physician practices provided that
the aggregate Costs of Acquisition therefor from the Closing Date do
not exceed $50,000,000, and (2) of other Persons or assets only if the
Person or assets to be so acquired are in the same line of business as
one or more lines of business that is conducted by a member of the
Caremark Group and is not conducted by any other Subsidiary of the
Borrower, and
(v) if (A) the Cost of Acquisition shall exceed $150,000,000 or (B)
the Cost of Acquisition shall exceed $75,000,000 and more than 50% of
such Cost of Acquisition
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consists of property other than Stock Consideration, the Required
Lenders shall consent to such Acquisition in their discretion;
8.3. Liens. Incur, create or permit to exist any Lien, charge or
other encumbrance of any nature whatsoever with respect to any property or
assets now owned or hereafter acquired by the Borrower or any Subsidiary, other
than
(a) Liens existing as of the date hereof and as set forth in
either Schedule 1.1--Assumed Debt or Schedule 6.7;
(b) Liens imposed by law for taxes, assessments or charges of
any Governmental Authority for claims not yet delinquent or which are
being contested in good faith by appropriate proceedings diligently
conducted and with respect to which adequate reserves or other
appropriate provisions are being maintained in accordance with GAAP
and which Liens are not yet enforceable against other creditors;
(c) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law or
created in the ordinary course of business and in existence less than
90 days from the date of creation thereof for amounts not yet due or
which are being contested in good faith by appropriate proceedings
diligently conducted and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
GAAP and which Liens are not yet enforceable against other creditors;
(d) Liens incurred or deposits made in the ordinary course of
business (including, without limitation, surety bonds and appeal
bonds) in connection with workers' compensation, unemployment
insurance and other types of social security benefits or to secure the
performance of tenders, bids, leases, contracts (other than for the
repayment of Indebtedness), statutory obligations and other similar
obligations or arising as a result of progress payments under
government contracts;
(e) easements (including reciprocal easement agreements and
utility agreements), rights-of-way, covenants, consents, reservations,
encroachments, variations and zoning and other restrictions, charges
or encumbrances (whether or not recorded), which do not interfere
materially with the ordinary conduct of the business of the Borrower
or any Subsidiary and which do not materially detract from the value
of the property to which they attach or materially impair the use
thereof to the Borrower or any Subsidiary;
(f) Liens in favor of the Administrative Agent or the Lenders
expressly created under the Loan Documents;
(g) purchase money Liens to secure Indebtedness permitted
under Section 8.4(d) and incurred to purchase fixed assets, provided
such Indebtedness represents not less than 75% of the purchase price
of such assets as of the date of purchase thereof and no property
other than the assets so purchased secures such Indebtedness;
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(h) Liens arising in connection with Capital Leases
permitted under Section 8.4(d); provided that no such Lien shall
extend to any property other than the assets subject to such Capital
Leases;
(i) Liens securing Indebtedness permitted under Section
8.4(g); and
(j) Permitted Receivables Securitization;
8.4. Indebtedness. Incur, create, assume or permit to exist any
Indebtedness, howsoever evidenced, except:
(a) Indebtedness evidenced by the Existing Settlement
Agreements, the Assumed Debt, and other Indebtedness existing as of
the Closing Date as set forth in Schedule 8.4;
(b) Indebtedness owing to the Administrative Agent or any
Lender in connection with this Agreement, any Note or other Loan
Document;
(c) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(d) purchase money Indebtedness and Capital Leases described
in Sections 8.3(g) and 8.3(h) not to exceed an aggregate outstanding
principal amount at any time of $25,000,000;
(e) unsecured intercompany Indebtedness for loans and
advances made by the Borrower or any Subsidiary to the Borrower or any
Subsidiary; provided, however, until the Guaranty Limitation Release
Date, (1) the aggregate amount of advances outstanding from the
Borrower or any other Subsidiary to Caremark Inc., together with the
aggregate amount of any equity investments after the Closing Date by
the Borrower or any Subsidiary in Caremark Inc., shall not at any time
exceed $100,000,000 in the aggregate and (2) all advances to Caremark
Inc. by the Borrower or any Subsidiary shall be evidenced by duly
authorized, executed and delivered promissory notes evidencing such
advances;
(f) Permitted Receivables Securitizations;
(g) Off Balance Sheet Liabilities (other than Permitted
Receivables Securitizations) and other secured Indebtedness not to
exceed an aggregate outstanding principal amount of $25,000,000;
(h) additional unsecured Indebtedness having terms no more
restrictive on the Borrower or any Subsidiary, and no less favorable
to the Administrative Agent and the Lenders, than those contained in
this Agreement:
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(1) of Subsidiaries, provided that the aggregate
principal amount of such Indebtedness, together with
Indebtedness of Subsidiaries (other than Off Balance Sheet
Liabilities and the Indenture Notes) described in clause (a)
and refinancings thereof under clause (j) of this Section 8.4,
shall not exceed at any time 15% of Consolidated Net Worth;
and
(2) of the Borrower, provided that after giving
effect thereto and to any other Indebtedness incurred, assumed
or permitted to exist hereunder, no Default or Event of
Default shall exist, occur or be continuing;
(i) Indebtedness arising from Rate Hedging Obligations
permitted under Section 8.14; and
(j) Indebtedness extending the maturity of, or renewing,
refunding or refinancing, in whole or in part, Indebtedness incurred
under clauses (a) (other than Indebtedness under the Existing
Settlement Agreements), (d), (g) and (h) of this Section 8.4, provided
that the terms of any such extension, renewal, refunding or
refinancing Indebtedness (and of any agreement or instrument entered
into in connection therewith) are no less favorable to the
Administrative Agent and the Lenders than the terms of the
Indebtedness as in effect prior to such action, and provided further
that (1) the aggregate principal amount of or interest rate or rates
and fees payable on such extended, renewed, refunded or refinanced
Indebtedness shall not be increased by such action, (2) the group of
direct or contingent obligors on such Indebtedness or Liens securing
such Indebtedness shall not be expanded as a result of any such
action, and (3) immediately prior to and immediately after giving
effect to any such extension, renewal, refunding or refinancing, no
Default or Event of Default shall have occurred and be continuing;
8.5. Transfer of Assets. Sell, lease, transfer or otherwise dispose
of any assets of the Borrower or any Subsidiary other than (a) dispositions of
inventory in the ordinary course of business, (b) dispositions of property that
is substantially worn, damaged, obsolete or, in the judgment of the Borrower,
no longer best used or useful in its business or that of any Subsidiary, (c)
sale of assets of the Borrower and its Subsidiaries so long as such assets have
an aggregate book value not exceeding (X) two percent (2%) of Consolidated Net
Worth in any single instance or (Y) ten percent (10%) of Consolidated Net Worth
in the aggregate from the Closing Date through the Revolving Credit Termination
Date; provided, however, that Borrower or a Subsidiary may sell all of its
interest in Atlanta Medical Associates and such sale shall be disregarded for
purposes of this clause (c), (d) transfers of assets necessary to give effect
to merger or consolidation transactions permitted by Section 8.7, (e) the
disposition of Eligible Securities in the ordinary course of management of the
investment portfolio of the Borrower and its Subsidiaries, and (f) transfers of
accounts receivable in connection with Permitted Receivables Securitizations;
8.6. Investments. Purchase, own, invest in or otherwise acquire,
directly or indirectly, any stock or other securities, or make or permit to
exist any interest whatsoever in any other
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Person or permit to exist any loans or advances to any Person, except that the
Borrower may maintain investments or invest in:
(a) securities of any Person acquired in an Acquisition
permitted hereunder;
(b) Eligible Securities;
(c) investments existing as of the date hereof and as set
forth in Schedule 6.4;
(d) accounts receivable arising and trade credit granted in
the ordinary course of business and any securities received in
satisfaction or partial satisfaction thereof in connection with
accounts of financially troubled Persons to the extent reasonably
necessary in order to prevent or limit loss;
(e) investments in Subsidiaries, subject to compliance with
the provisions of Section 7.19 and 8.2 with respect thereto; provided,
however, until the Guaranty Limitation Release Date, the aggregate
amount of any equity investments after the Closing Date by the
Borrower or any Subsidiary in Caremark Inc., together with the
aggregate amount of advances outstanding from the Borrower or any
other Subsidiary to Caremark Inc., shall not at any time exceed
$100,000,000 in the aggregate;
(f) loans between the Borrower and the Subsidiaries described
in Section 8.4(e);
(g) additional investments in Persons not constituting
Subsidiaries engaged in the delivery of health care services, which
investments shall at no time exceed $25,000,000 in the aggregate; and
(h) the Borrower or any Guarantor other than Caremark, Inc.
may effect Indenture Note Purchases;
8.7. Merger or Consolidation. (a) Consolidate with or merge into any
other Person, or (b) permit any other Person to merge into it, or (c)
liquidate, wind-up or dissolve or sell, transfer or lease or otherwise dispose
of all or a substantial part of its assets; provided, however, (i) any
Subsidiary of the Borrower may merge or transfer all or substantially all of
its assets into or consolidate with the Borrower or any wholly-owned Subsidiary
of the Borrower (except that, other than the Related Acquisition, until the
Coram Litigation shall be fully and finally adjudicated or settled subject to
no further right of appeal, no member of the Caremark Group shall merge or
consolidate with, or acquire all or any substantial part of the assets of, the
Borrower or any Subsidiary not a member of the Caremark Group), and (ii) any
other Person may merge into or consolidate with the Borrower or any
wholly-owned Subsidiary and any Subsidiary may merge into or consolidate with
any other Person in order to consummate an Acquisition permitted by Section
8.2, provided further, that (x) any resulting or surviving entity shall execute
and deliver such agreements and other documents, including a Guaranty, and take
such other action as the Administrative Agent may require to evidence or
confirm its express assumption of the obligations and liabilities of its
predecessor entities under the Loan Documents
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and (y) immediately prior to and immediately after giving effect to any
transaction otherwise permitted hereunder, no Default or Event of Default shall
exist or occur;
8.8. Restricted Payments. Declare or pay any dividends (other than
those payable solely in capital stock) or distribute in reduction of capital or
otherwise in respect of any equity interest, or purchase, redeem or otherwise
retire any such equity interest, other than any such payments made by any
Subsidiary solely to the Borrower or another wholly-owned Subsidiary;
8.9. Transactions with Affiliates. Other than transactions permitted
under Sections 8.6 and 8.7, enter into any transaction after the Closing Date,
including, without limitation, the purchase, sale, lease or exchange of
property, real or personal, or the rendering of any service, with any Affiliate
of the Borrower, except (a) that such Persons may render services to the
Borrower or its Subsidiaries for compensation at the same rates generally paid
by Persons engaged in the same or similar businesses for the same or similar
services, and (b) that the Borrower or any Subsidiary may render services to
such Persons for compensation at the same rates generally charged by the
Borrower or such Subsidiary; provided, in either case, in the ordinary course
of business and pursuant to the reasonable requirements of the Borrower's (or
any Subsidiary's) business consistent with past practice of the Borrower and
its Subsidiaries and upon fair and reasonable terms no less favorable to the
Borrower (or any Subsidiary) than would be obtained in a comparable
arm's-length transaction with a Person not an Affiliate;
8.10. Compliance with ERISA. With respect to any Pension Plan,
Employee Benefit Plan or Multiemployer Plan:
(a) permit the occurrence of any Termination Event which
would result in a liability on the part of the Borrower or any ERISA
Affiliate to the PBGC; or
(b) permit the present value of all benefit liabilities under
all Pension Plans to exceed by more than $5,000,000 the current value
of the assets of such Pension Plans allocable to such benefit
liabilities; or
(c) permit any accumulated funding deficiency (as defined in
Section 302 of ERISA and Section 412 of the Code) with respect to any
Pension Plan, whether or not waived; or
(d) fail to make any contribution or payment to any
Multiemployer Plan which the Borrower or any ERISA Affiliate may be
required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto; or
(e) engage, or permit the Borrower or any ERISA Affiliate to
engage, in any prohibited transaction under Section 406 of ERISA or
Sections 4975 of the Code for which a civil penalty pursuant to
Section 502(I) of ERISA or a tax pursuant to Section 4975 of the Code
may be imposed; or
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(f) fail, or permit the Borrower or any ERISA Affiliate to
fail, to establish, maintain and operate each Employee Benefit Plan in
compliance in all material respects with the provisions of ERISA, the
Code, all applicable Foreign Benefit Laws and all other applicable
laws and the regulations and interpretations thereof;
8.11. Fiscal Year. Change its Fiscal Year;
8.12. Dissolution, etc. Wind up, liquidate or dissolve (voluntarily
or involuntarily) or commence or suffer any proceedings seeking any such
winding up, liquidation or dissolution, except in connection with a merger or
consolidation permitted pursuant to Section 8.7;
8.13. Change of Control. Cause, suffer or permit to exist or occur
any Change of Control;
8.14. Rate Hedging Obligations. Incur any Rate Hedging Obligations
or enter into any agreements, arrangements, devices or instruments relating to
Rate Hedging Obligations, except for Rate Hedging Obligations incurred to limit
risks of currency or interest rate fluctuations to which the Borrower and its
Subsidiaries are otherwise subject by virtue of the operations of their
businesses, and not for speculative purposes; provided that the aggregate
notional amount of all such Rate Hedging Obligations shall at no time exceed
$500,000,000;
8.15. Negative Pledge Clauses. Enter into or cause, suffer or permit
to exist any agreement with any Person other than the Administrative Agent and
the Lenders pursuant to this Agreement or any other Loan Documents which
prohibits or limits the ability of the Borrower or any Subsidiary to create,
incur, assume or suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, except (i) the Indenture and
the other Assumed Debt, and (ii) that the Borrower and any Subsidiary may enter
into such an agreement in connection with property acquired with the proceeds
of purchase money Indebtedness or any Capital Lease permitted hereunder, when
such prohibition or limitation is by its terms effective only against the
assets subject to such Lien;
8.16. Prepayments or Amendments of Settlement Agreements. (a)
Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled
maturity thereof in any manner any Indebtedness arising under the Existing
Settlement Agreements; or
(b) amend, modify or change in any manner any term or condition of any
of the Existing Settlement Agreements;
8.17. Dividend Restrictions. Cause, suffer or permit any Subsidiary
to enter into, or be a party to or otherwise become bound by, any agreement
(other than the Loan Documents) which limits or restricts the amounts of
dividends, loans, advances, capital contributions, or other investments which a
Subsidiary can make in or pay to the Borrower or another Subsidiary.
8.18. Indenture Limitations. Cause, suffer or permit (i) any
amendment to the Indenture or the Indenture Notes except in connection with
simultaneous amendments that eliminate the
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Caremark, Inc. Guaranty Limitation or (ii) any event or occurrence that causes
any Material Subsidiary other than Caremark Inc. to become subject to the
restriction contained in Section 4.07 of the Indenture giving rise to the
Caremark Inc. Guaranty Limitation.
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ARTICLE IX
Events of Default and Acceleration
9.1. Events of Default. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
Governmental Authority), that is to say:
(a) if default shall be made in the due and punctual
payment of the principal of any Loan, Reimbursement Obligation or
other Obligation, when and as the same shall be due and payable
whether pursuant to any provision of Article II or Article III, at
maturity, by acceleration or otherwise; or
(b) if default shall be made in the due and punctual
payment of any amount of interest on any Loan, Reimbursement
Obligation or other Obligation or of any fees or other amounts payable
to any of the Lenders or the Administrative Agent on the date on which
the same shall be due and payable; or
(c) if default shall be made in the performance or
observance of any covenant set forth in Section 7.7, 7.11, 7.12, 7.19
or Article VIII; or
(d) if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in this Agreement or the Notes (other than as
described in clauses (a), (b) or (c) above) and such default shall
continue for 30 or more days after the earlier of receipt of notice of
such default by the Authorized Representative from the Administrative
Agent or any Designated Officer becomes aware of such default, or if a
default shall be made in the performance or observance of, or shall
occur under, any covenant, agreement or provision contained in any of
the other Loan Documents (beyond any applicable grace period, if any,
contained therein) or in any instrument or document evidencing or
creating any obligation, guaranty, or Lien in favor of the
Administrative Agent or any of the Lenders or delivered to the
Administrative Agent or any of the Lenders in connection with or
pursuant to this Agreement or any of the Obligations, or if any Loan
Document ceases to be in full force and effect (other than in
accordance with its terms in the absence of default or with the
consent of the Administrative Agent and the Lenders), or if without
the written consent of the Lenders, this Agreement or any other Loan
Document or the Related Acquisition Transaction Documents shall be
disaffirmed or shall terminate, be terminable or be terminated or
become void or unenforceable for any reason whatsoever (other than in
accordance with its terms in the absence of default or with the
consent of the Administrative Agent and the Lenders); or
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(e) if there shall occur (i) a default in the payment of
any principal, interest, premium or other amount with respect to any
Indebtedness (other than the Loans and other Obligations) of the
Borrower or any Subsidiary in an amount not less than $20,000,000 in
the aggregate outstanding, or (ii) a default in the performance,
observance or fulfillment of any term or covenant contained in any
agreement or instrument under or pursuant to which any such
Indebtedness may have been issued, created, assumed, guaranteed or
secured by the Borrower or any Subsidiary, or (iii) any other event of
default as specified in any agreement or instrument under or pursuant
to which any such Indebtedness may have been issued, created, assumed,
guaranteed or secured by the Borrower or any Subsidiary, and such
default or event of default shall continue for more than the period of
grace, if any, therein specified, or such default or event of default
shall permit the holder of any such Indebtedness (or any agent or
trustee acting on behalf of one or more holders) to accelerate the
maturity thereof or the maturity thereof shall be accelerated; or
(f) if any representation, warranty or other statement of
fact contained in any Loan Document or in any writing, certificate,
report or statement at any time furnished or deemed furnished to the
Administrative Agent or any Lender by or on behalf of the Borrower or
any other Credit Party pursuant to or in connection with any Loan
Document, or otherwise, shall be false or misleading in any material
respect when given or deemed given; or
(g) if the Borrower or any Subsidiary shall be unable to
pay its debts generally as they become due; file a petition to take
advantage of any insolvency statute; make an assignment for the
benefit of its creditors; commence a proceeding for the appointment of
a receiver, trustee, liquidator or conservator of itself or of the
whole or any substantial part of its property; file a petition or
answer seeking liquidation, reorganization or arrangement or similar
relief under the federal bankruptcy laws or any other applicable law
or statute; or
(h) if a court of competent jurisdiction shall enter an
order, judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of the Borrower or any Subsidiary or of the
whole or any substantial part of its properties and such order,
judgment or decree continues unstayed and in effect for a period of
sixty (60) days, or approve a petition filed against the Borrower or
any Subsidiary seeking liquidation, reorganization or arrangement or
similar relief under the federal bankruptcy laws or any other
applicable law or statute of the United States of America or any
state, which petition is not dismissed within sixty (60) days; or if,
under the provisions of any other law for the relief or aid of
debtors, a court of competent jurisdiction shall assume custody or
control of the Borrower or any Subsidiary or of the whole or any
substantial part of its properties, which control is not relinquished
within sixty (60) days; or if there is commenced against the Borrower
or any Subsidiary any proceeding or petition seeking reorganization,
arrangement or similar relief under the federal bankruptcy laws or any
other applicable law or statute of the United States of America or any
state which proceeding or petition remains undismissed for a period of
sixty (60) days; or if the
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Borrower or any Subsidiary takes any action to indicate its consent to
or approval of any such proceeding or petition; or
(i) if (i) one or more judgments or orders where the
amount not covered by insurance (or the amount as to which the insurer
denies liability) is in excess of $1,000,000 is rendered against the
Borrower or any Subsidiary, or (ii) there is any attachment,
injunction or execution against any of the Borrower's or Subsidiaries'
properties for any amount in excess of $1,000,000 in the aggregate;
and such judgment, attachment, injunction or execution remains unpaid,
unstayed, undischarged, unbonded or undismissed for a period of thirty
(30) days; or
(j) if the Borrower or any Subsidiary shall, other than
in the ordinary course of business (as determined by past practices),
suspend all or any part of its operations material to the conduct of
the business of the Borrower or such Subsidiary for a period of more
than 60 days, which suspension in the good faith judgment of the
Administrative Agent could reasonably be expected to have a Material
Adverse Effect; or
(k) if the Borrower or any Subsidiary shall breach any of
the material terms or conditions of any agreement under which any Rate
Hedging Obligations permitted hereby is created and such breach shall
continue beyond any grace period, if any, relating thereto pursuant to
the terms of such agreement, or if the Borrower or any Subsidiary
shall disaffirm or seek to disaffirm any such agreement or any of its
obligations thereunder; or
(l) if there shall occur any Exclusion Event; or
(m) if (i) there shall occur a default by any member of the
Caremark Group, which is not waived, in the performance, observance or
fulfillment of any term or covenant contained in any of the Existing
Settlement Agreements, which default shall continue beyond any grace
period, if any, relating thereto, or (ii) any of the Existing
Settlement Agreements shall be revoked, rescinded or disaffirmed, or
shall terminate, be terminable or be terminated or become void or
unenforceable for any reason whatsoever (other than expiration in
accordance with its terms in the absence of default or with the
consent of the Administrative Agent and the Lenders), or (iii) the OIG
or any other Governmental Authority, or any other Person bound by or
otherwise subject to the terms of any of the Existing Settlement
Agreements, shall obtain an indictment or otherwise initiate or
reinstitute any criminal or civil proceeding on the basis (in whole or
in part) of facts, allegations, claims or potential claims which are
the subject of the Existing Settlement Agreements; or
(n) if there shall occur and not be waived an Event of
Default as defined in any of the other Loan Documents;
then, and in any such event and at any time thereafter, if such Event of
Default or any other Event of Default shall have not been waived,
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(A) either or both of the following actions may
be taken: (i) the Administrative Agent, with the consent of
the Required Lenders, may, and at the direction of the
Required Lenders shall, declare any obligation of the Lenders
and the Issuing Bank to make further Revolving Loans and Swing
Line Loans or to issue additional Letters of Credit
terminated, whereupon the obligation of each Lender to make or
participate in further Revolving Loans, Swing Line Loans or
Letters of Credit, of NationsBank to make further Swing Line
Loans, and of the Issuing Bank to issue additional Letters of
Credit, hereunder shall terminate immediately, and (ii) the
Administrative Agent shall at the direction of the Required
Lenders, at their option, declare by notice to the Borrower
any or all of the Notes and other Obligations to be
immediately due and payable, and the same, including all
interest accrued thereon and all other obligations of the
Borrower to the Administrative Agent and the Lenders, shall
forthwith become immediately due and payable without
presentment, demand, protest, notice or other formality of any
kind, all of which are hereby expressly waived, anything
contained herein or in any instrument evidencing the
Obligations to the contrary notwithstanding; provided,
however, that notwithstanding the above, if there shall occur
an Event of Default under clause (g) or (h) above, then the
obligation of the Lenders to make or participate in Revolving
Loans, Swing Line Loans or Letters of Credit, of NationsBank
to make Swing Line Loans, and of the Issuing Bank to issue
Letters of Credit hereunder shall automatically terminate and
any and all of the Obligations shall be immediately due and
payable without the necessity of any action by the
Administrative Agent or the Required Lenders or notice to the
Administrative Agent or the Lenders;
(B) the Borrower shall, upon demand of the
Administrative Agent or the Required Lenders, deposit cash
with the Administrative Agent in an amount equal to the amount
of any Letter of Credit Outstandings, as collateral security
for the repayment of any future drawings or payments under
such Letters of Credit, and such amounts shall be held by the
Administrative Agent pursuant to the terms of the LC Account
Agreement; and
(C) the Administrative Agent and each of the
Lenders shall have all of the rights and remedies available
under the Loan Documents or under any applicable law.
9.2. Administrative Agent to Act. In case any one or more Events of
Default shall occur and not have been waived, the Administrative Agent may, and
at the direction of the Required Lenders shall, proceed to protect and enforce
their rights or remedies either by suit in equity or by action at law, or both,
whether for the specific performance of any covenant, agreement or other
provision contained herein or in any other Loan Document, or to enforce the
payment of the Obligations or any other legal or equitable right or remedy.
9.3. Cumulative Rights. No right or remedy conferred upon the
Lenders or the Administrative Agent herein or in any other Loan Document is
intended to be exclusive of any
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other rights or remedies contained herein or in any other Loan Document, and
every such right or remedy shall be cumulative and shall be in addition to
every other such right or remedy contained herein and therein or now or
hereafter existing at law or in equity or by statute, or otherwise.
9.4. No Waiver. No course of dealing between the Borrower and any
Lender or the Administrative Agent or any failure or delay on the part of any
Lender or either Agent in exercising any rights or remedies under any Loan
Document or otherwise available to it shall operate as a waiver of any rights
or remedies and no single or partial exercise of any rights or remedies shall
operate as a waiver or preclude the exercise of any other rights or remedies
hereunder or of the same right or remedy on a future occasion.
9.5. Allocation of Proceeds. If an Event of Default has occurred and
not been waived, and the maturity of the Notes has been accelerated pursuant to
Article IX, all payments received by the Administrative Agent hereunder, in
respect of any principal of or interest on the Obligations or any other amounts
payable by the Borrower hereunder, shall be applied by the Administrative Agent
in the following order:
(a) amounts due to the Lenders pursuant to Sections 2.11,
3.3, 3.4 and 11.5;
(b) amounts due to the Administrative Agent pursuant to
Section 10.11;
(c) payments of interest on Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders
(with amounts payable in respect of Swing Line Outstandings being
included in such calculation and paid to NationsBank);
(d) payments of principal of Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders
(with amounts payable in respect of Swing Line Outstandings being
included in such calculation and paid to NationsBank);
(e) payments of cash amounts to the Administrative Agent
in respect of outstanding Letters of Credit pursuant to Section
9.1(B);
(f) amounts due to the Lenders pursuant to Sections
3.2(g), 7.15 and 11.9;
(g) payments of all other amounts due under any of the
Loan Documents, if any, to be applied for the ratable benefit of the
Lenders;
(h) amounts due to any of the Lenders in respect of
Obligations consisting of liabilities under any Swap Agreement with
any of the Lenders on a pro rata basis according to the amounts owed;
and
(i) any surplus remaining after application as provided
for herein, to the Borrower or otherwise as may be required by
applicable law.
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ARTICLE X
The Administrative Agent
10.1. Appointment. Each Lender hereby irrevocably designates and
appoints NationsBank as the Administrative Agent for the Lenders under this
Agreement, and each of the Lenders hereby irrevocably authorizes NationsBank as
the Administrative Agent for such Lender, to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers as are expressly delegated to the Administrative Agent by
the terms of this Agreement and such other Loan Documents, together with such
other powers as are reasonably incidental thereto. The Administrative Agent
shall not have any duties or responsibilities, except those expressly set forth
herein, or any fiduciary relationship with any of the Lenders, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or otherwise exist
against the Administrative Agent.
10.2. Attorneys-in-fact. The Administrative Agent may execute any of
its duties under the Loan Documents by or through agents or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence, gross negligence or willful misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
10.3. Limitation on Liability. Neither the Administrative Agent nor
any of its officers, directors, employees, agents or attorneys-in-fact shall be
liable to the Lenders for any action lawfully taken or omitted to be taken by
it or them under or in connection with the Loan Documents except for its or
their own gross negligence or willful misconduct. Neither the Administrative
Agent nor any of its affiliates shall be responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by
the Borrower, any other Credit Party or any officer or representative thereof
contained in any Loan Document, or in any certificate, report, statement or
other document referred to or provided for in or received by the Administrative
Agent under or in connection with any Loan Document, or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of any Loan
Document, or for any failure of the Borrower or any other Credit Party to
perform its obligations under any Loan Document, or for any recitals,
statements, representations or warranties made, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of any collateral.
The Administrative Agent shall not be under any obligation to any of the
Lenders to ascertain or to inquire as to the observance or performance of any
of the terms, covenants or conditions of any Loan Document on the part of the
Borrower or any Subsidiary or to inspect the properties, books or records of
the Borrower or its Subsidiaries.
10.4. Reliance. The Administrative 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,
telefacsimile or telex 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,
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without limitation, counsel to any Credit Party), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
may deem and treat the payee of any Note as the owner thereof for all purposes
unless an Assignment and Acceptance shall have been filed with and accepted by
the Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under the Loan Documents unless it shall
first receive advice or concurrence of the Lenders or the Required Lenders as
provided in this Agreement or it shall first be indemnified to its satisfaction
by the Lenders against any and all liability and expense which may be incurred
by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under the Loan Documents in accordance with a request
of the Required Lenders, and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Lenders and all present and
future holders of the Notes.
10.5. Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender, the Authorized Representative or the Borrower 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 Administrative Agent
receives such a notice, the Administrative Agent shall promptly give notice
thereof to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Lenders; provided that, unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Event of Default as it shall deem advisable in the best
interests of the Lenders.
10.6. No Representations. Each Lender expressly acknowledges that
neither the Administrative Agent nor any of its affiliates has made any
representations or warranties to it and that no act by the Administrative Agent
hereafter taken, including any review of the affairs of the Borrower, its
Subsidiaries or any other Guarantor, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the financial condition, creditworthiness,
affairs, status and nature of the Borrower and each other Credit Party and made
its own decision to enter into this Agreement. Each Lender also represents
that it will, independently and without reliance upon the Administrative Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under the Loan
Documents and to make such investigation as it deems necessary to inform itself
as to the status and affairs, financial or otherwise, of the Borrower and its
Subsidiaries. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Administrative Agent hereunder,
the Administrative Agent shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the affairs,
financial condition or business of the Borrower and its Subsidiaries which may
come into the possession of the Administrative Agent or any of its affiliates.
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10.7. Indemnification. Each of the Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower or any other Credit Party and without limiting any obligations of
the Borrower or any other Credit Party to do so), ratably according to the
respective principal amount of the Notes held by them (or, if no Notes are
outstanding, ratably in accordance with their respective Applicable Commitment
Percentages as then in effect) from and against any and all liabilities,
obligations, losses (excluding any losses suffered by the Administrative Agent
as a result of Borrower's failure to pay any fee owing to the Administrative
Agent), damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature 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 Administrative Agent in any way
relating to or arising out of any Loan Document or any other document
contemplated by or referred to therein or the transactions contemplated thereby
or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; provided that no Lender shall be liable
to the Administrative Agent for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct. The agreements in this subsection shall
survive the Facility Termination Date.
10.8. Lenders. The Administrative Agent and its affiliates may make
loans to, accept deposits from and generally engage in any kind of business
with the Borrower and its Subsidiaries as though it were not the Administrative
Agent hereunder. With respect to its Loans made or renewed by it and any Note
issued to it, the Administrative Agent shall have the same rights and powers
under this Agreement as any Lender and may exercise the same as though it were
not the Administrative Agent, and the terms "Lender" and "Lenders" shall,
unless the context otherwise indicates, include the Administrative Agent in its
individual capacity.
10.9. Resignation. If the Administrative Agent shall resign as
Administrative Agent under this Agreement, then the Required Lenders may
appoint, with the consent, so long as there shall not have occurred and be
continuing a Default or Event of Default, of the Borrower, which consent shall
not be unreasonably withheld, a successor Administrative Agent for the Lenders,
which successor Administrative Agent shall be a commercial bank organized under
the laws of the United States or any state thereof, having a combined surplus
and capital of not less than $500,000,000, whereupon such successor
Administrative Agent shall succeed to the rights, powers and duties of the
former Administrative Agent and the obligations of the former Administrative
Agent shall be terminated and canceled, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement; provided, however, that the former Administrative Agent's
resignation shall not become effective until such successor Administrative
Agent has been appointed and has succeeded of record to all right, title and
interest in any collateral held by the Administrative Agent; provided, further,
that if the Required Lenders and, if applicable, the Borrower cannot agree as
to a successor Administrative Agent within ninety (90) days after such
resignation, the Administrative Agent shall appoint a successor Administrative
Agent which satisfies the criteria set forth above in this Section 10.9 for a
successor Administrative Agent and the parties hereto agree to execute whatever
documents are necessary to effect such action under this Agreement or any other
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document executed pursuant to this Agreement; provided, however that in such
event all provisions of the Loan Documents, shall remain in full force and
effect. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article X shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
10.10. Sharing of Payments, etc. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, set-off, counterclaim or
otherwise, obtain payment with respect to its Obligations (other than pursuant
to Article IV) which results in its receiving more than its pro rata share of
the aggregate payments with respect to all of the Obligations (other than any
payment expressly provided hereunder to be distributed on other than a pro rata
basis and payments pursuant to Article IV), then (a) such Lender shall be
deemed to have simultaneously purchased from the other Lenders a share in their
Obligations so that the amount of the Obligations held by each of the Lenders
shall be pro rata and (b) such other adjustments shall be made from time to
time as shall be equitable to insure that the Lenders share such payments
ratably; provided, however, that for purposes of this Section 10.10 the term
"pro rata" shall be determined with respect to the Revolving Credit Commitment
of each Lender and to the Total Revolving Credit Commitments after subtraction
in each case of amounts, if any, by which any such Lender has not funded its
share of the outstanding Loans and Obligations. If all or any portion of any
such excess payment is thereafter recovered from the Lender which received the
same, the purchase provided in this Section 10.10 shall be rescinded to the
extent of such recovery, without interest. The Borrower expressly consents to
the foregoing arrangements and agrees that each Lender so purchasing a portion
of the other Lenders' Obligations may exercise all rights of payment
(including, without limitation, all rights of set-off, banker's lien or
counterclaim) with respect to such portion as fully as if such Lender were the
direct holder of such portion.
10.11. Fees. The Borrower agrees to pay to the Administrative Agent,
for its individual account, an annual Administrative Agent's fee as from time
to time agreed to by the Borrower and Administrative Agent in writing.
10.12. Documentation Agent. The First National Bank of Chicago has
been appointed Documentation Agent under this Agreement. Such appointment does
not confer any duties or responsibilities on the Documentation Agent. The
provisions on limitation of liability in Section 10.3 and the indemnification
provisions of Section 10.7 shall, nevertheless, apply to The First National
Bank of Chicago in its capacity as Documentation Agent to the same extent as
they apply to the Administrative Agent.
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ARTICLE XI
Miscellaneous
11.1. Assignments and Participations. (a) At any time after the
Closing Date each Lender may, with the prior consent of the Administrative
Agent and (so long as no Default or Event of Default shall have occurred and be
continuing) the Borrower, which consents shall not be unreasonably withheld, or
as provided in Section 4.7, upon the occurrence of certain events the Borrower
may demand that a Lender, assign to one or more banks or financial institutions
all or a portion of its rights and obligations under the Loan Documents
(including, without limitation, all or a portion of any Note payable to its
order); provided, that (i) each such assignment shall be of a constant and not
a varying percentage of all of the assigning Lender's rights and obligations
under the Revolving Credit Facility and Letter of Credit Facility, (ii) for
each assignment involving the issuance and transfer of a Note, the assigning
Lender shall execute an Assignment and Acceptance and the Borrower hereby
agrees to execute a replacement Note to give effect to the assignment, (iii)
the amount of Revolving Credit Commitment which shall be assigned is a minimum
of $5,000,000, and, if greater, an amount which is (A) an integral multiple of
$1,000,000, or (B) represents all of assigning Lender's Revolving Credit
Commitment, or (C) such other amount to which the Borrower (so long as no
Default or Event of Default shall have occurred and be continuing) and the
Administrative Agent shall consent, and (iv) such assignee shall have an office
located in the United States. Upon such execution, delivery, approval and
acceptance, from and after the effective date specified in each Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder or under any such Note have been
assigned or negotiated to it pursuant to such Assignment and Acceptance, have
the rights and obligations of a Lender hereunder and a holder of such Note and
(y) the assignor thereunder shall, to the extent that rights and obligations
hereunder or under such Note have been assigned or negotiated by it pursuant to
such Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement. Any Lender who makes an assignment (or, in
the case of an assignment effected pursuant to Section 4.7, the Borrower) shall
pay or cause to be paid to the Administrative Agent a one-time administrative
fee of $3,500 which fee (if payable by a Lender) shall not be reimbursed by the
Borrower.
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) the assignment
made under such Assignment and Acceptance is made under such Assignment and
Acceptance without recourse; (ii) such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or its Subsidiaries or any other Credit Party or the
performance or observance by the Borrower or any other Credit Party of any of
its obligations under any Loan Document or any other instrument or document
furnished pursuant hereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
delivered pursuant to Section 6.6(a) or Section 7.1, as the case may be, and
such other Loan Documents and other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv)
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such assignee will, independently and without reliance upon the Administrative
Agent, such assigning Lender or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under any Loan Document;
(v) such assignee appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers under the Loan
Documents as are delegated to the Administrative Agent by the terms hereof and
thereof, together with such powers as are reasonably incidental thereto; and
(vi) such assignee agrees that it will perform in accordance with their terms
all of the obligations which by the terms of the Loan Documents are required to
be performed by it as a Lender and a holder of such Notes.
(c) The Administrative Agent shall maintain at its address
referred to herein a copy of each Assignment and Acceptance delivered to and
accepted by it.
(d) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender, the Administrative Agent shall give prompt notice thereof
to the Borrower.
(e) Nothing herein shall prohibit any Lender from (i) pledging or
assigning, without notice to or consent of the Borrower and without the payment
of the administrative fee referred to in Section 11.1(a), any Note to any
Federal Reserve Bank in accordance with applicable law or to any affiliate of
any such Lender or (ii) assigning, without notice to or consent of the
Borrower, to any other Person who is a Lender before giving effect to such
assignment.
(f) Each Lender may sell participations at its expense to one or
more banks or other entities as to all or a portion of its rights and
obligations under this Agreement; provided, that (i) such Lender's obligations
under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any Note issued to it
for the purpose of this Agreement, (iv) such participations shall be of a
constant and not a varying percentage of the selling Lender's rights and
obligations under the Revolving Credit Facility (including Participations), and
shall include an allocable portion of such Lender's Participation, (v) the
Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights
and obligations under this Agreement and with regard to any and all payments to
be made or consents to be given under this Agreement; provided, that the
participation agreement between a Lender and its participants may provide that
such Lender will obtain the approval of such participant prior to such Lender's
agreeing to any amendment or waiver of any provisions of any Loan Document
which would (A) extend the maturity of any Note or the time for payment of any
interest or fees hereunder, (B) reduce the interest rates hereunder or (C)
increase the amount of the participant's participation over the amount thereof
then in effect, and (vi) the sale of any such participations which require the
Borrower to file a registration statement with the United States Securities and
Exchange Commission or under the securities regulations or laws of any state
shall not be permitted.
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(g) The Borrower may not assign, nor shall it cause, suffer or
permit any other Credit Party to assign any rights, powers, duties or
obligations under this Agreement or the other Loan Documents without the prior
written consent of all the Lenders.
11.2. Notices. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective (i) on the day on which delivered
in writing (including hand delivery by commercial courier service) to such
party (against receipt therefor), (ii) on the date of receipt at such address,
telefacsimile number or telex number as may from time to time be specified by
such party in written notice to the other parties hereto or otherwise received,
in the case of notice by telegram, telefacsimile or telex, respectively (where
the delivery of such message is verified by manual or electronic confirmation
of transmission or delivery), or (iii) on the fifth Business Day after the day
on which mailed, if sent prepaid by certified or registered mail, return
receipt requested, in each case delivered, transmitted or mailed, as the case
may be, to the address, telex number or telefacsimile number, as appropriate,
set forth below or such other address or number as such party shall specify by
notice hereunder:
(a) if to the Borrower:
MedPartners, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, XX
Telephone: 205/000-0000
Telefacsimile: 205/733-9780
with a copy (of any notice of the existence of any
Default or Event of Default only) to:
MedPartners, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: General Counsel
Telephone: 205/000-0000
Telefacsimile: 205/982-7709
(b) if to the Administrative Agent:
NationsBank, National Association (South)
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
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with a copy to:
NationsBank, National Association (South)
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Corporate Finance Department
Telephone: 404/000-0000
Telefacsimile: 404/607-6484
(c) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature page of each Assignment
and Acceptance;
(d) if to any other Credit Party, at the address set
forth on the signature page of the Guaranty executed
by such Credit Party.
11.3. Setoff. The Borrower agrees that the Administrative Agent and
each Lender shall have a lien for all the Obligations of the Borrower upon all
deposits or deposit accounts, of any kind, or any interest in any deposits or
deposit accounts thereof, now or hereafter pledged, mortgaged, transferred or
assigned to the Administrative Agent or such Lender or otherwise in the
possession or control of the Administrative Agent or such Lender (other than
for safekeeping) for any purpose for the account or benefit of the Borrower and
including any balance of any deposit account or of any credit of the Borrower
with the Administrative Agent or such Lender, whether now existing or hereafter
established, hereby authorizing the Administrative Agent and each Lender from
and after the occurrence of a Default or Event of Default at any time or times
with or without prior notice to apply such balances or any part thereof to such
of the Obligations of the Borrower to the Administrative Agent or the Lenders
then past due and in such amounts as they may elect, and whether or not the
collateral or the responsibility of other Persons primarily, secondarily or
otherwise liable may be deemed adequate. For the purposes of this paragraph,
all remittances and property shall be deemed to be in the possession of the
Administrative Agent or such Lender as soon as the same may be put in transit
to it by mail or carrier or by other bailee.
11.4. Survival. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the issuance of the Letters of Credit and the execution and delivery to the
Lenders of this Agreement and the Notes and shall continue in full force and
effect so long as any of Obligations remain outstanding or any Lender has any
commitment hereunder or the Borrower has continuing obligations hereunder
unless otherwise provided herein. Whenever in this Agreement any of the
parties hereto is referred to, such reference shall be deemed to include the
successors and permitted assigns of such party and all covenants, provisions
and agreements by or on behalf of the Borrower which are contained in the Loan
Documents shall inure to the benefit of the successors and permitted assigns of
the Lenders or any of them.
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11.5. Expenses. The Borrower agrees (a) to pay or reimburse the
Administrative Agent for all of its reasonable out-of-pocket costs and expenses
incurred in connection with the preparation, negotiation and execution of, and
any amendment, supplement or modification to, any of the Loan Documents
(including due diligence expenses and travel expenses relating to closing), and
the consummation of the transactions contemplated thereby, including the
reasonable fees and disbursements of counsel to the Administrative Agent, (b)
to pay or reimburse the Administrative Agent and the Lenders for all their
costs and expenses incurred in connection with the enforcement or preservation
of any rights under the Loan Documents, including the reasonable fees and
disbursements of their respective counsel (including the fees and expenses of
in-house counsel) and any payments in indemnification or otherwise payable by
the Lenders to the Administrative Agent pursuant to the Loan Documents, and (c)
to pay, indemnify and hold the Administrative Agent and the Lenders harmless
from any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any failure to pay or delay in paying,
documentary, stamp, excise and other similar taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of any of the Loan Documents, or consummation of any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
any Loan Document.
11.6. Amendments. No amendment, modification or waiver of any
provision of any Loan Document and no consent by the Lenders to any departure
therefrom by the Borrower or any other Credit Party shall be effective unless
such amendment, modification or waiver shall be in writing and signed by the
Administrative Agent, shall have been approved by the Required Lenders through
their written consent, and the same shall then be effective only for the period
and on the conditions and for the specific instances and purposes specified in
such writing; provided, however, that, no such amendment, modification or
waiver
(i) which changes, extends or waives any provision of
Section 2.7, Section 10.9 or this Section 11.6, the amount of or the
due date of any installment of or the rate of interest payable on any
Obligation, which changes the definition of "Required Lenders", which
permits an assignment by any Credit Party of its Obligations under any
Loan Document, which reduces the required consent of Lenders provided
hereunder, which increases, decreases (other than pursuant to the
express terms hereof) or extends the Revolving Credit Commitment or
Letter of Credit Commitment of any Lender or any Lender's commitment
to participate in Swing Line Loans, or which waives any condition to
the making of any Loan or the issuance of any Letter of Credit, shall
be effective unless in writing and signed by each of the Lenders;
(ii) which releases the guaranty obligation under any
Guaranty (other than pursuant to the express terms hereof or thereof)
shall be effective unless with the written consent of each of the
Lenders;
(iii) which affects the rights, privileges or obligations of
NationsBank as provider of Swing Line Loans shall be effective unless
signed in writing by NationsBank;
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(iv) which affects the rights, privileges or obligations of
the Issuing Bank as issuer of Letters of Credit shall be effective
unless signed in writing by the Issuing Bank; or
(v) which affects the rights, privileges, immunities or
indemnities of the Administrative Agent shall be effective unless in
writing and signed by the Administrative Agent.
Notwithstanding any provision of the other Loan Documents to the contrary, as
between the Administrative Agent and the Lenders, execution by the
Administrative Agent shall not be deemed conclusive evidence that the
Administrative Agent has obtained the written consent of the Required Lenders.
No notice to or demand on the Borrower in any case shall entitle the Borrower
to any other or further notice or demand in similar or other circumstances,
except as otherwise expressly provided herein. No delay or omission on any
Lender's or the Administrative Agent's part in exercising any right, remedy or
option shall operate as a waiver of such or any other right, remedy or option
or of any Default or Event of Default.
11.7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such fully-executed counterpart.
11.8. Termination. The termination of this Agreement shall not
affect any rights of the Borrower, the Lenders or the Administrative Agent or
any obligation of the Borrower, the Lenders or the Administrative Agent,
arising prior to the effective date of such termination, and the provisions
hereof shall continue to be fully operative until all transactions entered into
or rights created or obligations incurred prior to such termination have been
fully disposed of, concluded or liquidated and the Obligations arising prior to
or after such termination have been irrevocably paid in full. The rights
granted to the Administrative Agent for the benefit of the Lenders under the
Loan Documents shall continue in full force and effect, notwithstanding the
termination of this Agreement, until all of the Obligations have been paid in
full after the termination hereof (other than Obligations in the nature of
continuing indemnities or expense reimbursement obligations not yet due and
payable, which shall continue) or the Borrower has furnished the Lenders and
the Administrative Agent with an indemnification satisfactory to the
Administrative Agent and each Lender with respect thereto. All
representations, warranties, covenants, waivers and agreements contained herein
shall survive termination hereof until payment in full of the Obligations
unless otherwise provided herein. Notwithstanding the foregoing, if after
receipt of any payment of all or any part of the Obligations, the
Administrative Agent or any Lender is for any reason compelled to surrender
such payment to any Person because such payment is determined to be void or
voidable as a preference, impermissible setoff, a diversion of trust funds or
for any other reason, this Agreement shall continue in full force and the
Borrower shall be liable to, and shall indemnify and hold the Administrative
Agent or such Lender harmless for, the amount of such payment surrendered until
the Administrative Agent or such Lender shall have been finally and irrevocably
paid in full. The provisions of the foregoing sentence shall be and remain
effective notwithstanding any
102
109
contrary action which may have been taken by the Administrative Agent or any
Lender in reliance upon such payment, and any such contrary action so taken
shall be without prejudice to the Administrative Agent's or the Lenders' rights
under this Agreement and shall be deemed to have been conditioned upon such
payment having become final and irrevocable.
11.9. Indemnification; Limitation of Liability. In consideration of
the execution and delivery of this Agreement by the Administrative Agent and
each Lender and the extension of credit under the Loans, the Borrower hereby
indemnifies, exonerates and holds the Administrative Agent, NCMI and each
Lender and each of their respective affiliates, officers, directors, employees,
agents and advisors (collectively, the "Indemnified Parties") free and harmless
from and against any and all claims, actions, causes of action, suits, losses,
costs, liabilities and damages, and expenses incurred in connection therewith
(irrespective of whether any such Indemnified Party is a party to the action
for which indemnification hereunder is sought), including reasonable attorneys'
fees and disbursements (collectively, the "Indemnified Liabilities") that may
be incurred by or asserted or awarded against any Indemnified Party, in each
case arising out of or in connection with or by reason of, or in connection
with the execution, delivery, enforcement, performance or administration of
this Agreement and the other Loan Documents, or any transaction financed or to
be financed in whole or in part, directly or indirectly, with the proceeds of
any Loan (including any Swing Line Loan) or Letter of Credit, whether or not
such action is brought against the Administrative Agent or any Lender, the
shareholders or creditors of the Administrative Agent or any Lender or an
Indemnified Party or an Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated herein are consummated, except to
the extent such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful misconduct, and if
and to the extent that the foregoing undertaking may be unenforceable for any
reason, the Borrower hereby agrees to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. The Borrower agrees that no Indemnified
Party shall have any liability (whether direct or indirect, in contract or tort
or otherwise) to it, any of its Subsidiaries, or any security holders or
creditors thereof arising out of, related to or in connection with the
transactions contemplated herein, except to the extent that such liability is
found in a final non-appealable judgment by a court of competent jurisdiction
to have resulted from such Indemnified Party's gross negligence or willful
misconduct; provided, however, in no event shall any Indemnified Party be
liable for consequential, indirect or special, as opposed to direct, damages.
11.10. Severability. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or more
of the parties hereto, then such provision shall remain in effect with respect
to all parties, if any, as to whom such provision is neither illegal nor
invalid, and in any event all other provisions hereof shall remain effective
and binding on the parties hereto.
11.11. Entire Agreement. This Agreement, together with the other
Loan Documents, constitutes the entire agreement among the parties with respect
to the subject matter hereof and
103
110
supersedes all previous proposals, negotiations, representations, commitments
and other communications between or among the parties, both oral and written,
with respect thereto.
11.12. Agreement Controls. In the event that any term of any of the
Loan Documents other than this Agreement conflicts with any express term of
this Agreement, the terms and provisions of this Agreement shall control to the
extent of such conflict.
11.13. Usury Savings Clause. Notwithstanding any other provision
herein, the aggregate interest rate charged under any of the Notes, including
all charges or fees in connection therewith deemed in the nature of interest
under applicable law shall not exceed the Highest Lawful Rate (as such term is
defined below). If the rate of interest (determined without regard to the
preceding sentence) under this Agreement at any time exceeds the Highest Lawful
Rate (as defined below), the outstanding amount of the Loans made hereunder
shall bear interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at
all times been in effect. In addition, if when the Loans made hereunder are
repaid in full the total interest due hereunder (taking into account the
increase provided for above) is less than the total amount of interest which
would have been due hereunder if the stated rates of interest set forth in this
Agreement had at all times been in effect, then to the extent permitted by law,
the Borrower shall pay to the Administrative Agent an amount equal to the
difference between the amount of interest paid and the amount of interest which
would have been paid if the Highest Lawful Rate had at all times been in
effect. Notwithstanding the foregoing, it is the intention of the Lenders and
the Borrower to conform strictly to any applicable usury laws. Accordingly, if
any Lender contracts for, charges, or receives any consideration which
constitutes interest in excess of the Highest Lawful Rate, then any such excess
shall be cancelled automatically and, if previously paid, shall at such
Lender's option be applied to the outstanding amount of the Loans made
hereunder or be refunded to the Borrower. As used in this paragraph, the term
"Highest Lawful Rate" means the maximum lawful interest rate, if any, that at
any time or from time to time may be contracted for, charged, or received under
the laws applicable to such Lender which are presently in effect or, to the
extent allowed by law, under such applicable laws which may hereafter be in
effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.
11.14. GOVERNING LAW; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER
THAN THOSE SECURITY INSTRUMENTS WHICH EXPRESSLY PROVIDE THAT THEY
SHALL BE GOVERNED BY THE LAWS OF ANOTHER JURISDICTION) SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NORTH CAROLINA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
(B) THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY AGREES
AND CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING
104
111
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREIN MAY BE INSTITUTED IN ANY STATE OR FEDERAL COURT
SITTING IN THE COUNTY OF MECKLENBURG, STATE OF NORTH CAROLINA, UNITED
STATES OF AMERICA AND, BY THE EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE BORROWER EXPRESSLY WAIVES ANY OBJECTION THAT IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE IN, OR TO THE EXERCISE OF
JURISDICTION OVER IT AND ITS PROPERTY BY, ANY SUCH COURT IN ANY SUCH
SUIT, ACTION OR PROCEEDING, AND THE BORROWER HEREBY IRREVOCABLY
SUBMITS GENERALLY AND UNCONDITIONALLY TO THE JURISDICTION OF ANY SUCH
COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(C) THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE
MADE BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR
OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY
REGISTERED OR CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE
BORROWER PROVIDED IN SECTION 11.2, OR BY ANY OTHER METHOD OF SERVICE
PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF NORTH
CAROLINA.
(D) NOTHING CONTAINED IN SUBSECTIONS (A) OR (B) HEREOF
SHALL PRECLUDE THE ADMINISTRATIVE AGENT OR ANY LENDER FROM BRINGING
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN
DOCUMENT IN THE COURTS OF ANY JURISDICTION WHERE THE BORROWER OR ANY
OF THE BORROWER'S PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE
EXTENT PERMITTED BY THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, THE
BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH
COURT AND EXPRESSLY WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR
PROCEEDING, OBJECTION TO THE EXERCISE OF JURISDICTION OVER IT AND ITS
PROPERTY BY ANY SUCH OTHER COURT OR COURTS WHICH NOW OR HEREAFTER MAY
BE AVAILABLE UNDER APPLICABLE LAW.
(E) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO ANY LOAN DOCUMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION THEREWITH, THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY AGREE, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL
BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY
WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE
105
112
LAW, ANY RIGHT SUCH PERSON MAY HAVE TO TRIAL BY JURY IN ANY SUCH
ACTION OR PROCEEDING.
106
113
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
MEDPARTNERS, INC.
WITNESS:
By:
------------------------ --------------------------------
Name:
------------------------------
Title:
------------------------ -----------------------------
NATIONSBANK, NATIONAL ASSOCIATION (SOUTH), as
Administrative Agent for the Lenders
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
THE FIRST NATIONAL BANK OF CHICAGO, as
Documentation Agent for the Lenders
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
SIGNATURE PAGE 1 OF 20
114
NATIONSBANK, NATIONAL ASSOCIATION (SOUTH)
By:
------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Lending Office:
NationsBank, National Association
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
NationsBank, National Association (South)
Atlanta, Georgia
ABA# 000000000
Account No.: 1366210109970
Reference: MedPartners, Inc.
Attention: Corporate Credit Support
SIGNATURE PAGE 2 OF 20
115
THE FIRST NATIONAL BANK OF CHICAGO
By:
------------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
Lending Office:
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
The First National Bank of Chicago
Xxxxxxx, Xxxxxxxx 00000
ABA# 000000000
Account No.: DES Clearing A/C 7521-7653
Attention: Xxx Xxxxx
Xxxxx Xxxxxxxxx
SIGNATURE PAGE 3 OF 20
116
CREDIT LYONNAIS NEW YORK BRANCH, Managing Agent
By:
------------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
Lending Office:
Credit Lyonnais New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Farboud Tavangar
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
Credit Lyonnais Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA# 0000-0000-0
Account No.: 01-88179214000001
Reference: MedPartners, Inc.
Attention: Loan Servicing
SIGNATURE PAGE 4 OF 20
117
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
Managing Agent
By:
------------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
Lending Office:
Xxxxxx Guaranty Trust Company of New York
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
Xxxxxx Guaranty Trust Company of New York
New York, New York
ABA# 000-000-000
For credit to: Loan Department
A/C# 000-00-000
Reference: MedPartners, Inc.
Attention: Corporate Processing
SIGNATURE PAGE 5 OF 20
118
BANK OF AMERICA NT & SA, Co-Agent
By:
------------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
Lending Office:
Bank of America NT & SA
000 X. Xxxxxx Xxxxxx
11th Floor, Dept. #9173
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
Bank of America NT & SA
Xxx Xxxxxxx, Xxxxxxxxxx 00000
ABA# 1210-00358
Account No. 0000-0-00000
Reference: MedPartners, Inc.
Attention: Xxxxxx Xxxxx
SIGNATURE PAGE 6 OF 20
000
XXX XXXX XX XXXX XXXXXX, Co-Agent
By:
------------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
Lending Office:
The Bank of Nova Scotia
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
The Bank of Nova Scotia New York Agency
Xxx Xxxx, Xxx Xxxx 00000
ABA# 000000000
Credit Atlanta Agency #0606634
Reference: MedPartners, Inc.
Attention: Xxxxxxx Xxxxx
SIGNATURE PAGE 7 OF 20
120
THE INDUSTRIAL BANK OF JAPAN, LIMITED, Co-Agent
By:
------------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
Lending Office:
The Industrial Bank of Japan, Limited
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
The Industrial Bank of Japan, Limited
Xxx Xxxx, Xxx Xxxx 00000
ABA# 000-000-000
Reference: MedPartners, Inc.
Attention: Credit Administration Department
SIGNATURE PAGE 8 OF 20
121
THE NIPPON CREDIT BANK, LTD., LOS ANGELES
AGENCY, Co-Agent
By:
------------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
Lending Office:
The Nippon Credit Bank, Ltd.,
Los Angeles Agency
000 X. Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
Bank of America, San Francisco
Xxxxxxx, Xxxxxxxxxx 00000
ABA# 0000-0000-0
Account No. 62908-31126
Attention: The Nippon Credit Bank, Ltd.,
Los Angeles Agency
SIGNATURE PAGE 9 OF 20
000
XXXXXXX XXXX XX XXXXXXX
By:
------------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
Lending Office:
AmSouth Bank of Alabama
0000 0xx Xxxxxx, Xxxxx
7th Floor AST
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
AmSouth Bank of Alabama
Xxxxxxxxxx, Xxxxxxx 00000
ABA# 000000000
Account No. 0011 0245 0400 100
Attention: Xxxxx X. Xxxxxxx
SIGNATURE PAGE 10 OF 20
123
BANKERS TRUST COMPANY
By:
------------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
Lending Office:
Bankers Trust Company
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
Bankers Trust Company
Xxx Xxxx, Xxx Xxxx 00000
ABA# 021 001 033
Account No. 99 401 268
Attention: Commercial Loan Division
SIGNATURE PAGE 11 OF 20
124
THE DAI-ICHI KANGYO BANK, LIMITED
ATLANTA AGENCY
By:
------------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
Lending Office:
The Dai-Ichi Kangyo Bank, Limited
000 Xxxxxxxxx Xxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
The Dai-Ichi Kangyo Bank, Ltd.
New York, New York
ABA# 0260 0430 7
For credit to: DKB-Atlanta Agency
Account No. H79-740-111250
Reference: MedPartners, Inc.
SIGNATURE PAGE 12 OF 20
125
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By:
------------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
Lending Office:
Deutsche Bank AG New York
00 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
Deutsche Bank AG New York Branch
New York, New York
ABA# 000000000
Reference: MedPartners, Inc.
SIGNATURE PAGE 13 OF 20
126
THE FUJI BANK, LTD. - ATLANTA AGENCY
By:
------------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
Lending Office:
The Fuji Bank, Ltd. - Atlanta Agency
000 Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxx 0000 Marquis 1
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
The Fuji Bank, New York
Xxx Xxxx, Xxx Xxxx 00000
ABA# 000000000
For further credit to: Fuji Bank, Atlanta
A/C #725000
Reference: MedPartners, Inc.
SIGNATURE PAGE 14 OF 20
127
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED
By:
------------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
Lending Office:
The Long-Term Credit Bank of Japan, Limited
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ______________________
Telephone: (212) ___-____
Telefacsimile: (212) ___-____
Wire Transfer Instructions:
Chase Manhattan Bank
New York, New York
ABA# 000-000-000
Name of Account: The Long-Term Credit Bank
of Japan Ltd., New York
Branch
Account No. 000-0-00000
SIGNATURE PAGE 15 OF 20
128
MELLON BANK, N.A.
By:
------------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
Lending Office:
Mellon Bank, N.A.
Two Mellon Bank Center
Room 152-0270
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
Mellon Bank, N.A.
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
ABA# 0000-0000-0
Account No. 990873800
Attention: Xxxxxxxxx Xxxxxxx
Reference: MedPartners, Inc.
SIGNATURE PAGE 16 OF 20
129
PNC BANK, KENTUCKY, INC.
By:
------------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
Lending Office:
PNC Bank, Kentucky, Inc.
000 X. Xxxxxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
PNC Bank, Kentucky, Inc.
Xxxxxxxxxx, Xxxxxxxx 00000
ABA# 000-000-000
Account No. 300099-1434
Attention: Xxxxxx Xxxxxx
Xxxx Xx Xxxxxxx
SIGNATURE PAGE 17 OF 20
130
THE SANWA BANK, LIMITED ATLANTA AGENCY
By:
------------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
Lending Office:
The Sanwa Bank, Limited Atlanta Agency
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
The Sanwa Bank
New York, New York
ABA# 000000000
Account No. 999669
For Account: Sanwa Bank Atlanta
SIGNATURE PAGE 18 OF 20
131
THE SUMITOMO BANK, LIMITED, ATLANTA AGENCY
By:
------------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
Lending Office:
The Sumitomo Bank, Limited, Atlanta Agency
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
Xxxxxx Guaranty Trust Co.
New York, New York
ABA# 021 000 238
For credit to the account of:
The Sumitomo Bank, New York
Account No. 000-00-000
For further credit to:
The Sumitomo Bank, Atlanta Agency
Account No. 819008
SIGNATURE PAGE 19 OF 20
000
XXXXXXXX XXXX XX XXXXXXX
By:
------------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
Lending Office:
Wachovia Bank of Georgia
000 Xxxxxxxxx Xxxxxx, X.X.
XX XX 3940
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
Wachovia Bank of Georgia
Xxxxxxx, Xxxxxxx 00000
ABA# 061 000 010
Account No. 00-000-000
Contact: Xxxxxxxx Xxxxx
SIGNATURE PAGE 20 OF 20
133
EXHIBIT A
Applicable Commitment Percentages
Lender Revolving* Applicable
----- Credit Commitment
Commitment Percentage
---------- ----------
NationsBank, National
Association (South) $152,500,000 15.25%
The First National Bank
of Chicago 135,500,000 13.55%
Credit Lyonnais New York Branch 118,500,000 11.85%
Xxxxxx Guaranty Trust Company
of New York 118,500,000 11.85%
Bank of America NT & SA 50,000,000 5.00%
The Bank of Nova Scotia 50,000,000 5.00%
The Industrial Bank of Japan,
Limited 50,000,000 5.00%
The Nippon Credit Bank, Ltd.,
Los Angeles Agency 50,000,000 5.00%
AmSouth Bank of Alabama 25,000,000 2.50%
Bankers Trust Company 25,000,000 2.50%
The Dai-Ichi Kangyo Bank,
Limited Atlanta Agency 25,000,000 2.50%
Deutsche Bank AG New York Branch
and/or Cayman Islands Branch 25,000,000 2.50%
The Fuji Bank, Ltd. - Atlanta
Agency 25,000,000 2.50%
The Long-Term Credit Bank of
Japan, Limited 25,000,000 2.50%
X-0
000
Xxxxxx Bank, N.A. 25,000,000 2.50%
PNC Bank, Kentucky 25,000,000 2.50%
The Sanwa Bank, Limited
Atlanta Agency 25,000,000 2.50%
The Sumitomo Bank, Limited,
Atlanta Agency 25,000,000 2.50%
Wachovia Bank of Georgia 25,000,000 2.50%
_____________ _______
$1,000,000,000 100.00%
* The amounts in this column are based on a Total Revolving Credit Commitment
of $1,000,000,000 to be in effect, subject to the term hereof, on and after
January 1, 1997. Prior to January 1, 1997, the Revolving Credit Commitment of
each Lender shall be, subject to the terms hereof, an amount equal to such
Lender's Applicable Commitment Percentage of $750,000,000.
A-2
135
EXHIBIT B
Form of Assignment and Acceptance
DATED _______________, ____
Reference is made to the Credit Agreement dated as of September 5,
1996 (as amended or supplemented from time to time, the "Agreement") among
Medpartners, Inc., a Delaware corporation (the "Borrower"), the Lenders (as
defined in the Agreement), NationsBank, National Association (South), as
Administrative Agent for the Lenders ("Administrative Agent") and The First
National Bank of Chicago, as Documentation Agent for the Lenders
("Documentation Agent" and, together with the Administrative Agent, the
"Agents"). Unless otherwise defined herein, terms defined in the Agreement are
used herein with the same meanings.
________________________ (the "Assignor") and___________________
_______________________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, WITHOUT RECOURSE, a
_______%(1) interest in and to all of the Assignor's rights and obligations
under the Agreement as of the Effective Date (as defined below), including,
without limitation, such percentage interest in the Loans owing to the Assignor
on the Effective Date, and evidenced by the Revolving Note held by the
Assignor.
2. The Assignor (i) represents and warrants that, as of the date
hereof, (A) the aggregate principal amount of Revolving Loans owing to it
(without giving effect to the assignments thereof which have not yet become
effective) is $__________ under a Revolving Note dated ____________, 19__ in
the principal amount of $_________ and (B) the aggregate principal amount of
the Participations purchased by it (without giving effect to the assignments
thereof which have not yet become effective) is $_________; (ii) represents and
warrants that it is the legal and beneficial owner of the interest being
assigned by it hereunder and that such interest is free and clear of any
adverse claim; (iii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Agreement or any of the Loan Documents or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Agreement or any of the Loan Documents or any other instrument or
document furnished pursuant thereto; (iv) makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Borrower or any Subsidiary or the performance or observance by the Borrower or
any other Credit Party of any of its obligations under any of the Loan
Documents or any other instrument or document furnished pursuant thereto and
(v) attaches hereto the Revolving Note referred to in paragraph 1 above and the
Competitive Bid Note of Assignor and requests that the Administrative Agent
exchange such Notes for replacement Notes (each dated as of the Closing Date)
as follows: a Revolving Note in the principal amount of $________________, and
a
____________________
(1) Specify percentage in no more than 4 decimal points.
B-1
136
Competitive Bid Note in the principal amount of $__________ each payable to the
order of the Assignor, and a Revolving Note in the principal amount of
$_________________ and a Competitive Bid Note dated in the principal amount of
$___________, each payable to the order of the Assignee.
3. The Assignee (i) confirms that it has received a copy of the
Agreement, together with copies of the financial statements referred to in
Section 7.1 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Administrative Agent, the Assignor, or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Agreement; (iii) appoints and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers under the Loan
Documents as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (iv) will
perform all of the obligations which by the terms of the Agreement are required
to be performed by the Lender; and (v) specifies as its address for notices the
office set forth beneath its name on the signature pages hereof.
4. The effective date for this Assignment and Acceptance shall be
_____________________________ (the "Effective Date"). Following the execution
of this Assignment and Acceptance, it will be delivered to the Administrative
Agent for acceptance and recording by the Administrative Agent.
5. Upon such acceptance and recording, as of the Effective Date,
(i) the Assignee shall be a party to the Agreement and, to the extent provided
in this Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and under the Loan Documents and (ii) the Assignor shall, to the
extent provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Agreement and the other Loan Documents.
6. Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments under the
Agreement and Notes in respect of the interest assigned hereby (including,
without limitation, all payments of principal, interest, commitment fees and
letter of credit fees with respect thereto) to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments under the Agreement
and the Notes for periods prior to the Effective Date directly between
themselves.
B-2
137
7. This Assignment and Acceptance shall be governed by and
construed in accordance with, the laws of the State of North Carolina.
[NAME OF ASSIGNOR]
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Notice Address:
---------------------------
----------------
----------------
After the Effective Date
Outstanding Revolving Loans: $
------
Outstanding LC
Participations: $
------------
[NAME OF ASSIGNEE]
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Notice Address/Lending Office
-------------------------
-------------------------
-------------------------
Wire transfer Instructions:
-------------------------
-------------------------
-------------------------
After the Effective Date
Outstanding Revolving Loans: $
--------
Outstanding LC
Participations: $
------------
B-3
138
Accepted this ____ day of _______, 19___
NATIONSBANK, NATIONAL ASSOCIATION (SOUTH),
as Administrative Agent
By:
----------------------------------------
Name:
------------------------------
Title:
-----------------------------
Consented to:
MEDPARTNERS, INC.
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
B-4
139
EXHIBIT C
Notice of Appointment (or Revocation) of Authorized
Representative
Reference is hereby made to the Credit Agreement dated as of September
5, 1996 (as amended or supplemented from time to time, the "Agreement") among
Medpartners, Inc., a Delaware corporation (the "Borrower"), the Lenders (as
defined in the Agreement), NationsBank, National Association (South), as
Administrative Agent for the Lenders ("Administrative Agent") and The First
National Bank of Chicago, as Documentation Agent for the Lenders
("Documentation Agent"). Capitalized terms used but not defined herein shall
have the respective meanings therefor set forth in the Agreement.
The Borrower hereby nominates, constitutes and appoints each
individual named below as an Authorized Representative under the Loan
Documents, and hereby represents and warrants that (i) set forth opposite each
such individual's name is a true and correct statement of such individual's
office (to which such individual has been duly elected or appointed), a genuine
specimen signature of such individual and an address for the giving of notice,
and (ii) each such individual has been duly authorized by the Borrower to act
as Authorized Representative under the Loan Documents:
Name and Address Office Specimen Signature
----------------- ------------------- -------------------
-----------------
-----------------
----------------- ------------------- --------------------
-----------------
-----------------
Borrower hereby revokes (effective upon receipt hereof by the Administrative
Agent) the prior appointment of ________________ as an Authorized
Representative.
This the ___ day of __________________, 19__.
------------------------------------
By:
---------------------------------
Name:
---------------------------------
Title:
-----------------------------
C-1
140
EXHIBIT D-1
Form of Borrowing Notice
To: NationsBank, National Association (South),
as Administrative Agent
Independence Center, 15th Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telefacsimile: (000)000-0000
Reference is hereby made to the Credit Agreement dated as of
September 5, 1996 (as amended or supplemented from time to time, the
"Agreement") among Medpartners, Inc., a Delaware corporation (the "Borrower"),
the Lenders (as defined in the Agreement), NationsBank, National Association
(South), as Administrative Agent for the Lenders ("Administrative Agent") and
The First National Bank of Chicago, as Documentation Agent for the Lenders
("Documentation Agent"). Capitalized terms used but not defined herein shall
have the respective meanings therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives notice
to the Administrative Agent that Loans of the type and amount set forth below
be made on the date indicated:
Type of Loan Interest Aggregate
(check one) Period(1) Amount(2) Date of Loan(3)
--------- ------ ------ ------------
Revolving Loan
--------------
Base Rate Loan ______ _________ ____________
Eurodollar Rate Loan ______ _________ ____________
-----------------------
(1) For any Eurodollar Rate Loan, one, two, three or six months.
(2) Must be $5,000,000 or if greater an integral multiple of $500,000,
unless a Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan;
The Borrower hereby requests that the proceeds of Loans described in
this Borrowing Notice be made available to the Borrower as follows: [insert
transmittal instructions].
The undersigned hereby certifies that:
D-1
141
1. No Default or Event of Default exists either now or after
giving effect to the borrowing described herein; and
2. All the representations and warranties set forth in Article VI
of the Agreement and in the Loan Documents (other than those expressly stated
to refer solely to a particular date, as to which such representations and
warranties shall be true and correct as of such particular date) are true and
correct as of the date hereof except that the reference to the financial
statements in Section 6.6(a) of the Agreement are to those financial statements
most recently delivered to you pursuant to Section 7.1 of the Agreement (it
being understood that any financial statements delivered pursuant to Section
7.1(b) have not been certified by independent public accountants).
3. All conditions contained in the Agreement to the making of any
Loan requested hereby have been met or satisfied in full .
MEDPARTNERS, INC.
BY:
------------------------------------
Authorized Representative
DATE:
------------------------------------
X-0
000
XXXXXXX X-0
Form of Borrowing Notice--Swing Line Loans
To: NationsBank, National Association (South),
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telefacsimile: (000)000-0000
Reference is hereby made to the Credit Agreement dated as of
September 5, 1996 (as amended or supplemented from time to time, the
"Agreement") among Medpartners, Inc., a Delaware corporation (the "Borrower"),
the Lenders (as defined in the Agreement), NationsBank, National Association
(South), as Administrative Agent for the Lenders ("Administrative Agent") and
The First National Bank of Chicago, as Documentation Agent for the Lenders
("Documentation Agent"). Capitalized terms used but not defined herein shall
have the respective meanings therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives notice
to NationsBank that a Swing Line Loan of the amount set forth below be made on
the date indicated:
Amount(1) Date of Loan
--------- ------------
,
--------- ---------- ----
_________________
(1) Must be $_________ or if greater an integral multiple of $_______
unless a Base Rate Refunding Loan
The Borrower hereby requests that the proceeds of Swing Line Loans
described in this Borrowing Notice be made available to the Borrower as
follows: [insert transmittal instructions].
The undersigned hereby certifies that:
1. No Default or Event of Default exists either now or after
giving effect to the borrowing described herein; and
2. All the representations and warranties set forth in Article VI
of the Agreement and in the Loan Documents (other than those expressly stated
to refer solely to a particular date, as to which such representations and
warranties shall be true and correct as of such particular date) are true and
correct as of the date hereof except that the reference to the financial
statements in Section 6.6(a) of the Agreement are to those financial statements
most recently delivered to you
D-3
143
pursuant to Section 7.1 of the Agreement (it being understood that any
financial statements delivered pursuant to Section 7.1(b) have not been
certified by independent public accountants).
3. All conditions contained in the Agreement to the making of any
Loan requested hereby have been met or satisfied in full.
MEDPARTNERS, INC.
BY:
-----------------------------------
Authorized Representative
DATE:
---------------------------------
D-4
144
EXHIBIT E
Form of Interest Rate Selection Notice
To: NationsBank, National Association
(Carolinas), as Administrative Agent
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telefacsimile: (000) 000-0000
Reference is hereby made to the Credit Agreement dated as of
September 5, 1996 (as amended or supplemented from time to time, the
"Agreement") among Medpartners, Inc., a Delaware corporation (the "Borrower"),
the Lenders (as defined in the Agreement), NationsBank, National Association
(South), as Administrative Agent for the Lenders ("Administrative Agent") and
The First National Bank of Chicago, as Documentation Agent for the Lenders
("Documentation Agent"). Capitalized terms used but not defined herein shall
have the respective meanings therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives notice
to the Administrative Agent of the following selection of a type of Loan and
Interest Period:
Type of Loan Interest Aggregate
(check one) Period(1) Amount(2) Date of Loan(3)
--------- ------ ------ ------------
Revolving Loan
--------------
Base Rate Loan ______ _________ ____________
Eurodollar Rate Loan ______ _________ ____________
_______________________
(1) For any Eurodollar Rate Loan, one, two, three or six months.
(2) Must be $5,000,000 or if greater an integral multiple of $500,000,
unless a Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan;
MEDPARTNERS, INC.
BY:
---------------------------------
Authorized Representative
DATE:
---------------------------------
E-1
145
EXHIBIT F-1
Form of Competitive Bid Note
Promissory Note
(Competitive Bid Loan)
$_____________(1) _____________ __, ____
FOR VALUE RECEIVED, MEDPARTNERS, INC., a Delaware corporation (the
"Borrower"), hereby promises to pay to the order of _______________________
____________________________(2) (the "Lender"), for account of its Applicable
Lending Office provided for by the Agreement referred to below, at the office
of NationsBank, National Association (South), One Independence Center, 000
Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (or at such
other place or places as the Administrative Agent may designate in writing) at
the times set forth in the Agreement (as herein defined), the aggregate unpaid
principal amount of the Competitive Bid Loans made by the Lender to the
Borrower under the Agreement, in lawful money of the United States of America
and in immediately available funds, on the dates and in the principal amounts
provided in the Agreement, and to pay interest on the unpaid principal amount
of each such Competitive Bid Loan, at such office, in like money and funds, for
the period commencing on the date of such Competitive Bid Loan until such
Competitive Bid Loan shall be paid in full, at the rates per annum and on the
dates provided in the Agreement.
The date, amount, Type, interest rate and maturity date of each
Competitive Bid Loan made by the Lender to the Borrower, and each payment made
on account of the principal thereof, shall be recorded by the Lender on its
books and, prior to any transfer of this Note, endorsed by the Lender on the
schedule attached hereto or any continuation thereof, provided that the failure
of the Lender to make any such recordation or endorsement shall not affect the
obligations of the Borrower to make a payment when due of any amount owing
under the Agreement or hereunder in respect of the Competitive Bid Loans made
by the Lender.
This Note is one of the Competitive Bid Notes referred to in the
Credit Agreement dated as of September 5, 1996 (as modified and supplemented
from time to time, the "Agreement") among the Borrower, the Lenders named
therein, NationsBank, National Association (South), as Administrative Agent,
and The First National Bank of Chicago, as Documentation Agent, and evidences
Competitive Bid Loans made by the Lender thereunder. Terms used but not
defined in this Note have the respective meanings assigned to them in the
Agreement.
_______________
(1) Insert [the amount of Lender's Revolving Credit Commitment].
(2) Insert name of Lender in capital letters.
F-1
146
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount and accrued
but unpaid interest shall bear interest which shall be payable on demand at the
rates per annum set forth in the proviso to Section 2.3 (a) of the Agreement.
Further, in the event of such acceleration, this Competitive Bid Note shall
become immediately due and payable, without presentation, demand, protest or
notice of any kind, all of which are hereby waived by the Borrower.
Except as permitted by Section 11.1 of the Agreement, this Note may
not be assigned by the Lender to any other Person.
Interest hereunder shall be computed as provided in the Agreement.
This Note shall be governed by, and construed in accordance with, the
law of the State of North Carolina.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby
waive to the full extent permitted by law the benefits of all provisions of law
for stay or delay of execution or sale of property or other satisfaction of
judgment against any of them on account of liability hereon until judgment be
obtained and execution issues against any other of them and returned satisfied
or until it can be shown that the maker or any other party hereto had no
property available for the satisfaction of the debt evidenced by this
instrument, or until any other proceedings can be had against any of them, also
their right, if any, to require the holder hereof to hold as security for this
Competitive Bid Note any collateral deposited by any of said Persons as
security. Protest, notice of protest, notice of dishonor, diligence or any
other formality are hereby waived by all parties bound hereon.
IN WITNESS WHEREOF, the Borrower has caused this Competitive Bid Note
to be made, executed and delivered by its duly authorized representative as of
the date and year first above written, all pursuant to authority duly granted.
WITNESS: MEDPARTNERS, INC.
----------------------------- By:
------------------------------
Name:
----------------------------- ------------------------------
Title:
-----------------------------
F-2
147
SCHEDULE OF COMPETITIVE BID LOANS
This Note evidences Competitive Bid Loans made under the
within-described Agreement to the Borrower, on the dates, in the principal
amounts, of the Types, bearing interest at the rates and maturing on the dates
set forth below, subject to the payments and prepayments of principal set forth
below:
Principal
Date Amount Type Maturity Amount Unpaid
of of of Interest Date of Paid or Principal Notation
Loan Loan Loan Rate Loan Prepaid Amount Made by
---- --------- ---- -------- -------- ------- -------- --------
F-1
148
EXHIBIT F-2
Form of Revolving Note
Promissory Note
(Revolving Loan)
$______________ _________, ______________
______ __, ____
FOR VALUE RECEIVED, _______________________, a ________ corporation
having its principal place of business located in ________, ________ (the
"Borrower"), hereby promises to pay to the order of _______________________
_______________________________________________ (the "Lender"), in its
individual capacity, at the office of NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH), as agent for the Lenders (the "Administrative Agent"), located at One
Independence Center, 000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000 (or at such other place or places as the Administrative Agent
may designate in writing) at the times set forth in the Credit Agreement dated
as of September 5, 1996 among the Borrower, the financial institutions party
thereto (collectively, the "Lenders"), the Administrative Agent and The First
National Bank of Chicago, as Documentation Agent (the "Agreement" -- all
capitalized terms not otherwise defined herein shall have the respective
meanings set forth in the Agreement), in lawful money of the United States of
America, in immediately available funds, the principal amount of ___________
DOLLARS ($__________) or, if less than such principal amount, the aggregate
unpaid principal amount of all Revolving Loans made by the Lender to the
Borrower pursuant to the Agreement on the Revolving Credit Termination Date or
such earlier date as may be required pursuant to the terms of the Agreement,
and to pay interest from the date hereof on the unpaid principal amount hereof,
in like money, at said office, on the dates and at the rates provided in
Article II of the Agreement. All or any portion of the principal amount of
Loans may be prepaid or required to be prepaid as provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount and accrued
but unpaid interest shall bear interest which shall be payable on demand at the
rates per annum set forth in the proviso to Section 2.3(a) of the Agreement.
Further, in the event of such acceleration, this Revolving Note shall become
immediately due and payable, without presentation, demand, protest or notice of
any kind, all of which are hereby waived by the Borrower.
In the event any amount evidenced by this Revolving Note is not paid
when due at any stated or accelerated maturity, the Borrower agrees to pay, in
addition to the principal and interest, all costs of collection, including
reasonable attorneys' fees, and interest due hereunder thereon at the rates set
forth above.
F-2
149
This Note shall be governed by, and construed in accordance with, the
law of the State of North Carolina.
Interest hereunder shall be computed as provided in the Agreement.
This Revolving Note is one of the Revolving Notes referred to in the
Agreement and is issued pursuant to and entitled to the benefits and security
of the Agreement to which reference is hereby made for a more complete
statement of the terms and conditions upon which the Revolving Loans evidenced
hereby were or are made and are to be repaid. This Revolving Note is subject
to certain restrictions on transfer or assignment as provided in the Agreement.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby
waive to the full extent permitted by law the benefits of all provisions of law
for stay or delay of execution or sale of property or other satisfaction of
judgment against any of them on account of liability hereon until judgment be
obtained and execution issues against any other of them and returned satisfied
or until it can be shown that the maker or any other party hereto had no
property available for the satisfaction of the debt evidenced by this
instrument, or until any other proceedings can be had against any of them, also
their right, if any, to require the holder hereof to hold as security for this
Revolving Note any collateral deposited by any of said Persons as security.
Protest, notice of protest, notice of dishonor, diligence or any other
formality are hereby waived by all parties bound hereon.
IN WITNESS WHEREOF, the Borrower has caused this Revolving Note to be
made, executed and delivered by its duly authorized representative as of the
date and year first above written, all pursuant to authority duly granted.
------------------------------------
WITNESS:
By:
---------------------- ---------------------------------
Name:
---------------------- -------------------------------
Title:
------------------------------
F-3
150
EXHIBIT F-3
SWING LINE NOTE
$25,000,000 ______________, ______________
September 5, 1996
FOR VALUE RECEIVED, MEDPARTNERS, INC., a Delaware corporation having
its principal place of business located in Birmingham, Alabama (the
"Borrower"), hereby promises to pay to the order of
NATIONSBANK, NATIONAL ASSOCIATION (SOUTH) (the "Lender"), in its
individual capacity, at the office of NationsBank, National Association
(South), as administrative agent for the Lender (the "Administrative Agent"),
located at Xxxxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (or
at such other place or places as the Administrative Agent may designate) at the
times set forth in the Credit Agreement dated as of September 5, 1996 among the
Borrower, the financial institutions party thereto (collectively, the
"Lenders"), the Administrative Agent and The First National Bank of Chicago, as
Documentation Agent (as amended or supplemented, the "Credit Agreement" -- all
capitalized terms not otherwise defined herein shall have the respective
meanings set forth in the Credit Agreement), in lawful money of the United
States of America, in immediately available funds, the aggregate unpaid
principal amount of the Swing Line Loans made by the Lender to the Borrower
pursuant to the Credit Agreement and to pay interest on the unpaid principal
amount of each such Swing Line Loan, in like money, at said office, for the
period commencing on the date of such Swing Line Loan until such Swing Line
Loan shall be paid in full, on the dates and at the rates provided in Article
II of the Credit Agreement. All or any portion of the principal amount of
Swing Line Loans may be prepaid as provided in the Agreement.
In the event this Swing Line Note is not paid when due at any stated
or accelerated maturity, the Borrower agrees to pay, in addition to the
principal and interest, all costs of collection, including reasonable
attorneys' fees, and interest thereon at the rates set forth in the Credit
Agreement.
This Note is the Swing Line Note referred to in the Credit Agreement
and is issued pursuant to and entitled to the benefits and security of the
Credit Agreement to which reference is hereby made for a more complete
statement of the terms and conditions upon which the Swing Line Loans evidenced
hereby were or are made and are to be repaid. This Note is subject to certain
restrictions on transfer or assignment as provided in the Credit Agreement.
This Note shall be governed by, and construed in accordance with, the
law of the State of North Carolina.
Interest hereunder shall be computed as provided in the Agreement.
F-4
151
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby
waive to the full extent permitted by law the benefits of all provisions of law
for stay or delay of execution or sale of property or other satisfaction of
judgment against any of them on account of liability hereon until judgment be
obtained and execution issues against any other of them and returned satisfied
or until it can be shown that the maker or any other party hereto had no
property available for the satisfaction of the debt evidenced by this
instrument, or until any other proceedings can be had against any of them, also
their right, if any, to require the holder hereof to hold as security for this
Swing Line Note any collateral deposited by any of said Persons as security.
Protest, notice of protest, notice of dishonor, diligence or any other
formality are hereby waived by all parties bound hereon.
IN WITNESS WHEREOF, the Borrower has caused this Swing Line Note to be
made, executed and delivered by its duly authorized representative as of the
date and year first above written, all pursuant to authority duly granted.
MEDPARTNERS, INC.
WITNESS:
---------------------- By:
-----------------------------
---------------------- Name:
---------------------------
Title:
--------------------------
F-5
152
EXHIBIT G
Form of Competitive Bid Quote Request
[Date]
To: NationsBank, National Association (South),
as Administrative Agent
From: Medpartners, Inc.
Re: Competitive Bid Quote Request
Pursuant to Section 2.2 of the Credit Agreement dated as of September
5, 1996 (as amended and supplemented from time to time, the "Agreement") among
Medpartners, Inc., the Lenders, NationsBank, National Association (South), as
Administrative Agent, and The First National Bank of Chicago, as Documentation
Agent, we hereby give notice that we request Competitive Bid Quotes for the
following proposed Competitive Bid Borrowing(s):
Borrowing Quotation Interest
Date Date(1) Amount(2) Type(3) Period(4)
---------- ---------- ----------------- -------------- --------------
Terms used herein have the meanings assigned to them in the Agreement.
MEDPARTNERS, INC.
By:
-------------------------
Title:
____________________
(1) For use if an Absolute Rate in an Absolute Rate Auction
is requested to be submitted before the Borrowing Date.
(2) Each amount must be $5,000,000 or a larger integral
multiple of $500,000.
(3) Insert either "Eurodollar Margin" (in the case of
Eurodollar Market Loans) or "Absolute Rate" (in the case of
Absolute Rate Loans).
(4) One, two three or six months, in the case of a Eurodollar
Market Loan or, in the case of an Absolute Rate Loan, a period of
not less than 7 nor more that 180 days after the making of such
Absolute Rate Loan and ending on a Business Day.
G-1
153
EXHIBIT H
Form of Competitive Bid Quote
To: NationsBank, N.A., as Administrative Agent
Attention:
Re: Competitive Bid Quote to Medpartners, Inc. (the "Borrower")
This Competitive Bid Quote is given in accordance with Section 2.2(c)
of the Credit Agreement dated as of September 5, 1996 (as amended and
supplemented from time to time, the "Agreement") among Medpartners, Inc., the
Lenders, NationsBank, National Association (South), as Administrative Agent,
and The First National Bank of Chicago, as Documentation Agent. Terms defined
in the Agreement are used herein as defined therein.
In response to the Borrower's invitation dated __________, ____, we
hereby make the following Competitive Bid Quote(s) on the following terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. We hereby offer to make Competitive Bid Loan(s) in
the following principal amount[s], for the following Interest
Period(s) and at the following rate(s):
Borrowing Quotation Interest
Date Date (1) Amount(2) Type(3) Period (4) Rate(5)
--------------- --------------- ------ ---- --------------- ----
____________________
(1) As specified in the related Competitive Bid Quote Request.
(2) The principal amount bid for each Interest Period may not exceed the
principal amount requested. Bids must be made for at least $5,000,000 or a
larger integral multiple of $500,000.
(3) Indicate "Eurodollar Margin" (in the case of Eurodollar Market Loans) or
"Absolute Rate" (in the case of Absolute Rate Loans).
(4) One, two, three or six months, in the case of a Eurodollar Market Loan or,
in the case of an Absolute Rate Loan, a period of not less than 7 nor more than
180 days after the making of such Absolute Rate Loan and ending on a Business
Day, as specified in the related Competitive Bid Quote Request.
(5) For a Eurodollar Market Loan, specify margin over or under the Interbank
Offered Rate adjusted for the Eurodollar Reserve Percentage determined for the
applicable Interest Period. Specify percentage (rounded to the nearest 1/10,000
of 1%) and specify whether "PLUS" or "MINUS". For an Absolute Rate Loan,
specify rate of interest per annum (rounded to the nearest 1/10,000 of 1%).
H-1
154
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit
Agreement, irrevocably obligate[s] us to make the Competitive Bid Loan(s) for
which any offer(s) (is/are) accepted, in whole or in part (subject to the third
sentence of Section 2.2(e) of the Agreement).
Very truly yours,
[NAME OF BANK]
By:
-------------------------
Authorized Officer
Dated: ,
---------- ----
H-2
155
EXHIBIT I
Compliance Certificate
NationsBank, National Association,
as Administrative Agent
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telefacsimile: (000) 000-0000
Reference is hereby made to the Credit Agreement dated as of September
5, 1996 (as amended or supplemented from time to time, the "Agreement") among
MedPartners, Inc., a Delaware corporation (the "Borrower"), the Lenders (as
defined in the Agreement), NationsBank, National Association (South) , as
Administrative Agent for the Lenders ("Administrative Agent") and The First
National Bank of Chicago, as Documentation Agent for the Lenders
("Documentation Agent"). Capitalized terms used but not otherwise defined
herein shall have the respective meanings therefor set forth in the Agreement.
The undersigned, a duly authorized and acting Authorized Representative, hereby
certifies to you as of __________ (the "Determination Date") as follows1:
____________________
(1)Certificate is delivered in connection with an Acquisition pursuant
to Section 8.2 of the Agreement, as indicated by the signature of the
Authorized Representative in the following space: _________________________
_____________________________, then the calculations provided in this
Certificate include applicable financial information and results of operations
on a consolidated historical pro forma basis of both the Person to be acquired,
________________________, [insert name of Person to be acquired] and the
Borrower and its Subsidiaries, all as of and for the period ending on the
Determination Date specified in the compliance certificate most recently
required to be furnished to the Agent pursuant to Section 7.1 of the Agreement.
If this Certificate is either (x) delivered pursuant to Section 7.1(h)
of the Agreement in connection with the incurrence of any Designated
Caremark Litigation Costs (as indicated by the signature of the Authorized
Representative in the following space: _____________________________) or (y)
delivered during any Relevant Period pursuant to any of Section 7.1(a), 7.1(b)
or 8.2 of the Agreement (as indicated by the signature of the Authorized
Representative in the following space: _____________________________), then the
calculations provided in this Certificate include in the determination of
Consolidated Indebtedness the sum of Designated Caremark Litigation Costs plus
$100,000,000, which Designated Caremark Litigation Costs are more particularly
described on the Designated Caremark Litigation Costs Schedule attached hereto.
I-1
156
1. Calculations:
A. Compliance with Section 8.1(a): Consolidated
Net Worth
1. Required Consolidated Net Worth
at beginning of most recent
fiscal quarter $__________
2. Consolidated Net Income x .50 $__________
3. Increases in stated and
paid-in capital $__________
4. Sum of A.1. + A.2. + A.3 = $__________
5. Actual $__________
Required: Amount specified in Section 8.1(a).
B. Compliance with Section 8.1(b): Consolidated
Leverage Ratio
1. Consolidated Indebtedness $__________
2. Consolidated EBITDA $__________
(Four-Quarter Period)
3. Ratio of B.1 to B.2 _ _.__ to 1.00
Required: Line B.3 must not be greater
than the amount specified in Section
8.1(b).
C. Compliance with Section 8.1(c). Fixed Charge
Ratio
1. Consolidated EBITDA $__________
2. Consolidated Lease Payments $__________
3. C.1. + C.2. $__________
4. Consolidated Fixed Charges $__________
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5. Ratio of C.3. to C.4. _.__ to 1.00
Required: Line C.5. must not be less
than the amount specified in Section 8.1(c)
2. No Default
A. Since __________ (the date of the last
similar certification), (a) the Borrower has not defaulted in
the keeping, observance, performance or fulfillment of its
obligations pursuant to any of the Loan Documents; and (b) no
Default or Event of Default specified in Article IX of the
Agreement has occurred and is continuing.
B. If a Default or Event of Default has occurred
since __________ (the date of the last similar certification),
the Borrower proposes to take the following action with
respect to such Default or Event of Default:
_______________________________________________________________
_______________________________________________________________
_________________________________________.
(Note, if no Default or Event of Default has
occurred, insert "Not Applicable").
3. Caremark Excess Cash Flow
If the Guaranty Limitation Release Date shall not have
occurred, as indicated by the signature of the Authorized
Representative in the following space:
________________________, then (x) the Caremark Designated
Cash Flow Schedule attached hereto contains a true and correct
computation of the calculation of Caremark Excess Cash Flow
for the most recent fiscal quarter of the Borrower, and (y)
the Caremark Excess Cash Flow required to be distributed to
the Borrower pursuant to the Credit Agreement in respect of
such fiscal quarter has been so distributed.
The Determination Date is the date of the last required financial
statements submitted to the Lenders in accordance with Section 7.1 of the
Agreement.
IN WITNESS WHEREOF, I have executed this Certificate this _____ day of
__________, ________.
By:
--------------------------------
Authorized Representative
Name:
------------------------------
Title:
-----------------------------
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DESIGNATED CAREMARK LITIGATION COSTS SCHEDULE
(to Compliance Certificate dated
as of _______________, ________)
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CAREMARK EXCESS CASH FLOW SCHEDULE
(to Compliance Certificate dated
as of ______________, _______)
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EXHIBIT J
Form of Guaranty
THIS GUARANTY AND SURETYSHIP AGREEMENT (the "Guaranty Agreement" or
the "Guaranty"), dated as of _______________, is made by each of the
undersigned (each a "Guarantor" and collectively the "Guarantors") to
NATIONSBANK, NATIONAL ASSOCIATION (SOUTH), a national banking association, as
Administrative Agent (together with any successor in such capacity, the
"Administrative Agent") for itself and each of the lenders now or hereafter
party to the Credit Agreement (as defined below) (each a "Lender" and,
collectively, the "Lenders").
W I T N E S S E T H:
WHEREAS, the Administrative Agent, The First National Bank of Chicago,
as Documentation Agent for the Lenders (in such capacity, the "Documentation
Agent") and the Lenders have agreed to provide to MedPartners, Inc.(the
"Borrower") a revolving credit facility and letter of credit and swing line
subfacilities pursuant to the terms of that certain Credit Agreement dated as
of September 5, 1996 among the Borrower, the Administrative Agent, the
Documentation Agent and the Lenders (as from time to time amended, modified or
supplemented, the "Credit Agreement"); and
WHEREAS, each Guarantor is a direct or indirect Subsidiary of the
Borrower; and
WHEREAS, as a condition to entering into the Credit Agreement and
continuing to make any loans or advances or to issue letters of credit
thereunder, each Guarantor is required to guarantee payment of the Borrower's
Liabilities (as hereinafter defined) in accordance with the terms of this
Guaranty; and
WHEREAS, each Guarantor will materially benefit from the loans and
advances to be made, and the letters of credit to be issued, under the Credit
Agreement, and each Guarantor is willing to enter into this Guaranty to provide
an inducement for the Lenders, the Administrative Agent and the Documentation
Agent to execute and deliver the Credit Agreement and continue to make loans
and advances, and to issue letters of credit, under the Credit Agreement.
NOW, THEREFORE, in order to induce the Lenders, the Administrative
Agent and the Documentation Agent to execute and deliver the Credit Agreement
and to make loans and advances to the Borrower, and to issue letters of credit
for the account of the Borrower, under the Credit Agreement, each Guarantor
agrees as follows:
1. DEFINITIONS. All capitalized terms not otherwise defined
herein shall have the meanings ascribed to such terms in the Credit Agreement.
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2. GUARANTY. Each Guarantor hereby jointly and severally,
unconditionally, absolutely, continually and irrevocably guarantees to the
Administrative Agent and the Lenders the payment and performance in full of the
Borrower's Liabilities (as defined below). For all purposes of this Guaranty
Agreement, "Borrower's Liabilities" means: (a) the Borrower's prompt payment
in full, when due or declared due and at all such times, of all Obligations and
all other amounts pursuant to the terms of the Credit Agreement, the Notes, and
all other Loan Documents executed in connection with the Credit Agreement
heretofore, now or at any time or times hereafter owing, arising, due or
payable from the Borrower to the Lenders, including without limitation
principal, interest, premium or fee (including, but not limited to, loan fees
and attorneys' fees and expenses); and (b) the Borrower's prompt, full and
faithful performance, observance and discharge of each and every agreement,
undertaking, covenant and provision to be performed, observed or discharged by
the Borrower under the Credit Agreement and all other Loan Documents executed
in connection therewith. Each Guarantor's obligations to the Administrative
Agent and the Lenders under this Guaranty Agreement are hereinafter
collectively referred to as the "Guarantors' Obligations"; provided, however,
that the liability of each Guarantor with respect to the Guarantors'
Obligations shall not exceed at any time the Maximum Amount (as hereinafter
defined). The "Maximum Amount" means the greater of (X) the aggregate amount
of all funds advanced to such Guarantor directly or indirectly with the
proceeds of Loans and not theretofore repaid by such Guarantor or (Y) 95% of
(i) the fair salable value of the assets of such Guarantor as of the date
hereof minus (ii) the total liabilities of such Guarantor (including contingent
liabilities, but excluding liabilities of such Guarantor under this Guaranty
and any other Loan Documents executed by such Guarantor) as of the date hereof;
provided further, however, that if the calculation of the Maximum Amount in the
manner provided in clause (Y) above as of the date payment is required of such
Guarantor pursuant to this Guaranty would result in a greater positive number,
then the Maximum Amount as computed under such clause (Y) shall be deemed to be
such greater positive number.
Each Guarantor agrees that it is jointly and severally, directly and
primarily liable for the Borrower's Liabilities.
3. PAYMENT. If the Borrower shall default in payment or
performance of any Borrower's Liabilities, whether principal, interest,
premium, fee (including, but not limited to, loan fees and attorneys' fees and
expenses), or otherwise, when and as the same shall become due, whether
according to the terms of the Credit Agreement, by acceleration, or otherwise,
or upon the occurrence of any other Event of Default under the Credit Agreement
that has not been cured or waived, then each Guarantor, upon demand thereof by
the Administrative Agent or its successors or assigns, will AS OF THE DATE OF
THE ADMINISTRATIVE AGENT'S DEMAND fully pay to the Administrative Agent, for
the benefit of itself and the Lenders, as applicable, subject to any
restriction set forth in Section 2 hereof, an amount equal to all Guarantor's
Obligations then due and owing.
4. UNCONDITIONAL OBLIGATIONS. This is a guaranty of payment and
not of collection. The Guarantors' Obligations under this Guaranty Agreement
shall be joint and several, absolute and unconditional irrespective of the
validity, legality or enforceability of the Credit Agreement, the Notes or any
other Loan Document or any other guaranty of the Borrower's Liabilities, and
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shall not be affected by any action taken under the Credit Agreement, the Notes
or any other Loan Document, any other guaranty of the Borrower's Liabilities,
or any other agreement between the Administrative Agent, the Documentation
Agent or the Lenders and the Borrower or any other person, in the exercise of
any right or power therein conferred, or by any failure or omission to enforce
any right conferred thereby, or by any waiver of any covenant or condition
therein provided, or by any acceleration of the maturity of any of the
Borrower's Liabilities, or by the release or other disposal of any security for
any of the Borrower's Liabilities, or by the dissolution of the Borrower or the
combination or consolidation of the Borrower into or with another entity or any
transfer or disposition of any assets of the Borrower or by any extension or
renewal of the Credit Agreement, any of the Notes or any other Loan Document,
in whole or in part, or by any modification, alteration, amendment or addition
of or to the Credit Agreement, any of the Notes or any other Loan Document, any
other guaranty of the Borrower's Liabilities, or any other agreement between
the Administrative Agent, the Documentation Agent or the Lenders and the
Borrower or any other Person, or by any other circumstance whatsoever (with or
without notice to or knowledge of any Guarantor) which may or might in any
manner or to any extent vary the risks of any Guarantor, or might otherwise
constitute a legal or equitable discharge of a surety or guarantor; it being
the purpose and intent of the parties hereto that this Guaranty Agreement and
the Guarantors' Obligations hereunder shall be absolute and unconditional under
any and all circumstances and shall not be discharged except by payment as
herein provided.
5. CURRENCY AND FUNDS OF PAYMENT. Each Guarantor hereby
guarantees that the Guarantors' Obligations will be paid in lawful currency of
the United States of America and in immediately available funds, regardless of
any law, regulation or decree now or hereafter in effect that might in any
manner affect the Borrower's Liabilities, or the rights of the Administrative
Agent or any Lender with respect thereto as against the Borrower, or cause or
permit to be invoked any alteration in the time, amount or manner of payment by
the Borrower of any or all of the Borrower's Liabilities.
6. EVENTS OF DEFAULT. In the event that (a) any Guarantor shall
file a petition to take advantage of any insolvency statute; (b) any Guarantor
shall commence or suffer to exist a proceeding for the appointment of a
receiver, trustee, liquidator or conservator of itself or of the whole or
substantially all of its property; (c) any Guarantor shall file a petition or
answer seeking reorganization or arrangement or similar relief under the
Federal bankruptcy laws or any other applicable law or statute of the United
States of America or any state or similar law of any other country; (d) a court
of competent jurisdiction shall enter an order, judgment or decree appointing a
custodian, receiver, trustee, liquidator or conservator of any Guarantor or of
the whole or substantially all of its properties, or approve a petition filed
against any Guarantor seeking reorganization or arrangement or similar relief
under the Federal bankruptcy laws or any other applicable law or statute of the
United States of America or any state or similar law of any other country, or
if, under the provisions of any other law for the relief or aid of debtors, a
court of competent jurisdiction shall assume custody or control of any
Guarantor or of the whole or substantially all of its properties and such
order, judgment, decree, approval or assumption remains unstayed or undismissed
for a period of thirty (30) consecutive days; (e) there is commenced against
any Guarantor any proceeding or petition seeking reorganization,
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arrangement or similar relief under the Federal bankruptcy laws or any other
applicable law or statute of the United States of America or any state, which
proceeding or petition remains unstayed or undismissed for a period of thirty
(30) consecutive days; (f) there shall occur an Event of Default under the
Credit Agreement; (g) any default shall occur in the payment of amounts due
hereunder; or (h) any other default shall occur hereunder which remains uncured
or unwaived for a period of thirty (30) days (each of the foregoing an "Event
of Default" hereunder); then notwithstanding any collateral that the
Administrative Agent or the Lenders may have available from Borrower or any
Guarantor or any other guarantor of the Borrower's Liabilities, or any other
party, at the Administrative Agent's election and without notice thereof or
demand therefor, so long as such Event of Default shall be continuing, the
Guarantors' Obligations shall immediately become due and payable.
7. SUITS. Each Guarantor from time to time shall pay to the
Administrative Agent for the benefit of the Lenders, on demand, at the
Administrative Agent's place of business set forth in the Credit Agreement or
such other address as the Administrative Agent shall give notice of to the
Guarantor, the Guarantors' Obligations as they become or are declared due, and
in the event such payment is not made forthwith, the Administrative Agent or
the Lenders or any of them may proceed to suit against any one or more or all
of the Guarantors. At the Administrative Agent's election, one or more and
successive or concurrent suits may be brought hereon by the Administrative
Agent against any one or more or all of the Guarantors, whether or not suit has
been commenced against the Borrower, any other guarantor of the Borrower's
Liabilities, or any other Person and whether or not the Administrative Agent or
any Lender has taken or failed to take any other action to collect all or any
portion of the Borrower's Liabilities.
8. SET-OFF AND WAIVER. Each Guarantor waives any right to assert
against the Administrative Agent and the Lenders as a defense, counterclaim,
set-off or cross claim, any defense (legal or equitable) or other claim which
such Guarantor may now or at any time hereafter have against the Borrower, the
Administrative Agent or the Lenders, without waiving any additional defenses,
set-offs, counterclaims or other claims otherwise available to such Guarantor.
If at any time hereafter the Administrative Agent or any Lender employs counsel
for advice or other representation to enforce the Guarantors' Obligations that
arise out of an Event of Default, then, in any of the foregoing events, all of
the reasonable attorneys' fees arising from such services and all expenses,
costs and charges in any way or respect arising in connection therewith or
relating thereto shall be jointly and severally paid by the Guarantors to the
Administrative Agent, for the benefit of the Administrative Agent and the
Lenders, on demand.
9. WAIVER; SUBROGATION.
(a) Each Guarantor hereby waives notice of the following events or
occurrences: (i) the Administrative Agent's or Documentation Agent's
acceptance of this Guaranty Agreement; (ii) the Lenders' heretofore, now or
from time to time hereafter loaning monies or giving or extending credit to or
for the benefit of the Borrower, whether pursuant to the Credit Agreement, the
Notes or the other Loan Documents, or any amendments, modifications, or
supplements thereto, or replacements or extensions thereof; (iii) the
Administrative Agent, the
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Lenders or the Borrower heretofore, now or at any time hereafter, obtaining,
amending, substituting for, releasing, waiving or modifying the Credit
Agreement, the Notes or any other Loan Documents; (iv) presentment, demand,
notices of default, non-payment, partial payment and protest; (v) the
Administrative Agent or the Lenders heretofore, now or at any time hereafter
granting to the Borrower (or any other party liable to the Lenders on account
of the Borrower's Liabilities) any indulgence or extensions of time of payment
of the Borrower's Liabilities; and (vi) the Administrative Agent or the Lenders
heretofore, now or at any time hereafter accepting from the Borrower or any
other person, any partial payment or payments on account of the Borrower's
Liabilities or any collateral securing the payment thereof or the
Administrative Agent settling, subordinating, compromising, discharging or
releasing the same. Each Guarantor hereby (a) agrees that the Administrative
Agent and each Lender may heretofore, now or at any time hereafter do any or
all of the foregoing in such manner, upon such terms and at such times as the
Administrative Agent and each Lender, in its sole and absolute discretion,
deems advisable, without in any way or respect impairing, affecting, reducing
or releasing such Guarantor from the Guarantors' Obligations, (b) consents to
each and all of the foregoing events or occurrences and (c) waives, to the
extent permitted by law, (1) any right of a surety or guarantor to any defense,
discharge, release or diminution of its liabilities hereunder as a result of
any of the foregoing events or occurrences, and (2) any right under N.C.G.S.
Section 26-7 or otherwise to require that resort be had to the Borrower or any
other guarantor of, or any property securing, all or any part of the Borrower's
Liabilities.
(b) Each Guarantor hereby agrees that payment or performance by
such Guarantor of the Guarantors' Obligations under this Guaranty Agreement may
be enforced by the Administrative Agent on behalf of the Lenders upon demand by
the Administrative Agent to such Guarantor without the Administrative Agent
being required, each Guarantor expressly waiving any right it may have to
require the Administrative Agent, to (i) prosecute collection or seek to
enforce or resort to any remedies against the Borrower or any other Guarantor
or any other guarantor of the Borrower's Liabilities, IT BEING EXPRESSLY
UNDERSTOOD, ACKNOWLEDGED AND AGREED TO BY EACH GUARANTOR THAT DEMAND UNDER THIS
GUARANTY AGREEMENT MAY BE MADE BY THE ADMINISTRATIVE AGENT, AND THE PROVISIONS
HEREOF ENFORCED BY THE ADMINISTRATIVE AGENT, EFFECTIVE AS OF THE FIRST DATE ANY
EVENT OF DEFAULT OCCURS AND IS CONTINUING UNDER THE CREDIT AGREEMENT, or (ii)
seek to enforce or resort to any remedies with respect to any security
interests, Liens or encumbrances granted to the Administrative Agent by the
Borrower or any other Person on account of the Borrower's Liabilities or any
guaranty thereof. Neither the Administrative Agent nor any Lender shall have
any obligation to protect, secure or insure any of the foregoing security
interests, Liens or encumbrances on the properties or interests in properties
subject thereto. The Guarantors' Obligations shall in no way be impaired,
affected, reduced, or released by reason of the Administrative Agent's or any
Lender's failure or delay to do or take any of the acts, actions or things
described in this Guaranty Agreement including, without limiting the generality
of the foregoing, those acts, actions and things described in this Section 9.
(c) Each Guarantor further agrees with respect to this Guaranty
Agreement that such Guarantor shall have no right of, and each Guarantor hereby
irrevocably waives all claims in
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the nature of, subrogation, reimbursement or indemnity, nor any right of
recourse to security for the Borrower's Liabilities.
10. EFFECTIVENESS; ENFORCEABILITY. This Guaranty Agreement shall
be effective as of the Closing Date, and shall continue in full force and
effect until the Borrower's Obligations (other than obligations in the nature
of continuing indemnities and liability for expenses which are not yet due and
payable, which shall survive as an obligation guarantied by the Guarantors
hereunder notwithstanding any termination hereof) are fully, finally and
irrevocably paid and satisfied, the Lenders shall be under no further
obligation to advance funds or issue Letters of Credit and there shall be no
Letters of Credit outstanding. The Administrative Agent shall give each
Guarantor written notice of such termination at each Guarantor's address set
forth below such Guarantor's execution hereof on the signature pages of this
Guaranty or such other address for the Guarantor as such Guarantor shall give
notice to the Administrative Agent in the manner provided for the giving of
notices under the Credit Agreement (the "Guarantor's Address"). This Guaranty
Agreement shall be binding upon and inure to the benefit of each Guarantor, the
Administrative Agent and the Lenders and their respective successors and
assigns. Notwithstanding the foregoing, no Guarantor may, without the prior
written consent of the Administrative Agent (which may be withheld in its
discretion), assign any rights, powers, duties or obligations hereunder. Any
claim or claims that the Administrative Agent and the Lenders may at any time
hereafter have against any Guarantor under this Guaranty Agreement may be
asserted by the Administrative Agent or any Lender by written notice directed
to any one or more or all of the Guarantors at the applicable Guarantor's
Address.
11. REPRESENTATIONS AND WARRANTIES. Each Guarantor warrants and
represents to the Administrative Agent for the benefit of the Lenders that it
is duly authorized to execute, deliver and perform this Guaranty Agreement,
that this Guaranty Agreement is legal, valid, binding and enforceable against
such Guarantor in accordance with its terms except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles; and that such Guarantor's execution, delivery and
performance of this Guaranty Agreement do not violate or constitute a breach of
any of its charter or governance documents or any agreement to which such
Guarantor is a party, or any law, order, rule, regulation, decree or award of
any applicable Governmental Authority or arbitral body.
12. EXPENSES. Each Guarantor agrees to be liable for the payment
of all reasonable fees and expenses, including attorney's fees, incurred by the
Administrative Agent or any Lender in connection with the enforcement of this
Guaranty Agreement.
13. REINSTATEMENT. Each Guarantor agrees that this Guaranty
Agreement shall continue to be effective or be reinstated, as the case may be,
at any time payment received by the Administrative Agent or any Lender under
the Credit Agreement or any other Loan Document or this Guaranty Agreement is
rescinded or must be restored for any reason.
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14. COUNTERPARTS. This Guaranty Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
constitute one and the same instrument.
15. RELIANCE. Each Guarantor represents and warrants to the
Administrative Agent, for the benefit of the Administrative Agent and the
Lenders, that: (a) such Guarantor has adequate means to obtain from Borrower,
on a continuing basis, information concerning Borrower and Borrower's financial
condition and affairs and has full and complete access to Borrower's books and
records; (b) such Guarantor is not relying on the Administrative Agent, the
Documentation Agent or any Lender, its or their employees, agents or other
representatives, to provide such information, now or in the future; (c) such
Guarantor is executing this Guaranty Agreement freely and deliberately, and
understands the obligations and financial risk undertaken by providing this
Guaranty; (d) such Guarantor has relied solely on the Guarantor's own
independent investigation, appraisal and analysis of Borrower and Borrower's
financial condition and affairs in deciding to provide this Guaranty and is
fully aware of the same; and (e) such Guarantor has not depended or relied on
the Administrative Agent, the Documentation Agent or any Lender, its or their
employees, agents or representatives, for any information whatsoever concerning
Borrower or Borrower's financial condition and affairs or other matters
material to such Guarantor's decision to provide this Guaranty or for any
counselling, guidance, or special consideration or any promise therefor with
respect to such decision. Each Guarantor agrees that neither the
Administrative Agent, the Documentation Agent nor any Lender has any duty or
responsibility whatsoever, now or in the future, to provide to any Guarantor
any information concerning Borrower or Borrower's financial condition and
affairs, other than as expressly provided herein, and that, if such Guarantor
receives any such information from the Administrative Agent, the Documentation
Agent or any Lender, its or their employees, agents or other representatives,
such Guarantor will independently verify the information and will not rely on
the Administrative Agent, the Documentation Agent or any Lender, its or their
employees, agents or other representatives, with respect to such information.
16. GOVERNING LAW.
(A) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH CAROLINA APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
(B) EACH PARTY HEREBY EXPRESSLY AND IRREVOCABLY AGREES
AND CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN
MAY BE INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE STATE
OF NORTH CAROLINA, UNITED STATES OF AMERICA AND, BY THE EXECUTION AND
DELIVERY OF THIS AGREEMENT, EXPRESSLY WAIVES ANY OBJECTION THAT IT MAY
HAVE NOW OR HEREAFTER TO THE LAYING OF THE VENUE OR TO THE
JURISDICTION OF ANY SUCH SUIT, ACTION OR
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PROCEEDING, AND IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO
THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING.
(C) EACH PARTY AGREES THAT SERVICE OF PROCESS MAY BE MADE
BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER
LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED
OR CERTIFIED MAIL (POSTAGE PREPAID) TO THE GUARANTOR'S ADDRESS (AS
HEREIN DEFINED) FOR EACH GUARANTOR AND AT THE ADDRESS OF SUCH OTHER
PARTY PROVIDED IN SECTION 10.02 OF THE CREDIT AGREEMENT OR BY ANY
OTHER METHOD OF SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN
EFFECT IN THE STATE OF NORTH CAROLINA.
(D) NOTHING CONTAINED IN SUBSECTIONS (B) OR (C) HEREOF
SHALL PRECLUDE ANY PARTY FROM BRINGING ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS IN THE COURTS OF ANY PLACE WHERE ANY OTHER PARTY OR ANY OF
SUCH PARTY'S PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE
EXTENT PERMITTED BY THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, EACH
PARTY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT
AND EXPRESSLY WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR
PROCEEDING, THE JURISDICTION OF ANY OTHER COURT OR COURTS WHICH NOW OR
HEREAFTER, BY REASON OF ITS PRESENT OR FUTURE DOMICILE, OR OTHERWISE,
MAY BE AVAILABLE TO IT.
(E) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION WITH THE FOREGOING, EACH PARTY
HEREBY AGREES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY
SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE
A JURY AND EACH PARTY HEREBY WAIVES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION THAT IT MAY HAVE THAT EACH ACTION OR
PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
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IN WITNESS WHEREOF, the parties have duly executed this Guaranty
Agreement on the day and year first written above.
GUARANTORS:
[insert names of Material
Subsidiaries]
WITNESS: By:
----------------------------
Name:
---------------------------
Title:
---------------------- --------------------------
----------------------
Address for Notices:
0000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxx 00000
Telefacsimile: (000) 000-0000
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ADMINISTRATIVE AGENT:
NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH), as Administrative Agent
for the Lenders
By:
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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EXHIBIT K
Form of Opinion of Borrower's Counsel
(Closing Date)
See attached.
K-1
171
Schedule 1.1
Assumed Debt
S-1
172
Schedule 1.1
Closing Date Prepayable Debt
S-2
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Schedule 1.1
Designated Caremark Litigation
1. In re Brand Name Prescription Drugs Antitrust Litigation MDL 977:
United States District Court, Northern District of Illinois
2. D.A.B. v. Caremark: United States District Court , Fourth Division of
Minnesota
3. Xxxxx Xxxxx v. Caremark: United States District Court, Fourth
Division of Minnesota
4. Xxxxxx Torrer v. Caremark: United States District Court, Southern
District of South Dakota
5. In re Caremark International Inc. Securities Litigation Xx. 00 X 0000:
Xxxxxx Xxxxxx Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxxx of Illinois
6. X. Xxxxxxxx v. Caremark: United States District Court, Northern
District of Illinois
7. Xxxxxxx Xxxxxxx v. Caremark: United States District Court, Northern
District of Illinois
8. Xxxxx Xxxxxx v. Caremark: Circuit Court, Xxxx County, Illinois
9. In re Caremark International Inc. Derivative Litigation No. 13670:
United States District Court, District of Delaware
10. Pharmacare, AKA Value Drug, Ltd. et al. v. Caremark: United States
District Court, District of Hawaii
11. Federal Trade Commission Investigation pertaining to pharmaceutical
industry practices, of which Caremark received notice in December
1994.
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Schedule 1.1
Additional Settlement Agreements
None.
S-4
175
Schedule 1.1
Insurer Settlement Agreements
S-5
176
Schedule 1.1
OIG Settlement Agreements
S-6
177
Schedule 1.1
Existing Letters of Credit
S-7
178
Schedule 6.4
Subsidiaries and Investments in Other Persons
S-8
179
Schedule 6.6
Other Indebtedness
S-9
180
Schedule 6.7
Liens
S-10
181
Schedule 6.8
Tax Matters
S-11
182
Schedule 6.10
Litigation
None.
S-12
183
Schedule 6.19
Employment Matters
S-13
184
Schedule 7.5
Insurance
S-14
185
Schedule 8.4
Indebtedness at Closing Date
S-15
