EXECUTION COPY
================================================================================
U.S. $495,000,000
CREDIT AGREEMENT
Dated as of March 20, 2001
Among
OMNICARE, INC.
as the Borrower,
THE LENDERS FROM TIME TO TIME PARTIES HERETO
LEHMAN COMMERCIAL PAPER INC.,
as a Syndication Agent,
SUNTRUST BANK,
as a Documentation Agent,
DEUTSCHE BANC ALEX. BROWN INC.,
as a Documentation Agent,
and
BANK ONE, NA
as Administrative Agent
UBS WARBURG LLC
Joint Lead Arranger
and a Syndication Agent
BANC ONE CAPITAL MARKETS, INC.
Joint Lead Arranger
and Sole Book Runner
================================================================================
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS..........................................................1
1.1. Certain Defined Terms...........................................1
ARTICLE II
THE CREDITS.........................................................14
2.1. The Syndicated Loans...........................................14
2.2. Repayment of the Syndicated Loans..............................15
2.3. Ratable Loans; Types of Syndicated Advances....................15
2.4. Minimum Amount of Each Syndicated Advance......................15
2.5. Optional Prepayments of Syndicated Loans.......................15
2.6. Method of Selecting Types and Interest Periods for New
Syndicated Advances..........................................16
2.7. Conversion and Continuation of Outstanding Syndicated Advances.16
2.8. Payment of Interest on Advances; Changes in Interest Rate......17
2.9. Swing Line Loans...............................................18
2.10. Commitment Fees; Reductions/Increases in Aggregate Commitment..19
2.11. Rates Applicable After Default.................................20
2.12. Method of Payment..............................................21
2.13. Noteless Agreement; Evidence of Indebtedness; Telephonic
Notices......................................................21
2.14. Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions........................................22
2.15. Lending Installations..........................................22
2.16. Non-Receipt of Funds by the Agent..............................22
2.17. Withholding Tax Exemption......................................22
2.18. Termination....................................................23
2.19. Letter of Credit Facility......................................23
2.19.1. Letters of Credit..........................................23
2.19.2. Letter of Credit Participation.............................24
2.19.3. Reimbursement Obligation...................................24
2.19.4. Cash Collateral............................................25
2.19.5. Letter of Credit Fees......................................25
2.19.6. Indemnification; Exoneration...............................25
2.19.7. Transitional Letter of Credit Provisions...................26
ARTICLE III
CHANGE IN CIRCUMSTANCES.............................................27
3.1. Yield Protection...............................................27
3.2. Changes in Capital Adequacy Regulations........................27
3.3. Availability of Types of Syndicated Advances...................28
3.4. Funding Indemnification........................................28
3.5. Mitigation; Lender Statements; Survival of Indemnity...........28
i
ARTICLE IV
CONDITIONS PRECEDENT................................................29
4.1. Effectiveness; Initial Advance.................................29
4.2. Each Advance and Letter of Credit..............................31
ARTICLE V
REPRESENTATIONS AND WARRANTIES......................................31
5.1. Corporate Existence and Standing...............................31
5.2. Authorization and Validity.....................................32
5.3. No Conflict; Government Consent................................32
5.4. Financial Statements...........................................32
5.5. Material Adverse Change........................................32
5.6. Taxes..........................................................33
5.7. Litigation and Contingent Liabilities..........................33
5.8. Subsidiaries...................................................33
5.9. ERISA..........................................................33
5.10. Accuracy of Information........................................34
5.11. Regulation U...................................................34
5.12. Material Agreements............................................34
5.13. Compliance With Laws...........................................34
5.14. Ownership of Properties........................................34
5.15. Investment Company Act.........................................34
5.16. Public Utility Holding Company Act.............................34
5.17. Seniority of Obligations.......................................34
ARTICLE VI
COVENANTS...........................................................35
6.1. Financial Reporting............................................35
6.2. Use of Proceeds................................................36
6.3. Notice of Default..............................................37
6.4. Conduct of Business............................................37
6.5. Taxes..........................................................37
6.6. Insurance......................................................37
6.7. Compliance with Laws...........................................37
6.8. Maintenance of Properties......................................37
6.9. Inspection.....................................................37
6.10. Merger.........................................................38
6.11. Sale of Assets.................................................38
6.12. Prepayments....................................................38
6.13. Affiliates.....................................................39
6.14. Investments....................................................39
6.15. Contingent Obligations.........................................40
6.16. Liens..........................................................41
6.17. Minimum Consolidated Net Worth.................................42
6.18. Fixed Charges Coverage.........................................42
ii
6.19. Acquisitions...................................................42
6.20. Supplemental Guarantors........................................42
6.21. Subordinated Indebtedness......................................43
ARTICLE VII
DEFAULTS............................................................43
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES......................46
8.1. Acceleration...................................................46
8.2. Amendments.....................................................46
8.3. Preservation of Rights.........................................47
ARTICLE IX
GENERAL PROVISIONS..................................................47
9.1. Survival of Representations....................................47
9.2. Governmental Regulation........................................48
9.3. Stamp Duties...................................................48
9.4. Headings.......................................................48
9.5. Entire Agreement; Independence of Covenants....................48
9.6. Several Obligations; Benefits of this Agreement................48
9.7. Expenses; Indemnification......................................48
9.8. Numbers of Documents...........................................49
9.9. Accounting.....................................................49
9.10. Severability of Provisions.....................................49
9.11. Nonliability of Lenders........................................49
9.12. CHOICE OF LAW..................................................50
9.13. CONSENT TO JURISDICTION........................................50
9.14. WAIVER OF JURY TRIAL...........................................50
9.15. Confidentiality................................................50
ARTICLE X
THE AGENT...........................................................50
10.1. Appointment....................................................50
10.2. Powers.........................................................51
10.3. General Immunity...............................................51
10.4. No Responsibility for Loans, Recitals, Etc.....................51
10.5. Action on Instructions of Lenders..............................51
10.6. Employment of Agents and Counsel...............................51
10.7. Reliance on Documents; Counsel.................................52
10.8. Agent's Reimbursement and Indemnification......................52
10.9. Rights as a Lender.............................................52
10.10. Lender Credit Decision.........................................52
10.11. Successor Agent................................................53
10.12. Agent's Fee....................................................53
iii
10.13. Syndication Agents, Documentation Agents, etc..................53
10.14. Notice of Default..............................................53
10.15. Guarantor Releases.............................................54
ARTICLE XI
SETOFF; RATABLE PAYMENTS............................................54
11.1. Setoff.........................................................54
11.2. Ratable Payments...............................................54
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS...................54
12.1. Successors and Assigns.........................................54
12.2. Participations.................................................55
12.2.1. Permitted Participants; Effect.............................55
12.2.2. Voting Rights..............................................55
12.2.3. Benefit of Setoff..........................................55
12.3. Assignments....................................................56
12.3.1. Permitted Assignments......................................56
12.3.2. Effect; Effective Date.....................................56
12.4. Dissemination of Information...................................57
12.5. Tax Treatment..................................................57
ARTICLE XIII
NOTICES.............................................................57
13.1. Notices........................................................57
13.2. Change of Address..............................................57
ARTICLE XIV
COUNTERPARTS........................................................58
iv
SCHEDULES
---------
Schedule I - Pricing Schedule
Schedule II - Commitments
Schedule III - Existing Letters of Credit
Schedule IV - Disclosure Schedule
Schedule V - Initial Guarantors
EXHIBITS
--------
Exhibit A - Form of Syndicated Note
Exhibit B - Required Opinions
Exhibit C - Form of Compliance Certificate
Exhibit D - Form of Assignment Agreement
Exhibit E - Form of Loan/Credit Related Money Transfer Instruction
Exhibit F - Form of Syndicated Advance Borrowing Notice
Exhibit G - Form of Prepayment Notice
Exhibit H - Form of Conversion/Continuation Notice
Exhibit I - Form of Commitment and Acceptance
v
THIS CREDIT AGREEMENT, dated as of March 20, 2001, is among
OMNICARE, INC., as the Borrower, the lenders named herein, as the Lenders,
Lehman Commercial Paper Inc., as a Syndication Agent, SunTrust Bank, as a
Documentation Agent, Deutsche Banc Alex. Brown Inc., as a Documentation Agent,
and Bank One, NA, with its main office in Chicago, Illinois, as the
Administrative Agent (in such capacity, the "Agent"). The parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms. As used in this Agreement the following
terms shall have the following meanings, such meanings being equally applicable
to both the singular and plural forms of the terms defined:
"Acquisition" means any transaction, or any series of related
transactions, by which the Borrower or any of its Subsidiaries (a) acquires any
going business or all or substantially all of the assets of any firm,
corporation or division thereof which constitutes a going business, whether
through purchase of assets, merger or otherwise or (b) directly or indirectly
acquires (in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the happening of a
contingency) or a majority (by percentage or voting power) of the outstanding
partnership interests of a partnership or a majority (by percentage or voting
power) of the outstanding ownership interests of a limited liability company.
"Advance" means a Syndicated Advance.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with such Person.
A Person shall be deemed to control another Person if the controlling Person
owns 10% or more of any class of voting securities (or other ownership
interests) of the controlled Person or possesses, directly or indirectly, the
power to direct or cause the direction of the management or policies of the
controlled Person, whether through ownership of stock, by contract or otherwise.
"Agent" means Bank One in its capacity as agent for the Lenders
pursuant to Article X, and not in its capacity as a Lender, and any successor
Agent appointed pursuant to Article X.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders, as increased or reduced from time to time pursuant to the terms
hereof.
"Agreement" means this Credit Agreement, as it may from time to time
be amended, restated, supplemented or otherwise modified.
"Agreement Accounting Principles" means GAAP, applied in a manner
consistent with that used in preparing the financial statements referred to in
Section 5.4.
"Alternate Base Rate" means, for any day, a rate of interest per
annum equal to the higher of (a) the Prime Rate for such day and (b) the sum of
Federal Funds Effective Rate for such day plus 0.50% per annum.
"Applicable Commitment Fee Rate" means, for any date, the applicable
per annum Commitment Fee Rate set forth on the Pricing Schedule.
"Applicable Letter of Credit Fee Rate" means, for any date, with
respect to Letters of Credit issued pursuant to or governed by the terms of this
Agreement, the applicable per annum Letter of Credit Fee Rate set forth on the
Pricing Schedule.
"Applicable Margin" means, for any date, with respect to the Loans
comprising any Eurodollar Advance, the applicable rate per annum set forth on
the Pricing Schedule.
"Arrangers" means Banc One Capital Markets, Inc., a Delaware
corporation, and its successors, in its capacity as Joint Lead Arranger and Sole
Book Runner, and UBS Warburg LLC, a Delaware limited liability company, and its
successors, in its capacity as Joint Lead Arranger.
"Article" means an article of this Agreement unless another document
is specifically referenced.
"Authorized Officer" means any of the President, Executive Vice
President, Senior Vice President, Vice President, Finance or Treasurer of the
Borrower, or any Person designated by any two of the foregoing, acting singly.
"Bank One" means Bank One, NA, with its main office in Chicago,
Illinois, in its individual capacity, and its successors.
"Borrower" means Omnicare, Inc., a Delaware corporation, and its
successors and assigns.
"Borrowing Date" means a date on which an Advance or a Swing Line
Loan is made hereunder.
"Borrowing Notice" means a Syndicated Advance Borrowing Notice or a
Swing Line Borrowing Notice.
"Business Day" means (a) with respect to any borrowing, payment or
rate selection of Eurodollar Advances, a day (other than a Saturday or Sunday)
on which banks generally are open in Chicago, Illinois, New York, New York and
London for the conduct of substantially all of their commercial lending
activities and (b) for all other purposes, a day (other than a Saturday or
Sunday) on which banks generally are open in Chicago, Illinois and New York, New
York for the conduct of substantially all of their commercial lending
activities.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
2
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Change in Control" means (i) the acquisition by any Person, or two
or more Persons acting in concert, of beneficial ownership (within the meaning
of Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended) of 45% or more of the outstanding shares of
voting stock of the Borrower, (ii) a "Change of Control" as defined in the
Subordinated Indenture or (iii) a "Fundamental Change" as defined in the
Convertible Indenture.
"Chief Financial Officer" means, at any time, the Person who reports
to the board of directors of the Borrower on the financial affairs of the
Borrower and the Subsidiaries.
"Code" means the Internal Revenue Code of 1986, as amended, reformed
or otherwise modified from time to time.
"Commitment" means, for each Lender, the obligation of such Lender
to make Syndicated Loans and to purchase participations in Letters of Credit and
in Swing Line Loans not exceeding the amount set forth opposite its name on
Schedule II attached hereto or as set forth in any Notice of Assignment relating
to any assignment that has become effective pursuant to Section 12.3.2 or in any
Commitment and Acceptance that has become effective pursuant to Section 2.10(c),
as such amount may be modified from time to time pursuant to the terms hereof.
"Commitment and Acceptance" is defined in Section 2.10(c)(i).
"Condemnation" has the meaning specified in Section 7.8.
"Consolidated Fixed Charges" for any period means on a consolidated
basis for the Borrower and all of its Subsidiaries for such period, the sum of
(a) all interest paid in cash by the Borrower and all of its Subsidiaries (net
of interest income), including the cash interest component of Capitalized Lease
Obligations and Receivables Facility Financing Costs, (b) all payments of the
principal amount of any Indebtedness of the Borrower or any of its Subsidiaries
(including any redemption or purchase of any such Indebtedness but excluding any
payment of Indebtedness of a Subsidiary acquired subsequent to the date of this
Agreement if such Indebtedness is repaid within sixty (60) days of the
Acquisition of such Subsidiary and excluding Indebtedness incurred under this
Agreement), (c) all income or similar taxes paid in cash by the Borrower or any
of its Subsidiaries, and (d) all payments of Rentals by the Borrower or any of
its Subsidiaries, all as determined in accordance with Agreement Accounting
Principles.
"Consolidated Net Income" means, for any period, the consolidated
net income (or loss) of the Borrower and its Subsidiaries for such period
determined in accordance with Agreement Accounting Principles; provided, that
there shall be excluded (i) the income (or loss) of any Affiliate of the
Borrower or other Person (other than a Subsidiary of the Borrower) in which any
Person (other than the Borrower or any of its Subsidiaries) has a joint
interest, except to the extent of the amount of dividends or other distributions
actually paid to the Borrower or any of its Subsidiaries by such Affiliate or
other Person during such period and (ii) the income (or loss) of any Person
accrued prior to the date it becomes a Subsidiary of the Borrower or is
3
merged into or consolidated with the Borrower or any of its Subsidiaries or that
Person's assets are acquired by the Borrower or any of its Subsidiaries.
"Consolidated Net Worth" means, as of the date of any determination
thereof, the amount of the shareholders' equity of the Borrower and its
Subsidiaries as would be shown on the consolidated balance sheet of the Borrower
and its Subsidiaries determined on a consolidated basis in accordance with
Agreement Accounting Principles.
"Contingent Obligation" of a Person means any agreement, undertaking
or arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any operating agreement,
take-or-pay contract or application for or reimbursement agreement with respect
to a letter of credit (including any Letter of Credit).
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower or any of its Subsidiaries, are
treated as a single employer under Section 414 of the Code.
"Conversion/Continuation Notice" has the meaning specified in
Section 2.7.
"Convertible Notes" means the 5% Convertible Subordinated Debentures
due 2007 issued by the Borrower pursuant to the terms of the Convertible
Indenture.
"Convertible Indenture" means the Indenture dated as of December 10,
1997 by and between the Borrower and Bank One, NA (formerly known as The First
National Bank of Chicago), as Trustee, as the same may be amended or modified
from time to time, pursuant to which the Convertible Notes were issued.
"Default" means an event described in Article VII.
"Dollars" and "$" mean the lawful money of the United States.
"EBIT" for any period means Consolidated Net Income during such
period, plus (to the extent deducted in determining Consolidated Net Income) (a)
all provisions for any income or similar taxes paid or accrued by the Borrower
or any of its Subsidiaries during such period, (b) interest (including
Receivables Facility Financing Costs) paid or payable by the Borrower or any of
its Subsidiaries during such period as determined in accordance with Agreement
Accounting Principles and (c) extraordinary losses and minus (to the extent
included in Consolidated Net Income) (x) interest earned by the Borrower or any
of its Subsidiaries during such period and (y) extraordinary gains.
"Effective Date" means March 20, 2001.
4
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means a Syndicated Advance denominated in
Dollars that bears interest at a Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance
for the relevant Interest Period, the applicable British Bankers' Association
Interest Settlement Rate for deposits in U.S. dollars appearing on Reuters
Screen FRBD as of 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period, and having a maturity equal to such Interest
Period, provided that, (i) if Reuters Screen FRBD is not available to the Agent
for any reason, the applicable Eurodollar Base Rate for the relevant Interest
Period shall instead be the applicable British Bankers' Association Interest
Settlement Rate for deposits in U.S. dollars as reported by any other generally
recognized financial information service as of 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period, and having a
maturity equal to such Interest Period, and (ii) if no such British Bankers'
Association Interest Settlement Rate is available to the Agent, the applicable
Eurodollar Base Rate for the relevant Interest Period shall instead be the rate
determined by the Agent to be the rate at which Bank One or one of its Affiliate
banks offers to place deposits in U.S. dollars with first-class banks in the
London interbank market at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, in the approximate amount
of Bank One's relevant Eurodollar Loan and having a maturity equal to such
Interest Period.
"Eurodollar Interest Period" means, with respect to a Eurodollar
Advance, a period of one, two, three or six months or, if available from all of
the Lenders in their respective sole discretion, nine or twelve months,
commencing on a Business Day selected by the Borrower pursuant to this
Agreement; provided that, notwithstanding anything in this Agreement to the
contrary, during the Syndication Period, "Eurodollar Interest Period" means,
with respect to a Eurodollar Advance, a period of seven days. Other than during
the Syndication Period, such Eurodollar Interest Period shall end on (but
exclude) the day which corresponds numerically to such date one, two, three,
six, nine or twelve months thereafter, unless there is no such numerically
corresponding day in such next, second, third, sixth, ninth or twelfth
succeeding month, in which case such Eurodollar Interest Period shall end on the
last Business Day of such next, second, third, sixth, ninth or twelfth
succeeding month. If a Eurodollar Interest Period would otherwise end on a day
which is not a Business Day, such Eurodollar Interest Period shall end on the
next succeeding Business Day, unless said next succeeding Business Day falls in
a new calendar month, in which case such Eurodollar Interest Period shall end on
the immediately preceding Business Day.
"Eurodollar Loan" means a Syndicated Loan denominated in Dollars
which bears interest at a Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for
the relevant Eurodollar Interest Period, the sum of (a) the quotient of (i) the
Eurodollar Base Rate applicable to such Eurodollar Interest Period, divided by
(ii) one minus the Reserves (expressed as a decimal) applicable to such
Eurodollar Interest Period, plus (b) the Applicable Margin in effect from time
to time during such Eurodollar Interest Period.
5
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it, by (i) the jurisdiction under the laws of which
such Lender or the Agent is incorporated or organized or (ii) the jurisdiction
in which the Agent's or such Lender's principal executive office or such
Lender's applicable Lending Installation is located.
"Existing Agreements" has the meaning specified in Section
4.1(a)(9).
"Existing Letters of Credit" means the letters of credit described
on Schedule III hereto.
"Facility Termination Date" means March 20, 2004.
"Fair Value" means the value of the relevant asset determined in an
arm's-length transaction conducted in good faith between an informed and willing
buyer and an informed and willing seller under no compulsion to buy or sell.
"Federal Funds Effective Rate" means, for any day, an interest rate
per annum 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 for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.
"Financial Undertaking" of a Person means (a) any repurchase
obligation or liability of such Person or any of its Subsidiaries with respect
to accounts or notes receivable sold by such Person or any of its Subsidiaries,
(b) any liability under any sale and leaseback transactions which do not create
a liability on the consolidated balance sheet of such Person and its
Subsidiaries, (c) 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 sheet of such Person
and its Subsidiaries or (d) net liabilities under any 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, interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, and forward rate
currency or interest rate options.
"Fixed Charge Coverage Ratio" means, for any period, the ratio of
(a) the sum of (i) EBIT of the Borrower and all of its Subsidiaries plus (ii)
Rentals of the Borrower and all of its Subsidiaries on a consolidated basis to
(b) Consolidated Fixed Charges.
"Floating Rate" means, for any day, a rate per annum equal to the
Alternate Base Rate for such day, changing when and as the Alternate Base Rate
changes.
"Floating Rate Advance" means a Syndicated Advance denominated in
Dollars which bears interest at the Floating Rate.
6
"Floating Rate Loan" means a Syndicated Loan denominated in Dollars
which bears interest at the Floating Rate.
"GAAP" means generally accepted accounting principles as in effect
from time to time.
"Governmental Acts" has the meaning specified in Section 2.19.6(a).
"Governmental Authority" means any country or nation, any political
subdivision of such country or nation, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government of any country or nation or political subdivision thereof.
"Gross Negligence" means either recklessness or actions taken or
omitted with conscious indifference to or the complete disregard of
consequences. Gross Negligence does not mean the absence of ordinary care or
diligence, or an inadvertent act or inadvertent failure to act. If the term
"gross negligence" is used with respect to the Agent or any Lender or any
indemnitee in any of the other Loan Documents, it shall have the meaning set
forth herein.
"Guarantor" means (a) as of the date of this Agreement, the Initial
Guarantors and (b) each other Subsidiary added as a Guarantor pursuant to the
terms of Section 6.20 (a "Supplemental Guarantor"), and in each such case their
respective successors and assigns.
"Guaranty" means (a) each guaranty executed as of the date of this
Agreement by each of the Initial Guarantors and (b) each other guaranty executed
by a Supplemental Guarantor pursuant to the terms of Section 6.20, and in each
such case as the same may from time to time be amended, modified, supplemented
and/or restated.
"Health Care Company" means a Person that is engaged, directly or
indirectly, in (a) owning, operating or managing one or more facilities which
dispenses, markets or provides healthcare products or services, including,
without limitation, pharmaceutical products or services, (b) purchasing,
repackaging, selling or dispensing pharmaceutical products, (c) providing
healthcare consulting and billing services, (d) distributing medical supplies
and equipment, (e) providing infusion therapy products or services, (f)
providing respiratory services, equipment or supplies, (g) providing parenteral
and enteral nutrition products, wound care products, osotomy and urological
supplies, (h) providing home health care services, (i) providing dialysis
services, (j) providing contract pharmaceutical research services, (k) providing
disease and outcome management services, including formulary services, (l)
providing orthopedic supplies and services, (m) providing information
technology, including software products and services, to Persons engaged in any
of the foregoing businesses, including long term care institutions, (n)
providing any service or product described in the Standard Industrial
Classification Manual (1987 Revision) published by the Office of Management and
Budget under the heading Industry No. 5047, 5122, 5912 or 8731 or Major Group 80
as a whole, (o) providing any product or service ancillary or incidental to the
healthcare industry to any customer or client of any of the foregoing Persons,
or (p) providing any other healthcare related products or services.
7
"Indebtedness" of a Person means, without duplication, such Person's
(a) obligations for borrowed money, (b) obligations representing the deferred
purchase price of Property or services (other than accounts payable arising in
the ordinary course of such Person's business payable on terms customary in the
trade), (c) obligations, whether or not assumed, secured by Liens or payable out
of the proceeds or production from Property now or hereafter owned or acquired
by such Person, (d) obligations which are evidenced by notes, acceptances, or
other instruments, (e) Capitalized Lease Obligations, (f) Financial
Undertakings, (g) Contingent Obligations, (h) obligations under or in connection
with a letter of credit (including any Letter of Credit) and (j) Receivables
Facility Attributed Indebtedness; but excluding, in any event, (i) amounts
payable by such Person in respect of covenants not to compete, and (ii) with
reference to the Borrower and its Subsidiaries, all obligations of the Borrower
and its Subsidiaries of the character referred to in this definition to the
extent owing to the Borrower or any Subsidiary of the Borrower.
"Indemnitee" has the meaning specified in Section 9.7.
"Initial Guarantors" means the Subsidiaries of the Borrower listed
on Schedule V hereto.
"Interest Period" means a Eurodollar Interest Period.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade), deposit account or contribution of capital by such Person to any other
Person or any investment in, or purchase or other acquisition of, the stock,
partnership interests, ownership interests in any limited liability company,
notes, debentures or other securities of any other Person made by such Person.
"Joint Venture" means any corporation, partnership, limited
liability company association, joint stock company, business trust or other
combined enterprise other than a Subsidiary in which or to which the Borrower or
any of its Subsidiaries has made an Investment to fund a business enterprise
which engages or will engage in a business in which the Borrower or any of its
Subsidiaries is engaged from time to time during the term of this Agreement.
"L/C Draft" means a draft drawn on the Agent pursuant to any of the
Letters of Credit.
"L/C Interest" has the meaning specified in Section 2.19.2.
"L/C Obligations" means an amount equal to the sum (without
duplication) of (i) the aggregate of the amount then available for drawing under
each of the Letters of Credit, (ii) the face amounts of all outstanding L/C
Drafts corresponding to the Letters of Credit, which L/C Drafts have been
accepted by the Agent and (iii) the aggregate outstanding amount of
Reimbursement Obligations at such time.
"Lenders" means the lending institutions listed on the signature
pages of this Agreement or on any Commitment and Acceptance and their respective
successors and assigns.
8
"Lending Installation" means, with respect to a Lender, any office,
branch, subsidiary or affiliate of such Lender.
"Letter of Credit" means any of the Existing Letters of Credit or
any letter of credit issued pursuant to Section 2.19.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means a Syndicated Loan or a Swing Line Loan.
"Loan Documents" means this Agreement, the Notes, the Guaranties and
the applications, reimbursement agreements and other instruments and agreements
related to the Letters of Credit and L/C Interests.
"Material Adverse Effect" means a material adverse effect on (a) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of the Borrower and its Subsidiaries taken as a whole, (b) the
ability of the Borrower or the Guarantors to perform their respective
obligations under the Loan Documents, or (c) the validity or enforceability of
any of the Loan Documents or the rights or remedies of the Agent or the Lenders
thereunder.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a Plan, if any, maintained pursuant to a
collective bargaining agreement or any other arrangement to which the Borrower
or any member of the Controlled Group is a party to which more than one employer
is obligated to make contributions and which is a multiemployer plan within the
meaning of Section 3(37) of ERISA.
"New Lender" is defined in Section 2.10(c)(i).
"Note" means a Syndicated Note.
"Notice of Assignment" has the meaning specified in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all L/C Obligations, all accrued and unpaid fees and all
expenses, reimbursements, indemnities and other obligations of the Borrower to
the Lenders or to any Lender, the Agent or any indemnified party hereunder
arising under the Loan Documents.
"Original Lenders" means the Lenders that are parties hereto as of
the Effective Date.
"Originators" means the Borrower and/or any of its Subsidiaries in
their respective capacities as parties to any Receivables Purchase Documents, as
sellers or transferors of any Receivables and Related Security in connection
with a Permitted Receivables Transfer.
9
"Other Taxes" has the meaning specified in Section 9.3.
"Participants" has the meaning specified in Section 12.2.1.
"Payment Office" means the principal office of the Agent in Chicago,
Illinois, located on the date hereof at 1 Bank One Plaza, Chicago, Illinois
60670 or such other office of the Agent as the Agent may from time to time
designate by written notice to the Borrower and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Permitted Acquisition" means any Acquisition made by the Borrower
or any of its Subsidiaries provided that: (a) as of the date of such
Acquisition, no Default or Unmatured Default shall have occurred and be
continuing or would result from such Acquisition or from the incurrence of any
Indebtedness in connection with such Acquisition; (b) prior to the date of such
Acquisition, such Acquisition shall have been approved by the board of directors
and, if applicable, the shareholders of the Person whose stock or assets are
being acquired in connection with such Acquisition and no claim or challenge has
been asserted or threatened by any shareholder or director of such Person which
could reasonably be expected to have a material adverse effect on such
Acquisition or a Material Adverse Effect; (c) as of the date of any such
Acquisition, all approvals required in connection with such Acquisition shall
have been obtained; and (d) any such Acquisition is an Acquisition of the assets
or capital stock or other equity interests of a Person engaged in any line of
business being conducted by the Borrower or any of its Subsidiaries at the time
of such Acquisition or of a Health Care Company.
"Permitted Receivables Transfer" means (i) a sale or other transfer
by an Originator to a SPV or any other Person of Receivables and Related
Security for fair market value and without recourse (except for limited recourse
typical of such structured finance transactions), and/or (ii) a sale or other
transfer by an Originator or a SPV to (a) purchasers of or other investors in
such Receivables and Related Security or (b) any other Person (including a SPV)
in a transaction in which purchasers or other investors purchase or are
otherwise transferred such Receivables and Related Security, in each case
pursuant to and in accordance with the terms of the Receivables Purchase
Documents, provided that Receivables Facility Attributed Indebtedness incurred
in connection with the Receivables Purchase Documents does not exceed
$200,000,000 in the aggregate at any time.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by
Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Code as to which the Borrower or any member of the Controlled Group may
have any liability.
"Prepayment Notice" has the meaning specified in Section 2.5.
"Pricing Schedule" means the Schedule attached hereto as Schedule I.
10
"Prime Rate" means a rate per annum equal to the prime rate of
interest announced from time to time by Bank One or its parent (which is not
necessarily the lowest rate charged to any customer), changing when and as said
prime rate changes.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Purchasers" has the meaning specified in Section 12.3.1.
"Receivable(s)" means and includes all of applicable Originator's or
SPV's presently existing and hereafter arising or acquired accounts, accounts
receivable, and all present and future rights of such Originator or SPV, as
applicable, to payment for goods sold or leased or for services rendered (except
those evidenced by instruments or chattel paper), whether or not they have been
earned by performance, and all rights in any merchandise or goods which any of
the same may represent, and all rights, title, security and guaranties with
respect to each of the foregoing, including, without limitation, any right of
stoppage in transit.
"Receivables and Related Security" means the Receivables and the
related security and collections with respect thereto which are sold or
transferred by any Originator or SPV in connection with any Permitted
Receivables Transfer.
"Receivables Facility Attributed Indebtedness" means the amount of
obligations outstanding under a receivables purchase facility on any date of
determination that would be characterized as principal if such facility were
structured as a secured lending transaction rather than as a purchase.
"Receivables Facility Financing Costs" means such portion of the
cash fees, service charges, and other costs, as well as all collections or other
amounts retained by purchasers of receivables pursuant to a receivables purchase
facility, which are in excess of amounts paid to the Borrower and its
consolidated Subsidiaries under any receivables purchase facility for the
purchase of receivables pursuant to such facility and are the equivalent of the
interest component of the financing if the transaction were characterized as an
on-balance sheet transaction.
"Receivables Purchase Documents" means any series of receivables
purchase or sale agreements generally consistent with terms contained in
comparable structured finance transactions pursuant to which an Originator or
Originators sell or transfer to SPVs all of their respective right, title and
interest in and to certain Receivables and Related Security for further sale or
transfer to other purchasers of or investors in such assets (and the other
documents, instruments and agreements executed in connection therewith), as any
such agreements may be amended, restated, supplemented or otherwise modified
from time to time, or any replacement or substitution therefor.
"Receivables Purchase Facility" means the securitization facility
made available to the Borrower, pursuant to which the Receivables and Related
Security of the Originators are transferred to one or more SPVs, and thereafter
to certain investors, pursuant to the terms and conditions of the Receivables
Purchase Documents.
11
"Reimbursement Obligation" is defined in Section 2.19.3.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Rentals" of a Person means the aggregate fixed amounts payable by
such Person under any lease of Property having an original term (including any
required renewals or any renewals at the option of the lessor or lessee) of one
year or more.
"Reportable Event" means a reportable event as defined in Section
4043 of ERISA and the regulations issued under such section, with respect to a
Plan, excluding, however, such events as to which the PBGC by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event; provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at least
51% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least 51% of the aggregate
unpaid principal amount of the outstanding Advances and the L/C Obligations.
"Reserves" means, with respect to a Eurodollar Interest Period, the
maximum aggregate reserves (including all basic, supplemental, marginal and
other reserves) imposed under Regulation D on Eurocurrency liabilities.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Single Employer Plan" means a Plan, if any, maintained by the
Borrower or any member of the Controlled Group for employees of the Borrower or
any member of the Controlled Group.
"Specified Remittance Time" means (a) if the relevant Payment Office
is located in Chicago, 12:00 noon (Chicago time) and (b) if the relevant Payment
Office is located elsewhere, such time as the Agent shall specify after
consultation with the Borrower and the Lenders.
12
"SPV" means any special purpose entity established for the purpose
of purchasing receivables in connection with a receivables securitization
transaction permitted under the terms of this Agreement.
"Standard & Poor's" means Standard & Poor's Ratings Group, a
division of The McGraw-Hill Companies, Inc.
"Subordinated Notes" means the 8.125% Senior Subordinated Notes due
2011, issued by the Borrower pursuant to the Subordinated Indenture.
"Subordinated Indenture" means the Indenture dated as of March 20,
2001 by and between the Borrower and SunTrust Bank, as Trustee, as the same may
be amended or modified from time to time, pursuant to which the Subordinated
Notes were issued.
"Subsidiary" of a Person means (a) any corporation more than 50% of
the outstanding securities having ordinary voting power of which shall at the
time be owned or controlled, directly or indirectly, by such Person or by one or
more of its Subsidiaries or by such Person and one or more of its Subsidiaries,
or (b) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of the
Borrower and the Subsidiaries, Property that has a Fair Value representing more
than 5% of Consolidated Net Worth determined as of the end of the fiscal quarter
of the Borrower most recently ended prior to the date on which such
determination is made.
"Supplemental Guarantor" has the meaning given that term in the
definition of "Guarantor" above.
"Swing Line Borrowing Notice" has the meaning specified in Section
2.9(b).
"Swing Line Commitment" means the obligation of the Swing Line
Lender to make Swing Line Loans up to a maximum principal amount of $25,000,000
at any one time outstanding.
"Swing Line Lender" means Bank One or any other Lender as a
successor Swing Line Lender.
"Swing Line Loan" means a loan made available to the Borrower by the
Swing Line Lender pursuant to Section 2.9.
"Syndicated Advance" means a borrowing consisting of simultaneous
Syndicated Loans of the same Type made to the Borrower by each of the Lenders
pursuant to Section 2.1, and for, in the case of Eurodollar Advances, the same
Interest Period.
13
"Syndicated Advance Borrowing Notice" has the meaning specified in
Section 2.6.
"Syndicated Loan" means a loan by a Lender to the Borrower as part
of a Syndicated Advance.
"Syndicated Note" has the meaning specified in Section 2.13(iv).
"Syndication Period" means the period from the Effective Date to the
earlier of (i) April 16, 2001 and (ii) the date on which the Arrangers confirm
to the Borrower that the loan syndication process has been completed.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes and Other Taxes.
"Transferee" has the meaning specified in Section 12.4.
"Type" means, (a) with respect to any Syndicated Loan, its nature as
a Floating Rate Loan or a Eurodollar Loan and (b) with respect to any Syndicated
Advance, its nature as a Floating Rate Advance or a Eurodollar Advance.
"Unfunded Liabilities" means the amount (if any) by which the
present value of all vested nonforfeitable benefits under all Single Employer
Plans exceeds the Fair Value of all such Plan assets allocable to such benefits,
all determined by the then most recent actuarial reports for such Plans.
"United States" and "U.S." mean the United States of America.
"Unmatured Default" means an event which but for the lapse of time
or the giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (a) any Subsidiary all
of the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (b) any partnership, association, joint venture
or similar business organization 100% of the ownership interests having ordinary
voting power of which shall at the time be so owned or controlled.
ARTICLE II
THE CREDITS
2.1. The Syndicated Loans. From and including the date of this
Agreement and prior to the Facility Termination Date, each Lender severally
agrees, on the terms and conditions set forth in this Agreement (including,
without limitation, the terms and conditions of Section 2.10 and Section 8.1
relating to the reduction, suspension or termination of the Aggregate
Commitment), to make Syndicated Loans to the Borrower from time to time in an
14
aggregate amount not to exceed at any one time outstanding the amount of such
Lender's Commitment; provided, however, that the Aggregate Commitment shall be
deemed used from time to time to the extent of the aggregate L/C Obligations and
the balance of any Swing Line Loans then outstanding, and such deemed use of the
Aggregate Commitment shall be applied to the Lenders ratably according to their
respective Commitments. Subject to the terms of this Agreement (including,
without limitation, the terms and conditions of Section 2.10 and Section 8.1
relating to the reduction, suspension or termination of the Aggregate
Commitment), the Borrower may borrow, repay and reborrow Syndicated Loans at any
time prior to the Facility Termination Date. Unless earlier terminated in
accordance with the terms and conditions of this Agreement, the Commitments of
the Lenders to lend hereunder shall expire on the Facility Termination Date.
Notwithstanding anything herein to the contrary, each of the Lenders shall be
required to fund its ratable share of any Advance made in connection with any
L/C Drafts notwithstanding that such Advance may be made on or after the date of
any reduction, suspension or termination of the Aggregate Commitment pursuant to
Section 2.10(b) or Section 8.1.
2.2. Repayment of the Syndicated Loans. Any outstanding Syndicated
Loans shall be paid in full by the Borrower on the Facility Termination Date;
provided, however, that nothing in this Section 2.2 shall be construed as
limiting or modifying the obligation of the Borrower to repay any or all of the
outstanding Syndicated Loans at any earlier time in accordance with the terms of
this Agreement.
2.3. Ratable Loans; Types of Syndicated Advances. Each Syndicated
Advance hereunder shall consist of Syndicated Loans made from the several
Lenders ratably in proportion to the ratio that their respective Commitments
bear to the Aggregate Commitment. Any Syndicated Advance may be a Floating Rate
Advance or a Eurodollar Advance, as the Borrower shall select in accordance with
Sections 2.6 and 2.7; provided that, notwithstanding anything herein to the
contrary, the Borrower may not select Interest Periods for Eurodollar Advances
made during the Syndication Period which exceed seven days, and the Interest
Periods with respect to all such Eurodollar Advances outstanding at any time
during the Syndication Period shall expire on the same date.
2.4. Minimum Amount of Each Syndicated Advance. Each Syndicated
Advance shall be in a minimum amount not less than $15,000,000 or an integral
multiple of $1,000,000 in excess thereof; provided, however, that any Syndicated
Advance may be in the amount of the unused Aggregate Commitment.
2.5. Optional Prepayments of Syndicated Loans. Subject to Section
3.4 and the requirements of Section 2.4, the Borrower may (a) following notice
given to the Agent by the Borrower, in the form attached hereto as Exhibit G (a
"Prepayment Notice") by not later than 10:00 a.m. (Chicago time) one Business
Day prior to the date of the proposed prepayment, such notice specifying the
aggregate principal amount of and the proposed date of the prepayment, and if
such notice is given the Borrower shall, prepay the outstanding principal
amounts of the Floating Rate Loans comprising part of the same Syndicated
Advance in whole or ratably in part, together with accrued interest to the date
of such prepayment on the principal amount prepaid and (b) following a
Prepayment Notice given to the Agent by the Borrower by not later than 10:00
a.m. (Chicago time) on, if the Advance to be prepaid is a Eurodollar Advance,
the third
15
Business Day preceding the date of the proposed prepayment, such notice
specifying the Advance to be prepaid and the proposed date of the prepayment,
and, if such notice is given, such Borrower shall, prepay the outstanding
principal amounts of the Eurodollar Loans comprising a Eurodollar Advance in
whole or ratably in part, together with accrued interest to the date of such
prepayment on the principal amount prepaid, provided that the portion of any
Advance that is not prepaid hereunder shall continue to satisfy the minimum
amount for such Advance specified in Section 2.4. In the case of a Floating Rate
Advance, each partial prepayment shall be in an aggregate principal amount not
less than $1,000,000, and in the case of a Eurodollar Advance, each partial
prepayment shall be in a minimum aggregate principal amount of $5,000,000 or any
integral multiple of $1,000,000 in excess thereof.
2.6. Method of Selecting Types and Interest Periods for New
Syndicated Advances. The Borrower shall select the Type of each Syndicated
Advance and, in the case of a Eurodollar Advance, the Interest Period applicable
to such Syndicated Advance from time to time. The Borrower shall give the Agent
irrevocable notice, in the form attached hereto as Exhibit F (a "Syndicated
Advance Borrowing Notice"), not later than 10:00 a.m. (Chicago time) (i) on the
Borrowing Date for each Floating Rate Advance and (ii) at least three Business
Days before the Borrowing Date for each Eurodollar Advance, specifying:
(a) the Borrowing Date, which shall be a Business Day,
of such Advance,
(b) the aggregate amount of such Advance,
(c) the Type of such Advance, and
(d) in the case of each Eurodollar Advance, the Interest
Period applicable thereto.
Not later than the Specified Remittance Time on each Borrowing Date, each Lender
shall make available its Syndicated Loan or Syndicated Loans to the Agent in
immediately available funds at the relevant Payment Office. To the extent that
the Agent has received funds from the Lenders as specified in the preceding
sentence and the applicable conditions set forth in Article IV have been
fulfilled, the Agent will make such funds available to the Borrower at the
relevant Payment Office within two hours following the Specified Remittance
Time, it being understood that if the relevant Payment Office is located in
Chicago, the Agent will make the applicable funds available to the Borrower by
depositing such funds to such account with Bank One as the Borrower shall
designate.
2.7. Conversion and Continuation of Outstanding Syndicated Advances.
Floating Rate Advances shall continue as Floating Rate Advances unless and until
such Floating Rate Advances are converted into Eurodollar Advances or prepaid
pursuant to Section 2.5. Each Eurodollar Advance of any Type shall continue as a
Eurodollar Advance of such Type until the end of the then applicable Interest
Period therefor, at which time such Eurodollar Advance shall be automatically
converted into a Floating Rate Advance unless the Borrower shall have given the
Agent a Conversion/Continuation Notice requesting that, at the end of such
Interest Period, such Eurodollar Advance either continue as a Eurodollar Advance
of such Type for the same or
16
another Interest Period or be converted into an Advance of another Type. Subject
to the terms of Section 2.6, the Borrower may elect from time to time to convert
all or any part of a Syndicated Advance of any Type into any other Type or Types
of Syndicated Advances; provided that any conversion of any Eurodollar Advance
shall be made on, and only on, the last day of the Interest Period applicable
thereto. The Borrower shall give the Agent irrevocable notice in the form of
Exhibit H hereto (a "Conversion/Continuation Notice") of each conversion of an
Advance or continuation of a Eurodollar Advance not later than 10:00 a.m.
(Chicago time) (i) in the case of a conversion into a Floating Rate Advance on
the date of such conversion and (ii) in the case of a conversion into or
continuation of a Eurodollar Advance, at least three Business Days before the
date of such conversion or continuation, specifying:
(a) the requested date, which shall be a Business Day,
of such conversion or continuation;
(b) the aggregate amount and Type of the Syndicated
Advance which is to be converted or continued; and
(c) the amount and Type(s) of Syndicated Advance(s) into
which such Syndicated Advance is to be converted or continued
and, in the case of a conversion into or continuation of a
Eurodollar Advance, the duration of the Interest Period
applicable thereto.
2.8. Payment of Interest on Advances; Changes in Interest Rate.
(a) Interest accrued on each Floating Rate Advance shall be payable
on the last Business Day of each calendar quarter and on the earliest of the
Facility Termination Date, the date of the reduction to zero of the Aggregate
Commitment pursuant to Section 2.10 and the date of the acceleration of the
Obligations pursuant to Section 8.1. Interest accrued on each Eurodollar Advance
shall be payable on the last day of its applicable Interest Period, on any date
on which such Eurodollar Advance is prepaid, whether by acceleration or
otherwise, and at maturity. Interest accrued on each Eurodollar Advance having
an Interest Period longer than three months shall also be payable on the last
day of each three-month interval during such Interest Period. Interest on
Floating Rate Advances shall be calculated for actual days elapsed on the basis
of a 365/366-day year. Interest on Eurodollar Advances shall be calculated for
actual days elapsed on the basis of a 360-day year. Interest shall be payable
for the day a Syndicated Advance is made but not for the day of any payment on
the amount paid if payment is received prior to noon (local time) at the place
of payment. If any payment of principal of or interest on a Syndicated Advance
shall become due on a day which is not a Business Day, such payment shall be
made on the next succeeding Business Day and, in the case of a principal
payment, such extension of time shall be included in computing interest in
connection with such payment.
(b) Each Floating Rate Advance shall bear interest on the
outstanding principal amount thereof, for each day from and including the date
such Advance is made or is converted from a Eurodollar Advance into a Floating
Rate Advance pursuant to Section 2.7(b) to but excluding the date it becomes due
or is converted into a Eurodollar Advance pursuant to Section 2.7(b), at a rate
per annum equal to the Floating Rate for such day. Changes in the rate of
interest on each Syndicated Advance maintained as a Floating Rate Advance will
take effect
17
simultaneously with each change in the Alternate Base Rate. Each Eurodollar
Advance shall bear interest from and including the first day of the Interest
Period applicable thereto to (but not including) the last day of such Interest
Period at the Eurodollar Rate determined as applicable to such Eurodollar
Advance. No Interest Period may end after the Facility Termination Date.
2.9. Swing Line Loans.
(a) Amount of Swing Line Loans. Upon the satisfaction of the
conditions precedent set forth in Sections 4.1 and 4.2, from and including the
date of this Agreement and prior to the Facility Termination Date, the Swing
Line Lender agrees, on the terms and conditions set forth in this Agreement, to
make Swing Line Loans to the Borrower from time to time in an amount not to
exceed the lesser of (i) $25,000,000 or (ii) the amount by which the Aggregate
Commitment exceeds the sum of the outstanding principal amount of Syndicated
Advances and L/C Obligations. Each Swing Line Loan shall be in a minimum amount
of not less than $1,000,000 or an integral multiple of $500,000 in excess
thereof, and all interest payable on the Swing Line Loans shall be payable to
the Swing Line Lender for the account of such Swing Line Lender. In no event
shall the number of Swing Line Loans outstanding at any time be greater than
four (4).
(b) Borrowing Notice. The Borrower shall deliver to the Agent and
the Swing Line Lender a notice (a "Swing Line Borrowing Notice") signed by it
not later than 10:00 a.m. (Chicago time) on the Borrowing Date of each Swing
Line Loan specifying (i) the applicable Borrowing Date (which shall be a
Business Day) and (ii) the aggregate amount of the requested Swing Line Loan.
The Swing Line Loans shall at all times be Floating Rate Loans.
(c) Making of Swing Line Loans. Promptly after receipt of the Swing
Line Borrowing Notice under Section 2.9(b), the Agent shall notify each Lender
of the requested Swing Line Loan. Not later than 2:00 p.m. (Chicago time) on the
applicable Borrowing Date, the Swing Line Lender shall make available its Swing
Line Loan in funds immediately available in Chicago to the Agent at the address
specified by the Agent. The Agent will promptly make such funds available to the
Borrower.
(d) Repayment of Swing Line Loans. Each Swing Line Loan shall be
paid in full by the Borrower on or before the fifth Business Day after the
Borrowing Date for such Swing Line Loan. Outstanding Swing Line Loans may be
repaid from the proceeds of Syndicated Advances or Swing Line Loans. Any
repayment of a Swing Line Loan shall be accompanied by accrued interest thereon
and shall be in the minimum amount of $500,000 and in increments of $100,000 in
excess thereof or the full amount of such Swing Line Loan. If the Borrower at
any time fails to repay a Swing Line Loan on the applicable date when due, the
Borrower shall be deemed to have elected to borrow a Floating Rate Advance under
Section 2.1 as of such date equal in amount to the unpaid amount of such Swing
Line Loan (notwithstanding the minimum amount of Syndicated Advances as provided
in Section 2.4). The proceeds of any such Advance shall be used to repay such
Swing Line Loan. Unless the Required Lenders shall have notified the Swing Line
Lender prior to the Swing Line Lender making any Swing Line Loan, that the
applicable conditions precedent set forth in Article IV have not then been
satisfied, each Lender's obligation to make Loans pursuant to Section 2.1 and
this Section 2.9(d) to repay Swing Line Loans shall be unconditional,
continuing, irrevocable and absolute and shall not be
18
affected by any circumstances, including the occurrence or continuance of a
Default; provided that the Swing Line Lender shall not make a Swing Line Loan
if, at the time it would otherwise make such Loan, the Swing Line Lender has
actual knowledge that a Default has occurred and is continuing. In the event
that any Lender fails to make payment to the Agent of any amount due under this
Section 2.9(d), the Agent shall be entitled to receive, retain and apply against
such obligation the principal and interest otherwise payable to such Lender
hereunder until the Agent receives such payment from such Lender or such
obligation is otherwise fully satisfied. In addition to the foregoing, if for
any reason any Lender fails to make payment to the Agent of any amount due under
this Section 2.9(d) or if, for any reason Syndicated Advances cannot be made by
the Lenders hereunder, such Lender shall, or shall be deemed, at the option of
the Agent, to have unconditionally and irrevocably purchased from the Swing Line
Lender, without recourse or warranty, an undivided interest in and participation
in the applicable Swing Line Loan in the amount of the Loan such Lender was
required to make pursuant to this Section 2.9(d) and such interest and
participation may be recovered from such Lender together with interest thereon
at the Federal Funds Effective Rate for each day during the period commencing on
the date of demand by the Agent and ending on the date such obligation is fully
satisfied.
2.10. Commitment Fees; Reductions/Increases in Aggregate Commitment.
(a) Commitment Fees. The Borrower agrees to pay to the Agent for the
account of each Lender a commitment fee at a rate per annum equal to the
Applicable Commitment Fee Rate in effect from time to time on the daily unused
portion of such Lender's Commitment (treating the L/C Obligations and, with
respect solely to the Swing Line Lender, the outstanding balance of any Swing
Line Loans, as usage) from the date hereof to but excluding the earliest of the
Facility Termination Date, the date of the reduction to zero of the Aggregate
Commitment pursuant to this Section 2.10 and the date of the termination of the
Aggregate Commitment pursuant to Section 8.1. Such commitment fees shall be
payable in arrears on the last Business Day of each March, June, September and
December, and on the earliest of the Facility Termination Date, the date of the
reduction to zero of the Aggregate Commitment pursuant to this Section 2.10 and
the date of the termination of the Aggregate Commitment pursuant to Section 8.1.
Commitment fees shall be calculated for actual days elapsed on the basis of a
360-day year.
(b) Reductions in Aggregate Commitment. The Borrower may permanently
reduce the Aggregate Commitment in whole, or in part ratably among the Lenders
in integral multiples of $5,000,000, upon at least three Business Days' written
notice to the Agent, which notice shall specify the amount of any such
reduction; provided, however, that the amount of the Aggregate Commitment may
not be reduced below the sum of the aggregate principal amount of the
outstanding Advances and the aggregate outstanding L/C Obligations and Swing
Line Loans.
(c) Increase in Aggregate Commitment. (i) At the Borrower's option,
during the Syndication Period, the Aggregate Commitment shall be increased by
$5,000,000 prior to any transfer by any Original Lender of any interest of such
Original Lender under this Agreement pursuant to Section 12.2 or 12.3; provided
that (x) no Lender shall have any obligation to increase its Commitment pursuant
to this Section 2.10(c) and (y) without the prior written consent of all of the
Lenders, the Aggregate Commitment shall at no time exceed $500,000,000. Based on
notification to the Agent from the Arrangers of any new Commitment from one or
19
more financial institutions that shall have agreed to become a Lender party
hereto (a "New Lender") to provide a Commitment in support of such increase in
the Aggregate Commitment, the Agent shall notify the Borrower and the Lenders at
least four Business Days prior to the proposed effective date of such increase.
Any increase in the Aggregate Commitment shall be subject to the following
conditions precedent: (A) as of the proposed effective date of the increase in
the Aggregate Commitment, all representations and warranties shall be true and
correct in all material respects as though made on such date and no event shall
have occurred and then be continuing which constitutes a Default or Unmatured
Default, (B) the Borrower, the Agent and each New Lender that shall have agreed
to provide a Commitment in support of such increase in the Aggregate Commitment
shall have executed and delivered a "Commitment and Acceptance" substantially in
the form of Exhibit I hereto (a "Commitment and Acceptance"), (C) counsel for
the Borrower and for the Guarantors shall have provided to the Agent
supplemental opinions in form and substance reasonably satisfactory to the Agent
and (D) the Borrower and such New Lender shall otherwise have executed and
delivered such other instruments and documents as may be required under Article
IV or that the Agent shall have reasonably requested in connection with such
increase. Upon satisfaction of such conditions precedent to any increase in the
Aggregate Commitment, the Agent shall promptly advise the Borrower and each
Lender of the effective date of such increase. Upon the effective date of any
increase in the Aggregate Commitment, such New Lender shall be a party to this
Agreement as a Lender and shall have the rights and obligations of a Lender
hereunder.
(ii) On the effective date of any increase in the Aggregate
Commitment pursuant to clause (i) above, each New Lender shall make available to
the Agent by 12:00 noon (Chicago time) in immediately available funds an amount
equal to its ratable share (in accordance with its Commitment (or the increased
amount thereof) after giving effect to such increase in the Aggregate
Commitment) of the aggregate principal amount of the outstanding Syndicated
Advances on such date, and the Agent, upon receipt of such funds, shall promptly
deliver such funds ratably to the other Lenders, in same day funds, such that,
after giving effect to such transfers and to the increase in the Aggregate
Commitment, the outstanding Syndicated Advances on such effective date shall be
held by the Lenders (including each New Lender) pro rata in accordance with
their respective Commitments. The Agent shall give each New Lender reasonable
notice of the amount of its required funding on such effective date. In
connection with the foregoing reallocation of the outstanding Syndicated
Advances, if Eurodollar Advances are outstanding, the Borrower shall be deemed
to have repaid all outstanding Eurodollar Advances as of the effective date of
such increase in the Aggregate Commitment and reborrowed such amount as a
Floating Rate Advance and/or Eurodollar Advance (chosen in accordance with the
provisions of Section 2.3), and the indemnification provisions of Section 3.4
shall apply to such reallocation; provided that the Agent shall use reasonable
efforts to cause the effective date of such increase in the Aggregate Commitment
to be the last day of a Eurodollar Interest Period.
2.11. Rates Applicable After Default. Notwithstanding anything to
the contrary contained in Section 2.8, during the continuance of a Default or
Unmatured Default no Syndicated Advance may be made as, converted into or
continued as a Eurodollar Advance. Upon the occurrence and during the
continuance of a Default pursuant to Section 7.2 and, if the Required Banks so
elect, upon the occurrence and during the continuance of any other Default, (a)
each Eurodollar Advance, until paid in full or converted to a Floating Rate
Advance, shall bear interest at the Eurodollar Rate then applicable to such
Advance plus 2% per annum and (b)
20
each Floating Rate Advance shall bear interest until paid in full at a rate per
annum equal to the Floating Rate plus 2% per annum.
2.12. Method of Payment. All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds to the Agent at the Agent's address specified pursuant to
Article XIII, or at any other Lending Installation of the Agent specified in
writing by the Agent to the Borrower, by 12:00 noon (local time) on the date
when due and shall be remitted by the Agent to the Lenders according to their
respective interests therein. Each payment delivered to the Agent for the
account of any Lender shall be delivered promptly by the Agent to such Lender in
the same type of funds that the Agent received at its address specified pursuant
to Article XIII or at any Lending Installation specified in a notice received by
the Agent from such Lender. The Agent is hereby authorized, but is not
obligated, to charge the accounts of the Borrower maintained with Bank One into
which proceeds of Advances are remitted pursuant to Section 2.6 for each payment
of interest and fees as it becomes due hereunder, for each payment of principal,
in accordance with the applicable Prepayment Notice or when otherwise due and
payable in accordance with the terms hereof, and for each payment of
Reimbursement Obligations when due and payable in accordance with the terms
hereof.
2.13. Noteless Agreement; Evidence of Indebtedness; Telephonic
Notices. (i) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Syndicated Loan (and, in the case of the Swing Line Lender,
each Swing Line Loan) made by such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder.
(ii) The Agent shall also maintain accounts in which it will record
(a) the amount of each Syndicated Loan made hereunder, the Type thereof
and the Interest Period with respect thereto, (b) the amount of any
principal or interest due and payable or to become due and payable from
the Borrower to each Lender hereunder and (c) the amount of any sum
received by the Agent hereunder from the Borrower and each Lender's share
thereof.
(iii) The entries maintained in the accounts maintained pursuant to
paragraphs (i) and (ii) above shall be prima facie evidence of the
existence and amounts of the Obligations therein recorded; provided,
however, that the failure of the Agent or any Lender to maintain such
accounts or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Obligations in accordance with
their terms.
(iv) Any Lender may request that its Syndicated Loans be evidenced
by a promissory note in substantially the form of Exhibit A (a "Syndicated
Note"). In such event, the Borrower shall prepare, execute and deliver to
such Lender such Syndicated Note payable to the order of such Lender.
Thereafter, the Syndicated Loans evidenced by such Syndicated Note and
interest thereon shall at all times (including after any assignment
pursuant to Section 12.3) be represented by one or more Syndicated Notes
payable to the order of the payee named therein or any assignee pursuant
to Section 12.3, except to the extent that any such Lender or assignee
subsequently returns any such
21
Syndicated Note for cancellation and requests that such Syndicated Loans
once again be evidenced as described in paragraphs (i) and (ii) above.
(v) The Borrower hereby authorizes the Lenders and the Agent to
extend, convert or continue Advances and effect selections of Types of
Syndicated Advances based on telephonic notices made by any person or
persons the Agent in good faith believes to be acting on behalf of the
Borrower. The Borrower agrees to deliver promptly to the Agent a written
confirmation, if such confirmation is requested by the Agent or any
Lender, of each telephonic notice, signed by an Authorized Officer. If the
written confirmation differs in any material respect from the action taken
by the Agent and the Lenders, the records of the Agent of the relevant
telephonic notice shall govern absent manifest error.
2.14. Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions. Promptly after receipt thereof, the Agent will notify
each Lender of the contents of each Aggregate Commitment reduction notice,
Borrowing Notice, Conversion/Continuation Notice, and Prepayment Notice received
by it hereunder. The Agent will notify each Lender of the interest rate
applicable to each Eurodollar Advance promptly upon determination of such
interest rate and will give each Lender prompt notice of each change in the
Alternate Base Rate.
2.15. Lending Installations. Each Lender may book its Loans at any
one or more Lending Installations selected by such Lender and may change any
such Lending Installation from time to time. All terms of this Agreement shall
apply to any such Lending Installation and the Notes shall be deemed held by
each Lender for the benefit of such Lending Installation. Each Lender may, by
written or telex notice to the Agent and the Borrower, designate a Lending
Installation through which Loans will be made by it and for whose account Loan
payments are to be made.
2.16. Non-Receipt of Funds by the Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (a) in the case of a Lender, the
proceeds of a Loan or (b) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to (a) in the case of repayment by a Lender,
the Federal Funds Effective Rate for such day or (b) in the case of repayment by
the Borrower, the interest rate applicable to the relevant Loan.
2.17. Withholding Tax Exemption. At least five Business Days prior
to the first date on which interest or fees are payable hereunder for the
account of any Lender, each Lender that is not incorporated under the laws of
the United States of America, or a state thereof, agrees that it will deliver to
each of the Borrower and the Agent two duly completed copies of United
22
States Internal Revenue Service Form W-8BEN or W-8ECI or, in the case of a
Lender claiming exemption from the withholding of United States federal income
tax under Section 871(h) or 881(c) of the Code with respect to payments of
"portfolio interest," a certificate representing that such Lender is not (i) a
"bank" within the meaning of Section 881(c) of the Code or an Affiliate of such
a "bank," (ii) a ten-percent shareholder of the Borrower (within the meaning of
Section 871(h)(3)(B) of the Code) or (iii) a controlled foreign corporation
related to the Borrower (within the meaning of Section 864(d)(4) of the Code),
and a Form W-8BEN certifying in either case that such Lender is entitled to
receive payments under this Agreement and its Notes, if applicable, without
deduction or withholding of any United States federal income taxes. Each Lender
which so delivers a Form W-8BEN or W-8ECI further undertakes to deliver to each
of the Borrower and the Agent two additional copies of such form (or any
successor form or related form as may from time to time be required under
applicable law) on or before the date that such form expires (generally three
successive calendar years for Form W-8BEN and Form W-8ECI) or becomes obsolete
or after the occurrence of any event requiring a change in the most recent forms
so delivered by it, and such amendments thereto or extensions or renewals
thereof as may be reasonably requested by the Borrower or the Agent, in each
case certifying that such Lender is entitled to receive payments under this
Agreement and its Notes, if applicable, without deduction or withholding of any
United States federal income taxes, unless an event (including without
limitation any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form with respect to it and such Lender advises the
Borrower and the Agent that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax.
2.18. Termination. All unpaid Obligations shall be paid in full by
the Borrower on the Facility Termination Date; provided, however, that (a) all
Syndicated Loans made in connection with any of the Letters of Credit shall be
paid in full by the Borrower on the later of the Facility Termination Date and
the Business Day immediately following the date the relevant Syndicated Loan is
made, and (b) nothing in this Section 2.18 shall be construed as limiting or
modifying the obligation of the Borrower to repay any or all of the outstanding
Obligations at any earlier time in accordance with the terms of this Agreement.
2.19. Letter of Credit Facility.
2.19.1. Letters of Credit. Upon receipt of duly executed
applications therefor, and such other documents, instruments and agreements as
the Agent may reasonably require, and subject to the provisions of Article IV,
the Agent shall issue Letters of Credit for the account of the Borrower, on such
terms as are satisfactory to the Agent; provided, however, that no Letter of
Credit will be issued for the account of the Borrower by the Agent if on the
date of issuance, before or after taking such Letter of Credit into account (i)
the amount of the Advances and the L/C Obligations and the Swing Line Loans
outstanding at such time would exceed the Aggregate Commitment or (ii) the
aggregate outstanding amount of the L/C Obligations would exceed $25,000,000;
and provided, further, that no Letter of Credit shall be issued unless it has an
expiration date that is no later than the date which is five Business Days
immediately preceding the Facility Termination Date. From and after the
Effective Date, the Existing Letters of Credit shall be deemed to constitute
Letters of Credit hereunder having as their issuance date the
23
Effective Date. Fees shall accrue in respect of the Existing Letters of Credit
as provided in Section 2.19.5 beginning as of the Effective Date.
2.19.2. Letter of Credit Participation. Immediately upon issuance of
each Letter of Credit by the Agent hereunder, each Lender shall be deemed to
have automatically, irrevocably and unconditionally purchased and received from
the Agent an undivided interest and participation in and to such Letter of
Credit, the obligations of the Borrower in respect thereof, and the liability of
the Agent thereunder (collectively, an "L/C Interest") in an amount equal to the
amount available for drawing under such Letter of Credit multiplied by a
fraction having as its numerator such Lender's Commitment and as its denominator
the Aggregate Commitment. If the Borrower at any time fails to repay a
"Reimbursement Obligation" (as defined in Section 2.19.3), the Agent will notify
each Lender promptly upon presentation to it of an L/C Draft or upon any other
draw under any Letter of Credit, such notice to be given at least three (3)
Business Days before the Business Day on which the Agent makes payment of each
such L/C Draft, or, in the case of any other draw on the Letter of Credit, at
the time of demand by the Agent. On or before the Business Day on which the
Agent makes payment of each such L/C Draft or, in the case of any other draw on
the Letter of Credit, on demand of the Agent, each Lender shall make payment to
the Agent, in immediately available funds in an amount equal to such Lender's
ratable share (determined in accordance with the fraction described above) of
the amount of such payment or draw. Unless the Required Lenders shall have
notified the Agent prior to the Agent issuing any Letter of Credit, that the
applicable conditions precedent set forth in Article IV have not then been
satisfied, the obligation of each Lender to reimburse the Agent under this
Section 2.19.2 shall be unconditional, continuing, irrevocable and absolute and
shall not be affected or impaired by, among other things, the reduction,
suspension or termination of the Aggregate Commitment pursuant to Section
2.10(b) or Section 8.1. In the event that any Lender fails to make payment to
the Agent of any amount due under this Section 2.19.2, the Agent shall be
entitled to receive, retain and apply against such obligation the principal and
interest otherwise payable to such Lender hereunder until the Agent receives
such payment from such Lender or such obligation is otherwise fully satisfied;
provided, however, that nothing contained in this sentence shall relieve such
Lender of its obligation to reimburse the Agent for such amount in accordance
with this Section 2.19.2.
2.19.3. Reimbursement Obligation. The Borrower agrees
unconditionally, irrevocably and absolutely to pay immediately to the Agent, for
the account of the Lenders, the amount of each advance drawn under or pursuant
to a Letter of Credit or an L/C Draft related thereto (such obligation of the
Borrower to reimburse the Agent for an advance made under a Letter of Credit or
L/C Draft being hereinafter referred to as a "Reimbursement Obligation"). If the
Borrower at any time fails to repay a Reimbursement Obligation pursuant to this
Section 2.19.3, the Borrower shall be deemed to have elected to borrow a
Floating Rate Advance from the Lenders, as of the date of the advance giving
rise to the Reimbursement Obligation, equal in amount to the amount of the
unpaid Reimbursement Obligation, the proceeds of which Advance shall be used to
repay such Reimbursement Obligation and such an Advance shall be available from
the Lenders notwithstanding the fact that the Aggregate Commitment may have been
reduced, suspended or terminated pursuant to Section 2.10(b) or Section 8.1. If,
for any reason, the Borrower fails to repay a Reimbursement Obligation on the
day such Reimbursement Obligation arises, then such Reimbursement Obligation
shall bear interest from and after such day, until paid in full, at the interest
rate applicable to Floating Rate Advances.
24
2.19.4. Cash Collateral. Notwithstanding anything to the contrary
herein or in any application for any Letter of Credit, after the occurrence and
during the continuance of a Default, the Borrower shall, upon the Agent's
demand, deliver to the Agent for the benefit of the Lenders, cash collateral in
an amount equal to the aggregate outstanding L/C Obligations. Any such
collateral shall be held by the Agent in a separate, interest-bearing account
appropriately designated as a cash collateral account in relation to this
Agreement and the Letters of Credit and retained by the Agent for the benefit of
the Agent and the Lenders as collateral security for the Borrower's obligations
in respect of this Agreement and the Letters of Credit and L/C Drafts. Such
amounts shall be applied to reimburse the Agent for drawings or payments under
or pursuant to the Letters of Credit or L/C Drafts, or if no such reimbursement
is required, to payment of any other due and unpaid costs, fees, expenses and
other Obligations related to the Letters of Credit, any L/C Drafts and such cash
collateral account, as the Agent shall determine. If no Default shall be
continuing, amounts remaining in any cash collateral account established
pursuant to this Section 2.19.4 which are not to be applied to reimburse the
Agent for amounts drawn under the Letters of Credit or L/C Drafts or to the
payment of related costs, fees, expenses and other Obligations as described
above, shall be returned to the Borrower. Investment earnings (net of investment
losses and any unpaid costs, fees, expenses and other Obligations related to the
Letters of Credit, any L/C Drafts and such cash collateral account) on amounts
on deposit in the cash collateral account shall be for the account of the
Borrower, and the Agent shall remit any such accrued earnings to the Borrower no
less frequently than quarterly.
2.19.5. Letter of Credit Fees. The Borrower agrees to pay (a) to the
Agent for the ratable benefit of the Lenders, a letter of credit fee equal to
the Applicable Letter of Credit Fee Rate in effect from time to time (which rate
shall be increased by 2% per annum upon the occurrence and during the
continuation of a Default pursuant to Section 7.2 and, if the Required Lenders
so elect, upon the occurrence and during the continuation of any other Default)
on the aggregate daily amount available for drawing under the outstanding
Letters of Credit, such fee to be paid in arrears on the last Business Day of
each calendar quarter, and on the Facility Termination Date and (b) to the Agent
for its own account as issuing bank, a fronting fee of 0.125% of the amount
available for drawing under each standby Letter of Credit issued by the Agent
and all customary fees and other issuance, amendment, negotiation and
presentment expenses and related charges in connection with the issuance,
amendment, presentation of L/C Drafts, and the like customarily charged by the
Agent to other customers of the Agent of comparable creditworthiness with
respect to standby letters of credit and commercial letters of credit, payable
at the time of invoice of such amounts.
2.19.6. Indemnification; Exoneration.
(a) In addition to amounts payable as elsewhere provided in this
Agreement, Borrower hereby agrees to pay, and to protect, indemnify and save
harmless the Agent and each Lender from and against, any and all liabilities and
costs which the Agent or any Lender may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of any Letter of Credit other than, in
the case of the issuer thereof, as a result solely of its Gross Negligence or
willful misconduct, as determined by the final judgment of a court of competent
jurisdiction, or (ii) the failure of the issuer thereof to honor a drawing under
any Letter of Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto governmental authority
(all such acts or omissions herein called "Governmental Acts").
25
(b) As among the Borrower, the Lenders and the Agent, the Borrower
assumes all risks of the acts and omissions of, or misuse of a Letter of Credit
by, the beneficiary of any Letter of Credit. In furtherance and not in
limitation of the foregoing, subject to the provisions of the letter of credit
application and the letter of credit reimbursement agreement executed by the
Borrower in connection with any Letter of Credit, the issuer of any Letter of
Credit, the Agent and the Lenders shall not be responsible (in the absence of
gross negligence or willful misconduct in connection therewith): (i) for the
form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of any Letter of Credit, even if it should in fact prove to be in any
or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii)
for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) for failure of the beneficiary of
any Letter of Credit to comply duly with conditions required in order to draw
upon any Letter of Credit; (iv) for errors, omissions, interruptions or delays
in transmission or delivery of any messages, by mail, cable, telegraph,
telecopy, telex, or other similar form of teletransmission or otherwise; (v) for
errors in interpretation of technical trade terms; (vi) for any loss or delay in
the transmission or otherwise of any document required in order to make a
drawing under any Letter of Credit or of the proceeds thereof; (vii) for the
misapplication by the beneficiary of any Letter of Credit of the proceeds of any
drawing under any Letter of Credit; and (viii) for any consequences arising from
causes beyond the control of the Agent, the issuer of any Letter of Credit, or
any of the Lenders including, without limitation, any Governmental Acts. None of
the above shall affect, impair, or prevent the vesting of any rights or powers
of the issuer of any Letter of Credit under this Section 2.19.6.
(c) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by the
issuer of any Letter of Credit under or in connection with a Letter of Credit
issued on behalf of the Borrower or any related certificates shall not, in the
absence of gross negligence or willful misconduct, as determined by the final
judgment of a court of competent jurisdiction, put such issuer, the Agent or any
Lender under any resulting liability to the Borrower or any Guarantor or relieve
the Borrower or any Guarantor of any of its obligations hereunder or under the
relevant Guaranty to any such Person.
(d) Without prejudice to the survival of any other agreement of
Borrower hereunder, the agreements and obligations of Borrower contained in this
Section 2.19.6 shall survive the payment in full of principal and interest
hereunder, the termination of the Letters of Credit and the termination of this
Agreement.
(e) Notwithstanding anything therein to the contrary, in the event
any of the provisions of any application submitted by the Borrower in connection
with any Letter of Credit conflict with the provisions of this Agreement, the
terms of this Agreement shall govern.
2.19.7. Transitional Letter of Credit Provisions. From and after the
Effective Date, the Existing Letters of Credit shall be deemed to constitute
Letters of Credit issued pursuant to Section 2.19.1 in which the Lenders
participate pursuant to Section 2.19.2. Fees shall accrue in respect of the
Existing Letters of Credit as provided in Section 2.19.5 beginning as of
26
the Effective Date but the Borrower shall receive full credit for fees paid in
advance with respect to such Existing Letters of Credit.
ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1. Yield Protection. If, on or after the date of this Agreement,
the adoption of any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law), or any change in the interpretation or administration thereof by any
governmental or quasi-governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Lender or applicable Lending Installation with any request or directive (whether
or not having the force of law) of any such authority, central bank or
comparable agency:
(i) subjects any Lender or any applicable Lending Installation to
any Taxes, or changes the basis of taxation of payments (other than with
respect to Excluded Taxes) to any Lender in respect of its Loans, L/C
Interests or other amounts due it hereunder, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended
by, any Lender or any applicable Lending Installation (other than reserves
and assessments taken into account in determining the interest rate
applicable to Eurodollar Advances), or
(iii) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation of making,
funding or maintaining Loans or issuing or participating in Letters of
Credit or reduces any amount receivable by any Lender or any applicable
Lending Installation in connection with Loans or Letters of Credit, or
requires any Lender or any applicable Lending Installation to make any
payment calculated by reference to the amount of Loans or Letters of
Credit held, or interest received, by it by an amount deemed material by
such Lender,
then, within 15 days of demand by such Lender, the Borrower shall pay such
Lender such additional amount or amounts as will compensate such Lender for such
increased cost or reduction in amount received.
3.2. Changes in Capital Adequacy Regulations. If a Lender determines
that the amount of capital required or expected to be maintained by such Lender,
any Lending Installation of such Lender or any corporation controlling such
Lender is increased as a result of a Change (as defined below in this Section
3.2), then, within 15 days of demand by such Lender, the Borrower shall pay such
Lender the amount necessary to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender determines is
attributable to this Agreement, its Loans, its L/C Interests, the Letters of
Credit or its obligation to make Loans or participate in Letters of Credit
hereunder (after taking into account such Lender's or such controlling
corporation's policies as to capital adequacy). "Change" means (a) any change
after the date of this Agreement in the Risk-Based Capital Guidelines (as
defined
27
below in this Section 3.2) or (b) any adoption of or change in any other law,
governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after the
date of this Agreement which affects the amount of capital required or expected
to be maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "Risk-Based Capital Guidelines" means (a) the risk-based
capital guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (b) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing the
July 1988 report of the Basle Committee on Banking Regulation and Supervisory
Practices Entitled "International Convergence of Capital Measurements and
Capital Standards," including transition rules, and any amendments to such
regulations adopted prior to the date of this Agreement.
3.3. Availability of Types of Syndicated Advances. If any Lender
determines that maintenance of its Eurodollar Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation, or directive,
whether or not having the force of law, or if the Required Lenders determine
that (a) deposits of a type and maturity appropriate to match fund Eurodollar
Advances are not available or (b) the interest rate applicable to a Type of
Syndicated Advance does not accurately reflect the cost of making or maintaining
such Advance, then the Agent shall suspend the availability of the affected Type
of Syndicated Advance and require any Eurodollar Advances of the affected Type
to be prepaid or converted to Floating Rate Advances at the Borrower's election,
subject to the payment of any funding indemnification amounts required by
Section 3.4.
3.4. Funding Indemnification. If any payment of a Eurodollar Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a Eurodollar
Advance is not made (whether by borrowing, continuation or conversion) on the
date specified by the Borrower for any reason other than default by the Lenders,
or an optional prepayment, notice of which has been given in accordance with
Section 2.5, is not made on the date specified therefor in such notice, the
Borrower will indemnify each Lender for any loss or cost incurred by it
resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain such Eurodollar
Advance. In connection with any assignment by any Lender of any portion of the
Loans made pursuant to Section 12.3 during the Syndication Period, if Eurodollar
Advances are outstanding, the Borrower shall be deemed to have repaid all
outstanding Eurodollar Advances as of the effective date of such assignment and
reborrowed such amount as a Floating Rate Advance and/or Eurodollar Advance
(chosen in accordance with the provisions of Section 2.3), and the
indemnification provisions under this Section 3.4 shall apply to such
assignment; provided that the Lenders shall use reasonable efforts to cause the
effective date of any such assignment to be the last day of a Eurodollar
Interest Period.
3.5. Mitigation; Lender Statements; Survival of Indemnity.
(a) To the extent reasonably possible, each Lender shall designate
an alternate Lending Installation with respect to its Eurodollar Loans to reduce
any liability of the Borrower to such Lender under Sections 3.1 and 3.2 or to
avoid the unavailability of a Type of Syndicated Advance under Section 3.3, so
long as such designation is not, in the reasonable judgment of such Lender,
disadvantageous to such Lender. If the obligation of the Lenders to make
28
Eurodollar Advances has been suspended pursuant to Section 3.3 as a consequence
of a determination by any Lender that maintenance of its Eurodollar Loans at a
suitable Lending Installation would violate any applicable law or any Lender has
demanded compensation under Section 3.1 or 3.2, the Borrower may elect (i)
subject to Section 3.4, to prepay any outstanding Syndicated Advances to the
extent necessary to mitigate its liability under Section 3.1 or 3.2, (ii) to
terminate the applicable Lender's Commitment hereunder or (iii) to require the
applicable Lender to assign its outstanding Syndicated Loans, L/C Interests and
Commitment hereunder to another financial institution designated by the Borrower
and reasonably acceptable to the Agent. The obligation of a Lender to assign its
rights and obligations hereunder or terminate its Commitment hereunder as
contemplated by this Section 3.5(a) is subject to the requirements that (x) all
amounts owing to that Lender under the Loan Documents are paid in full upon the
completion of such assignment or prior to such termination and (y) any
assignment is effected in accordance with the terms of Section 12.3 and on terms
otherwise satisfactory to that Lender (it being understood that the Borrower
shall pay the processing fee payable to the Agent pursuant to Section 12.3.2 in
connection with any such assignment).
(b) Each Lender shall deliver a written statement of such Lender (with a copy to
the Agent) as to the amount due, if any, under Section 3.1, 3.2 or 3.4. Such
written statement shall set forth in reasonable detail the calculations upon
which such Lender determined such amount and shall be final, conclusive and
binding on the Borrower in the absence of manifest error. Determination of
amounts payable under such Sections in connection with a Eurodollar Loan shall
be calculated as though each Lender funded such Loan through the purchase of a
deposit of the type and maturity corresponding to the deposit used as a
reference in determining the interest rate applicable to such Loan, whether in
fact that is the case or not. Unless otherwise provided herein, the amount
specified in the written statement of any Lender shall be payable on demand
after receipt by the Borrower of the written statement. The obligations of the
Borrower under Sections 3.1, 3.2 and 3.4 shall survive payment of the
Obligations and termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Effectiveness; Initial Advance. This Agreement shall become
effective and the Lenders shall be obligated to make the initial Advance or
Swing Line Loan or purchase participations in the Letters of Credit or Swing
Line Loans hereunder only after (a) the Agent shall have received from the
Borrower, with sufficient copies (other than in the case of the Notes) for each
of the Lenders, each of the following items in form and substance satisfactory
to the Agent:
(1) copies of the certificate of incorporation of the Borrower,
together with all amendments, and, to the extent applicable, a certificate of
good standing, certified by the Delaware Secretary of State;
(2) copies, certified by the Secretary, Assistant Secretary or other
appropriate officer or director of the Borrower of its by-laws (or any
comparable constitutive laws, rules or regulations) and of its board of
directors' resolutions (and resolutions of other bodies, if any are
29
deemed necessary by counsel for any Lender) authorizing the execution of the
relevant Loan Documents;
(3) incumbency certificates, executed by the Secretary or Assistant
Secretary or other appropriate officer or director of the Borrower, which shall
identify by name and title and bear the signature of the officers of the
Borrower authorized to sign the relevant Loan Documents and to make borrowings
hereunder, as applicable, upon which certificate the Agent and the Lenders shall
be entitled to rely until informed of any change in writing by the Borrower;
(4) a certificate of the Secretary, Assistant Secretary or other
appropriate officer or member of each Initial Guarantor certifying: (i) a copy
of its certificate of incorporation, organization or formation, (ii) a copy of
its by-laws, operating agreement or other similar governing document, (iii) a
copy of the resolutions of its board of directors, members or other body
authorizing the execution, delivery and performance of the Guaranty, and (iv)
the name, title and specimen signature of each officer or other person
authorized to sign the Guaranty;
(5) a copy of a good standing certificate (if such a certificate is
available with respect to a particular entity that is not a corporation) for
each Initial Guarantor, issued by the appropriate governmental officer in its
jurisdiction of organization;
(6) a certificate, signed by the Chief Financial Officer, stating
that, to the best of his knowledge after due inquiry, on the date hereof no
Default or Unmatured Default has occurred and is continuing;
(7) an opinion of Thompson Hine & Flory LLP, counsel to the
Borrower, substantially in the form of Exhibit B-1 hereto and an opinion of
Dewey Ballantine LLP, counsel to the Borrower, substantially in the form of
Exhibit B-2 hereto;
(8) a Syndicated Note, payable to the order of each Lender that has
requested a Syndicated Note;
(9) written money transfer instructions, in substantially the form
of Exhibit E hereto, addressed to the Agent and signed by an Authorized Officer,
together with such other related money transfer authorizations as the Agent may
have reasonably requested, which instructions shall, among other things, direct
the Agent to repay in full (i) the loans and advances outstanding under that
certain Credit Agreement dated as of October 22, 1996, as amended, among the
Borrower, Bank One (formerly known as The First National Bank of Chicago), as
Agent, and the lenders parties thereto, and that certain 364-Day Credit
Agreement dated as of December 21, 1998, as amended, among Bank One (formerly
known as The First National Bank of Chicago), as Agent, and the lenders parties
thereto (the "Existing Agreements"), as of the effective date of this Agreement,
together with all accrued and unpaid interest thereon and all breakage fees and
other amounts payable with respect thereto and (ii) all commitment fees and
utilization fees accrued and unpaid under the Existing Agreements as of the
Effective Date of this Agreement;
(10) written evidence of the termination of the Existing Agreements
as of the effective date of this Agreement;
30
(11) a Guaranty signed by each of the Guarantors;
(12) an opinion of Sidley & Austin, counsel to the Agent,
substantially in the form of Exhibit B-3 hereto;=
(13) a copy of the Subordinated Indenture, certified by the
Secretary or Assistant Secretary or other appropriate officer or director of the
Borrower; and
(14) such other documents as any Lender or its counsel may have
reasonably requested;
and (b) the Borrower shall have received gross cash proceeds of at least
$300,000,000 from the issuance of the Subordinated Notes on terms satisfactory
to the Lenders.
4.2. Each Advance and Letter of Credit. No Lender shall be required
to make any Loan, nor shall the Agent be required to issue any Letter of Credit
hereunder, unless on the applicable Borrowing Date or date for issuance of such
Letter of Credit:
(a) there exists no Default or Unmatured Default;
(b) the representations and warranties contained in Article V
are true and correct as of such Borrowing Date or date for issuance
of such Letter of Credit except to the extent any such
representation or warranty is stated to relate solely to an earlier
date, in which case such representation or warranty shall be true
and correct on and as of such earlier date; and
(c) after giving effect to such Loan or the issuance of such
Letter of Credit, the aggregate outstanding principal amount of all
Advances and outstanding L/C Obligations and Swing Line Loans does
not exceed the Aggregate Commitment.
Each Borrowing Notice (including telephonic notice) and each application with
respect to a Letter of Credit shall constitute a representation and warranty by
the Borrower that the conditions contained in Sections 4.2(a), (b) and (c) have
been satisfied. Each Conversion/Continuation Notice (including telephonic
notice) with respect to a Loan shall constitute a representation and warranty by
the Borrower that the conditions contained in Section 4.2(a) have been
satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5. Representations and Warranties. The Borrower represents and
warrants to the Lenders that:
5.1. Corporate Existence and Standing. The Borrower and each of its
Subsidiaries is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation and has all
requisite authority to conduct its business in each jurisdiction in which its
business is conducted, except to the extent that, in the case of any
31
Subsidiary of the Borrower, the failure to be in good standing or, in the case
of the Borrower or any Subsidiary of the Borrower, the failure to be authorized
to conduct business in any jurisdiction could not, when taken together with all
similar failures by such Subsidiary and each other Subsidiary, reasonably be
expected to have a Material Adverse Effect.
5.2. Authorization and Validity. The Borrower and each Guarantor has
the corporate power and authority and legal right to execute and deliver the
Loan Documents to which it is party and to perform its obligations thereunder.
The execution and delivery by each of the Borrower and each Guarantor of the
Loan Documents to which it is party and the performance of its obligations
thereunder have been duly authorized by proper corporate proceedings, and each
Loan Document to which the Borrower or any Guarantor is party constitutes the
legal, valid and binding obligation of the Borrower or such Guarantor, as
applicable, enforceable against the Borrower or such Guarantor, as applicable,
in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and general principles of equity, regardless of whether the
application of such principles is considered in a proceeding in equity or at
law.
5.3. No Conflict; Government Consent. Neither the execution and
delivery by each of the Borrower and each Guarantor of the Loan Documents to
which it is party, nor the consummation of the transactions therein
contemplated, nor compliance with the provisions thereof will violate any law,
rule, regulation, order, writ, judgment, injunction, decree or award binding on
the Borrower or any Subsidiary or the Borrower's or any Subsidiary's articles of
incorporation or by-laws or comparable constitutive documents or the provisions
of any indenture, instrument or agreement to which the Borrower or any
Subsidiary is a party or is subject, or by which it, or its Property, is bound,
or conflict with or constitute a default thereunder, or result in the creation
or imposition of any Lien in, of or on the Property of the Borrower or any
Subsidiary pursuant to the terms of any such indenture, instrument or agreement
which violation, conflict or imposition could reasonably be expected to have a
Material Adverse Effect. No order, consent, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption by, any
governmental or public body or authority, or any subdivision thereof, is
required to authorize, or is required in connection with the execution, delivery
and performance of, or the legality, validity, binding effect or enforceability
of, any of the Loan Documents.
5.4. Financial Statements. The September 30, 2000, consolidated
financial statements of the Borrower and its Subsidiaries, heretofore delivered
to the Lenders, were prepared in accordance with GAAP in effect on the date such
statements were prepared and fairly present the consolidated financial condition
of the Borrower and its Subsidiaries at the date thereof and the consolidated
results of their operations for the period then ended, subject to normal
year-end adjustments and the absence of notes.
5.5. Material Adverse Change. Since December 31, 2000, there has
been no change in the business, Property, prospects, condition (financial or
otherwise) or results of operations of the Borrower and its Subsidiaries which
could reasonably be expected to have a Material Adverse Effect.
32
5.6. Taxes. All material tax returns required to be filed by the
Borrower or any of its Subsidiaries in any jurisdiction have, in fact, been
filed, all such material tax returns have been prepared in accordance with
applicable laws, and all material taxes, assessments, fees and other
governmental charges upon the Borrower or any Subsidiary or upon any of their
respective properties, income or franchises, which are shown on such material
tax returns have been paid except to the extent such tax payments are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves or other appropriate provisions are being maintained in
accordance with Agreement Accounting Principles. For all taxable years ending on
or before December 31, 1996, the United States Federal income tax liability of
the Borrower and its Subsidiaries has been satisfied and either the period of
limitations on assessment of additional United States Federal income tax has
expired or the Borrower or the applicable Subsidiary has entered into an
agreement with the United States Internal Revenue Service closing conclusively
the total tax liability for the taxable year. Neither the Borrower nor any of
its Subsidiaries knows of any proposed additional tax assessment against it or
any of them for which adequate provision has not been made on its or their
accounts, and no controversy in respect of additional income or other taxes due
or claimed to be due to any Governmental Authority is pending or to the
knowledge of the Borrower or its Subsidiaries threatened the outcome of which
could reasonably be expected to have a Material Adverse Effect. The charges,
accruals and reserves on the books of the Borrower and its Subsidiaries in
respect of any taxes or other governmental charges are adequate.
5.7. Litigation and Contingent Liabilities. Except as set forth on
Schedule IV hereto, there is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending or, to the knowledge of any of
their officers, threatened against or affecting the Borrower or any Subsidiary
of the Borrower which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. Other than any liability incident to
such litigation, arbitration or proceedings, to the knowledge of the Borrower's
officers neither the Borrower nor any of its Subsidiaries has any material
contingent liabilities not provided for or disclosed in the financial statements
referred to in Section 5.4.
5.8. Subsidiaries. Schedule IV hereto, together with the most recent
update, if any, delivered pursuant to Section 6.1(i), contains an accurate list
of all of the Subsidiaries (except for inactive Subsidiaries with immaterial
assets and liabilities) of the Borrower, setting forth their respective
jurisdictions of incorporation and the percentage of their respective capital
stock owned by the Borrower or its Subsidiaries. All of the issued and
outstanding shares of capital stock of the Subsidiaries of the Borrower listed
on Schedule IV hereto, together with the most recent update, if any, delivered
pursuant to Section 6.1(i), have been duly authorized and issued and are fully
paid and non-assessable.
5.9. ERISA. The Unfunded Liabilities of all Single Employer Plans do
not in the aggregate exceed $10,000,000. Neither the Borrower nor any other
member of the Controlled Group has incurred, or is reasonably expected to incur,
any withdrawal liability to Multiemployer Plans in excess of $10,000,000 in the
aggregate. Each Single Employer Plan complies in all material respects with all
applicable requirements of law and regulations, no Reportable Event has occurred
with respect to any Single Employer Plan, none of the Borrower or any other
member of the Controlled Group has withdrawn from any Plan or initiated steps to
do so, and no steps have been taken to reorganize or terminate any Plan.
33
5.10. Accuracy of Information. No written information, exhibit or
report prepared and furnished by the Borrower or any Subsidiary to the Agent or
to any Lender in connection with the negotiation of, or compliance with, the
Loan Documents, taken as a whole, contained any material misstatement of fact or
omitted to state a material fact or any fact necessary to make the statements
contained therein not misleading.
5.11. Regulation U. The Borrower and its Subsidiaries are in
compliance with Regulation U.
5.12. Material Agreements. Neither the Borrower nor any of its
Subsidiaries is in default in the performance, observance or fulfillment of any
of the obligations, covenants or conditions contained in any agreement to which
it is a party, which default could have a Material Adverse Effect.
5.13. Compliance With Laws. The Borrower and its Subsidiaries have
complied in all material respects with all applicable statutes, rules,
regulations, orders and restrictions of any Governmental Authority having
jurisdiction over the conduct of their respective businesses or the ownership of
their respective Property except for such non-compliance as could not reasonably
be expected to have a Material Adverse Effect. Neither the Borrower nor any of
its Subsidiaries has received any notice to the effect that, or is otherwise
aware that, its operations are not in material compliance with any of the
requirements of applicable environmental, health and safety statutes and
regulations of any Governmental Authority or the subject of any investigation by
any Governmental Authority evaluating whether any remedial action is needed to
respond to a release of any toxic or hazardous waste or substance into the
environment, which non-compliance or remedial action could reasonably be
expected to have a Material Adverse Effect.
5.14. Ownership of Properties. Except as set forth on Schedule IV
hereto, on the date of this Agreement, there are no Liens, other than those
permitted by Section 6.16, on the Property and assets reflected as owned by the
Borrower or any of its Subsidiaries in the financial statements delivered from
time to time pursuant hereto.
5.15. Investment Company Act. Neither the Borrower nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
5.16. Public Utility Holding Company Act. Neither the Borrower nor
any of its Subsidiaries is a "holding company" or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
5.17. Seniority of Obligations. The Obligations under this Agreement
will at all times constitute "Senior Indebtedness" as defined in and for
purposes of the Convertible Indenture, and the Obligations under this Agreement
and the obligations of the Guarantors under the Guaranty will at all times
constitute "Senior Debt" as defined in and for purposes of the Subordinated
Indenture.
34
ARTICLE VI
COVENANTS
6. Covenants. During the term of this Agreement, unless the Required
Lenders shall otherwise consent in writing:
6.1. Financial Reporting. The Borrower will maintain, and cause each
of its Subsidiaries to maintain, a system of accounting established and
administered in accordance with generally accepted accounting principles, and
will furnish or cause to be furnished to the Lenders:
(a) (i) within 120 days after the close of each of the
Borrower's fiscal years, an unqualified (except for qualifications
relating to changes in accounting principles or practices reflecting
changes in GAAP and required or approved by the Borrower's
independent chartered accountants or independent public accountants)
audit report certified by independent public accountants acceptable
to the Lenders, prepared in accordance with Agreement Accounting
Principles on a consolidated basis for itself and its Subsidiaries,
including balance sheets as of the end of such period, related
profit and loss and reconciliation of surplus statements, and a
statement of cash flows, accompanied by a letter which conforms to
professional pronouncements promulgated by the American Institute of
Certified Public Accountants from the firm of said accountants to
the effect that in the course of, and based solely upon their audit
of such financial statements, nothing has come to their attention to
cause them to believe that there existed on the date of such
statements any Default or Unmatured Default under Sections 6.17 or
6.18, or, if in the opinion of such accountants, any Default or
Unmatured Default exists, the statement shall state its nature and
length of time it has existed; and (ii) within 180 days after the
close of each of the Borrower's fiscal years, the management letter,
if any, prepared by the applicable accountants in connection with
the financial statements for such fiscal year delivered pursuant to
the foregoing clause (i);
(b) within 60 days after the close of the first three
quarterly periods of each of the Borrower's fiscal years, for the
Borrower and its Subsidiaries, consolidated unaudited balance sheets
as at the close of each such period and consolidated profit and loss
and reconciliation of surplus statements and a statement of cash
flows for the period from the beginning of such fiscal year to the
end of such quarter, all certified by the Chief Financial Officer;
(c) together with the financial statements required pursuant
to the foregoing clauses (a) and (b), a compliance certificate in
substantially the form of Exhibit C hereto signed by the Chief
Financial Officer showing the calculations necessary to determine
compliance with this Agreement (including, without limitation the
financial covenants, compliance with Section 6.20, and compliance
with the various other covenants which contain financial tests or
baskets) and stating that no Default or Unmatured Default exists, or
if any Default or Unmatured Default exists, stating the nature and
status thereof and any and all actions taken with respect thereto;
35
(d) within 270 days after the close of each fiscal year, a
statement of the Unfunded Liabilities of each Single Employer Plan,
certified as correct by an actuary enrolled under ERISA;
(e) as soon as possible and in any event within ten days after
the Borrower knows that any Reportable Event has occurred with
respect to any Plan, the occurrence of which may reasonably be
expected to give rise to a Material Adverse Effect, a statement,
signed by the Chief Financial Officer, describing said Reportable
Event and the action which the Borrower proposes to take with
respect thereto;
(f) as soon as possible and in any event within 30 days after
receipt by the Borrower or any of its Subsidiaries, a copy of (i)
any notice or claim to the effect that the Borrower or any of its
Subsidiaries is or may reasonably be expected to be liable for
$10,000,000 or more of potential liability (when aggregated with
other similar potential liability) to any Person as a result of the
release by the Borrower, any of its Subsidiaries, or any other
Person of any toxic or hazardous waste or substance into the
environment, and (ii) any notice alleging any violation of any
federal, state or local environmental, health or safety law or
regulation by the Borrower or any of its Subsidiaries, which
violation could reasonably be expected to give rise to a Material
Adverse Effect;
(g) promptly upon the furnishing thereof to the shareholders
of the Borrower, copies of all financial statements, reports and
proxy statements so furnished;
(h) promptly upon their becoming available, one copy of each
financial statement, report, notice or proxy statement sent by the
Borrower to stockholders generally and of each regular report and
any registration statement or prospectus, filed by the Borrower with
the Securities and Exchange Commission or any other United States
federal or state securities exchange, securities trading system or
with any United States national stock exchange and one copy of each
periodic report filed by the Borrower with any other similar
regulatory authority, in all cases without duplication; provided,
however, that the Borrower shall not be obligated to provide to the
Agent and the Lenders routine reports which are required to be
provided to any of the above-listed entities concerning the
management of employee benefit plants, including, without
limitation, stock purchases or the exercise of stock options made
under any such employee benefit plan;
(i) together with the financial statements delivered pursuant
to Section 6.1(a), a current list of all of the Subsidiaries of the
Borrower, setting forth their respective jurisdictions of
incorporation and the percentage of their respective capital stock
owned by the Borrower or its Subsidiaries; and
(j) promptly, such other information (including non-financial
information) as the Agent or any Lender may from time to time
reasonably request.
6.2. Use of Proceeds. The Borrower will, and will cause each of its
Subsidiaries to, use the proceeds of the Advances and the Swing Line Loans to
repay outstanding loans and advances made under the Existing Agreements, to
repay Advances and the Swing Ling
36
Loans, to make Permitted Acquisitions or for general corporate purposes. The
Borrower will not, nor will it permit any of its Subsidiaries to, use any of the
proceeds of the Advances or the Swing Line Loans to purchase or carry any
"margin stock" (as defined in Regulation U). The Borrower will not, nor will it
permit any Subsidiary, to use proceeds of the Advances and the Swing Line Loans
other than as contemplated in this Section 6.2.
6.3. Notice of Default. The Borrower will, and will cause each of
its Subsidiaries to, give notice in writing to the Lenders of the occurrence (a)
of any Default or Unmatured Default and (b) of any other development, financial
or otherwise, which could reasonably be expected to have a Material Adverse
Effect, which notice, in either case, shall be given promptly and in any event
within five Business Days after the Borrower or relevant Subsidiary becomes
aware of the Default, Unmatured Default or other development and shall state the
nature and status thereof and any and all actions taken with respect thereto.
6.4. Conduct of Business. The Borrower will, and will cause each of
its Subsidiaries to, carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it is presently
conducted and to do all things necessary to remain duly incorporated, validly
existing and in good standing as a domestic corporation in its jurisdiction of
incorporation and maintain all requisite authority to conduct its business in
each jurisdiction in which its business is conducted except where the failure to
maintain such authority could not reasonably be expected to have a Material
Adverse Effect.
6.5. Taxes. The Borrower will, and will cause each of its
Subsidiaries to, pay when due all taxes, assessments and governmental charges
and levies upon it or its income, profits or Property, except those which are
being contested in good faith by appropriate proceedings and with respect to
which adequate reserves or other appropriate provisions are being maintained in
accordance with Agreement Accounting Principles.
6.6. Insurance. The Borrower will, and will cause each of its
Subsidiaries to, maintain with financially sound and reputable insurance
companies insurance on all their Property in such amounts and covering such
risks as is consistent with sound business practice and customary for companies
similar in size and nature, and the Borrower will furnish to any Lender upon
request full information as to the insurance carried.
6.7. Compliance with Laws. The Borrower will, and will cause each of
its Subsidiaries to, comply in all material respects with all laws (including,
without limitation, all environmental laws), rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject.
6.8. Maintenance of Properties. The Borrower will, and will cause
each of its Subsidiaries to, do all things necessary to maintain, preserve,
protect and keep its Property in good repair, working order and condition,
ordinary wear and tear excepted, and make all necessary and proper repairs,
renewals and replacements so that its business carried on in connection
therewith may be properly conducted at all times.
6.9. Inspection. The Borrower will, and will cause each of its
Subsidiaries to, permit the Agent and any or each Lender, by its respective
representatives and agents, to inspect
37
any of the Property, corporate books and financial records of the Borrower and
each of its Subsidiaries, to examine and make copies of the books of accounts
and other financial records of the Borrower and each of its Subsidiaries, and to
discuss the affairs, finances and accounts of the Borrower and each of its
Subsidiaries with, and to be advised as to the same by, their respective
officers at such reasonable times and intervals during normal business hours,
upon oral or written request of the Agent or any Lender at least three Business
Days in advance so long as no Default or Unmatured Default shall have occurred
and is continuing, or, if a Default or Unmatured Default has occurred and is
continuing, upon the Agent's request. Such inspection rights are subject to
reasonable limitations imposed by the Borrower and its Subsidiaries with respect
to safety and shall not extend to trade secrets of the Borrower or its
Subsidiaries or to information covered by attorney-client or other privilege.
6.10. Merger. The Borrower will not, nor will it permit any of its
Subsidiaries to, merge or consolidate with any other Person, or permit any other
Person to consolidate with it, except that:
(a) any Subsidiary may consolidate with or merge with or into
(i) the Borrower or any Wholly-Owned Subsidiary (if the Borrower or
such Wholly-Owned Subsidiary shall be the continuing or surviving
corporation) or (ii) any other corporation (if such Subsidiary shall
be the continuing or surviving corporation); and
(b) the Borrower may merge with or into any other corporation
if the Borrower shall be the continuing or surviving corporation;
provided, that as of the date of such merger or consolidation, no
Default or Unmatured Default shall have occurred and be continuing
or would result from such merger or consolidation or from the
incurrence of any Indebtedness in connection with such merger or
consolidation.
6.11. Sale of Assets. The Borrower will not, nor will it permit any
of its Subsidiaries to, lease, sell or otherwise dispose of its Property to any
other Person except for (a) sales of Property in the ordinary course of
business, (b) leases, sales or other dispositions of its Property to the
Borrower or a Subsidiary of the Borrower, (c) any transfer of an interest in
Receivables, Receivables and Related Security, accounts or notes receivable on a
limited recourse basis under the Receivables Purchase Documents, provided that
such transfer qualifies as a legal sale and as a sale under Agreement Accounting
Principles, and (d) other leases, sales or other dispositions of its Property
subject to the requirement that at least 90% of the aggregate net proceeds of
each such lease, sale or other disposition of Property in each fiscal year are
reinvested in the business of the Borrower and the Subsidiaries as conducted in
accordance with the requirements of Section 6.4.
6.12. Prepayments. The Borrower will not, nor will it permit any of
its Subsidiaries to, either directly or indirectly, voluntarily redeem, retire
or otherwise pay prior to its scheduled maturity, or accelerate the maturity of,
Indebtedness of the Borrower or any of its Subsidiaries (other than Indebtedness
arising hereunder or the conversion of Indebtedness of the Borrower or any of
its Subsidiaries to equity of the Borrower or any of its Subsidiaries); provided
that the Borrower and its Subsidiaries may redeem, retire or otherwise pay prior
to its
38
scheduled maturity, or accelerate the maturity of, Indebtedness of the Borrower
and its Subsidiaries other than the Convertible Notes and the Subordinated Notes
in an amount not in excess of $20,000,000 in the aggregate during the term of
this Agreement; and provided further that Receivables Facility Attributed
Indebtedness shall be deemed not to be Indebtedness for purposes of this Section
6.12.
6.13. Affiliates. The Borrower will not, nor will it permit any of
its Subsidiaries to, enter into any transaction (including, without limitation,
the purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate except in the ordinary course of business and
pursuant to the reasonable requirements of the Borrower's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to the Borrower or
such Subsidiary than the Borrower or such Subsidiary would obtain in a
comparable arm's-length transaction; provided, however, that nothing contained
in this Section 6.13 shall prohibit transactions between the Borrower and any
Guarantor, or between or among Guarantors, in each case in the ordinary course
of business, or Permitted Receivables Transfers.
6.14. Investments. The Borrower will not, nor will it permit any of
its Subsidiaries to, make or suffer to exist any Investments, or commitments
therefor, except:
(a) Investments described on Schedule IV hereto;
(b) Investments by the Borrower or any of its Subsidiaries in
and to any Subsidiary, including any Investment in a corporation
which, after giving effect to such Investment, will become a
Subsidiary, provided that if such Investment is an Acquisition, it
shall be a Permitted Acquisition;
(c) Investments in property or assets to be used in the
ordinary course of business of the Borrower and any of its
Subsidiaries conducted as described in Section 6.4;
(d) Investments in commercial paper maturing in 270 days or
less from the date of issuance which, at the time of acquisition by
the Borrower or any Subsidiary, is accorded a rating of A2 or better
by Standard & Poor's or P2 or better by Moody's or any other United
States nationally recognized credit rating agency of similar
standing;
(e) Investments in direct obligations of the United States,
any agency or instrumentality of the United States, the payment or
guarantee of which constitutes a full faith and credit obligation of
the United States, maturing in three years or less from the date of
acquisition thereof;
(f) Investments in direct obligations of any State or
municipality within the United States maturing in three years or
less from the date of acquisition thereof which, in any such case,
at the time of acquisition by the Borrower or any Subsidiary, is
accorded one of the two highest long-term or short-term, as
applicable, debt ratings by Standard & Poor's or Moody's or any
other United States nationally recognized credit rating agency of
similar standing;
39
(g) Investments in certificates of deposit or bankers'
acceptances issued by a bank or trust company having capital,
surplus and undivided profits aggregating at least $100,000,000 and
having a short-term unsecured debt rating of at least "P-1" by
Moody's or "A-1" by Standard & Poor's;
(h) Investments made in connection with Permitted
Acquisitions;
(i) Investments made as of the Effective Date in connection
with Joint Ventures described on Schedule IV hereto;
(j) any loan or other advance by the Borrower or any of its
Subsidiaries, as the case may be, to any of its or their officers or
employees, as the case may be, in the normal course of business, so
long as the aggregate of all such loans or advances by the Borrower
and its Subsidiaries does not exceed $5,000,000 at any time
outstanding, plus reasonable, reimbursable business and travel
expenses;
(k) any fund or other pooling arrangement which exclusively
purchases and holds Investments described in this Section 6.14;
(l) cash management accounts maintained by the Borrower in the
ordinary course of business;
(m) Investments (i) required in connection with the
Receivables Purchase Documents and (ii) resulting from the transfers
permitted by Section 6.11(c); and
(n) other Investments, together with Contingent Obligations
permitted pursuant to Section 6.15(i) not to exceed in the aggregate
more than 5% of Consolidated Net Worth.
6.15. Contingent Obligations. The Borrower will not, nor will it
permit any of its Subsidiaries to, make or suffer to exist any Contingent
Obligation, except (a) by endorsement of instruments for deposit or collection
in the ordinary course of business; (b) pursuant to the Guaranties; (c)
Contingent Obligations of the Borrower and any of its Subsidiaries described on
Schedule IV hereto; (d) Contingent Obligations incurred by the Borrower in
respect of the obligations (other than obligations constituting Indebtedness of
the types described in clauses (a), (d) and (e) of the definition of
"Indebtedness" and, to the extent issued in support of Indebtedness of the types
described in such clauses (a), (d) and (e), clause (h) of the definition of
"Indebtedness") of any Guarantor; (e) Contingent Obligations incurred by any
Guarantor in respect of obligations (other than obligations constituting
Indebtedness of the types described in clauses (a), (d) and (e) of the
definition of "Indebtedness" and, to the extent issued in support of
Indebtedness of the types described in such clauses (a), (d) and (e), clause (h)
of the definition of "Indebtedness") of any of its Subsidiaries that is a
Guarantor; (f) Contingent Obligations incurred by any Subsidiary in respect of
the obligations of any of its Subsidiaries and existing at the time such
Subsidiary is acquired, directly or indirectly, by the Borrower and not incurred
in anticipation of such Acquisition, and Contingent Obligations incurred by the
Borrower in respect of any such obligations; (g) Contingent Obligations of the
Borrower or any of its Subsidiaries arising under the Receivables Purchase
Documents; (h) Contingent Obligations incurred by any
40
Guarantor pursuant to a guaranty of repayment of the Indebtedness of the
Borrower under the Subordinated Notes; and (i) other Contingent Obligations,
together with Investments permitted pursuant to Section 6.14(n), not to exceed
in the aggregate more than 5% of Consolidated Net Worth.
6.16. Liens. The Borrower will not, nor will it permit any of its
Subsidiaries to, create, incur, or suffer to exist any Lien in, of or on the
Property of the Borrower or such Subsidiary, as applicable, except:
(a) Liens for taxes, assessments or governmental charges or
levies on its Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are being
contested in good faith and by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside
on its books;
(b) Liens imposed by law, such as carriers', warehousemen's
and mechanics' liens and other similar liens arising in the ordinary
course of business which secure payment of obligations not more than
60 days past due or which are being contested in good faith by
appropriate proceedings and for which adequate reserves shall have
been set aside on its books;
(c) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or
other social security or retirement benefits, or similar
legislation;
(d) utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar character
and which do not in any material way affect the same or interfere
with the use thereof in the business of the Borrower or any
Subsidiary of the Borrower;
(e) Liens existing as of the Effective Date and described on
Schedule IV hereto;
(f) Liens created or incurred after December 31, 2000, given
to secure the Indebtedness incurred or assumed in connection with
the acquisition of property or assets useful and intended to be used
in carrying on the business of the Borrower or any Subsidiary of the
Borrower, including Liens existing on such property or assets at the
time of acquisition thereof or at the time of acquisition by the
Borrower or such Subsidiary, as applicable, of an interest in any
business entity then owning such property or assets, whether or not
such existing Liens were given to secure the consideration for the
property or assets to which they attach, subject to the requirement
that the Lien shall attach solely to the assets acquired or
purchased;
(g) any extension, renewal or replacement of any Lien
permitted by the preceding clauses (e) and (f) in respect of the
same property or assets theretofore subject to such Lien in
connection with the extension, renewal or refunding of the
Indebtedness secured thereby; provided that (i) such Lien shall
attach solely to the same
41
property or assets, and (ii) such extension, renewal or refunding of
such Indebtedness shall be without increase in the principal
remaining unpaid as of the date of such extension, renewal or
refunding;
(h) (i) Liens incurred in the ordinary course of business to
secure the performance of statutory obligations arising in
connection with progress payments or advance payments due under
contracts with the United States, any state or any foreign
government or agency thereof entered into in the ordinary course of
business and (ii) Liens incurred in the ordinary course of business
to secure the performanceof statutory obligations, bids, leases,
fee and expense arrangements with trustees and fiscal agents and
other similar obligations, provided that full provision for the
payment of all such obligations set forth in clauses (i) and
(ii) has been made on the books of the Borrower or such Subsidiary
as may be required by Agreement Accounting Principles; and
(i) Liens arising under the Receivables Purchase Documents.
6.17. Minimum Consolidated Net Worth. The Borrower will maintain at
all times a Consolidated Net Worth of at least the sum of:
(a) $840,636,000, plus
(b) the sum of 50% of Consolidated Net Income for each fiscal
quarter ending after December 31, 2000 (but only to the extent that,
in the case of any such fiscal quarter, Consolidated Net Income for
such fiscal quarter is at least $1.00), plus
(c) 100% of the aggregate amount of the net cash proceeds
received by the Borrower or any of its Subsidiaries from the
issuance or sale after December 31, 2000 of capital stock of the
Borrower or any of its Subsidiaries, plus
(d) 100% of the aggregate principal amount of Convertible
Notes converted after December 31, 2000 into capital stock of the
Borrower.
6.18. Fixed Charges Coverage. The Borrower will at all times
maintain a Fixed Charge Coverage Ratio for the most recently ended period of
four consecutive fiscal quarters of at least 1.35 to 1.00.
6.19. Acquisitions. The Borrower will not, nor will it permit any of
its Subsidiaries to, make any Acquisition other than a Permitted Acquisition.
6.20. Supplemental Guarantors. (a) The Borrower will at all times
maintain Guaranties from the Initial Guarantors and Supplemental Guarantors such
that as of the end of each fiscal quarter (x) the aggregate assets of the
Borrower and the Guarantors are not less than 90% of the consolidated assets of
the Borrower and its Subsidiaries and (y) the aggregate gross revenues of the
Borrower and the Guarantors (calculated as of the last day of the Borrower's and
the Guarantors' most recently ended fiscal quarter for the four consecutive
fiscal quarters ending with such fiscal quarter) do not constitute less than 90%
of the aggregate gross revenues of the Borrower and its Subsidiaries (calculated
as of the last day of the Borrower's and its Subsidiaries' most recently ended
fiscal quarter for the four consecutive fiscal quarters ending
42
with such fiscal quarter); provided that (i) in the event that any Subsidiary of
the Borrower (other than a Guarantor) at any time has assets, determined in
accordance with GAAP, with a book value equal to or greater than an amount equal
to two and one half percent (2 1/2%) of the consolidated assets of the Borrower
and its Subsidiaries determined as of the last day of the immediately preceding
fiscal quarter, such Subsidiary shall promptly execute and deliver a Guaranty as
a Supplemental Guarantor pursuant to this Section 6.20, and (ii) in no event
shall any SPV be required to become a Guarantor hereunder if its guaranty of any
Indebtedness of the Borrower would violate any of the Receivables Purchase
Documents. In maintaining such Guaranties, the guaranties executed by any
Supplemental Guarantors shall be executed and delivered to the Agent for the
benefit of each of the Lenders and shall be substantially identical to the
guaranties previously executed by each of the Initial Guarantors, together with
such supporting documentation, including corporate resolutions and opinions of
counsel with respect to such additional guaranty, as may be reasonably required
by the Agent and the Required Lenders.
(b) In the event of a sale or other disposition of all or
substantially all of the assets of any Guarantor, by way of merger,
consolidation or otherwise, or a sale or other disposition of all of the capital
stock of any Guarantor, in each case to a Person that is not (either before or
after giving effect to such transactions) an Affiliate of the Borrower, then
such Guarantor (in the event of a sale or disposition, by way of merger,
consolidation or otherwise, of all of the capital stock of such Guarantor) or
the Person acquiring the property (in the event of a sale or other disposition
of all or substantially all of the assets of such Guarantor) will be released
and relieved of any obligations under its respective Guaranty, provided, that
(i) such Guarantor or other Person, as the case may be, is concurrently released
and relieved of any obligations it may have with respect to the Subordinated
Notes and (ii) after such release the Borrower remains in compliance with
Section 6.20(a).
6.21. Subordinated Indebtedness. The Borrower will not make any
amendment or modification to the Convertible Indenture or the Subordinated
Indenture or any note or other agreement governing the Convertible Notes or the
Subordinated Notes that would adversely affect the Lenders. The Obligations
under this Agreement shall constitute "Designated Senior Indebtedness" for
purposes of the Convertible Indenture.
ARTICLE VII
DEFAULTS
7. Defaults. The occurrence of any one or more of the following
events shall constitute a Default:
7.1 Any representation or warranty made or deemed made by or on
behalf of the Borrower or any of its Subsidiaries to the Lenders or the Agent
under or in connection with this Agreement, any Loan, any Letter of Credit, any
Guaranty or any certificate or information delivered in connection with this
Agreement or any other Loan Document shall be materially false on the date as of
which made or deemed made.
43
7.2 Nonpayment of principal of any Loan or Note or L/C Obligation
when due, or nonpayment of interest upon any Loan or Note or of any commitment
fee or other obligations under any of the Loan Documents within five Business
Days after the same becomes due.
7.3 The breach by the Borrower or any of its Subsidiaries of any of
the terms or provisions of Section 6.1, 6.2, 6.3(a), 6.10, 6.11, 6.12, 6.14,
6.15, 6.16, 6.17, 6.18, 6.19, 6.20 or 6.21.
7.4 The breach by the Borrower or any of its Subsidiaries (other
than a breach which constitutes a Default under Section 7.1, 7.2 or 7.3) of any
of the terms or provisions of this Agreement which is not remedied within 30
days after receipt of written notice from the Agent or any Lender.
7.5 Failure of the Borrower or any of its Subsidiaries to pay any
Indebtedness equal to or exceeding $25,000,000 in the aggregate when due; or the
default by the Borrower or any of its Subsidiaries in the performance of any
term, provision or condition contained in any agreement under which any
Indebtedness equal to or exceeding $25,000,000 in the aggregate was created or
is governed, or any other event (including the occurrence of any "Amortization
Event" or event of like import in connection with the Receivables Purchase
Facility, but excluding a redemption of Receivables and Related Security
pursuant to a "clean-up call" event) shall occur or condition exist, (i) the
effect of which is to cause, or to permit the holder or holders of such
Indebtedness to cause, such Indebtedness to become due prior to its stated
maturity, or (ii) if such default or event shall occur or such condition exist
under any Receivables Purchase Documents, the effect of which is to (A)
terminate, or permit the investors thereunder to terminate, the reinvestment of
collections or proceeds of Receivables and Related Security under any
Receivables Purchase Document (other than a termination resulting solely from
the request of the Borrower or any of its Subsidiaries) or (B) cause the
replacement of, or permit the investors thereunder to replace, the Person then
acting as servicer for the related Receivables Purchase Facility; or any
Indebtedness of the Borrower or any of its Subsidiaries equal to or exceeding
$25,000,000 in the aggregate shall be declared to be due and payable or required
to be prepaid (other than by a regularly scheduled payment) prior to the stated
maturity thereof; or the Borrower or any of its Subsidiaries shall not pay, or
shall admit in writing its inability to pay, its debts generally as they become
due.
7.6 The Borrower or any of its Subsidiaries shall (a) have an order
for relief entered with respect to it under the United States bankruptcy laws as
now or hereafter in effect or cause or allow any similar event to occur under
any bankruptcy or similar law or laws for the relief of debtors as now or
hereafter in effect in any other jurisdiction, (b) make an assignment for the
benefit of creditors, (c) apply for, seek, consent to, or acquiesce in, the
appointment of a receiver, custodian, trustee, examiner, liquidator, monitor or
similar official for it or any Substantial Portion of its Property, (d)
institute any proceeding seeking an order for relief under the United States
bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a
bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or any of its
property or its debts under any law relating to bankruptcy, insolvency or
reorganization or compromise of
44
debt or relief of debtors as now or hereafter in effect in any jurisdiction, or
any organization, arrangement or compromise of debt under the laws of its
jurisdiction of incorporation or fail to promptly file an answer or other
pleading denying the material allegations of any such proceeding filed against
it, (e) take any corporate action to authorize or effect any of the foregoing
actions set forth in this Section 7.6 or (f) fail to contest in good faith, or
consent to or acquiesce in, any appointment or proceeding described in Section
7.7.
7.7 Without the application, approval or consent of the Borrower or
any of its Subsidiaries, a receiver, custodian, trustee, examiner, liquidator or
similar official shall be appointed (either privately or by a court) for the
Borrower or any of its Subsidiaries or any Substantial Portion of its Property,
or a proceeding described in Section 7.6(d) shall be instituted against the
Borrower or any of its Subsidiaries and such appointment continues undischarged
or such proceeding continues undismissed or unstayed for a period of 60
consecutive days.
7.8 Any court, government or governmental agency shall condemn,
seize or otherwise appropriate, or take custody or control of (each a
"Condemnation"), all or any portion of the Property of the Borrower and its
Subsidiaries which, when taken together with all other Property of the Borrower
and its Subsidiaries so condemned, seized, appropriated, or taken custody or
control of, during the twelve-month period ending with the month in which any
such Condemnation occurs, constitutes a Substantial Portion.
7.9 The Borrower or any of its Subsidiaries shall fail within 60
days to pay, bond or otherwise discharge any judgment or order for the payment
of money in excess of $25,000,000, which is not stayed on appeal or otherwise
being appropriately contested in good faith.
7.10 The Unfunded Liabilities of all Single Employer Plans shall
exceed in the aggregate $10,000,000 or any Reportable Event, the occurrence
which may reasonably be expected to give rise to Material Adverse Effect, shall
occur in connection with any Plan.
7.11 The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that it has incurred
withdrawal liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer Plans by
the Borrower or any other member of the Controlled Group as withdrawal liability
(determined as of the date of such notification), exceeds $10,000,000 or
requires payments exceeding $5,000,000 per annum.
7.12 The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and the other
members of the Controlled Group (taken as a whole) to all Multiemployer Plans
which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan years of each such Multiemployer Plan immediately preceding the
plan year in which the reorganization or termination occurs by an amount
exceeding $10,000,000.
45
7.13 The Borrower or any of its Subsidiaries shall be the subject of
any proceeding or investigation pertaining to the release by the Borrower or any
such Subsidiary, or any other Person of any toxic or hazardous waste or
substance into the environment, or any violation of any environmental, health or
safety law or regulation of any Governmental Authority, which, in either case,
could reasonably be expected to have a Material Adverse Effect.
7.14 Any Guaranty shall fail to remain in full force or effect or
any action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Guaranty, or any Guarantor shall fail to perform its
obligations under or otherwise comply with any of the terms or provisions of any
Guaranty to which it is a party, or any Guarantor shall deny that it has any
further liability under any Guaranty to which it is a party, or shall give
notice to such effect.
7.15 Any Change in Control shall occur.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. If any Default described in Section 7.6 or 7.7
occurs, the obligations of the Lenders to make Loans or purchase participations
in Letters of Credit or Swing Line Loans hereunder and the obligation of the
Agent to issue Letters of Credit hereunder shall automatically terminate and the
Obligations shall immediately become due and payable without any election or
action on the part of the Agent or any Lender, and without presentment, demand,
protest or notice of any kind, all of which the Borrower hereby expressly
waives. If any other Default occurs, the Required Lenders may (a) terminate or
suspend the obligations of the Lenders to make Loans and purchase participations
in Letters of Credit or Swing Line Loans hereunder, whereupon the obligation of
the Agent to issue Letters of Credit hereunder shall also terminate or be
suspended, or (b) declare the Obligations to be due and payable, whereupon the
Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrower hereby
expressly waives, or (c) take the action described in both the preceding clause
(a) and the preceding clause (b).
If, within 30 days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans
hereunder as a result of any Default (other than any Default as described in
Section 7.6 or 7.7) and before any judgment or decree for the payment of the
Obligations due shall have been obtained or entered, the Required Lenders (in
their sole discretion) shall so direct, the Agent shall, by notice to the
Borrower, rescind and annul such acceleration and/or termination.
8.2. Amendments. Subject to the provisions of this Article VIII, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders and the Borrower hereunder or waiving
any Default hereunder; provided, however, that no such supplemental agreement
shall, without the consent of each Lender affected thereby:
46
(a) extend the maturity of any Loan, Note or Reimbursement
Obligation or forgive all or any portion of the principal amount thereof,
any interest thereon or any fees or other amounts payable hereunder, or
reduce the rate or extend the time of payment of interest, fees or other
amounts payable hereunder;
(b) reduce the percentage specified in the definition of Required
Lenders;
(c) reduce the amount or extend the payment date for the mandatory
payments required under Section 2.2 or 2.18, or increase the amount of the
Commitment of any Lender hereunder, or permit the Borrower to assign its
rights or obligations under this Agreement;
(d) amend this Section 8.2; or
(e) release any Guarantor, other than in accordance with Section
6.20(b).
No amendment of any provision of this Agreement relating in any way to the Agent
or any or all of the Letters of Credit shall be effective without the written
consent of the Agent. No amendment of any provision of this Agreement relating
to Swing Line Loans shall be effective without the written consent of the Swing
Line Lender. The Agent may waive payment of the fee required under Section
12.3.2 without obtaining the consent of any other party to this Agreement.
Notwithstanding the foregoing, the consent of the Required Lenders shall not be
required for the effectiveness of any Commitment and Acceptance pursuant to
Section 2.10(c).
8.3. Preservation of Rights. No delay or omission of the Lenders or
any of them or the Agent to exercise any right under the Loan Documents shall
impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of a Loan notwithstanding the existence of
a Default or the inability of the Borrower to satisfy the conditions precedent
to such Loan shall not constitute any waiver or acquiescence. Any single or
partial exercise of any such right shall not preclude any other or further
exercise thereof or the exercise of any other right, and no waiver, amendment or
other variation of the terms, conditions or provisions of the Loan Documents
whatsoever shall be valid unless in writing signed by (or with the consent of)
the Lenders required pursuant to Section 8.2, and then only to the extent
specifically set forth in such writing. All remedies contained in the Loan
Documents or afforded by law shall be cumulative and all shall be available to
the Agent and the Lenders until the Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and warranties
of the Borrower contained in this Agreement shall survive delivery of the Notes
and the making of the Loans herein contemplated.
47
9.2. Governmental Regulation. Anything contained in this Agreement
to the contrary notwithstanding, no Lender shall be obligated to extend credit
to the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.3. Stamp Duties. The Borrower shall pay and forthwith on demand
indemnify each of the Agent and each Lender against any liability it incurs in
respect of any stamp, registration and similar tax which is or becomes payable
in connection with the entry into, performance or enforcement of any Loan
Document ("Other Taxes").
9.4. Headings. Section headings in the Loan Documents are for
convenience of reference only and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.5. Entire Agreement; Independence of Covenants. The Loan
Documents, the letter agreements dated March 5, 2001 (other than the commitment
letter, except for the second paragraph thereof, which shall survive) among all
or certain of the Borrower, the Agent, the Arrangers and the Original Lenders
and the letter agreement among the Borrower, the Agent, and the Arrangers dated
March 19, 2001 embody the entire agreement and understanding among the Borrower,
the Agent, the Arrangers and the Lenders relating to the subject matter thereof.
Except as otherwise expressly provided herein, no provision of this Agreement
shall be construed as waiving, negating or otherwise qualifying any restriction,
limitation or other condition imposed by any other provision of this Agreement.
9.6. Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement (and
their Affiliates and respective directors, officers and employees with respect
to Section 9.7) and their respective successors and assigns, provided, however,
that the parties hereto expressly agree that each Arranger shall enjoy the
benefits of the provisions of Sections 9.7, 9.11 and 10.10 to the extent
specifically set forth therein and shall have the right to enforce such
provisions on its own behalf and in its own name to the same extent as if it
were a party to this Agreement.
9.7. Expenses; Indemnification. The Borrower shall reimburse the
Agent and each of the Arrangers for any reasonable costs, internal charges and
out-of-pocket expenses (including reasonable attorneys' fees and time charges of
attorneys for the Agent or the Arrangers, which attorneys may be employees of
the Agent or the Arrangers) paid or incurred by the Agent or either Arranger in
connection with the preparation, negotiation, execution, delivery, review,
amendment, modification, and administration of the Loan Documents; provided that
in the case of each of the Arrangers, the foregoing reimbursement obligation
shall apply only to such costs, charges and expenses paid or incurred prior to
the end of the Syndication Period. The Borrower also agrees to reimburse the
Agent, the Arrangers and the Lenders for any reasonable costs, internal charges
and out-of-pocket expenses (including reasonable attorneys' fees and time
charges of attorneys for the Agent, the Arrangers and the Lenders, which
attorneys may be employees of the Agent, the Arrangers or the Lenders) paid or
incurred by the Agent, either
48
Arranger or any Lender in connection with the collection and enforcement of the
Loan Documents. The Borrower further agrees to indemnify the Agent, each
Arranger, each Lender and their respective Affiliates, and such entities'
respective directors, officers and employees (each an "Indemnitee") against all
losses, claims, damages, penalties, judgments, liabilities and expenses
(including, without limitation, all reasonable expenses of litigation or
preparation therefor whether or not the Agent, either Arranger or any Lender is
a party thereto) which any of them may pay or incur arising out of or relating
to this Agreement, the other Loan Documents, the transactions contemplated
hereby or the direct or indirect application or proposed application of the
proceeds of any Loan or Letter of Credit hereunder except to the extent that
such losses, claims, damages, penalties, judgments, liabilities and expenses are
found in a final judgment by a court of competent jurisdiction to have arisen
solely from the Gross Negligence or willful misconduct of such Indemnitee. The
obligations of the Borrower under this Section shall survive the termination of
this Agreement.
9.8. Numbers of Documents. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Agent with
sufficient counterparts so that the Agent may furnish one to each of the
Lenders.
9.9. Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles; provided, however, that to the extent that any change in GAAP shall
alter the result of any financial covenant or test or any other accounting
determination to be computed or made hereunder, the Borrower agrees that such
covenant, test or other determination shall continue to be computed or made on
the basis of Agreement Accounting Principles as in effect prior to such change
in GAAP, unless the Required Lenders shall otherwise consent.
9.10. Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.11. Nonliability of Lenders. The relationship between the
Borrower, on the one hand, and the Lenders and the Agent, on the other hand,
shall be solely that of borrower and lender. None of the Agent, either Arranger
or any Lender shall have any fiduciary responsibilities to the Borrower or any
of its Subsidiaries. None of the Agent, the Arrangers or the Lenders undertakes
any responsibility to the Borrower or any of its Subsidiaries to review or
inform the Borrower or any of its Subsidiaries of any matter in connection with
any phase of the business or operations of the Borrower or any of its
Subsidiaries. None of the Agents, the Arrangers or the Lenders shall have any
liability with respect to, and the Borrower hereby waives, releases and agrees
not to sue for, any special, indirect, consequential or punitive damages
suffered by the Borrower in connection with, arising out of, or in any way
related to the Loan Documents or the transactions contemplated thereby. No
Indemnitee shall be liable for any damages arising from the use by unauthorized
Persons of information or other materials sent through electronic,
telecommunications or other information transmission systems that are
intercepted by such Persons.
49
9.12. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING
A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1
ET SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE
STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
9.13. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR
ILLINOIS STATE COURT SITTING IN CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR
HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
LIMIT THE RIGHT OF THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE
BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
9.14. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT, EACH ARRANGER
AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
9.15. Confidentiality. Each of the Agent, each Arranger and each
Lender agrees to hold any confidential information which it may receive from the
Borrower or any of its Subsidiaries pursuant to this Agreement in confidence,
except for disclosure (a) to other Lenders or their respective affiliates, (b)
to legal counsel, accountants, and other professional advisors to that Lender or
to a Transferee, (c) to regulatory officials and examiners, (d) to any Person as
requested pursuant to or as required by law, regulation, or legal process, (e)
to any Person in connection with any legal proceeding to which that Lender is a
party, and (f) permitted by Section 12.4; provided, however, with respect to any
disclosure pursuant to subsections (d) and (e), the Agent, such Arranger or such
Lender, as applicable, uses its best efforts to notify the Borrower in writing
immediately upon its or their receipt of any demand for such disclosures except
to the extent such notice to the Borrower is prohibited by any law or regulatory
authority.
ARTICLE X
THE AGENT
10.1. Appointment. Bank One is hereby appointed Agent hereunder and
under each other Loan Document, and each of the Lenders irrevocably authorizes
the Agent to act as the agent of such Lender. The Agent agrees to act as such
upon the express conditions contained
50
in this Article X. The Agent shall not have a fiduciary relationship in respect
of the Borrower, any Subsidiary of the Borrower or any Lender by reason of this
Agreement.
10.2. Powers. The Agent shall have and may exercise such powers
under the Loan Documents as are specifically delegated to the Agent by the terms
of each thereof, together with such powers as are reasonably incidental thereto.
The Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by
the Loan Documents to be taken by the Agent.
10.3. General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to any or all of the Borrower, any
Subsidiary of the Borrower or the Lenders for any action taken or omitted to be
taken by it or them hereunder or under any other Loan Document or in connection
herewith or therewith, except to the extent that such action or inaction is
found in a final judgment by a court of competent jurisdiction to have arisen
solely from the Gross Negligence or willful misconduct of such Person.
10.4. No Responsibility for Loans, Recitals, Etc. Neither the Agent
nor any of its directors, officers, agents or employees shall be responsible for
or have any duty to ascertain, inquire into, or verify (a) any statement,
warranty or representation made in connection with any Loan Document or any
borrowing hereunder; (b) the performance or observance of any of the covenants
or agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered to the Agent; or (d) the validity,
effectiveness or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith. The Agent shall have no duty to
disclose to the Lenders information that is not required to be furnished by the
Borrower to the Agent at such time, but is voluntarily furnished by the Borrower
to the Agent (either in its capacity as Agent or in its individual capacity).
10.5. Action on Instructions of Lenders. The Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder and
under any other Loan Document in accordance with written instructions signed by
the Required Lenders or, in the case of any act or failure to act calculated to
give rise to any of the events or circumstances described in clauses (a) through
(e) of Section 8.2, each affected Lender, and such instructions and any action
taken or failure to act pursuant thereto shall be binding on all of the Lenders
and on all holders of Notes. The Agent shall be fully justified in failing or
refusing to take any action hereunder and under any other Loan Document unless
it shall first be indemnified to its satisfaction by the Lenders pro rata
against any and all liability, cost and expense that it may incur by reason of
taking or continuing to take any such action.
10.6. Employment of Agents and Counsel. The Agent may execute any of
its duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning all matters pertaining to the agency hereby created and its
duties hereunder and under any other Loan Document.
51
10.7. Reliance on Documents; Counsel. The Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect of
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
10.8. Agent's Reimbursement and Indemnification. The Lenders agree
to reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (a) for any amounts not reimbursed by the Borrower for which the
Agent is entitled to reimbursement by the Borrower under the Loan Documents, (b)
for any amounts not reimbursed by the Borrower for any other expenses incurred
by the Agent on behalf of the Lenders, in connection with the preparation,
execution, delivery, administration and enforcement of the Loan Documents and
(c) for any amounts not reimbursed by the Borrower for any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against the Agent in any way relating to or arising
out of the Loan Documents or any other document delivered in connection
therewith or the transactions contemplated thereby, or the enforcement of any of
the terms thereof or of any such other documents, provided that no Lender shall
be liable for any of the foregoing to the extent they are determined in a final
judgment of a court of competent jurisdiction to have arisen solely from the
Gross Negligence or willful misconduct of the Agent. The obligations of the
Lenders under this Section 10.8 shall survive payment of the Obligations and
termination of this Agreement.
10.9. Rights as a Lender. In the event the Agent is a Lender, the
Agent shall have the same rights and powers hereunder and under any other Loan
Document as any Lender and may exercise the same as though it were not the
Agent, and the term "Lender" or "Lenders" shall, at any time when the Agent is a
Lender, unless the context otherwise indicates, include the Agent in its
individual capacity. The Agent may accept deposits from, lend money to, and
generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Subsidiaries in which the Borrower or any of its
Subsidiaries is not restricted hereby from engaging with any other Person. The
Agent, in its individual capacity, is not obligated to remain a Lender;
provided, however, that in the event that the Agent ceases to be a Lender
hereunder, the Required Lenders may remove the Agent and appoint a successor
Agent, if no Default has occurred and is continuing, with the consent of the
Borrower.
10.10. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, either Arranger or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent, either Arranger 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 this
Agreement and the other Loan Documents.
52
10.11. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, such resignation to be
effective upon the appointment of a successor Agent or, if no successor Agent
has been appointed, 45 days after the resigning Agent gives notice of its
intention to resign. Upon any such resignation the Required Lenders shall have
the right to appoint, on behalf of the Borrower and the Lenders, a successor
Agent. If no successor Agent shall have been so appointed by the Required
Lenders within 30 days after the resigning Agent's giving notice of its
intention to resign, then the resigning Agent may appoint, on behalf of the
Borrower and the Lenders, a successor Agent. If the Agent has resigned and no
successor Agent has been appointed, the Lenders may perform all the duties of
the Agent hereunder and the Borrower shall make all payments in respect of the
Obligations to the applicable Lender and for all other purposes shall deal
directly with the Lenders. No successor Agent shall be deemed to be appointed
hereunder until such successor Agent has accepted the appointment and, if no
Default or Unmatured Default has occurred and is continuing, the Borrower has
consented to such appointment. Any such successor Agent shall be a commercial
bank having capital and retained earnings of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning Agent, shall be obligated
to issue substitute letters of credit for the outstanding Letters of Credit
issued by the resigning Agent or otherwise to provide credit assurance
satisfactory to the resigning Agent with respect to such outstanding Letters of
Credit. Upon the effectiveness of the resignation of the Agent, the resigning
Agent shall be discharged from its duties and obligations hereunder and under
the Loan Documents. After the effectiveness of the resignation of an Agent, the
provisions of this Article X shall continue in effect for the benefit of such
Agent in respect of any actions taken or omitted to be taken by it while it was
acting as the Agent hereunder and under the other Loan Documents.
10.12. Agent's Fee. The Borrower agrees to pay to the Agent, for its
own account, the fees agreed to by the Borrower and the Agent by separate letter
agreement, or as otherwise agreed from time to time.
10.13. Syndication Agents, Documentation Agents, etc. None of the
Lenders identified in this Agreement as a "Syndication Agent" or as a
"Documentation Agent" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Without limiting the foregoing, none of such Lenders shall have
or be deemed to have a fiduciary relationship with any Lender. Each Lender
hereby makes the same acknowledgments with respect to such Lenders as it makes
with respect to the Agent in Section 10.10. Neither of the Arrangers nor UBS
Warburg LLC, in its capacity as a Syndication Agent, shall have any obligation,
liability, responsibility or duty under this Agreement.
10.14. Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Unmatured Default
hereunder unless the Agent has received written notice from a Lender or the
Borrower referring to this Agreement describing such Default or Unmatured
Default and stating that such notice is a "notice of default." In the event that
the Agent receives such a notice, the Agent shall give prompt notice thereof to
the Lenders.
53
10.15. Guarantor Releases. The Lenders hereby empower and authorize
the Agent to execute and deliver to the Borrower or any Guarantor on their
behalf any agreements, documents or instruments as shall be necessary or
appropriate to effect any release of a Guarantor which shall be permitted by the
terms hereof or which shall otherwise have been approved by the Required Lenders
(or, if required by the terms of Section 8.2, all of the Lenders) in writing.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any rights
of the Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default or Unmatured Default occurs, any and all deposits
(including all account balances, whether provisional or final and whether or not
collected or available) and any other Indebtedness at any time held or owing by
any Lender to or for the credit or account of the Borrower may be offset and
applied toward the payment of the Obligations owing to such Lender, whether or
not the Obligations, or any part hereof, shall then be due. Each Lender shall
give the Borrower prompt notice of any setoff made by such Lender pursuant
hereto.
11.2. Ratable Payments. If any Lender, whether by setoff or
otherwise (other than pursuant to Section 3.5 and Article XII), has payment made
to it upon its Syndicated Loans (other than payments received pursuant to
Section 3.1, 3.2 or 3.4) in a greater proportion than that received by any other
Lender, such Lender agrees, promptly upon demand, to purchase a portion of the
Syndicated Loans held by the other Lenders so that after such purchase each
Lender will hold its ratable proportion of Syndicated Loans. If any Lender,
whether in connection with setoff or amounts which might be subject to setoff or
otherwise, receives collateral or other protection for its Obligations or such
amounts which may be subject to setoff, such Lender agrees, promptly upon
demand, to take such action necessary such that all Lenders share in the
benefits of such collateral ratably in proportion to their Syndicated Loans. In
case any such payment is disturbed by legal process, or otherwise, appropriate
further adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower, the
Agent and the Lenders and their respective successors and assigns, except that
(a) the Borrower shall not have the right to assign its rights or obligations
under the Loan Documents without the consent of all of the Lenders and (b) any
assignment by any Lender must be made in compliance with Section 12.3.
Notwithstanding clause (b) of the preceding sentence, any Lender may at any
time, without the consent of the Borrower or the Agent, assign all or any
portion of its rights under this Agreement and its Notes to a Federal Reserve
Bank; provided, however, that no such assignment shall release the transferor
Lender from its obligations hereunder. The Agent may treat the payee of any Note
as the owner thereof for all purposes hereof unless and until such payee
complies
54
with Section 12.3 in the case of an assignment thereof or, in the case of any
other transfer, a written notice of the transfer is filed with the Agent. Any
assignee or transferee of a Note agrees by acceptance thereof to be bound by all
the terms and provisions of the Loan Documents. Any request, authority or
consent of any Person, who at the time of making such request or giving such
authority or consent is the holder of any Note, shall be conclusive and binding
on any subsequent holder, transferee or assignee of such Note or of any Note or
Notes issued in exchange therefor.
12.2. Participations.
12.2.1. Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law, (a) with
contemporaneous notice to the Borrower, at any time sell to one or more banks or
(b) with the consent of the Borrower, which consent shall not be unreasonably
withheld, at any time sell to one or more other entities (each such bank or
other entity being referred to herein as a "Participant") participating
interests in any Loan owing to such Lender, any Note held by such Lender, any
L/C Interest held by such Lender, the Commitment of such Lender or any other
interest of such Lender under the Loan Documents; provided, however, that if a
Participant is an Affiliate of such Lender or if a Default has occurred and is
continuing, the consent of the Borrower shall not be required. In the event of
any such sale by a Lender of participating interests to a Participant, such
Lender's obligations under the Loan Documents shall remain unchanged, such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, such Lender shall remain the holder of any such
Note for all purposes under the Loan Documents, all amounts payable by the
Borrower under this Agreement shall be determined as if such Lender had not sold
such participating interests, and the Borrower and the Agent shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under the Loan Documents. The participation agreement
effecting the sale of any participating interest shall contain a representation
by the Participant to the effect that none of the consideration used to make the
purchase of the participating interest in the Commitment, Loans and L/C
Interests under such participation agreement are "plan assets" as defined under
ERISA and that the rights and interests of the Participant in and under the Loan
Documents will not be "plan assets" under ERISA.
12.2.2. Voting Rights. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment, modification or
waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Loan, L/C Interest or Commitment in
which such Participant has an interest which forgives principal, interest or
fees or reduces the interest rate or fees payable with respect to any such Loan,
L/C Interest or Commitment, postpones any date fixed for any regularly-scheduled
payment of principal of, or interest or fees on, any such Loan, L/C Interest or
Commitment, or releases any guarantor of any such Loan or L/C Interest.
12.2.3. Benefit of Setoff. The Borrower agrees that to the extent
permitted by applicable law each Participant shall be deemed to have the right
of setoff provided in Section 11.1 in respect of its participating interest in
amounts owing under the Loan Documents to the same extent as if the amount of
its participating interest were owing directly to it as a Lender under the Loan
Documents, provided that each Lender shall retain the right of setoff provided
in
55
Section 11.1 with respect to the amount of participating interests sold to each
Participant. The Lenders agree to share with each Participant, and each
Participant shall be deemed to agree, by exercising the right of setoff provided
in Section 11.1, to share with each Lender, any amount received pursuant to the
exercise of its right of setoff, such amounts to be shared in accordance with
Section 11.2 as if each Participant were a Lender.
12.3. Assignments.
12.3.1. Permitted Assignments. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time assign
to one or more banks or other entities ("Purchasers") all or any part of its
Commitment and outstanding Loans and L/C Interests, together with its rights and
obligations under the Loan Documents with respect thereto; provided, however,
that (a) each such assignment shall be of a constant, and not a varying,
percentage of all of the assigning Lender's rights and obligations so assigned;
(b) the amount of the Commitment of the assigning Lender being assigned pursuant
to each such assignment (determined as of the date of such assignment) may be in
the amount of such Lender's entire Commitment but otherwise shall not be less
than $5,000,000 or an integral multiple of $1,000,000 in excess of that amount
unless otherwise consented to by the Borrower and the Agent; and (c)
notwithstanding the foregoing clause (b), if the assignment is made to a Lender,
the amount of the Commitment assigned shall not be less than $1,000,000 or an
integral multiple thereof. Such assignment shall be substantially in the form of
Exhibit D hereto or in such other form as may be agreed to by the parties
thereto. The consent of the Borrower and the Agent shall be required prior to an
assignment becoming effective with respect to a Purchaser which is not a Lender
or an Affiliate of a Lender; provided, however, that if a Default has occurred
and is continuing, the consent of the Borrower shall not be required. Such
consents shall not be unreasonably withheld or delayed.
12.3.2. Effect; Effective Date. Upon the later of (i) two Business
Days (or such shorter period agreed to by the Agent) after (a) delivery to the
Agent of a notice of assignment, substantially in the form attached to Exhibit D
hereto (a "Notice of Assignment"), together with any consents required by
Section 12.3.1, and (b) payment of a $3,000 fee to the Agent for processing such
assignment, and (ii) the date certain specified in such Notice of Assignment,
such assignment shall become effective; provided that the Agent hereby waives
payment of such fee in connection with any such assignment that shall become
effective during the Syndication Period. The Agent shall, solely for this
purpose as agent of the Borrower, maintain a copy of each Notice of Assignment
delivered to it and a register for the recordation of the names and addresses of
the Lenders and the principal amount of the obligations under the Loan Documents
owing to each Lender from time to time. The Agent will confirm to any Lender,
upon reasonable request, the amount of such Lender's Commitment and the
principal amount of the obligations under the Loan Documents owing to such
Lender from time to time. The Notice of Assignment shall contain a
representation by the Purchaser to the effect that none of the consideration
used to make the purchase of the Commitment and Loans under the applicable
assignment agreement are "plan assets" as defined under ERISA and that the
rights and interests of the Purchaser in and under the Loan Documents will not
be "plan assets" under ERISA. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to this
Agreement and any other Loan Document executed by the Lenders and shall have all
the rights and obligations of a Lender under the Loan Documents, to the same
extent as if it
56
were an original party hereto and thereto, and no further consent or action by
the Borrower, the Lenders or the Agent shall be required to release the
transferor Lender with respect to the percentage of the Aggregate Commitment and
Loans assigned to such Purchaser. Upon the consummation of any assignment to a
Purchaser pursuant to this Section 12.3.2, the transferor Lender, the Agent, and
the Borrower shall make appropriate arrangements so that replacement Notes, if
applicable, are issued to such transferor Lender and new Notes or, as
appropriate, replacement Notes, if requested, are issued to such Purchaser, in
each case in principal amounts reflecting its Commitment, as adjusted pursuant
to such assignment.
12.4. Dissemination of Information. The Borrower authorizes each
Lender to disclose to any Participant or Purchaser or any other Person acquiring
an interest in the Loan Documents by operation of law (each a "Transferee") and
any prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries; provided
that each Transferee and prospective Transferee agrees to be bound by Section
9.15 or a confidentiality agreement containing provisions substantially similar
to Section 9.15.
12.5. Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 2.17.
ARTICLE XIII
NOTICES
13.1. Notices. Except as otherwise permitted by Section 2.13 with
respect to borrowing notices, all notices, requests and other communications to
any party hereunder shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given to such party: (x)
in the case of the Borrower or the Agent, at its address or facsimile number set
forth on the signature pages hereof, (y) in the case of any Lender, at its
address or facsimile number set forth in its administrative questionnaire or (z)
in the case of any party, at such other address or facsimile number as such
party may hereafter specify for the purpose by notice to the Agent and the
Borrower in accordance with the provisions of this Section 13.1. Each such
notice, request or other communication shall be effective (i) if given by
facsimile transmission, when transmitted to the facsimile number specified in
this Section and confirmation of receipt is received, (ii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, or (iii) if given by any other means,
when delivered (or, in the case of electronic transmission, received) at the
address specified in this Section; provided that notices to the Agent under
Article II shall not be effective until received.
13.2. Change of Address. The Borrower and the Agent may each change
the address for service of notice upon it by a notice in writing to the other
parties hereto. Any Lender may change the address for service of notice upon it
by a notice in writing to the Borrower and the Agent.
57
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. Subject to
Section 4.1, this Agreement shall be effective when it has been executed by the
Borrower, the Agent and the Lenders and each party has notified the Agent by
facsimile transmission or otherwise in writing that it has taken such action.
[Signature Pages Follow]
58
IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have
executed this Agreement as of the date first above written.
OMNICARE, INC.
By:
------------------------------------
Name:
Title:
1600 RiverCenter II
100 East RiverCenter Boulevard
Covington, Kentucky 41011
Attn: Chief Financial Officer and General Counsel
Facsimile No. 859-392-3360
with a copy of notices to:
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019
Attn: Gregory Owens
Facsimile No. 212-259-6333
59
BANK ONE, NA,
as a Lender and as Administrative Agent
By:
--------------------------------------
Name:
Title:
Address:
1 Bank One Plaza
Chicago, Illinois 60670
Attention:
Facsimile No.:
60
UBS AG, STAMFORD BRANCH,
as a Lender
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
61
LEHMAN COMMERCIAL PAPER INC.,
as a Lender and a Syndication Agent
By:
-------------------------------------
Name:
Title:
62
SUNTRUST BANK,
as a Lender and a Documentation Agent
By:
-------------------------------------
Name:
Title:
63
DEUTSCHE BANC ALEX. BROWN INC.,
as a Documentation Agent
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
BANKERS TRUST COMPANY,
as a Lender
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
64
SCHEDULE I
PRICING SCHEDULE
- ----------------------------------------------------------------------------------------------------------------------
STATUS LEVEL I STATUS LEVEL II STATUS LEVEL III STATUS LEVEL IV STATUS LEVEL V STATUS
- ----------------------------------------------------------------------------------------------------------------------
Applicable Margin
1.25% 1.375% 1.625% 2.00% 2.50%
- ----------------------------------------------------------------------------------------------------------------------
Applicable Commitment Fee
Rate 0.375% 0.375% 0.50% 0.50% 0.50%
- ----------------------------------------------------------------------------------------------------------------------
Applicable Letter of Credit 1.25% 1.375% 1.625% 2.00% 2.50%
Fee Rate
- ----------------------------------------------------------------------------------------------------------------------
For the purposes of this Schedule, the following terms have the following
meanings, subject to the final paragraph of this Schedule:
"Level I Status" exists at any date if, on such date, the Borrower's
Moody's Rating is Baa2 or better or the Borrower's S&P Rating is BBB or better.
"Level II Status" exists at any date if, on such date, (i) the Borrower
has not qualified for Level I Status and (ii) the Borrower's Moody's Rating is
Baa3 or better or the Borrower's S&P Rating is BBB- or better.
"Level III Status" exists at any date if, on such date (i) the Borrower
has not qualified for Level I Status or Level II Status and (ii) the Borrower's
Moody's Rating is Ba1 or better or the Borrower's S&P Rating is BB+ or better.
"Level IV Status" exists at any date, if on such date (i) the Borrower has
not qualified for Level I Status, Level II Status or Level III Status and (ii)
the Borrower's Moody's Rating is Ba2 or better or the Borrower's S&P Rating in
BB or better.
"Level V Status" exists at any date if, on such date, the Borrower has not
qualified for Level I Status, Level II Status, Level III Status, or Level IV
Status.
"Moody's Rating" means, at any time, the rating issued by Moody's
Investors Service, Inc. and then in effect with respect to the Borrower's senior
unsecured long-term debt securities without third-party credit enhancement.
"S&P Rating" means, at any time, the rating issued by Standard & Poor's
Rating Services, a division of The McGraw-Hill Companies, Inc. and then in
effect with respect to the Borrower's senior unsecured long-term debt securities
without third party credit enhancement.
"Status" means either Level I Status, Level II Status, Level III Status,
Level IV Status or Level V Status.
65
The Applicable Margin, Applicable Commitment Fee Rate and Applicable
Letter of Credit Fee Rate shall be determined in accordance with the foregoing
table based on the Borrower's Status as determined from its then-current Moody's
and S&P Ratings. The credit rating in effect on any date for the purposes of
this Schedule is that in effect at the close of business on such date. If at any
time the Borrower has no Moody's Rating or no S&P Rating, Level V Status shall
exist, provided that if either S&P or Moody's shall no longer provide debt
ratings for companies in the Borrower's industry generally, the Borrower may
substitute for either such rating organization another nationally recognized
statistical rating organization, the corresponding ratings of which shall be
used to determined the Borrower's Status. If the Borrower is split-rated and the
ratings differential is one level, the higher rating will apply. If the Borrower
is split-rated and the ratings differential is two levels, the intermediate
rating at the midpoint will apply. If the Borrower is split-rated and the
ratings differential is more than two levels, the rating that is one level above
the lowest rating will apply.
66
SCHEDULE II
COMMITMENTS
- -------------------------------------------------------------------------------
Lender Commitment
- -------------------------------------------------------------------------------
Bank One, NA $ 75,000,000
- -------------------------------------------------------------------------------
UBS AG, Stamford Branch $150,000,000
- -------------------------------------------------------------------------------
Lehman Commercial Paper Inc. $120,000,000
- -------------------------------------------------------------------------------
SunTrust Bank $ 75,000,000
- -------------------------------------------------------------------------------
Bankers Trust Company $ 75,000,000
- -------------------------------------------------------------------------------
TOTAL $495,000,000
- -------------------------------------------------------------------------------