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EXHIBIT 10.3
CREDIT AGREEMENT
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BY AND BETWEEN
RENEX CORP.,
A FLORIDA CORPORATION
AND
NATIONSBANK, N.A.,
A NATIONAL BANKING ASSOCIATION
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DATED AS OF APRIL 30, 1998
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TABLE OF CONTENTS
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ARTICLE I - DEFINITIONS...............................................................4
1.1 DEFINITIONS..............................................................4
1.2 ACCOUNTING TERMS........................................................11
1.3 OTHER DEFINITIONAL PROVISIONS...........................................11
ARTICLE II - REVOLVING CREDIT COMMITMENT.............................................12
2.1 REVOLVING CREDIT COMMITMENT.............................................12
2.2 NOTICE AND MANNER OF BORROWING..........................................12
2.3 NOTE....................................................................12
2.4 INTEREST................................................................13
2.5 PAYMENTS................................................................14
2.6 COLLATERAL..............................................................14
2.7 FEES....................................................................14
ARTICLE III - AVAILABILITY...........................................................15
3.1 Availability............................................................15
ARTICLE IV - GUARANTY................................................................15
4.1 GUARANTY................................................................15
ARTICLE V - COLLATERAL...............................................................16
5.1 COLLATERAL..............................................................16
5.2 CROSS-COLLATERAL........................................................16
ARTICLE VI - CONDITIONS PRECEDENT TO BORROWING.......................................16
6.1 EACH LOAN...............................................................16
6.2 INITIAL LOAN............................................................16
ARTICLE VII - CONDITIONS PRECEDENT TO ACQUISITIONS...................................18
7.1 Acquisitions............................................................18
ARTICLE VIII - REPRESENTATIONS AND WARRANTIES........................................20
8.1 CORPORATE EXISTENCE AND POWER...........................................20
8.2 CORPORATE AUTHORITY.....................................................20
8.3 FINANCIAL CONDITION.....................................................20
8.4 FULL DISCLOSURE.........................................................21
8.5 LITIGATION..............................................................21
8.6 PAYMENT OF TAXES........................................................21
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8.7 NO ADVERSE RESTRICTIONS OR DEFAULTS.....................................21
8.8 INVESTMENT COMPANY ACT..................................................22
8.9 AUTHORIZATIONS..........................................................22
8.10 REIMBURSEMENT FROM THIRD PARTY PAYORS..................................22
8.11 FRAUD AND ABUSE........................................................22
8.12 LICENSING AND ACCREDITATION............................................23
8.13 SUBSIDIARIES AND AFFILIATES............................................23
8.14 TITLE TO PROPERTIES....................................................23
8.15 USE OF LOANS...........................................................23
8.16 ERISA..................................................................24
ARTICLE IX - AFFIRMATIVE COVENANTS...................................................24
9.1 LOAN PROCEEDS...........................................................24
9.2 CORPORATE EXISTENCE.....................................................25
9.3 MAINTENANCE OF BUSINESS AND PROPERTIES..................................25
9.4 INSURANCE...............................................................25
9.5 PAYMENT OF INDEBTEDNESS, TAXES, ETC.....................................25
9.6 COMPLIANCE WITH LAWS....................................................26
9.7 NOTICE OF DEFAULT.......................................................26
9.8 FINANCIAL STATEMENTS, REPORTS, ETC......................................26
9.9 VISITATION RIGHTS.......................................................28
9.10 NOTICE OF LITIGATION AND OTHER PROCEEDINGS.............................28
9.11 ERISA..................................................................28
9.12 NET WORTH..............................................................29
9.13 CURRENT RATIO..........................................................29
9.14 CURRENT MATURITIES COVERAGE RATIO......................................29
9.15 LEVERAGE RATIO.........................................................29
9.16 CAPITALIZATION RATIO...................................................29
9.17 BOOKS AND RECORDS......................................................30
9.18 OPERATING ACCOUNTS.....................................................30
9.19 MANAGEMENT.............................................................30
9.20 REIMBURSEMENT FROM THIRD PARTY PAYORS..................................30
ARTICLE X - NEGATIVE COVENANTS.......................................................31
10.1 LIMITATION ON LIENS....................................................31
10.2 LIMITATION ON INDEBTEDNESS.............................................31
10.3 THIRD-PARTY GUARANTIES.................................................32
10.4 DIVIDENDS..............................................................32
10.5 MERGERS, CONSOLIDATIONS AND ACQUISITION OF ASSETS......................32
10.6 SALE, LEASE, ETC.......................................................32
10.7 INVESTMENTS............................................................32
10.8 TRANSACTIONS WITH AFFILIATES...........................................33
10.9 SALE AND LEASEBACK.....................................................33
10.10 PURCHASE OF OWN SHARES................................................33
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10.11 TRANSFER OF SHARES....................................................33
10.12 BUSINESS OPERATIONS...................................................33
10.13 OWNERSHIP OF ASSETS...................................................33
10.14 LOANS AND ADVANCES....................................................33
10.15 CAPITAL EXPENDITURES..................................................29
10.16 FRAUD AND ABUSE.......................................................33
ARTICLE XI - ENVIRONMENTAL...........................................................34
11.1 HAZARDOUS AND TOXIC MATERIALS GENERALLY................................34
ARTICLE XII - EVENTS OF DEFAULT......................................................35
12.1 EVENTS OF DEFAULT......................................................35
ARTICLE XIII - MISCELLANEOUS.........................................................38
13.1 NO WAIVER, REMEDIES CUMULATIVE.........................................38
13.2 SURVIVAL OF REPRESENTATIONS............................................38
13.3 EXPENSES...............................................................38
13.4 NOTICES................................................................39
13.5 CONSTRUCTION...........................................................39
13.6 SUCCESSORS AND ASSIGNS.................................................39
13.7 JURISDICTION, SERVICE OF PROCESS.......................................39
13.8 LIMIT ON INTEREST......................................................40
13.9 PAYMENT ON OTHER THAN BUSINESS DAY.....................................41
13.10 NET PAYMENTS..........................................................41
13.11 INDEMNIFICATION OF LENDER.............................................41
13.12 COUNTERPARTS..........................................................42
13.13 HEADINGS..............................................................42
13.14 SEVERABILITY..........................................................42
13.15 COURSE OF DEALING; AMENDMENT; SUPPLEMENTAL AGREEMENTS.................42
13.16 RIGHT OF SETOFF.......................................................42
13.17 ARBITRATION...........................................................43
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THIS CREDIT AGREEMENT, dated as of April 30, 1998 (the
"Agreement"), is by and between RENEX CORP., a Florida corporation (the
"Borrower") and NATIONSBANK, N.A. (the "Lender").
R E C I T A L S
A. The Borrower has requested Lender to provide to the
Borrower a revolving credit facility as set forth herein.
B. The Lender is willing to provide a revolving credit
facility to the Borrower for the purposes, upon the terms, and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
promises herein contained, and for other good and valuable consideration, it is
agreed as follows:
ARTICLE I - DEFINITIONS
1.1 DEFINITIONS.
In addition to terms defined elsewhere in this Agreement, the
following terms have the meanings indicated which meanings shall be equally
applicable to both the singular and the plural forms of such terms:
"ACCOUNTS OR ACCOUNTS RECEIVABLE" shall have the meaning ascribed to
Account in Section 679.106 of the Florida Statutes and shall include all present
and future accounts, General Intangibles, Chattel Paper, Instruments, notes,
acceptances, Documents or other rights to payment and all forms of obligations
owing at any time to the Borrower or any of its Subsidiaries arising out of the
sale or lease of Inventory or rendition of services, all rights of the Borrower
or any of its Subsidiaries earned or yet to be earned under contracts to sell or
lease Inventory or render services and all documents of any kind in respect of
any of the foregoing, and all the proceeds thereof, of every kind and nature and
in whatsoever form.
"ACQUISITION" shall mean the acquisition by Borrower of a Dialysis
Facility.
"ACQUISITION ADVANCE" shall mean a Borrowing for the purpose of
financing an Acquisition.
"ADJUSTED ACQUISITION EBITDA" shall mean: (i) the actual earnings
before Interest Expense, taxes, depreciation and amortization of the Dialysis
Facility being acquired, for the immediately preceding four (4) fiscal quarters,
adjusted in order to give effect to any increase or decrease in expenses related
to compensation due to newly contracted employee's compensation on a going
forward basis as set forth in a written employment agreement; (ii)
contractually identified increase or decrease in expenses approved by Lender in
its reasonable discretion; and (iii) proforma adjustments approved by Lender in
its sole discretion.
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"ADJUSTED EBITDA" shall mean the actual earnings before Interest
Expense, taxes, depreciation and amortization of Borrower, adjusted in order to
give effect to any increase or decrease in expenses resulting from: (i) the
Adjusted Acquisition EBITDA relating to any Acquisitions; and (ii) expenses
related to compensation due to newly contracted employee's compensation as set
forth in a written employment agreement.
"AFFILIATE" shall mean any Person which directly or indirectly through
one or more intermediaries controls, or is controlled by or is under common
control with, the Borrower. The term "control" means the possession, directly or
indirectly, of the power to cause the direction of the management and policies
of a Person, whether through the ownership of voting securities, by contract or
otherwise.
"AGREEMENT" means this Credit Agreement, as the same may from time to
time be amended, modified, extended or renewed.
"BORROWER" has the meaning assigned to that term in the introduction to
this Agreement.
"BORROWING" shall mean the drawing down by the Borrower of a loan or
loans from the Lender on any given Borrowing Date.
"BORROWING BASE" has the meaning assigned to that term in Article III
of this Agreement.
"BORROWING DATE" shall mean the date as of which a Borrowing is
consummated.
"BUSINESS DAY" shall mean a day on which commercial banks are open for
business in Miami, Florida.
"CAPITAL EXPENDITURES" shall mean any expenditure by a Person which is
or is required to be capitalized on its balance sheet for financial reporting
purposes in accordance with generally accepted accounting principles, including,
without limitation, the incurrence by such Person of any Capitalized Lease
Obligations, excluding any expenditures paid for with insurance proceeds.
"CAPITALIZED LEASE OBLIGATIONS" shall mean, as to any Person, the
obligations or such Person, as lessee or guarantor, to pay rent or other amounts
under a lease of (or other agreement conveying the right to use) real and/or
personal property, which obligations are required to be classified and accounted
for as a capital lease on a balance sheet of the Person under generally accepted
accounting principles.
"CAPITALIZATION RATIO" shall mean the ratio derived by comparing
Borrower's: (i) aggregate outstanding of all Funded Indebtedness; to (ii)
aggregate outstanding of all Funded Indebtedness plus stockholder's equity.
"CHATTEL PAPER" shall have the meaning ascribed to said term in Section
679.105 of the Florida Statutes.
"CLOSING DATE" shall mean as of April 30, 1998.
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"CODE" shall mean the Internal Revenue Code of 1986, as the same may be
from time to time hereafter modified or amended.
"COLLATERAL" has the meaning assigned to that term in Section 5.1 of
this Agreement.
"CONTRACT PROVIDER" means any Person who provides professional/medical
health care services under or pursuant to any contract with the Borrower or any
Subsidiary.
"CURRENT MATURITIES COVERAGE RATIO" shall mean the ratio derived by
comparing Borrower's: (i) Adjusted EBITDA plus Rentals plus Interest Income less
cash income tax payments; to (ii) Interest Expense, plus Rentals, plus current
maturities of long term Indebtedness, plus current maturities of Capitalized
Lease Obligations, plus twenty percent (20%) of the aggregate outstanding
balance of all Revolving Credit Loans.
"CURRENT RATIO" shall mean the ratio derived by comparing Borrower's:
(i) current assets as shown on the balance sheet of Borrower at any particular
date; to (ii) current Liabilities as shown on the balance sheet of Borrower on
such date.
"DEFAULT" shall mean any event which, with the lapse of time, the
giving of notice, or both, would become an Event of Default, provided such
Default has not been waived in writing by Lender.
"DEFAULT RATE" shall mean, for the period commencing on the date of the
occurrence of an Event of Default and terminating on the date the Event of
Default is cured, a rate equal to the lessor of: (i) the maximum rate of
interest permitted by law; or (ii) two percent (2%) in excess of the Prime Rate.
"DIALYSIS FACILITIES" shall mean certain facilities or acute dialysis
or hemapheresis services programs which provide dialysis and ancillary services
for patients suffering from end stage renal disease.
"DOCUMENTS" shall have the meaning ascribed to said term in Section
679.105 of the Florida Statutes and shall include all bills of lading, airway
bills, dock warrants, dock receipts, warehouse receipts or orders for the
delivery of goods, and also any other document which in the regular course of
business or financing is treated as adequately evidencing that the person in
possession of it is entitled to receive, hold and dispose of the document and
the goods it covers.
"DOLLARS" or "$" shall mean dollars in lawful currency of the United
States of America.
"ELIGIBLE ACCOUNTS RECEIVABLE" shall mean the net amount of Borrower's
Accounts Receivable outstanding after eliminating from the aggregate amount of
outstanding Accounts Receivable such Accounts Receivable which are unpaid more
than one hundred fifty (150) days after the invoice date.
"EQUIPMENT" shall have the meaning ascribed to said term in Section
679.109 of the Florida Statutes and shall include all of the Borrower's or any
of its Subsidiary's goods,
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machinery, equipment, fixed assets, rolling stock, fixtures, furniture, office
equipment, tools, parts and other items of personal property of every kind and
description, now owned or hereafter acquired by the Borrower or any Subsidiary,
wheresoever located, together with all additions, attachments, accessions,
parts, replacements and substitutions thereof.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may from time to time be amended.
"EVENT OF DEFAULT" has the meaning assigned to that term in Section
12.1 hereof.
"FUNDED INDEBTEDNESS" Indebtedness on which interest is paid or payable
in accordance with the terms and conditions of such Indebtedness.
"GENERAL INTANGIBLES" shall have the meaning ascribed to said term in
Section 679.106 of the Florida Statutes and shall include, without limitation,
any personal property other than goods, Accounts, Inventory, Equipment, Chattel
Paper and Instruments, including, all franchises, licenses, leases and subleases
whereby Borrower or any Subsidiary leases to another any of Borrower's or any
Subsidiary's Inventory or Equipment, contracts, permits and authorizations of
governmental agencies and others, tradenames, trademarks, service marks,
patents, copyrights, intellectual property and all other intangible property of
the Borrower or any Subsidiary.
"HCFA" shall mean the United States Health Care Financing
Administration and any successor thereto.
"INDEBTEDNESS" of any Person shall mean (a) all indebtedness for
borrowed money or for the deferred purchase price of any property or services
(other than accounts payable and accruals in the ordinary course of business)
for which the Person is liable as principal, (b) all indebtedness (excluding
unaccrued finance charges) secured by a Lien on property owned or being
purchased by the Person, whether or not such indebtedness shall have been
assumed by the Person, (c) all Capitalized Lease Obligations (excluding
unaccrued finance charges) of the Person, (d) any arrangement (commonly
described as a sale-and-leaseback transaction) with any financial institution or
other lender or investor providing for the leasing to the Person of property
which at the time has been or is to be sold or transferred by the Person to the
lender or investor, or which has been or is being acquired from another Person
by the lender or investor for the purpose of leasing the property to the Person,
(e) any contingent obligation or liability including those under Third-Party
Guaranties and letters of credit for borrowed money, and (f) all obligations of
partnerships or joint ventures in respect of which the Person is primarily or
secondarily liable as a partner or joint venturer or otherwise (provided that in
any event for purposes of determining the amount of the Indebtedness, the full
amount of such obligations, without giving effect to the contingent liability or
contributions of other participants in the partnership or joint venture, shall
be included to the extent such Person is liable therefor).
"INTERCOMPANY INDEBTEDNESS" shall mean Indebtedness by and between
Borrower and its Subsidiaries.
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"INTEREST EXPENSE" for any period shall mean the aggregate amount of
interest charges on all Indebtedness of the Borrower or any Subsidiary, as the
case may be (said amount not to include the netting or inclusion of Interest
Income).
"INTEREST INCOME" for any period shall mean the aggregate amount of
interest earned by Borrower or any Subsidiary, as the case may be (said amount
not to include the netting or inclusion of Interest Expense).
"INSTRUMENTS" shall have the meaning ascribed to said term in Section
679.105 of the Florida Statutes.
"INVENTORY" shall mean all goods, merchandise and other personal
property now owned or hereafter acquired by Borrower or any Subsidiary,
wheresoever located, which are held for sale or lease or are furnished under a
contract of service or are raw materials, work in process or materials used or
consumed or to be used or consumed in Borrower's or any Subsidiary's business,
in all of its forms, together with all Inventory in transit, repossessed or
returned Inventory and all Documents of title representing the Inventory, and
all accessions thereto and products thereof.
"INVESTMENTS" shall mean, with respect to any Person, all advances,
loans or extensions of credit to any other Person, all purchases or commitments
to purchase any stock, bonds, notes, debentures or other securities of any other
Person, and any investment in other Persons, including partnerships or joint
ventures.
"LENDER" has the meaning assigned to that term in the introduction to
this Agreement.
"LEVERAGE RATIO" shall mean the ratio derived by comparing Borrower's:
(i) aggregate outstanding of all Funded Indebtedness; to (ii) Adjusted EBITDA.
"LIABILITIES" shall mean, at the time any determination thereof is to
be made, the aggregate amount of all liabilities of the Borrower or any
Subsidiary determined in accordance with generally accepted accounting
principles, including, without limitation, the contingent obligation of the
Borrower or any Subsidiary to reimburse amounts outstanding under any letters of
credit or under other similar facilities.
"LIEN" shall mean a mortgage, pledge, lien, security interest, or other
charge or encumbrance or any segregation of assets or revenues or other
preferential arrangement (whether or not constituting a security interest) with
respect to any present or future assets, including fixtures, revenues, or rights
to the receipt of income of the Person referred to in the context in which the
term is used.
"LIBOR RATE" shall mean the fluctuating rate of interest per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Telerate Page 3750 (or any successor page) as the thirty (30) day London
interbank offered rate for deposits in Dollars. If, for any reason, such rate is
not available, the term "LIBOR" shall mean the rate per annum (rounded upwards,
if necessary to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page
as the thirty (30)
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day London interbank offered rate for deposits in Dollars; provided, however, if
more than one rate is specified on Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all rates. As used herein, "Telerate Page 3750"
means the British Bankers Association Libor Rates (determined at 11:00 a.m.
London, England time) that are published by Dow Jones Telerate, Inc.
"MATERIAL ADVERSE CHANGE" shall mean any material adverse change in or
material adverse effect upon the business, assets, liabilities (actual or
contingent), condition (financial or otherwise), operations, properties of
Borrower and its Subsidiaries taken as a whole.
"MEDICAID CERTIFICATION" shall mean certification by HCFA or a state
agency or entity under contract with HCFA that health care operations are in
compliance with all the conditions of participation set forth in the Medicaid
Regulations, to the extent applicable.
"MEDICAID PROVIDER AGREEMENT" shall mean an agreement entered into
between a state agency or other such entity administering the Medicaid program
and a health care operation under which the health care operation agrees to
provide services for Medicaid patients in accordance with the terms of the
agreement and Medicaid Regulations.
"MEDICAID REGULATIONS" shall mean all federal statutes, rules,
regulations and laws (whether set forth in Title XIX of the Social Security Act
or elsewhere) affecting the medical assistance program established by Title XIX
of the Social Security Act and all state statutes, regulations, rules and laws
enacted in connection therewith, as may be amended, supplemented or otherwise
modified from time to time.
"MEDICAL DIRECTOR AGREEMENT" shall mean an agreement between the
Borrower or any of its Subsidiaries and a physician responsible for professional
medical director services at a Dialysis Facility as required by Medicare
Regulations or Medicaid Regulations.
"MEDICARE CERTIFICATION" shall mean certification by HCFA or a state
agency or entity under contract with HCFA that the health care operation is in
compliance with all the conditions of participation set forth in the Medicare
Regulations.
"MEDICARE PROVIDER AGREEMENT" shall mean an agreement entered into
between a state agency or other such entity administering the Medicare program
and a health care operation under which the health care operation agrees to
provide services for Medicare patients in accordance with the terms of the
agreement and Medicare Regulations.
"MEDICARE REGULATIONS" shall mean all federal statutes, rules,
regulations and laws (whether set forth in Title XVIII of the Social Security
Act or elsewhere) affecting the health insurance program for the aged and
disabled established by Title XVIII of the Social Security Act, as may be
amended, supplemented or otherwise modified form time to time.
"NET WORTH" shall mean, at the time any determination thereof is to be
made, (i) the aggregate amount of all assets of a Person, as may be properly
classified as such, under generally accepted accounting principles, less (ii)
the aggregate amount of all Liabilities of such Person, all as determined in
accordance with generally accepted accounting principles applied on a consistent
basis.
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"NOTE" has the meaning assigned to that term in Section 2.3 of this
Agreement.
"PERMITTED LIENS" shall mean a mortgage, pledge, lien, security
interest or other charge or encumbrance or any segregation of assets or revenues
or other preferential arrangement (whether or not constituting a security
interest and including, without limitation, any conditional sale or other title
retention agreement, and the filing of, or agreement to give, any financing
statement under the Uniform Commercial Code or comparable law of any
jurisdiction) with respect to any present or future assets, including fixtures,
revenues or rights to the receipt of income of the Person referred to in the
context in which the term is used which are permitted to exist under this
Agreement pursuant to Section 10.1 of this Agreement.
"PERSON" shall mean any natural person, corporation, unincorporated
organization, trust, joint-stock company, joint venture, association, company,
partnership or government, or any agency or political subdivision of any
government.
"PLAN" shall mean any employee benefit plan which is subject to the
provisions of Title IV of ERISA and which is maintained in whole or in part for
employees of the Borrower or any of its Subsidiaries.
"PRIME RATE" shall mean the index rate of interest announced or
published by Lender from time to time as its Prime Rate. Said rate is a
reference rate for the information and use of Lender in establishing the actual
rates to be charged to its borrowers. The Prime Rate may be determined on a
daily basis with any change in the Prime Rate to be effective on the date of any
such change.
"RELATED DOCUMENTS" shall mean the Note, the Security Agreement, the
Guaranties, the UCC-1's and any and all other documents statements, and
opinions described in the Closing Documents List attached hereto as Exhibit C.
"RENTALS" of any Person shall mean, as of any date, the aggregate
amount of the obligations and liabilities of such Person to make payments under
all leases, subleases and similar arrangements for the use of real, personal or
mixed property, other than Capitalized Lease Obligations.
"REVOLVING CREDIT COMMITMENT" shall mean the obligation of the Lender
to make a Revolving Credit Loan or Revolving Credit Loans to the Borrower in an
aggregate principal amount not to exceed Fifteen Million Dollars
($15,000,000.00) pursuant and subject to Section 2.1(a) hereof.
"REVOLVING CREDIT LOAN" OR "REVOLVING CREDIT LOANS" shall mean the
principal amount and the aggregate principal amount, respectively, advanced by
the Lender as a loan or loans to the Borrower under Article II, or, where the
context so requires, the amount thereof then outstanding or any portion thereof.
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"REVOLVING CREDIT MATURITY DATE" shall mean the date the Revolving
Credit Commitment will mature, which for the purposes of this Agreement is April
30, 2001.
"SUBORDINATED INDEBTEDNESS" shall mean Indebtedness subordinated in
repayment priority to that of Indebtedness of Borrower to Lender pursuant to the
terms and conditions of a subordination agreement acceptable to Lender, in its
reasonable discretion, which subordination agreement: (i) must have a maturity
date of no sooner than the Revolving Credit Maturity Date; (ii) shall prohibit
payment of principal; and (iii) shall prohibit payments of interest in the event
of a Default or Event of Default under this Agreement.
"SUBSIDIARY" shall mean any Person in which the Borrower may own,
directly or indirectly, an equity interest of more than fifty percent (50%), or
which may effectively be controlled by the Borrower, during the term of this
Agreement, as well as all Subsidiaries and other Persons from time to time
included in the consolidated financial statements of the Borrower.
"TERMINATION EVENT" shall mean a "reportable event" as defined in
Section 4043(b) of ERISA or the filing of a notice of intent to terminate under
Section 4041 of ERISA.
"Third Party GUARANTY" shall mean, as to any Person, all liabilities or
obligations of such Person in respect of any Indebtedness or other obligations
of others guaranteed, directly or indirectly, in any manner by such Person, or
in effect guaranteed, directly or indirectly, by such Person through an
agreement, contingent or otherwise, to purchase such Indebtedness or obligation,
or to purchase or sell property, or to purchase or sell services, primarily for
the purpose of enabling the debtor to make payment of the Indebtedness or
obligation or to assure the owner of such Indebtedness or obligation against
loss, or to supply funds to or in any manner invest in the debtor, or otherwise.
"WORKING CAPITAL ADVANCES" shall mean a Borrowing for the purpose of
financing Borrower's purchases of equipment, leasehold improvements and working
capital requirements.
1.2 ACCOUNTING TERMS.
Accounting terms not specifically defined in this Agreement
shall have the meaning given to them under accounting principles and practices
generally accepted in the United States, applied on a consistent basis with the
financial statements referred to in Section 9.8 hereof, and shall be determined
both as to classification of items and amounts in accordance therewith. All
Subsidiaries shall be consolidated to the fullest extent permitted by such
principles and practices, and any accounting terms, financial covenants, and
financial statements referred to herein shall be determined and prepared on the
basis of such consolidation.
1.3 OTHER DEFINITIONAL PROVISIONS.
The words "hereof," "herein," and "hereunder" and words of
similar import when used in this Agreement refer to this Agreement as a whole
and not to any particular provision of this Agreement, and section, subsection,
and exhibit references refer to this Agreement unless otherwise specified.
* END OF ARTICLE I *
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ARTICLE II - REVOLVING CREDIT COMMITMENT
2.1 REVOLVING CREDIT COMMITMENT.
(a) The Lender agrees, subject to the terms and conditions of
this Agreement, to make Revolving Credit Loans in United States Dollars to the
Borrower for a period terminating on the earlier of the Revolving Credit
Maturity Date or the termination in full of the Revolving Credit Commitment of
the Lender pursuant to Article XII hereof, at such times and in such amounts as
the Borrower shall request in accordance with the provisions of this Agreement,
provided that the aggregate principal amount of the Revolving Credit Loans
outstanding at any one time shall not exceed the Revolving Credit Commitment.
Within the limits of the Revolving Credit Commitment, and subject to the
provisions of this Agreement, the Borrower may borrow, repay, and reborrow from
time to time for a period from the date hereof to and including the earlier of
the Revolving Credit Maturity Date or the termination in full of the Revolving
Credit Commitment of the Lender pursuant to Article XII hereof.
(b) Any Revolving Credit Loan made under this Article II and,
to the extent permitted by law, interest thereon which is not paid when due
(whether at stated maturity, by acceleration, or otherwise), after giving effect
to any applicable cure period, shall bear interest at the Default Rate (computed
on the actual number of days elapsed over a 360-day year).
2.2 NOTICE AND MANNER OF BORROWING.
(a) Borrower shall give written notice (or telephonic notice,
promptly confirmed in writing) to the Lender in a form to be provided by Lender,
prior to 2:00 p.m., Miami time, on each proposed Borrowing Date.
(b) Each Borrowing under this Article II shall be made at the
office of the Lender, at its address as set forth opposite its signature at the
end of this Agreement, by crediting the Borrower's general deposit account with
the Lender in the amount thereof.
2.3 NOTE.
(a) The Revolving Credit Loans made by the Lender under this
Article II shall be evidenced by, and repaid with interest in accordance with, a
single Master Revolving Credit Note executed by the Borrower in favor of the
Lender in substantially the form of Exhibit A attached hereto and made a part
hereof, with appropriate insertions, in the amount of the Revolving Credit
Commitment, dated the initial Borrowing Date and payable to the order of the
Lender (the "Note").
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(b) Each Revolving Credit Loan evidenced by the Note and all
prepayments of the principal thereof shall be evidenced by the records of the
Lender.
(c) Although the stated amount of the Note shall be equal to
the Revolving Credit Commitment, the Note shall be enforceable, with respect to
the Borrower's obligation to pay the principal amount thereof, only to the
extent of the unpaid principal amount of the Revolving Credit Commitment at the
time evidenced thereby. Interest on the Note shall be payable on, and only for
the period during which, the principal amount of the Loan evidenced thereby is
outstanding.
2.4 INTEREST.
(a) The principal balance outstanding from time to time under
the Note shall bear interest at a fluctuating rate per annum equal to one of the
following interest rate options: (i) Fifty (50) basis points less than the Prime
Rate (the "Prime Option"); or (ii) two hundred twenty-five (225) basis points in
excess of the LIBOR Rate (the "LIBOR Option").
(b) The interest rate applicable to the Revolving Credit
Commitment shall increase or decrease, commencing the first (1st) day of the
first (1st) month following receipt of financial statements for the end of a
fiscal quarter referred to in Section 9.8(b) of this Agreement, in accordance
with the following:
(1) In the event Borrower achieves a Leverage Ratio
less than or equal to 2.0 to 1.0 the LIBOR Option shall be adjusted to two
hundred twenty-five (225) basis points in excess of the LIBOR Rate and the Prime
Option shall be adjusted to fifty (50) basis points less than the Prime Rate.
(2) In the event Borrower achieves a Leverage Ratio
less than or equal to 2.5 to 1.0 but not less than 2.0 to 1.0; the LIBOR Option
shall be adjusted to two hundred fifty (250) basis points in excess of the LIBOR
Rate and the Prime Option shall be adjusted to twenty-five (25) basis points
less than the Prime Rate.
(3) In the event Borrower achieves a Leverage Ratio
less than or equal to 3.0 to 1.0 but not less than 2.5 to 1.0; the LIBOR Option
shall be adjusted to two hundred seventy-five (275) basis points in excess of
the LIBOR Rate and the Prime Option shall be adjusted to the Prime Rate.
(c) Interest on the principal balance from time to time
outstanding under the Note shall be due and payable monthly on the fifth (5th)
day of each month commencing the fifth (5th) day of the first (1st) month
following the Borrowing of a Revolving Credit Loan. If such payment day is not a
Business Day, the Business Day immediately preceding such date shall be the date
on which interest shall be due and payable. Interest under the Note shall be
charged only on the Revolving Credit Loans advanced and shall be computed from
the date of such advance to the date of repayment.
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(d) All interest under the Note shall be computed on a daily
basis, based on a 365-day year. In no event shall interest be due at a rate in
excess of the highest lawful rate in effect from time to time. It is not the
intention of the parties hereto to make any agreement which shall be violative
of the laws of the State of Florida or the United States of America relating to
usury. In no event shall Borrower pay or Lender accept or charge any interest
which, together with any other charges upon the principal or any portion
thereof, howsoever computed, after taking into account any requirement for
commitment and facility fees, shall exceed the maximum lawful rate of interest
allowable under the laws of the State of Florida or the United States of America
from time to time. Should any provision of this Agreement or any existing or
future notes, loan agreements or any other agreements between the parties be
construed to require the payment of interest which, together with any other
charges upon the principal or any portion thereof, after taking into account any
requirement for commitment and facility fees, shall exceed such maximum lawful
rate of interest, then any such excess shall be applied against the remaining
principal balance.
(e) Any principal and, to the extent permitted by law,
interest which is not paid when due under the Note (whether at stated maturity,
by acceleration or otherwise) and which constitutes an Event of Default shall
bear interest at a rate per annum (computed as aforesaid) equal to the Default
Rate.
2.5 PAYMENTS.
All payments of principal and interest under the Note shall be to the
Lender at its address as set forth opposite its signature at the end of this
Agreement or as otherwise directed by Lender, in immediately available funds.
2.6 COLLATERAL.
All obligations of the Borrower under the Revolving Credit Commitment
shall be secured by the Collateral set forth in Article V of this Agreement.
2.7 FEES.
In connection with the Revolving Credit Commitment Borrower shall pay
to Lender the following fees:
(a) UPFRONT FEE: An upfront fee equal to One Hundred Thirty
One Thousand Two Hundred Fifty Dollars ($131,250.00) due and payable on or
before the Closing Date.
(b) UNUSED FEE: A fee computed at a rate equal to twelve and
one half (12.5) basis points per annum multiplied by the average daily unused
portion of the Revolving Credit Commitment for the immediately preceding
calendar quarter, payable in arrears within fifteen (15) days of the end of each
calendar quarter, commencing on the first (1st) of such date to occur after the
Closing Date.
* END OF ARTICLE II *
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ARTICLE III - AVAILABILITY
3.1 ACQUISITION ADVANCE AVAILABILITY.
Acquisition Advances under the Revolving Credit Commitment for the
purpose of financing Acquisitions ("Advances") shall be governed by the
following: (i) Acquisition Advances shall be limited to fifty (50%) percent of
the aggregate purchase price of an Acquisition up to the unused principal amount
of the Revolving Credit Commitment; (ii) the Adjusted Acquisition EBITDA of the
Dialysis Facilities being acquired shall be equal to or greater than One Dollar
($1.00); and (iii) Borrower shall be in compliance with all financial covenants
set forth in Sections 9.12, 9.13, 9.14, 9.15 and 9.16 herein, immediately
following such Acquisition as determined by Lender.
3.2 WORKING CAPITAL ADVANCE AVAILABILITY.
Working Capital Advances under the Revolving Credit Commitment shall be
limited to, in the aggregate, Five Million Dollars ($5,000,000.00), provided,
however, in the event any Working Capital Advance would cause the aggregate of
all Working Capital Advances to exceed Two Million Dollars ($2,000,000.00),
Working Capital Advances shall be limited to a borrowing base equal to the
lesser of: (i) Five Million Dollars ($5,000,000.00); or (ii) eighty percent
(80%) of Eligible Accounts Receivable. Notwithstanding the foregoing, Working
Capital Advances to finance the purchase of equipment or leasehold improvements
in connection with any new Dialysis Facility shall be limited to One Million
Five Hundred Thousand Dollars ($1,500,000.00).
* END OF ARTICLE III *
ARTICLE IV - GUARANTY
4.1 GUARANTY.
The full and timely payment and performance of the Revolving Credit
Commitment, as well as all obligations of Borrower to Lender, howsoever and
whenever created, shall be unconditionally guaranteed by all Subsidiaries of
Borrower, now owned or hereafter acquired or created (hereinafter referred to
individually as a "Guarantor" and collectively, as the "Guarantors"), pursuant
to a Guaranty (hereinafter referred to individually as a "Guaranty" and
collectively. as the "Guaranties") in form and content acceptable to Lender and
its counsel.
* END OF ARTICLE IV *
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ARTICLE V - COLLATERAL
5.1 COLLATERAL.
In order to secure the full and timely payment of the Revolving Credit
Loans outstanding under the Revolving Credit Commitment, as well as any
renewals, extensions or modifications thereof, and to secure performance of all
obligations of Borrower to Lender, however and whenever created, Borrower agrees
that it will execute or cause to be executed and delivered to Lender a security
agreement in favor of Lender (the "Security Agreement") and a UCC-1 financing
statement in favor of Lender (the "UCC-1"), in form and substance acceptable to
Lender, granting to Lender a first priority perfected security interest subject
to no other liens or encumbrances except for Permitted Liens or as may be
otherwise set forth in the Security Agreement or this Agreement, in the
following, together with the proceeds and products thereof: (1) all Borrower's
and each Subsidiary's presently existing and hereafter created Accounts or
Accounts Receivable; (2) all Borrower's and each Subsidiary's presently owned
and hereafter acquired Inventory; (3) all Borrower's and each Subsidiary's
presently owned and hereafter acquired Equipment; and (4) all Borrower's and
each Subsidiary's presently owned and hereafter acquired Chattel Paper,
Documents, Instruments and General Intangibles;
All of the above-described collateral is hereafter referred to as "Collateral".
5.2 CROSS-COLLATERAL.
The Collateral shall secure all Indebtedness, howsoever or whenever
incurred, whether direct or indirect, contingent or absolute, of Borrower or any
Subsidiary to Lender.
* END OF ARTICLE V *
ARTICLE VI - CONDITIONS PRECEDENT TO BORROWING
The Lender shall not be obligated to make any Revolving Credit Loan to
the Borrower hereunder unless, except as specifically provided for herein, the
following conditions precedent shall have been satisfied in the sole opinion of
the Lender:
6.1 EACH LOAN.
The obligation of the Lender to make each Revolving Credit Loan
pursuant to Article II herein is subject to the condition precedent that: (i)
the Borrower shall have delivered to the Lender the notice of Borrowing provided
for in Section 2.2 hereof; and (ii) all representations and warranties set forth
in Article XIII herein shall be true and correct in all material respects as of
the date thereof.
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6.2 INITIAL LOAN.
The obligation of the Lender to enter into this Agreement and make the
initial Revolving Credit Loans pursuant to Article II herein is subject to the
following additional conditions precedent, each of which shall have been met,
performed or delivered to Lender by the initial Borrowing Date:
(a) NOTE. The Note, duly executed and completed in the form of
Exhibit B attached hereto and made a part hereof.
(b) OPINION OF COUNSEL. A legal opinion reasonably acceptable
to the Lender and its counsel.
(c) INSURANCE. Evidence that all of the Borrower's insurable
properties, are insured as required by Section 9.4 of this Agreement. All
insurance policies covering the Collateral shall name the Lender as "Loss Payee"
and shall grant the Lender at least thirty (30) days prior written notice of
intended policy cancellation, non-renewal or material modification.
(d) CORPORATE DOCUMENTS. Certified copies of the Articles of
Incorporation and Bylaws of the Borrower and each Subsidiary and all amendments
thereto, together with a Certificate of Good Standing of the Borrower and each
Subsidiary and proof of qualification of each to do business in each
jurisdiction in which its business is conducted.
(e) CERTIFICATION OF NO ADVERSE CHANGE. Evidence or
certification from Borrower that, from the date of the latest financial
information furnished to Lender by Borrower there has been no Material Adverse
Change.
(f) LITIGATION CERTIFICATE. Opinion from Borrower's counsel
that there exists no pending or threatened litigation, the result of which could
result in a Material Adverse Change.
(g) SUPPORTING DOCUMENTS. This Agreement, each of the Related
Documents and each of the certificates and any and all other documents described
in the Closing Documents List attached hereto as Exhibit D and made a part
hereof.
(h) LIEN SEARCH. Completion and satisfaction of a lien search
conducted in each jurisdiction where Borrower or a Guarantor or their assets are
located.
(i) DUE DILIGENCE. Completion and satisfaction of due
diligence analysis and review with respect to the assets, liabilities,
businesses, operations, conditions, and prospects of Borrower, and each
Guarantor (with respect to Contract Providers limited to licensing and good
standing to provide services), as applicable but not limited to: (i) a
NationsBank Business Credit Audit; and (ii) a review of Borrower's fiscal year
1999 financial projections.
(j) GOVERNMENT REGULATIONS. The proceeds of advances under the
Revolving Credit Commitment will be expended in compliance with all applicable
governmental and regulatory laws, rules and regulations (including without
limitation Federal Reserve Regulation U).
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(k) FEES. Lender shall have been paid all fees and expenses
payable on or prior to the due date thereof in accordance with the terms hereof.
(l) SOLVENCY. A certificate of Borrower's chief executive
officer or chief financial officer confirming the solvency of Borrower (after
consummation of the transactions contemplated hereby) and satisfaction of all
other conditions precedent to the initial borrowing.
(m) CONSENTS. All requisite third parties shall have approved
or consented to the transactions contemplated hereby to the extent required, and
there shall be no governmental or judicial action, actual or threatened, that
has or would have a reasonable likelihood of restraining, preventing or imposing
burdensome conditions on the transactions contemplated hereby.
(n) MEDICARE AUDIT. Any Medicare Audits of Borrower or its
Subsidiaries shall be submitted to Lender and said audits shall be satisfactory
to Lender in its sole discretion.
(o) OTHER. All other documents, agreements or instruments
required in connection with this Agreement.
* END OF ARTICLE VI *
ARTICLE VII - CONDITIONS PRECEDENT TO ACQUISITIONS
7.1 ACQUISITIONS.
Borrower acknowledges and agrees that so long as there are no
outstanding Revolving Credit Loans under the Revolving Credit Commitment and
Borrower is not seeking any Acquisition Advances , no Lender approval shall be
required for an Acquisition. If there are Advances outstanding under the
Revolving Credit Commitment or if Borrower is seeking Acquisition Advances,
Lender approval is required for all Acquisitions; provided, however, until the
aggregate total consideration for Acquisitions by Borrower after the Closing
Date equals or exceeds Five Million Dollars ($5,000,000.00), Lender approval
shall only be required for Acquisitions where the total consideration in
connection with an Acquisition equals or exceeds Two Million Dollars
($2,000,000.00). Lender approval of the above referenced Acquisitions shall be
based upon the following conditions having been satisfied:
(a) Satisfactory review and approval by Lender of the purchase
documentation related to each proposed Acquisition, which documentation shall
include but not be limited to subordination of any seller's notes or
Indebtedness to any seller entered into with respect to such Acquisition.
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(b) Delivery and satisfactory review and approval by Lender of
a minimum of two (2) years of compiled historical financial statements prepared
on an accrual basis of the proposed Acquisition to the extent such Acquisition
was in operation for two fiscal years.
(c) Satisfactory review of Borrower's pro forma consolidated
balance sheet giving effect to the proposed Acquisition.
(d) Satisfactory review of Borrower's consolidated and
consolidating financial projections on a pro forma basis giving effect to the
proposed Acquisition.
(e) Satisfactory review of the Medical Director Agreement
relating to the proposed Acquisition, and any other contracts with Contract
Providers.
(f) Evidence satisfactory to Lender that the proposed
Acquisition will not cause a default under this Agreement including, without
limitation, all representations and warranties, covenants and Events of Default.
(g) Any other information, financial or otherwise, that may be
reasonably requested by Lender.
(h) Borrower shall have obtained all required third party
consents and approvals.
(i) Execution of definitive collateral documentation.
(j) Copy of Borrower's "due diligence" package with respect to
each proposed Acquisition provided to management and board of directors of
Borrower.
(k) a litigation search of each proposed Acquisition
acceptable to Lender in its reasonable discretion.
In no event will Lender approve an Acquisition: (i) which is opposed by
the entity's board of directors or controlling shareholders; or (ii) which is
not in the business of performing dialysis and ancillary services for patients
suffering from end stage renal disease or acute dialysis services.
* END OF ARTICLE VII *
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ARTICLE VIII - REPRESENTATIONS AND WARRANTIES
In order to induce the Lender to enter into this Agreement and
to make the Revolving Credit Loans provided for herein, the Borrower and each
Subsidiary, as applicable, makes the following representations and warranties to
the Lender, all of which shall survive the execution and delivery of this
Agreement and the Note:
8.1 CORPORATE EXISTENCE AND POWER.
The Borrower and each Subsidiary is a corporation duly
incorporated, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation and is duly qualified or licensed to transact
business in all places where such qualification or license is necessary. The
Borrower and each Subsidiary, as applicable, has the corporate power to make and
perform this Agreement, the Note and the applicable Related Documents, and this
Agreement, the Note and the applicable Related Documents, when duly executed and
delivered, will constitute the legal, valid, and binding obligations of the
Borrower, and each Subsidiary, as applicable, enforceable substantially in
accordance with their respective terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, or other laws affecting creditors'
rights generally.
8.2 CORPORATE AUTHORITY.
The making and performance by the Borrower and each
Subsidiary, as applicable, of this Agreement, the Note and the applicable
Related Documents, and any additional documents contemplated to be executed in
connection herewith have been duly authorized by all necessary corporate action
of the Borrower and each Subsidiary, and do not and will not violate any
provision of law or regulation, or any writ, order, or decree of any court,
governmental commission, bureau, or other administrative agency or public
regulatory body or regulatory authority or agency or any provision of the
articles or certificate of incorporation or Bylaws of the Borrower, and each
Subsidiary, and do not and will not, with the passage of time or the giving of
notice, result in a breach of, or constitute a default or require any consent
under, or result in the creation of any Lien, charge or encumbrance upon any
property or assets of the Borrower and each Subsidiary, pursuant to, any
instrument or agreement to which the Borrower or any Subsidiary is a party or by
which the Borrower or any Subsidiary or any of their respective properties may
be bound or affected.
8.3 FINANCIAL CONDITION.
The consolidated balance sheet of the Borrower as of December
31, 1997, and the consolidated statement of operations, statement of cash flows
and statement of shareholder's equity of the Borrower for the twelve (12) month
period ending on that date were prepared in accordance with generally accepted
accounting principles consistently applied on a generally recognized consistent
basis of accounting, as applicable, are complete, correct and fairly present the
financial condition on a consolidated basis of the Borrower and each of its
Subsidiaries as of
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those dates and the results of Borrower's and each Subsidiary's operations on a
consolidated basis for the periods ending on those dates. Other than as
disclosed by those financial statements or as listed on Schedule II hereto, the
Borrower and each of its Subsidiaries did not have any direct or contingent
obligations or liabilities which would result in a Material Adverse Change.
Since December 31, 1997, there has been no Material Adverse Change.
8.4 FULL DISCLOSURE.
The financial statements referred to in Section 8.3 do not,
nor does this Agreement, or any written statement furnished by the Borrower or
any of its Subsidiaries to the Lender in connection with the negotiation of this
Agreement and the Revolving Credit Loans, contain any untrue statement of a
material fact or omit a material fact necessary to make the statements contained
therein or herein not misleading.
8.5 LITIGATION.
There are no suits or proceedings pending, or to the knowledge
of the Borrower, threatened before any court or by or before any governmental or
regulatory authority, commission, bureau, or agency or public regulatory body
against or affecting the Borrower or any of its Subsidiaries or any Contract
Provider which, if adversely determined, would result in a Material Adverse
Change or would result in the revocation, termination, cancellation or
suspension of Borrower's or any Subsidiary's or, or Medicare Certification,
Medicaid Provider Agreement or Medicare Provider Agreement.
8.6 PAYMENT OF TAXES.
The Borrower has filed or caused to be filed, or has obtained
extensions to file all federal, state, and local tax returns which are required
to be filed, and has paid or caused to be paid, or, with respect to the Borrower
and each of its Subsidiaries, have reserved on its books amounts sufficient for
the payment of, all taxes as shown on said returns or on any assessment received
by it, to the extent that the taxes have become due, except as otherwise
permitted by the provisions hereof. No tax liens have been filed and the
Borrower and each of the Subsidiaries have not been notified of, or otherwise
has knowledge of, any claim being asserted with respect to any such taxes, fees,
or other charges which are reasonably likely to result in a Material Adverse
Change.
8.7 NO ADVERSE RESTRICTIONS OR DEFAULTS.
Neither the Borrower nor any Subsidiary is a party to any
agreement or instrument or subject to any court order or judgment, governmental
decree, charter, or other corporate or other restriction which is materially
adverse to its ability to conduct its business as currently conducted. Neither
the Borrower nor any Subsidiary is in default in the performance, observance, or
fulfillment of any of the obligations, covenants, or conditions contained in any
agreement or instrument to which it is a party or by which the Borrower or any
of its Subsidiaries or their respective properties may be bound or affected, or
under any law, regulation, decree, order, or the like, which is materially
adverse to their respective ability to conduct their
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business(es) as currently conducted. Neither the Borrower nor any of its
Subsidiaries, nor to the knowledge of Borrower's officers, any Contract
Provider, is in default in the performance, observance or fulfillment of any of
the obligations, covenants or conditions contained in any Medicaid Provider
Agreement, Medicare Provider Agreement or other agreement or instrument to which
the Borrower or any Subsidiary or any Contract Provider is a party, which
default has resulted in, or if not remedied within any applicable grace period
could result in, the revocation, termination, cancellation or suspension of
Medicare Certification of Borrower or any Subsidiary or any Contract Provider.
8.8 INVESTMENT COMPANY ACT.
The Borrower is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
8.9 AUTHORIZATIONS.
All authorizations, consents, approvals, and licenses required
under applicable law or regulation for the ownership or operation of the
property owned or operated by the Borrower or any of its Subsidiaries for the
conduct of business in which the Borrower nor any of its Subsidiaries is
engaged, have been duly issued and are in full force and effect, and neither the
Borrower nor any of its Subsidiaries is in default under any order, decree,
ruling, regulation, closing agreement, or other decision or instrument of any
governmental commission, bureau, or other administrative agency or public
regulatory body having jurisdiction over the Borrower or any of its
Subsidiaries, which default would result in a Material Adverse Change. No
approval, consent, or authorization of or filing or registration with any
governmental commission, bureau, or other regulatory authority or agency is
required with respect to the execution, delivery, or performance of this
Agreement, the Note or the Related Documents.
8.10 REIMBURSEMENT FROM THIRD PARTY PAYORS.
The accounts receivable of the Borrower and each Subsidiary
have been and will continue to be adjusted to reflect reimbursement policies of
third party payors such as Medicare, Medicaid, Blue Cross/Blue Shield, private
insurance companies, health maintenance organizations, preferred provider
organizations, alternative delivery systems, managed care systems, government
contracting agencies and other third party payors. In particular, accounts
receivable relating to such third party payors do not and shall not exceed
amounts any obligee is entitled to receive under any capitation arrangement, fee
schedule, discount formula, cost-based reimbursement or other adjustment or
limitation to its usual charges.
8.11 FRAUD AND ABUSE.
Neither the Borrower nor any Subsidiary nor, to the knowledge
of Borrower's officers, any of its stockholders, officers or directors or any
Contract Provider, have engaged in any activities affecting the Borrower which
are prohibited under Medicare Regulations or Medicaid Regulations.
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8.12 LICENSING AND ACCREDITATION.
The Borrower and each Subsidiary, and, to the knowledge of
Borrower's officers, each Contract Provider, as applicable, have (i) obtained
and maintains Medicaid Certification and Medicare Certification; and (ii)
entered into and maintains in good standing its Medicare Provider Agreement and
its Medicaid Provider Agreement, if any. To the knowledge of Borrower's
officers, each Contract Provider is duly licensed (where license is required) by
each state or state agency or commission, or any other governmental authority
having jurisdiction over the provisions of such services by such Person in the
locations in which the Borrower or such Subsidiary conduct business, required to
enable such Person to provide the professional services provided by such Person
and otherwise as is necessary to enable the Borrower or such Subsidiary to
operate as currently operated and as presently contemplated to be operated. To
the knowledge of Borrower's officers, all such required licenses are in full
force and effect on the date hereof and have not been revoked or suspended or
otherwise limited.
8.13 SUBSIDIARIES AND AFFILIATES.
As of the date of execution of this Agreement, the Borrower
has no Subsidiaries and no Affiliates other than as disclosed in Schedule I
hereto. All the capital stock and evidence of the equity rights held by the
Borrower or a Subsidiary in each Subsidiary hereafter created or acquired will
be owned by the Borrower and/or another Subsidiary, beneficially and of record,
free and clear of all Liens.
8.14 TITLE TO PROPERTIES.
The Borrower and each of its Subsidiaries, as applicable have
good and marketable fee title to all real property, and good title to all other
property and assets, reflected in the latest balance sheet of the Borrower
referred to in Section 8.3 or purported to have been acquired by the Borrower or
any of its Subsidiaries subsequent to such date, except property and assets sold
or otherwise disposed of subsequent to such date in the ordinary course of
business. All property and assets of any kind of the Borrower or any of its
Subsidiaries are free from any Liens except for Permitted Liens. The Borrower
and each of its Subsidiaries enjoys peaceful and undisturbed possession under
all of the leases under which it is operating, none of which contains any
unusual provisions that would result in a Material Adverse Change. All leases
pertaining to real property are valid, subsisting, and in full force and effect
and the Borrower and its Subsidiaries, as applicable have not received notice of
default thereunder, and the Borrower and its Subsidiaries have no leases for
personal property except as disclosed to Lender on the Borrower's financial
statements. The Borrower and each of its Subsidiaries possess all patents,
patent rights or licenses, trademarks, trademark rights, trade names, trade name
rights, and copyrights which are required to conduct its business as now
conducted without known conflict with the rights of others.
8.15 USE OF LOANS.
The proceeds of the Revolving Line of Credit Commitment shall
be used by the Borrower exclusively for: (i) Acquisition Advances; and (ii)
Working Capital Advances. The
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Borrower is not engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System), and no part of the proceeds of the Revolving Credit
Loans hereunder will be used to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin stock. If
requested by the Lender the Borrower will furnish to the Lender in connection
with the Revolving Credit Loans hereunder a statement in conformity with the
requirements of Federal Reserve Form U-1 referred to in said Regulation.
8.16 ERISA.
(a) None of the Plans or the trusts created thereunder has
engaged in a prohibited transaction which could subject any such Plan or trust
to a material tax or penalty on prohibited transactions imposed under Code
Section 4975 or ERISA.
(b) None of the Plans or the trusts created thereunder has
been terminated; nor has any such Plan incurred any liability to the Pension
Benefit Guaranty Corporation, other than for required insurance premiums which
have been paid when due, or incurred any accumulated funding deficiency; nor has
there been any reportable event, or other event or condition, which presents a
risk of termination of any such Plan by the Pension Benefit Guaranty
Corporation.
(c) The present value of all accrued benefits under the Plans
did not, as of the most recent valuation date, exceed the then current value of
the assets of Plans allocable to such accrued benefits.
(d) Neither the Borrower nor any Subsidiary has been a party
to or has any employees who are covered by any multi-employer pension or benefit
plan.
(e) As used in this Section 8.13, the terms "accumulated
funding deficiency," "reportable event" and accrued benefits" shall have the
respective meanings assigned to them in ERISA, and the term "prohibited
transaction" shall have the meaning assigned to it in Code Section 4975 and
ERISA.
* END OF ARTICLE VIII *
ARTICLE IX - AFFIRMATIVE COVENANTS
The Borrower and each Subsidiary, as applicable, covenants and
agrees that from the Closing Date and until payment in full of the principal of
and interest on the Note and the termination in full of the Revolving Credit
Commitment unless the Lender shall otherwise consent in writing, the Borrower
will and, to the extent that Borrower may from time to time have any
Subsidiaries, will cause each of its Subsidiaries to:
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9.1 LOAN PROCEEDS.
Use the proceeds of the Revolving Credit Loans only for the
purposes set forth in Section 8.12 and furnish the Lender with all evidence that
it may reasonably require with respect to such use.
9.2 CORPORATE EXISTENCE.
Do or cause to be done all things necessary to maintain,
preserve, and keep in full force and effect its existence in the jurisdiction of
its incorporation, and qualify and remain qualified in each jurisdiction where
qualification is necessary in view of its business operations or the ownership
of its properties except for the discontinuation or cessation of any Subsidiary
in the ordinary course of business and which does not result in a Material
Adverse Change.
9.3 MAINTENANCE OF BUSINESS AND PROPERTIES.
At all times maintain, preserve, and protect all rights,
privileges, patents, franchises, and trade names necessary in the conduct of its
business and preserve all the remainder of its property used or useful in the
conduct of its business and keep the same in good repair, working order, and
condition, and from time to time make, or cause to be made, all needful and
proper repairs, replacements, betterments, and improvements thereto so that the
business carried on in connection therewith may be conducted properly at all
times.
9.4 INSURANCE.
Insure and keep insured with reputable insurance companies and
in amounts consistent with the coverages customarily maintained by other
companies in the same or similar business and location, all insurable property
owned by it against loss or damage from such hazards or risks, including fire;
insure and keep insured employers' and public liability risks in good and
responsible insurance companies of the types and in amounts consistent with the
coverages customarily maintained by other companies in the same or similar
business and location; maintain and cause all Contract Providers to maintain
such other insurance as may be required by law or coverages customarily
maintained by providers of professional health care services in the same or
similar location and practice area (including without limitation, medical
malpractice insurance); and upon request of the Lender furnish a certificate
setting forth in summary form the nature and extent of the insurance maintained
by the Borrower pursuant to this Section 9.4. Each insurance policy maintained
by the Borrower pursuant to this Section 9.4 shall include a provision that the
insurer will provide the Lender with thirty (30) days notice prior to the
termination or expiration of such policy. With respect to all insurance policies
maintained by Borrower covering the Collateral, said policies shall name the
Lender "Loss Payee" and shall grant Lender at least thirty (30) days notice of
intended policy cancellation, non-renewal or material modification.
9.5 PAYMENT OF INDEBTEDNESS, TAXES, ETC.
Pay all of its Indebtedness and obligations before the same
shall become in default and comply in all material respects with all other
agreements, indentures, mortgages, or documents binding on it; and pay and
discharge or cause to be paid and discharged promptly all
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taxes, assessments, and governmental charges or levies imposed upon it or upon
its property or upon any part thereof, before the same shall become in default,
as well as all lawful claims for labor, materials, and supplies or otherwise
which, if unpaid, might become a Lien upon such properties or any part thereof;
provided, however, that neither the Borrower nor any of its Subsidiaries shall
be required to pay and discharge or to cause to be paid and discharged any tax,
assessment, charge, levy, or claim so long as the validity thereof shall be
contested in good faith by appropriate proceedings and the Borrower or
Subsidiary, as the case may be, shall have set aside on its books adequate
reserves with respect to any tax, assessment, charge, levy, or claim, so
contested.
9.6 COMPLIANCE WITH LAWS.
Duly observe, conform and comply with and cause all Contract
Providers to observe, conform and comply with all laws, decisions, judgments,
rules, regulations, and orders of all governmental authorities relative to the
conduct Borrower's business, properties, and assets, except those being
contested in good faith by appropriate proceedings diligently pursued including
but not limited to, Titles XVIII and XIX of the Social Security Act, Medicare
Regulations, Medicaid Regulations and all laws, rules and regulations pertaining
to the licensing of professional and other health care providers; and obtain,
maintain, and keep in full force and effect, and cause all Contract Providers to
obtain, maintain and keep in full force and effect, all governmental licenses,
authorizations, consents, and permits necessary to the proper conduct of the
business of the Borrower, including, but not limited to Medicaid Certification,
Medicare Certification, Medicaid Provider Agreement and Medicare Provider
Agreement, and any others required for participation in the Federal Medicare and
Medicaid programs.
9.7 NOTICE OF DEFAULT.
Upon the occurrence of any Default or Event of Default which
management of the Borrower or any Subsidiary has knowledge of, promptly furnish
written notice thereof to the Lender specifying the nature and period of
existence thereof and the action which the Borrower is taking or proposes to
take with respect thereto.
9.8 FINANCIAL STATEMENTS, REPORTS, ETC.
In the case of the Borrower, furnish to the Lender:
(a) within ninety (90) days after the end of each fiscal year
of the Borrower (being December 31), audited consolidated balance sheet and
statement of operations cash flows, and statement of shareholders equity
together with supporting schedules (of the Borrower, all in reasonable detail,
setting forth in each case the corresponding figures for the preceding fiscal
year, prepared in accordance with generally accepted accounting principles,
consistently applied, by a firm of independent certified public accountants of
recognized standing selected by the Borrower and acceptable to the Lender,
showing the financial condition of the Borrower and its Subsidiaries at the
close of such year and the results of operations of the Borrower and its
Subsidiaries during such year;
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(b) within ninety (90) days after the end of each fiscal year
of Borrower, internally prepared statement of operation of each Subsidiary, in
reasonable detail, certified by the President or Chief Financial Officer of the
Borrower and prepared in accordance with generally accepted accounting
principals showing the profit and loss performance of each Subsidiary at the
close of such fiscal year.
(c) within forty-five (45) days after the end of each of the
first three quarters of each fiscal year of the Borrower, similar financial
statements to those referred to in subparagraph (a) above, internally prepared
by the Borrower, said financial statements to be unaudited and without footnotes
thereto, and certified by the President or Chief Financial Officer of the
Borrower, such consolidated balance sheet to be as of the end of each quarter
and the statement of operations and statement of cash flows to be for the period
from the beginning of the fiscal year to the end of such quarter;
(d) within forty-five (45) days after the end of each of the
second quarter of each fiscal year of Borrower, internally prepared statement of
operations of each Subsidiary, in reasonable detail and certified by the
President or Chief Financial Officer of the Borrower and prepared in accordance
with generally accepted accounting principals, showing the profit and loss
performance of each Subsidiary for such six month period.
(e) concurrently with the delivery of the financial statements
required in Subsection (a) and each quarterly financial statement submitted in
Subsection (b) hereinabove, a certificate signed by the President or the Chief
Financial Officer of the Borrower stating that they have no knowledge of any
event which constitutes a Default or Event of Default, accompanied by a report
setting forth computations showing, in detail satisfactory to the Lender,
whether the Borrower was in compliance with its obligations under Sections 9.12,
9.13, 9.14 and 9.14 and 9.16;
(f) prior to any request for an Acquisition Advance, an
Acquisition Advance Certificate;
(g) all material reports and other statements (other than
routine reports and other statements prepared in the ordinary course of business
that would not result in a Material Adverse Change) that the Borrower or any
Subsidiary may render to or file with any governmental authority, including
without limitation HCFA.
(h) any management letter received by Borrower from its
independent certified public accountants.
(i) promptly, from time to time, such other information
regarding the assets, operations, business, affairs, and financial condition of
the Borrower and any of its Subsidiaries as the Lender may reasonably request.
All financial statements required to be furnished to the
Lender under this Section 9.8 shall be prepared in accordance with generally
accepted accounting principles applied on a basis consistent with the accounting
practices of the Borrower reflected in its financial statements
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referred to in Section 9.3 hereof, or to the extent such treatment has changed,
with a reconciliation thereof.
9.9 VISITATION RIGHTS.
Permit any authorized representative of the Lender from time
to time, upon reasonable notice to the Borrower and during normal business
hours, to examine and copy the records, books, papers and financial reports of,
and visit and inspect the properties of, the Borrower or any of its
Subsidiaries, and to discuss the affairs and finances of the Borrower or any of
its Subsidiaries, with any of their respective officers, directors, and as long
as no Default exists, independent public accountants, and in each case at the
expense of the Lender so long as no default exists.
9.10 NOTICE OF LITIGATION AND OTHER PROCEEDINGS.
Give prompt notice in writing to the Lender of the
commencement of (a) all litigation which, if adversely determined, is reasonably
likely to result in a Material Adverse Change; (b) all other litigation
involving a claim against the Borrower or any of its Subsidiaries for
Twenty-Five Thousand Dollars ($25,000.00), or more per occurrence or One Hundred
Thousand Dollars ($100,000.00) or more in the aggregate, in excess of applicable
insurance coverage; and (c) any citation, order, decree, ruling, or decision
issued by, or any denial of any application or petition to, or any proceedings
before any governmental commission, bureau, or other administrative agency or
public regulatory body against or affecting the Borrower or any of its
Subsidiaries or any property of the Borrower or any Subsidiary, (including,
without limitation, any proceedings against the Borrower or any Subsidiary or
any Contract Provider to suspend, revoke or terminate any Medicaid Provider
Agreement, Medicaid Certification, Medicare Provider Agreement or Medicare
Certification of Borrower) or any lapse, suspension, revocation, or other
termination or modification of any certification (including without limitation
Borrower's or any Subsidiary's or any Contract Provider's Medicare Certification
or Medicaid Certification), license, consent, or other authorization of any
agency or public regulatory body, or any refusal of any thereof to grant any
application therefor or renewal thereof, in connection with the operation of any
business conducted by the Borrower or any of its Subsidiaries or any Contract
Provider, which is reasonably likely to result in a Material Adverse Change.
9.11 ERISA.
Furnish to the Lender:
(a) As soon as available and in any event within fifteen (15)
days after Borrower or any of its Subsidiaries knows or has reason to know that
any Termination Event has occurred, a statement of a senior officer of the
Borrower describing the Termination Event and the action which the Borrower or
any of its Subsidiaries proposes to take so that the Termination Event shall not
be continuing;
(b) Promptly after receipt of request therefor by the Lender,
copies of each annual report filed by the Borrower or any of its Subsidiaries
pursuant to Section 104 of ERISA
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with respect to each Plan (including, to the extent required by Section 103 of
ERISA, the related financial and actuarial statements and opinions and other
supporting statements, certifications, schedules and information referred to in
said Section 103) and each annual report, if any, required to be filed with
respect to each Plan under Section 4065 of ERISA;
(c) Promptly after receipt thereof by the Borrower or any of
its Subsidiaries from the Pension Benefit Guaranty Corporation, copies of each
notice received by such party of the Pension Benefit Guaranty Corporation's
intention to terminate any Plan or to have a Trustee appointed to administer any
Plan; and
(d) Promptly after such request, any other documents and
information relating to any Plan that the Lender may reasonably request from
time to time.
9.12 NET WORTH.
At all times, Borrower shall achieve and maintain a
consolidated Net Worth, tested quarterly, equal to or greater than: (i)
Twenty-Three Million Six Hundred Thousand Dollars ($23,600,000.00) for fiscal
year 1997; (ii) Twenty-Three Million Dollars ($23,000,000.00) for the first and
second fiscal quarters of 1998; and (iii) after the second fiscal quarter of
1998 Twenty-Three Million Dollars ($23,000,000.00); plus (iv) one hundred
percent (100%) of the equity added on the Borrower's balance sheet of a
completed Acquisition; plus (v) one hundred percent (100%) of the proceeds
received by Borrower from equity injections; and plus (vi) commencing June 30,
1998 and each fiscal quarter thereafter Borrower's Net Worth shall increase by
an amount equal to one hundred percent (100%) of Borrower's net profit after
taxes for each respective fiscal quarter; provided, however, for each fiscal
quarter commencing July 1, 1998 and thereafter in no event shall the Net Worth
requirement set forth herein decrease due to a net loss incurred during any
fiscal year.
9.13 CURRENT RATIO.
At all times, Borrower shall maintain a Current Ratio equal or
exceeding 1.0 to 1.0, tested quarterly. Commencing on the second anniversary of
the Closing Date, "Current liabilities" shall include only twenty percent (20%)
of Indebtedness funded under the Revolving Credit Commitment.
9.14 CURRENT MATURITIES COVERAGE RATIO.
At all times, Borrower shall maintain a Current Maturities
Coverage Ratio equal or exceeding: (i) 1.2 to 1.0 for fiscal year 1998; and (ii)
1.4 to 1.0 for each fiscal year thereafter.
9.15 LEVERAGE RATIO.
At all times, Borrower shall maintain a Leverage Ratio not to
exceed 3.0 to 1.0.
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9.16 CAPITALIZATION RATIO.
At all times, Borrower shall maintain a Capitalization Ratio
of 0.50 to 1.0, tested quarterly.
Each of the covenants set forth in subparagraphs 9.14 and 9.15
are to be calculated on a rolling four quarter basis, utilizing the consolidated
financial statements of the Borrower and its Subsidiaries for the immediately
preceding four (4) fiscal quarters. The rolling four quarter calculation will
include the previous four quarters of financial performance for any acquired
entity or assets on an accrual basis. In no instance shall the Borrower be
subject to financial covenants in its other financing and leasing arrangements
that are more restrictive than those set forth above. For purposes of
calculating the covenants referenced in Paragraphs 9.14 and 9.15 hereinabove,
Interest Income and Interest Expenses shall be calculated on an annualization of
actual Interest Income and Interest Expense reported in Borrower's financial
statements cumulatively up to the first three (3) quarters of fiscal year 1998.
9.17 BOOKS AND RECORDS.
With respect to Borrower, keep and maintain full and accurate
accounts and records of its operations according to generally accepted
accounting principles consistently applied, and will permit Lender or any of
their designated officers, employees, agents and representatives, at Lender's
expense and upon reasonable notice, to have access thereto, and to make audits,
and to inspect and otherwise check its properties, real, personal and mixed, and
to arrange for verification of Accounts Receivable under reasonable procedures,
directly with accounts debtors or by other methods. In addition Borrower and
each Subsidiary shall provide to Lender any Medicare audits, which audits shall
be satisfactory to Bank in its sole discretion.
9.18 OPERATING ACCOUNTS.
With respect to Borrower, maintain its primary depository bank
accounts with Lender.
9.19 MANAGEMENT.
With respect to Borrower, maintain at least two (2) of James
Shea, Milton Wallace and Orestes Lugo as active members of the day-to-day
management team of Borrower.
9.20 REIMBURSEMENT FROM THIRD PARTY PAYORS.
The accounts receivable of the Borrower and each Subsidiary
and each Contract Provider have been and will continue to be adjusted to reflect
reimbursement policies of third party payors such as Medicare, Medicaid, Blue
Cross/Blue Shield, private insurance companies, health maintenance
organizations, preferred provider organizations, alternative delivery systems,
managed care systems, government contracting agencies and other third party
payors.
* END OF ARTICLE IX *
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ARTICLE X - NEGATIVE COVENANTS
The Borrower and each Subsidiary covenants and agrees that
from the Closing Date and until payment in full of the principal of and interest
on the Note and the termination in full of the Revolving Credit Commitment,
unless the Lender shall otherwise consent in writing, the Borrower will not, nor
will it, to the extent that it may from time to time have any Subsidiaries,
permit any Subsidiary to:
10.1 LIMITATION ON LIENS.
Create or suffer to exist any Lien upon, or transfer or
assignment of, any of its property or revenues or assets now owned or hereafter
acquired to secure any Indebtedness or obligations, or enter into any
arrangement for the acquisition of any property subject to conditional sale
agreements or leases or other title retention agreements; excluding, however,
from the operation of this covenant: (a) Liens given to secure purchase money
transactions which do not exceed Five Hundred Thousand Dollars ($500,000.00) in
the aggregate in any fiscal year, unless otherwise consented to by the Lender,
which consent shall not be unreasonably withheld; (b) deposits or pledges to
secure payment of workers' compensation, unemployment insurance, old age
pensions, or other social security; (c) deposits or pledges to secure
performance of bids, tenders, contracts (other than contracts for the payment of
money) or leases, public or statutory obligations, surety or appeal bonds, or
other deposits or pledges for purposes of like general nature in the ordinary
course of business; (d) Liens for property taxes not delinquent and Liens for
taxes which in good faith are being contested or litigated; (e) mechanic's,
carrier's, workmen's, repairmen's, landlord's or other like liens arising in the
ordinary course of business securing obligations which are not overdue for a
period of thirty (30) days or more or which are in good faith being contested or
litigated; and (f) existing Liens reflected in the financial statements referred
to in Section 8.3 hereof, including any notes thereto, or additional existing
Liens listed in Schedule II attached hereto and made a part hereof.
10.2 LIMITATION ON INDEBTEDNESS.
Incur, create, assume, or permit to exist any Indebtedness,
except:
(a) the Note and any other Indebtedness of the Borrower or any
of its Subsidiaries to the Lender;
(b) Existing Indebtedness reflected in the financial
statements referred to in Section 8.3 hereof, including any notes thereto, or
additional existing Indebtedness listed in Schedule II attached hereto and made
a part hereof;
(c) Indebtedness incurred in connection with purchase money
transactions which does not exceed Five Hundred Thousand Dollars ($500,000.00)
in the aggregate in any fiscal year, unless otherwise consented to by the
Lender, which consent shall not be unreasonably withheld;
(d) Subordinated Indebtedness; and
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(e) Indebtedness so long as said Indebtedness is eliminated on
the consolidated and consolidating balance sheet of Borrower in accordance with
generally accepted accounting principals.
10.3 THIRD-PARTY GUARANTIES.
Be or become liable in respect of any Third-Party Guaranty,
except for: (a) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business; (b)
Third-Party Guaranties by the Borrower of Indebtedness of its Subsidiaries in
favor of the Lender or otherwise permitted to the extent the Indebtedness is
permitted in Section 10.2 hereof; (c) performance bonds entered into by the
Borrower or its Subsidiaries to secure the obligations of itself or its
Subsidiaries; and (d) Third-Party Guaranties of the Borrower and its
Subsidiaries existing as of the date of execution hereof, as shown on Schedule
II hereto.
10.4 DIVIDENDS.
Declare or pay any cash dividend or authorize or make any
other cash distribution on any stock of the Borrower, whether now or hereafter
outstanding, or make, or permit any Subsidiary to make, any payment on account
of the purchase, acquisition, redemption or other retirement of any shares of
such stock.
10.5 MERGERS, CONSOLIDATIONS AND ACQUISITION OF ASSETS.
Liquidate, dissolve, whether voluntary or involuntarily, merge
or consolidate with or acquire any corporation or all or substantially all of
the assets of any Person (except for Acquisitions as permitted herein), or
dispose of all or substantially all of the assets of any Person.
10.6 SALE, LEASE, ETC.
Sell, lease, assign, transfer or otherwise dispose of any of
its assets or revenues (other than obsolete or worn-out personal property, or
personal property or real estate not used or useful in its business) whether now
owned or hereafter acquired, other than in the ordinary course of business,
including, without limitation, the stock of any Subsidiary, or sell, assign or
discount any of its accounts receivable or any promissory note held by it, with
or without recourse, other than the discount of such notes or accounts
receivable (if permitted by Medicaid Regulations or Medicare Regulations) in the
ordinary course of business for collection.
10.7 INVESTMENTS.
Make or suffer to exist any Investments, except that this
prohibition shall not apply to (i) the investment policy attached as Schedule II
to this Agreement; (ii) the purchase of direct obligations of the government of
the United States of America, or any agency thereof, or obligations
unconditionally guaranteed by the United States of America; (ii) certificates of
deposit of any bank organized or licensed to conduct a banking business under
the laws of the United States or any State thereof having capital, surplus and
undivided profits of not less than
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One Hundred Million Dollars ($100,000,000.00); (iii) Investments in commercial
paper which, at the time of acquisition by the Borrower or any Subsidiary, is
accorded the three (3) highest rating categories by Standard & Poor's
Corporation, Moody's Investors Services, Inc. or any other nationally recognized
credit rating agency of similar standing; and (iv) other Investments of the
Borrower existing as of the date of execution hereof as shown on Schedule II
hereof.
10.8 TRANSACTIONS WITH AFFILIATES.
Enter into or be a party to, any transaction or arrangement
with any Affiliate (including, without limitation, the purchase from, sale to or
exchange of property with, or the rendering of any service by or for, any
Affiliate), except in the ordinary course of, and pursuant to the reasonable
requirements of the Borrower's or any Subsidiary's business, and in connection
with Acquisitions and upon fair and reasonable terms no less favorable to the
Borrower or any Subsidiary than would be obtained in a comparable arm's length
transaction with a Person other than an Affiliate.
10.9 SALE AND LEASEBACK.
After the sale of any property or assets owned by the Borrower
or any Subsidiary, lease such property or substantially identical property.
10.10 PURCHASE OF OWN SHARES.
Other than redemptions in connection with indemnification
claims pursuant to any Acquisition, purchase, retire or redeem any shares of its
own stock.
10.11 TRANSFER OF SHARES.
Transfer or allow the transfer of any Subsidiary's shares of
capital stock.
10.12 BUSINESS OPERATIONS.
Change its nature of business.
10.13 OWNERSHIP OF ASSETS.
With respect to Borrower, own any assets or conduct any
business other than: (i) Acquisitions permitted herein; or (ii) the ownership
of Subsidiaries;
10.14 LOANS AND ADVANCES.
Make loans or advances to any insiders, or Affiliates
(excluding intercompany Indebtedness which nets to zero on Borrower's
consolidated financial statements) in excess of Fifty Thousand Dollars
($50,000.00) in the aggregate at any one time outstanding.
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10.15 FRAUD AND ABUSE.
Neither the Borrower nor any Subsidiary nor, to the knowledge
of Borrower's or any Subsidiary's officers, officers or directors or Contract
Providers, have engaged in any activities which are prohibited under Medicare
Regulations or Medicaid Regulations.
Lender acknowledges that the Borrower is disposing of its
Woodbury Facility and accordingly, to the extent said disposition would
otherwise be prohibited hereunder, Lender consents to said disposition.
* END OF ARTICLE X *
ARTICLE XI - ENVIRONMENTAL
11.1 HAZARDOUS AND TOXIC MATERIALS GENERALLY.
(a) The Borrower expressly represents to the Lender that to
the best of its knowledge (i) except as set forth on Schedule III, there has
been no complaint, order, citation, or notice with regard to air emissions,
Hazardous Discharges (as hereinafter defined), or other environmental, health,
or safety matters affecting any of the premises owned or operated by the
Borrower or any of its Subsidiaries (the "Premises") or the businesses therein
conducted which have not been fully satisfied and discharged, and (ii) except as
set forth in Schedule III, there has been no spill, discharge, release, or
cleanup of any hazardous or toxic waste or substance or any petroleum product or
pesticide ("Hazardous Substances") at any of the Premises, including, without
limitation, into or upon any of their respective soils, surface water, ground
water, or the improvements located thereon (a "Hazardous Discharge"), and,
accordingly, such properties are clean of all such wastes and substances. The
Borrower expressly covenants and agrees that to the extent the Premises are used
for the handling, storage, transportation, or disposal of any Hazardous
Substance, it shall (i) implement and maintain a program or system to minimize
the likelihood and effect of any Hazardous Discharge, (ii) use its best efforts
to ensure that such use will be in accordance with all federal, state, and local
environmental laws, rules, and regulations which apply to the handling, storage,
transportation, or disposal of any Hazardous Substance and (iii) obtain any and
all necessary permits, licenses, and approvals with respect to such use.
(b) The Borrower agrees to indemnify and hold the Lender
harmless from and against any claims, losses, damages, liabilities (including,
without limitation, all foreseeable and unforeseeable consequential damages),
penalties, fines, charges, interest, judgments, administrative and judicial
proceedings, voluntary or involuntary, remedial actions of any kind, public or
private, incurred by the Lender as a result of any past, present, or future use,
handling, storage, transportation or disposal of any Hazardous Substance by the
Borrower or any of its Subsidiaries or any other user or operator of any of the
Premises; including, without limitation, all costs and expenses incurred in
connection therewith (including, without limitation, reasonable attorneys' fees
and expenses (including those for appellate proceedings and court costs). The
foregoing indemnity shall survive the repayment of the Revolving Credit Loans
and the termination of this Agreement; provided that the Borrower shall not be
liable to the Lender for its
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own gross negligence or willful misconduct nor shall the Borrower be liable for
any claims which are barred by any applicable statute of limitations.
(c) Subject to the provisions of this Article XI, the Borrower
and its Subsidiaries shall comply with any and all federal, state, or local
environmental laws, rules, or regulations which apply to the Premises or to any
users or operators of any establishments at the Premises.
* END OF ARTICLE XI *
ARTICLE XII - EVENTS OF DEFAULT
12.1 EVENTS OF DEFAULT.
If any one of the following "EVENTS OF DEFAULT" shall occur
and shall not have been remedied:
(a) Any representation or warranty made by the Borrower or
Guarantor in connection with this Agreement, or any Revolving Credit Loan
hereunder, or in any certificate or report furnished by the Borrower or
Guarantor hereunder shall prove to have been incorrect in any material respect;
or
(b) The Borrower shall fail to pay, when due, any principal of
or interest on the Note, or to pay when due any other sum payable under this
Agreement; or
(c) The Borrower or Guarantor shall default in the performance
of any agreement, covenant or obligation contained herein, other than a default
in payment and such default is not cured within thirty (30) days of the
occurrence thereof; or
(d) Final judgment for the payment of money in an amount in
excess of Twenty-Five Thousand Dollars ($25,000.00) per judgment or One Hundred
Thousand Dollars ($100,000.00) in the aggregate in excess of applicable
insurance coverage shall be rendered against the Borrower or any of its
Subsidiaries, and the same shall remain undischarged for a period of thirty (30)
days, during which period execution shall not effectively be stayed; or
(e) The Borrower shall voluntarily terminate operations or the
Borrower or any Subsidiary or Guarantor shall (1) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian, trustee
or liquidator of the Borrower or Subsidiary, as the case may be, or of all or of
a substantial part of the assets of the Borrower or Subsidiary or Guarantor, as
the case may be, (2) admit in writing its inability, or be generally unable, to
pay its debts as the debts become due, (3) make a general assignment for the
benefit of its creditors, (4) commence a voluntary case under the United States
Bankruptcy Code (as now or hereafter in effect), (5) file a petition seeking to
take advantage of any other law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts, (6) fail to
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controvert in a timely and appropriate manner, or acquiesce in writing to, any
petition filed against it in an involuntary case under the Bankruptcy Code, or
(7) take any corporate action for the purpose of effecting any of the foregoing;
or
(f) The Borrower shall fail to furnish to the Lender notice of
default in accordance with Section 9.7 hereof, within ten (10) days after any
such Default or Event of Default becomes known to the President or Chief
Financial Officer of the Borrower, whether or not notification to the Borrower
is furnished by the Lender, unless such Default or Event of Default shall be
cured prior to the expiration of such ten (10) day period; or
(g) Without its application, approval or consent, a proceeding
shall be commenced, in any court of competent jurisdiction, seeking in respect
of the Borrower or any Subsidiary or any Guarantor: the liquidation,
reorganization, dissolution, winding-up, or composition or readjustment of debt,
the appointment of a trustee, receiver, liquidator or the like of the Borrower
or Subsidiary or any Guarantor, as the case may be, or of all or any substantial
part of the assets of the Borrower or Subsidiary or any Guarantor, as the case
may be, or other like relief in respect of the Borrower or Subsidiary or any
Guarantor, as the case may be, under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts unless such
proceeding is contested in good faith by the Borrower or Subsidiary or any
Guarantor; and, if the proceeding is being contested in good faith by the
Borrower or Subsidiary or any Guarantor, as the case may be, the same shall
continue undismissed, or unstayed and in effect, for any period of sixty (60)
consecutive days, or an order for relief against the Borrower or any Subsidiary
shall be entered in any involuntary case under the Bankruptcy Code; or
(h) The Borrower or any of its Subsidiaries shall (1) default
in the payment of principal or interest, on any Indebtedness to Lender (other
than the Notes) beyond the period of grace, if any, provided in the instrument
or agreement under which such Indebtedness was created; (2) default in the
payment of principal or interest on any Indebtedness to any other lender beyond
the applicable period of grace pertaining thereto, if any, provided in the
instrument or agreement under which such Indebtedness was created; or (3)
default in the observance or performance of any other agreement contained in any
Indebtedness referred to in (1) or (2) above or in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur, the
effect of which default or other event is to cause, or permit the holder or
holders of such Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, such Indebtedness to become due prior to its stated maturity;
provided, however, that no Event of Default shall occur under this Article XII
so long as the Borrower or any of its Subsidiaries shall contest in good faith
its obligations under the Indebtedness described in this Article XII by
appropriate proceedings and the Borrower or Subsidiary, as the case may be,
shall have set aside on its books adequate reserves with respect to any amount
so contested; or
(i) A Termination Event has occurred; or a trustee shall be
appointed to administer any Plan or Plans under Section 4042 of ERISA; or the
Pension Benefit Guaranty Corporation shall institute proceedings to terminate,
or to have a trustee appointed to administer, any Plan or Plans, and the
proceeding shall not be dismissed within thirty (30) days; or a
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38
voluntary notice of intent to terminate is filed under Section 4041 of ERISA
which would, in the opinion of the Lender, result in a Material Adverse Change;
or, with respect to any Plan as to which the Borrower or any Subsidiary may have
any liability, there shall exist a deficiency in the Plan assets available to
satisfy the benefits guaranteeable under ERISA with respect to the Plan which is
material to the financial condition of the Borrower and such Subsidiary taken as
a whole, and (1) steps are undertaken to terminate the Plan or (2) the Plan is
terminated or (3) any Reportable Event which presents a material risk of
termination with respect to the Plan shall occur; or
(j) Failure by Borrower or any of its Subsidiaries to conduct
its business in the ordinary course consistent with past practices and in
accordance with all local, state and Federal laws and regulations governing the
conduct of Borrower's or any of Subsidiary's businesses, which failure is
reasonably likely to result in a Material Adverse Change; or
(k) (i) Cancellation, revocation, suspension or termination of
any Medicare Certification, Medicare Provider Agreement, or Medicaid Provider
Agreement affecting the Borrower or any Subsidiary or materially affecting any
Contract Provider, or (ii) the loss of any other permits, licenses,
authorizations, certifications or approvals from any federal, state or local
governmental authority or termination of any contract with any such authority,
in either case which cancellation, revocation, suspension, termination or loss
(X) in the case of any suspension or temporary loss only, continues for a period
greater than thirty (30) days and (Y) results in the suspension or termination
of operations of the Borrower or any Subsidiary or in the failure of the
Borrower or any Subsidiaries to be eligible to participate in Medicare or
Medicaid programs or to accept assignments of rights to reimbursement under
Medicaid Regulations or Medicare Regulations; or
(l) Dissolution of Borrower or failure of the Borrower to
maintain its corporate existence except for the discontinuation or cessation of
any Subsidiary's existence in the ordinary course of business and which does not
result in a Material Adverse Change; or
(m) Any Material Adverse Change shall occur; or
(n) Any default shall occur by Borrower under a Medical
Director Agreement, or any other agreement with a Contract Provider, which is
not cured within any applicable grace period and which has a material adverse
effect on the Borrower and its Subsidiaries taken as a whole.
(o) This Agreement, the Note, the Related Documents or any
other security document in favor of Lender, or any provisions thereof, shall be
invalidated or deemed unenforceable in any material respect; or
(p) Any default shall occur under the Note Agreement or the
Related Documents which default continues beyond any applicable grace or cure
period contained therein;
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THEREUPON, in the case of any such event the Lender may at its option: (i)
immediately terminate the Revolving Credit Commitment of the Lender hereunder,
and/or (ii) immediately declare the principal of, and interest accrued on, the
Note forthwith due and payable, whereupon the same shall become forthwith due
and payable; and the principal of, and interest accrued on, the Note shall
become immediately due and payable, both as to principal and interest, without
presentment, demand, protest, or other notice of any kind, all of which are
hereby expressly waived, anything contained herein or in the Note to the
contrary notwithstanding; and (iii) exercise any and all rights and remedies
available to Lender under this Agreement, the Note, the Related Documents, the
Uniform Commercial Code in effect in the State of Florida or any other document,
instrument or agreement executed and delivered in connection with this
Agreement, and all rights and remedies available to Lender under any other
applicable law.
* END OF ARTICLE XII *
ARTICLE XIII - MISCELLANEOUS
13.1 NO WAIVER, REMEDIES CUMULATIVE.
No failure on the part of the Lender to exercise and no delay
in exercising any right granted hereunder or in the Notes shall operate as a
waiver thereof, nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and are not exclusive of any
remedies provided by law.
13.2 SURVIVAL OF REPRESENTATIONS.
All representations and warranties made herein shall survive
the making of the Revolving Credit Loans hereunder and the delivery of the
Notes.
13.3 EXPENSES.
Whether or not any of the Revolving Credit Loans herein
provided for shall be made, the Borrower agrees to pay on demand all reasonable
costs and expenses of the Lender in connection with the preparation, printing,
execution, and delivery of this Agreement, the Related Documents, the Note, and
the other instruments and documents to be delivered hereunder and thereunder,
including the reasonable fees and out-of-pocket expenses of legal counsel for
the Lender, with respect thereto, and the reasonable fees of independent public
accountants, and other outside experts retained by the Lender in connection with
the enforcement of this Agreement, the Related Documents, the Note, and the
other instruments and documents to be delivered hereunder and thereunder. In
addition, the Borrower shall pay any and all stamp and other taxes payable or
determined to be payable in connection with the execution and delivery of this
Agreement, the Notes and the instruments and documents to be delivered hereunder
and thereunder, and agrees to save the Lender harmless from and against any and
all liabilities with respect to or resulting from any delay in paying or
omitting to pay such taxes. All obligations provided for in this Section 13.3
shall survive any termination of this Agreement.
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13.4 NOTICES.
Except as otherwise provided for in this Agreement, any notice
or other communication hereunder to any party hereto shall be delivered by hand,
registered or certified mail, postage prepaid return receipt requested, in the
United States mail or overnight delivery by a nationally recognized overnight
courier service ("Overnight Courier") and shall be deemed to have been given or
made on the third (3rd) Business Day after the deposit thereof in the mail, or
shall be deemed to have been given or made on the second (2nd) Business Day
after deposit thereof with an Overnight Courier, or when received if delivered
by hand, addressed to the party at its address specified next to its signature
hereto (or at any other address that the party may hereafter specify to the
other parties in writing), except that notices by the Borrower under Section 2.2
hereof shall not be effective until received.
13.5 CONSTRUCTION.
This Agreement, the Related Documents, and the Note shall be
deemed contracts made under the law of the State of Florida and shall be
governed by and construed in accordance with the law of said state.
13.6 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and shall inure to the
benefit of the Borrower and the Lender, and their respective successors and
assigns; provided, that the Borrower may not assign any of its rights hereunder
without the prior written consent of the Lender. The Lender may, without the
consent of the Borrower, or any other Person, assign, negotiate, hypothecate, or
grant participations in this Agreement or in any of its rights and security
under this Agreement and each of the other documents contemplated to be executed
in conjunction herewith; provided, however, the Lender agrees that in the event
of all such assignments, negotiations, hypothecations, or participations the
Lender shall remain as the holder of the majority amount of the Revolving Credit
Loans and as administrative agent hereunder and shall not assign its obligations
to administer the Revolving Credit Loans. The Borrower shall accord full
recognition to any such assignment, and all rights and remedies of the Lender in
connection with the interest so assigned shall be as fully enforceable by such
assignee as they were by the Lender before such assignment. In connection with
any proposed assignment, the Lender may disclose to the proposed assignee any
information that the Borrower is required to deliver to the Lender pursuant to
this Agreement.
13.7 JURISDICTION, SERVICE OF PROCESS.
(a) Any suit, action, or proceeding against the Borrower or
any Subsidiary with respect to this Agreement, the Note, the Related Documents
or any judgment entered by any court in respect of any thereof may be brought in
the courts of the State of Florida or in the U.S. District Court for the
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41
Southern District of Florida as the Lender (in its sole discretion) may elect,
and the Borrower and each Subsidiary hereby accepts the nonexclusive
jurisdiction of those courts for the purpose of any suit, action, or proceeding.
(b) In addition, the Borrower and each Subsidiary hereby
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of venue of any suit, action, or
proceeding arising out of or relating to this Agreement, the Note, the Related
Documents or any judgment entered by any court in respect of any thereof brought
in Miami-Dade County, Florida, and hereby further irrevocably waives any claim
that any suit, action, or proceeding brought in Dade County, Florida has been
brought in an inconvenient forum. The Borrower and each Subsidiary further
agrees that if any such suit, action, or proceeding is pending in more than one
jurisdiction that the Lender's selection of the forum shall be binding on the
Borrower and each Subsidiary.
13.8 LIMIT ON INTEREST.
Anything herein, in the Related Documents, or in the Notes to
the contrary notwithstanding, the obligations of the Borrower under this
Agreement, the Related Documents, and the Note to the Lender shall be subject to
the limitation that payments of interest to the Lender shall not be required to
the extent that receipt of any such payment by the Lender would be contrary to
provisions of law applicable to the Lender (if any) which limit the maximum rate
of interest which may be charged or collected by the Lender; provided, however,
that nothing herein shall be construed to limit the Lender to presently existing
maximum rates of interest, if an increased interest rate is hereafter permitted
by reason of applicable federal or state legislation. If by the terms of this
Agreement, the Related Documents, or the Note, the Borrower is at any time
required or obligated to pay interest in excess of such maximum rate, the rate
of interest payable hereunder and thereunder shall be computed at such maximum
rate and the portion of all prior interest payments in excess of such maximum
rate shall be applied to and shall be deemed to have been payments in reduction
of the principal balance of this Agreement and the Note.
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13.9 PAYMENT ON OTHER THAN BUSINESS DAY.
Except as otherwise provided for in this Agreement, should any
payment required by this Agreement become due and payable other than on a
Business Day, the maturity thereof shall be the immediately preceding Business
Day.
13.10 NET PAYMENTS.
All payments by the Borrower under this Agreement and the Note
shall be made without setoff or counterclaim and in such amounts as may be
necessary in order that all payments, after deduction or withholding for or on
account of any present or future taxes, levies, imposts, duties, or other
charges of whatsoever nature imposed by any government or any political
subdivision or taxing authority thereof (collectively, the "Taxes"), shall not
be less than the amounts otherwise specified to be paid under this Agreement and
the Note. Notwithstanding anything to the contrary contained in this Section
13.10, the Borrower shall not be liable for the payment of any tax on or
measured by net income imposed on the Lender pursuant to the income tax laws of
the United States or any of the United States or any political subdivision
thereof. The Borrower shall pay all Taxes when due (and indemnify the Lender
against any liability therefor) and shall promptly (and in any event not later
than 30 days thereafter) furnish to the Lender any certificates, receipts, and
other documents which may be required (in the judgment of the Lender) to
establish any tax credit to which the Lender may be entitled. The obligations of
the Borrower under this Section 13.10 shall survive the termination of this
Agreement and the repayment of the Revolving Credit Loans, but such obligations
shall terminate as to any claim or liability for Taxes for which the Borrower is
responsible pursuant to this Section 13.10 on the same date that any such claim
or liability for Taxes is barred by any applicable statute of limitations.
13.11 INDEMNIFICATION OF LENDER.
Borrower and each Subsidiary hereby jointly and severally
indemnify and hold harmless, release and forever discharge Lender, its agents,
servants, employees, officers, directors, affiliates, attorneys, successors and
assigns from all damages, losses, claims, demands, liabilities, obligations,
actions and causes of action whatsoever which may exist as of the date hereof or
arise hereafter or which may be presently known or unknown and which may be of
any nature and extent whatsoever which may be brought by third parties on
account of or in any way directly or indirectly related to, concerning, arising
out of, or founded upon this Agreement, the Related Documents and any agreement,
document or instrument executed or to be executed in conjunction therewith or in
connection with any and all transactions contemplated thereby. This indemnity
and release on the part of the Borrower and the Subsidiary is contractual and
not merely a recital. The foregoing indemnity shall survive the repayment of the
Revolving Credit Loans and the termination of this Agreement; provided that
neither the Borrower nor any Subsidiary shall indemnify or be liable to the
Lender for its own gross negligence or willful misconduct nor shall the Borrower
or any Subsidiary be liable for any claims which are barred by any applicable
statute of limitations.
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13.12 COUNTERPARTS.
This Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original and all of which when taken
together shall constitute but one and the same instrument.
13.13 HEADINGS.
The headings and the Table of Contents of this Agreement are
for convenience only and are not to affect the construction of or to be taken
into account in interpreting the substance of this Agreement.
13.14 SEVERABILITY.
In the event that any one or more of the provisions contained
in this Agreement shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision of this Agreement, but this Agreement shall
be construed as if such invalid, illegal, or unenforceable provision had never
been contained herein.
13.15 COURSE OF DEALING; AMENDMENT; SUPPLEMENTAL AGREEMENTS.
No course of dealing between the Lender and the Borrower shall
be effective to amend, modify, or change any provision of this Agreement. This
Agreement may not be amended, modified, or changed in any respect except by an
agreement in writing signed by the Lender and the Borrower. The Lender and the
Borrower may, subject to the provisions of this Section 13.15, from time to
time, enter into written agreements supplemental hereto for the purpose of
adding any provisions to this Agreement or changing in any manner the rights and
obligations of the Lender and the Borrower hereunder. Any such supplemental
agreement in writing shall be binding upon the Lender and the Borrower.
13.16 RIGHT OF SETOFF.
Upon the occurrence and during the continuance of any Event of
Default, the Lender is hereby authorized at any time and from time to time,
without notice to the Borrower (any such notice being expressly waived by the
Borrower), to set off and apply any and all deposits (general or special, time
or demand, professional or final) at any time held and any other indebtedness
owing by the Lender to or for the account of the Borrower against any and all of
the obligations of the Borrower now or hereafter existing under this agreement
or the note, or any other instrument executed in connection with this agreement
or the notes or constituting security therefor, irrespective of whether or not
the Lender shall have made demand under this agreement or the note and although
such obligations may be unmatured. The Lender agrees promptly to notify the
Borrower after any such setoff and application, provided that the failure to
give such notice shall not affect the validity of such setoff and application.
The rights of the Lender under this Section 13.16 are in addition to other
rights and remedies (including, without limitation, other rights of setoff)
which the Lender may have.
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13.17 ARBITRATION.
MANDATORY ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR
AMONG THE PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY RELATED AGREEMENTS OR INSTRUMENTS, INCLUDING
ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY
BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT
APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND PROCEDURE FOR
THE ARBITRATION OF COMMERCIAL DISPUTES OF JUDICIAL ARBITRATION AND MEDIATION
SERVICES, INC. (J.A.M.S.), AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE EVENT
OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY
ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO
THIS AGREEMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING,
TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT
APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(a) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE
CITY OF THE BORROWER'S DOMICILE AT TIME OF THIS AGREEMENT'S EXECUTION AND
ADMINISTERED BY ENDISPUTE, INC. D/B/A J.A.M.S./ENDISPUTE WHO WILL APPOINT AN
ARBITRATOR; IF J.A.M.S./ENDISPUTE IS UNABLE OR LEGALLY PRECLUDED FROM
ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION ASSOCIATION WILL
SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN NINETY (90) DAYS OF THE
DEMAND FOR ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF
CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN
ADDITIONAL SIXTY (60) DAYS.
(b) RESERVATION OF RIGHTS. NOTHING IN THIS AGREEMENT SHALL BE
DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS AGREEMENT; OR (II) BE A
WAIVER BY LENDER OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. 91 OR ANY
SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF LENDER (A) TO
EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF, OR (B) TO
FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN
FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO)
INJUNCTIVE RELIEF
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OR THE APPOINTMENT OF A RECEIVER. LENDER MAY EXERCISE SUCH SELF HELP RIGHTS,
FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES
BEFORE, DURING OR AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT
PURSUANT TO THIS AGREEMENT. NEITHER THIS EXERCISE OF SELF HELP REMEDIES NOR THE
INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR
ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY,
INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE
CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date and year first above written.
[BORROWER]:
RENEX CORP.,
a Florida corporation
By:
------------------------------------
Print Name: James Shea
Title: President
[Corporate Seal]
2100 Ponce de Leon Boulevard
Coral Gables, Florida 33134
Attention: James Shea
[LENDER]:
NATIONSBANK, N.A., a national
banking association
By:
------------------------------------
Print Name: John Foreman
Title: Vice President
100 Southeast 2nd Street
15th Floor
Miami, Florida 33131
Attention: John Foreman and Commercial
Banking Manager
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[ACKNOWLEDGMENTS APPEAR ON NEXT PAGE]
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COMMONWEALTH OF BAHAMAS )
ISLAND OF NEW PROVIDENCE )
CITY OF NASSAU )
The foregoing instrument was acknowledged before me in Nassau, Bahamas
this 30th day of April, 1998 by James Shea as President of RENEX CORP., a
Florida corporation, on behalf of the corporation.
------------------------------------------
Signature of Notary Public
Nassau, Bahamas
------------------------------------------
Print, Type or Stamp Commissioned Name of
Notary Public
Personally Known ______ or Produced Identification _______
Type of Identification Produced: _____ Driver's License _____ Other ___________
COMMONWEALTH OF BAHAMAS )
ISLAND OF NEW PROVIDENCE )
CITY OF NASSAU )
The foregoing instrument was acknowledged before me in Nassau, Bahamas
this 30th day of April, 1998, by John Foreman, as Vice President of NATIONSBANK,
N.A., a national banking association, on behalf of the Lender.
------------------------------------------
Signature of Notary Public
Nassau, Bahamas
------------------------------------------
Print, Type or Stamp Commissioned Name
of Notary Public
Personally Known ______ or Produced Identification _______
Type of Identification Produced: _____ Driver's License _____ Other ___________
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JOINDER AND CONSENT
The undersigned Guarantors hereby join in and consent to that certain
Credit Agreement by and between Renex Corp. and NationsBank, N.A., dated as of
April 30, 1998 (the "Credit Agreement"), and agrees to be bound by each and
every one of the terms and conditions applicable to Guarantor in the Credit
Agreement.
[SUBSIDIARIES OF THE BORROWER]
By:
--------------------------------
Print Name:
------------------------
As:
--------------------------------
[Corporate Seal]
STATE OF FLORIDA )
)
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me on this ____ day of
May, 1998 by _____________________, as ____________ of _____________________, a
___________, on behalf of the _______________.
------------------------------------------
Signature of Notary Public
State of Florida
------------------------------------------
Print, Type or Stamp Commissioned Name of
Notary Public
Personally Known ______ or Produced Identification _______
Type of Identification Produced: _____ Driver's License _____ Other ____________
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SCHEDULE/EXHIBIT LIST
TO
CREDIT AGREEMENT
Schedule I - Subsidiaries, Affiliates
Schedule II - Additional Existing Liens, Permitted Liens, Additional
Existing Indebtedness, Existing Guaranties, Materially
Adverse and Contingent Liabilities, Investments
Schedule III - Environmental Matters
===============================================================================
Exhibit A - Form of Notice and Manner of Borrowing
Exhibit B - Form of Note
Exhibit C - Form of Acquisition Advance Certificate
Exhibit D - Form of Closing Document List
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SCHEDULE I
TO
CREDIT AGREEMENT
----------------
SUBSIDIARIES
------------
LIST TO BE PROVIDED TO LENDER
AFFILIATES
----------
NONE
51
SCHEDULE II
TO
CREDIT AGREEMENT
----------------
ADDITIONAL EXISTING LIENS
-------------------------
NONE
PERMITTED LIENS
---------------
NONE
ADDITIONAL EXISTING INDEBTEDNESS
--------------------------------
NONE
EXISTING GUARANTIES
-------------------
NONE
MATERIALLY ADVERSE AND CONTINGENT LIABILITIES
---------------------------------------------
NONE
INVESTMENTS
-----------
NONE
52
SCHEDULE III
TO
CREDIT AGREEMENT
----------------
ENVIRONMENTAL MATTERS
---------------------
NONE
53
EXHIBIT A
FORM OF NOTE
54
EXHIBIT B
FORM OF ACQUISITION ADVANCE CERTIFICATE
55
EXHIBIT C
FORM OF CLOSING DOCUMENT CHECKLIST