EXHIBIT 10.1
THIRD AMENDED AND RESTATED
LOAN AGREEMENT
AMONG
FIRST UNION NATIONAL BANK
AS AGENT
VARIOUS LENDERS
AND
AMERICAN ONCOLOGY RESOURCES, INC.
AS BORROWER
$150,000,000 Revolving Credit Facility
DECEMBER 29, 1997
TABLE OF CONTENTS
Page
----
Recitals...................................................................... 1
ARTICLE I.
DEFINITIONS
1.1 Defined Terms............................................................ 2
1.2 Accounting Terms.........................................................22
1.3 Singular/Plural..........................................................23
1.4 Other Terms..............................................................23
ARTICLE II.
AMOUNT AND TERMS OF THE LOANS
2.1 Commitments; Loans.......................................................23
2.2 Committed Borrowings.....................................................24
2.3 Bid Borrowings...........................................................25
2.4 Disbursements; Funding Reliance; Domicile of Loans.......................29
2.5 Notes....................................................................30
2.6 Termination and Reduction of Commitments.................................30
2.7 Payments; Voluntary, Mandatory...........................................31
2.8 Interest.................................................................32
2.9 Fees.....................................................................33
2.10 Interest Periods.........................................................34
2.11 Conversions and Continuations............................................35
2.12 Method of Payments; Computations.........................................36
2.13 Increased Costs, Change in Circumstances, etc............................38
2.14 Taxes....................................................................40
2.15 Compensation.............................................................42
2.16 Use of Proceeds..........................................................43
2.17 Recovery of Payments.....................................................43
2.18 Pro Rata Borrowings......................................................43
2.19 Substitution of Lender...................................................44
2.20 Letters of Credit........................................................44
ARTICLE III.
CLOSING; CONDITIONS OF CLOSING AND BORROWING
3.1 Conditions of Initial Borrowing..........................................51
3.2 Conditions of All Borrowings.............................................54
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3.3 Waiver of Conditions Precedent...........................................54
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
4.1 Corporate Organization and Power.........................................55
4.2 Litigation; Government Regulation........................................55
4.3 Taxes....................................................................55
4.4 Enforceability of Loan Documents; Compliance with Other Instruments......56
4.5 Governmental Authorization...............................................56
4.6 Event of Default.........................................................57
4.7 Margin Securities........................................................57
4.8 Full Disclosure..........................................................57
4.9 Principal Places of Business.............................................57
4.10 ERISA; Employee Benefits.................................................58
4.11 Subsidiaries.............................................................59
4.12 Financial Statements.....................................................59
4.13 Title to Assets..........................................................59
4.14 Solvency.................................................................60
4.15 Use of Proceeds..........................................................60
4.16 Assets for Conduct of Business...........................................60
4.17 Compliance with Laws.....................................................60
4.18 Environmental Matters....................................................60
4.19 First Priority...........................................................61
4.20 Contracts; Labor Disputes................................................61
4.21 Insurance................................................................61
4.22 Reimbursement from Third Party Payors....................................61
4.23 Fraud and Abuse..........................................................61
4.24 Single Business Enterprise...............................................62
4.25 Continuing Security Interest.............................................62
ARTICLE V.
AFFIRMATIVE COVENANTS
5.1 Financial and Business Information about the Borrower....................63
5.2 Notice of Certain Events.................................................64
5.3 Corporate Existence and Maintenance of Properties........................65
5.4 Payment of Debt..........................................................65
5.5 Maintenance of Insurance.................................................66
5.6 Maintenance of Books and Records; Inspection.............................66
5.7 COBRA....................................................................66
5.8 Payment of Taxes.........................................................66
5.9 Compliance with Laws.....................................................67
5.10 Name Change..............................................................67
ii
5.11 Creation or Acquisition of New Subsidiaries..............................67
5.12 Recoveries in Bankruptcy Proceedings.....................................68
5.13 Solvency of Subsidiaries.................................................68
5.14 Certain Physician Transactions...........................................68
5.15 Year 2000 Compatibility..................................................69
ARTICLE VI.
NEGATIVE COVENANTS
6.1 Merger, Consolidation....................................................70
6.2 Physician Transactions...................................................70
6.3 Debt.....................................................................70
6.4 Contingent Obligations...................................................71
6.5 Liens and Encumbrances...................................................71
6.6 Disposition of Assets....................................................72
6.7 Transactions with Related Persons........................................72
6.8 Restricted Investments; Loans............................................73
6.9 Restricted Payments......................................................73
6.10 Capital Expenditures.....................................................73
6.11 Consolidated Net Worth...................................................73
6.12 EBITDA to Interest Expense...............................................74
6.13 Annualized EBITDAR to Debt Service Ratio.................................74
6.14 Consolidated Debt to Annualized EBITDA...................................74
6.15 Consolidated Debt to Consolidated Total Capital..........................74
6.16 Sale and Leaseback.......................................................74
6.17 New Business.............................................................74
6.18 Subsidiaries or Partnerships.............................................74
6.19 Transactions Affecting the Collateral....................................74
6.20 Hazardous Wastes.........................................................74
6.21 Fiscal Year..............................................................75
6.22 Amendments; Prepayments of Subordinated Debt or Permitted Subordinated
Debt, etc................................................................75
6.23 Fraud and Abuse..........................................................75
ARTICLE VII.
EVENTS OF DEFAULT
7.1 Events of Default........................................................76
ARTICLE VIII.
RIGHTS AND REMEDIES AFTER EVENT OF DEFAULT
8.1 Remedies: Termination of Commitments, Acceleration, etc..................79
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8.2 Right of Setoff.........................................................80
8.3 Rights and Remedies Cumulative; Non-Waiver; etc.........................80
ARTICLE IX.
THE AGENT
9.1 Appointment.............................................................80
9.2 Nature of Duties........................................................80
9.3 Exculpatory Provisions..................................................81
9.4 Reliance by Agent.......................................................81
9.5 Non-Reliance on Agent and Other Lenders.................................82
9.6 Notice of Default.......................................................82
9.7 Indemnification.........................................................82
9.8 The Agent in its Individual Capacity....................................83
9.9 Successor Agent.........................................................83
9.10 Collateral Matters......................................................84
9.11 Applicable Parties......................................................84
ARTICLE X.
MISCELLANEOUS
10.1 Survival................................................................84
10.2 Governing Law; Consent to Jurisdiction; Waiver of Jury Trial............85
10.3 Arbitration; Preservation and Limitation of Remedies....................86
10.4 Notice..................................................................87
10.5 Assignments, Participations.............................................88
10.6 Fees and Expenses.......................................................91
10.7 Indemnification.........................................................91
10.8 Amendments, Waivers, etc................................................92
10.9 Rights and Remedies Cumulative, Non-Waiver, etc.........................93
10.10 Binding Effect, Assignment..............................................93
10.11 Severability............................................................93
10.12 Entire Agreement........................................................93
10.13 Interpretation..........................................................94
10.14 Counterparts, Effectiveness.............................................94
10.15 Conflict of Terms.......................................................94
10.16 Injunctive Relief.......................................................94
10.17 Confidentiality.........................................................94
10.18 Post-Closing Matters....................................................95
EXHIBITS
Exhibit A-1 - Form of Committed Loan Note
iv
Exhibit A-2 - Form of Bid Loan Note
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Form of Notice of Conversion/Continuation
Exhibit B-3 - Form of Letter of Credit Request
Exhibit C-1 - Form of Bid Request
Exhibit C-2 - Form of Invitation for Bids
Exhibit C-3 - Form of Bid
Exhibit D - Form of Guaranty Agreement
Exhibit E-1 - Form of Security Agreement
Exhibit E-2 - Form of Guarantors' Security Agreement
Exhibit F - Form of Compliance Certificate
Exhibit G - Form of Assignment and Acceptance
SCHEDULES
Schedule 1.1(a) Existing Liens
Schedule 1.1(b) Example of Permitted Subordinated Debt Instrument
Schedule 4.1 Corporate Organization
Schedule 4.2 Litigation; Government Regulation
Schedule 4.3 Taxes
Schedule 4.4 Defaults
Schedule 4.9 Principal Places of Business
Schedule 4.10 ERISA Matters
Schedule 4.11 Subsidiaries
Schedule 4.13 Exceptions to Title to Assets
Schedule 4.21 Insurance
Schedule 6.8 Investments; Loans
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EXECUTION - 12/31/97
THIRD AMENDED AND RESTATED LOAN AGREEMENT
THIS THIRD AMENDED AND RESTATED LOAN AGREEMENT, dated as of the 29th day of
December, 1997 (the "Loan Agreement" or "Agreement"), is made among AMERICAN
ONCOLOGY RESOURCES, INC., a Delaware corporation (the "Borrower") with its
principal offices in Houston, Texas, the banks and other financial institutions
from time to time parties hereto (each, a "Lender," and collectively, the
"Lenders"), and FIRST UNION NATIONAL BANK , as Agent (the "Agent").
RECITALS
A. The Borrower, certain Lenders, and the Agent are parties to a Loan
Agreement, dated as of December 5, 1994, as amended by (i) a First Amendment to
Loan Agreement, dated as of ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) a First Amended and Restated
Loan Agreement, dated as of January 31, 1996, (iii) a First Amendment to First
Amended and Restated Loan Agreement, dated as of September 24, 1996, (iv) a
Second Amended and Restated Loan Agreement, dated as of October 30, 1996 and (v)
a First Amendment to Second Amended and Restated Loan Agreement, dated as of
April 17, 1997 (such agreement, as heretofore amended and restated, the
"Original Agreement"), pursuant to which the Lenders have made a reducing
revolving credit facility (including a letter of credit subfacility) available
to the Borrower in the principal amount of $150,000,000.
B. The Borrower, the Lenders and the Agent have agreed to amend and
restate the Original Agreement to, among other things, (i) provide for a
competitive bid borrowing option under the reducing revolving credit facility
and (ii) allow the Borrower to enter into an End Loaded Lease Facility (the
"ELLF") in an amount not to exceed $75,000,000 for the synthetic lease financing
of the acquisition or construction of certain health care facilities.
C. The Subsidiaries of the Borrower have jointly and severally guaranteed
all of the obligations of the Borrower under the Original Agreement and the loan
documents relating thereto and have further guaranteed the Borrower's Swingline
Note (as defined below) to the Agent in the maximum principal amount of
$5,000,000. Such Subsidiaries have consented to this Loan Agreement, and their
guarantees shall relate to the Obligations (defined below) of the Borrower
hereunder and under the other Loan Documents (defined below).
D. The parties acknowledge that this Loan Agreement and each of the other
Loan Documents have been negotiated and delivered in Charlotte, North Carolina.
E. The Lenders are willing to make the Loans described herein based on the
terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower, the Lenders and the
Agent hereby agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Defined Terms. For purposes of this Loan Agreement, in addition to the
terms defined elsewhere in this Loan Agreement, the following terms shall have
the meanings set forth below:
"Absolute Rate" shall have the meaning given to such term in SECTION
2.3(C)(V).
"Absolute Rate Auction" shall mean a solicitation of Bids setting forth
Absolute Rates pursuant to SECTION 2.3.
"Absolute Rate Loan" shall mean, at any time, any Bid Loan that bears
interest at such time at an Absolute Rate established pursuant to an Absolute
Rate Auction.
"Account Designation Letter" shall mean a letter from the Borrower to the
Agent, duly completed and signed by an Authorized Officer of the Borrower and in
form and substance satisfactory to the Agent, listing any one or more accounts
to which the Borrower may from time to time request the Agent to forward the
proceeds of any Loans made hereunder.
"Adjusted LIBOR Rate" shall mean, at any time with respect to any LIBOR
Committed Loan, a rate per annum equal to the LIBOR Rate plus the Applicable
Margin for LIBOR Loans, each as in effect at such time.
"Affiliate" shall mean, as to any Person, each of the Persons that directly
or indirectly, through one or more intermediaries, owns or controls, or is
controlled by or under common control with, such Person. For the purpose of
this definition, "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of management and policies, whether
through the ownership of voting securities, by contract or otherwise.
"Agent" shall mean First Union, in its capacity as appointed in ARTICLE IX
hereof, and its permitted successors and assigns.
"Agreement" or "this Agreement" or "Loan Agreement" shall mean this Loan
Agreement and any amendments, modifications and supplements hereto, any
replacements, renewals, extensions and restatements hereof, and any substitutes
herefor, in whole or in part and all Schedules and Exhibits hereto, and shall
refer to this Agreement as the same may be in effect at the time such reference
becomes operative.
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"Annualized EBITDA" shall mean, with respect to the Borrower and its
Subsidiaries, on a consolidated basis, as of the last day of any fiscal quarter,
the product of (a) EBITDA for the fiscal quarter ending on such date, multiplied
by (b) four (4).
"Annualized EBITDAR" shall mean, with respect to the Borrower and its
Subsidiaries, on a consolidated basis, as of the last day of any fiscal quarter,
the product of (a) the sum of (i) EBITDA for the fiscal quarter ending on such
date, plus (ii) Lease Expense for the fiscal quarter ending on such date,
multiplied by (b) four (4).
"Applicable Margin" shall mean, at any time with respect to any LIBOR
Committed Loan, the applicable percentage points as determined under the
following matrix with reference to the ratio of Consolidated Debt to Annualized
EBITDA calculated as provided below:
Ratio of Consolidated
Debt to Annualized EBITDA Applicable Margin
-------------------------
Greater than 3.00 to 1.0 0.875%
Greater than 2.50 to 1.0 0.800%
but less than or equal
to 3.00 to 1.0
Greater than 2.00 to 1.0 0.550%
but less than or equal
to 2.50 to 1.0
Greater than 1.50 to 1.0 0.450%
but less than or equal
to 2.00 to 1.0
Less than or equal to 0.325%
1.50 to 1.0
From the Closing Date until the fifth (5th) day after receipt by the Agent
of the December 1, 1997 financial statements pursuant to SECTION 5.1(B) below,
the Applicable Margin shall be 0.80%. The Applicable Margin shall be reset from
time to time in accordance with the above matrix on the fifth (5th) day after
receipt by the Agent in accordance with SECTIONS 5.1(A) and (B) of financial
statements together with a Compliance Certificate (reflecting the computation of
the ratio of Consolidated Debt to Annualized EBITDA as of the last day of the
preceding fiscal quarter or fiscal year, as appropriate).
"Assignment and Acceptance" shall mean an Assignment and Acceptance
Agreement entered into between a Lender and an Eligible Assignee, and accepted
by the Agent, in substantially the form of EXHIBIT G.
3
"Assignment Restrictions" shall mean, with respect to any contracts or
agreements assigned to the Agent, on behalf of the Lenders, as Collateral by the
Borrower or any Subsidiary, any restriction or prohibition on assignment that
has not been waived or consented to by the Person for whose benefit such
restriction or prohibition exists with respect to which the Agent has waived the
requirement of such waiver or consent.
"Authorized Officer" shall mean any officer of the Borrower authorized by
resolution of the board of directors of the Borrower to take the action
specified herein with respect to such officer and whose signature and incumbency
shall have been certified to the Agent by the secretary or an assistant
secretary of the Borrower.
"Bankruptcy Code" shall mean 11 U.S.C. (S) 101 et seq., as amended, and any
successor statute or statute having substantially the same function.
"Base Rate" shall mean, at any time, a rate per annum equal to the higher
of (i) the per annum interest rate publicly announced from time to time by First
Union in Charlotte, North Carolina, to be its prime or base rate (which may not
necessarily be its best lending rate), as adjusted to conform to changes as of
the opening of business on the date of any such change in such prime or base
rate, or (ii) one-half percentage point (0.5%) per annum in excess of the
Federal Funds Rate, as adjusted to conform to changes as of the opening of
business on the date of any such change in the Federal Funds Rate.
"Base Rate Loan" shall mean, at any time, any Committed Loan that bears
interest at such time at the Base Rate.
"Bid" shall mean an offer by a Lender to make one or more Bid Loans in
accordance with the provisions of SECTION 2.3.
"Bid Borrowing" shall mean the incurrence by the Borrower on a single date
of any one or more Bid Loans of a single Type and as to which a single Interest
Period is in effect, in accordance with the provisions of SECTION 2.3.
"Bid Loan Notes" shall mean the promissory notes of the Borrower in
substantially the form of EXHIBIT A-2, together with any amendments,
modifications and supplements thereto, substitutions therefor and restatements
thereof.
"Bid Loans" shall have the meaning given to such term in SECTION 2.1(B).
"Bid Request" shall have the meaning given to such term in SECTION 2.3(A).
"Bloodborne Pathogens Standard" shall mean the Final Standard for
Occupational Exposure to Bloodborne Pathogens promulgated by OSHA at 56 Federal
Register 64004 et seq. (December 6, 1991) and codified at 29 C.F.R. (S)
1910.1030, or any similar regulation promulgated by any Governmental Authority.
4
"Borrower" shall mean American Oncology Resources, Inc., a Delaware
corporation, and its successors and assigns.
"Borrowing" shall mean a Committed Borrowing or a Bid Borrowing on a given
date.
"Borrowing Date" shall mean a Business Day on which a Borrowing is made.
"Business Day" shall mean (i) any day other than a Saturday or Sunday, a
legal holiday or a day on which commercial banks in Charlotte, North Carolina
or, in respect of any determination relevant to a Loan, New York City are
required by law to be closed and (ii) in respect of any determination relevant
to a LIBOR Loan, any such day that is also a day on which tradings are conducted
in the London interbank Eurodollar market.
"Capital Asset" shall mean any asset that would, in accordance with
Generally Accepted Accounting Principles, be required to be classified and
accounted for as a capital asset.
"Capital Expenditures" shall mean the aggregate amount of all expenditures
and liabilities (including, without limitation, Capital Lease Obligations) made
and incurred in respect of the acquisition by the Borrower or any Subsidiary of
Capital Assets.
"Capital Lease" shall mean (i) any lease of any property that would, in
accordance with Generally Accepted Accounting Principles, be required to be
classified and accounted for as a capital lease on the balance sheet of the
lessee and (ii) any lease entered into pursuant to the ELLF and any other tax
retention operating lease or synthetic lease that is treated as a capital lease
of the lessee or its consolidated group for tax purposes.
"Capital Lease Obligation" shall mean, with respect to any Capital Lease,
the amount of the obligation of the lessee thereunder that would, in accordance
with Generally Accepted Accounting Principles, appear on a balance sheet as a
liability of such lessee in respect of such Capital Lease (or such amount
similarly calculated for any Capital Lease that does not appear on a balance
sheet), net of any government grant applicable to such Capital Lease.
"Cash Collateral Account" shall have the meaning given to such term in
SECTION 2.20(J).
"Cash Investments" shall mean (i) marketable direct obligations issued or
unconditionally guaranteed by the United States of America or issued by any
agency thereof and backed by the full faith and credit of the United States of
America, in each case maturing within one year from the date of acquisition
thereof; (ii) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having the highest rating obtainable
from either Standard & Poor's Ratings Services or ▇▇▇▇▇'▇ Investors Service,
Inc.; (iii) marketable commercial paper maturing no more than one year from the
date of creation thereof and, at the time of acquisition, having a rating of at
least A-1 or the equivalent thereof by Standard & Poor's Ratings Services or at
least P-1 or the equivalent thereof by ▇▇▇▇▇'▇ Investors Service, Inc.; (iv)
demand deposits, time deposits and certificates of deposit maturing within one
(1) year from the date of issuance thereof and issued by a bank or trust company
organized under the laws of the United States of America or any state
5
thereof and having a long term debt rating by Standard & Poor's Ratings Services
of A or higher and (v) any mutual fund that invests solely in any of the items
described in clauses (i), (ii), (iii) and (iv) of this paragraph.
"Change of Control" shall mean the occurrence of any one or more of the
following: (i) the Borrower shall merge or consolidate with or into another
corporation with the effect that the Persons who were the shareholders of the
Borrower immediately prior to the effective time of such merger or consolidation
hold less than 51% of the combined voting power of the outstanding securities of
the surviving corporation of such merger or the corporation resulting from such
consolidation ordinarily (and apart from rights accruing under special
circumstances) having the right to vote in the election of directors, or (ii)
any Person or "group" (within the meaning of Section 13(d)(3) of the Exchange
Act), other than the Welsh, Carson, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ group or any of its
affiliates, shall, directly or indirectly, as a result of a tender or exchange
offer, open market purchases, privately negotiated purchases or otherwise, have
become, after the Closing Date, the "beneficial owner" (within the meaning of
Rule 13d-3 under the Exchange Act) of securities of the Borrower representing
49% or more of the combined voting power of the then outstanding securities of
the Borrower ordinarily (and apart from rights accruing under special
circumstances) having the right to vote in the election of directors.
"Closing" shall mean the closing of the initial transactions contemplated
by this Agreement.
"Closing Date" shall mean the date upon which the Closing takes place.
"Collateral" shall mean all right, title and interest of the Borrower and
each Guarantor in (i) its Management Services Agreements and the proceeds
thereof, (ii) the Securities (as defined in the Security Agreements) owned by
such Borrower or Guarantor and the proceeds thereof, and (iii) all other
property and interests in property that shall, from time to time, be
collaterally assigned to secure the Obligations or the obligations of any
Guarantor under the Guaranty Agreement, in each case whether now owned or
existing or hereafter acquired or arising and whether in the possession or
control of the Borrower, any Guarantor or the Agent, for the benefit of the
Lenders, or any Lender.
"Committed Borrowing" shall mean the incurrence by the Borrower (including
as a result of conversions and continuations of outstanding Committed Loans
pursuant to SECTION 2.11) on a single date of a group of Committed Loans of a
single Type and, in the case of LIBOR Committed Loans, as to which a single
Interest Period is in effect.
"Committed Loan Notes" shall mean the promissory notes of the Borrower in
substantially the form of EXHIBIT A-1, together with any amendments,
modifications and supplements thereto, substitutions therefor and restatements
thereof.
"Committed Loans" shall have the meaning given to such term in SECTION
2.1(A).
"Commitment" shall mean, with respect to any Lender at any time, the amount
set forth opposite such Lender's name on its signature page hereto under the
caption "Commitment" or, if
6
such Lender has entered into one or more Assignment and Acceptances, the amount
set forth for such Lender at such time in the Register maintained by the Agent
pursuant to SECTION 10.5(B) as such Lender's "Commitment," as such amount may be
reduced at or prior to such time pursuant to the terms hereof.
"Compliance Certificate" shall mean a fully completed certificate in the
form of EXHIBIT F.
"Consolidated Debt" shall mean, at any time, the aggregate (without
duplication) of all Debt of the Borrower and its Subsidiaries as of such date,
determined on a consolidated basis.
"Consolidated Net Income" shall mean, for any period, the net income (or
loss) of the Borrower and its Subsidiaries, on a consolidated basis and
excluding intercompany items, for such period, determined in accordance with
Generally Accepted Accounting Principles, but excluding as income: (a) gains on
the sale, conversion or other disposition of Capital Assets, (b) gains on the
acquisition, retirement, sale or other disposition of Stock of the Borrower or
any Subsidiary, (c) gains on the collection of life insurance proceeds, (d) any
write-up of any asset, and (e) any other gain or credit of an extraordinary
nature.
"Consolidated Net Revenue" shall mean, for any period, the revenues of the
Borrower and its Subsidiaries, on a consolidated basis and excluding
intercompany items, for such period, determined in accordance with Generally
Accepted Accounting Principles, but excluding as revenue: (a) the sale or other
disposition of Capital Assets, (b) the sale or other disposition of Stock of the
Borrower or any Subsidiary, (c) the collection of life insurance proceeds, (d)
any write-up of any asset, and (e) any other source of revenue of an
extraordinary nature.
"Consolidated Net Worth" shall mean, as of the last day of any fiscal
quarter, the net worth of the Borrower and its Subsidiaries as of such date,
determined on a consolidated basis in accordance with Generally Accepted
Accounting Principles.
"Consolidated Total Capital" shall mean, with respect to the Borrower and
its Subsidiaries, at any time, the sum of Consolidated Net Worth and
Consolidated Debt.
"Contingent Obligation" shall mean, with respect to any Person, any direct
or indirect liability of such Person with respect to any Debt, lease, dividend,
guaranty, letter of credit or other obligation (the "primary obligation") of
another Person (the "primary obligor"), whether or not contingent, (a) to
purchase, repurchase or otherwise acquire such primary obligations or any
property constituting direct or indirect security therefor, (b) to advance or
provide funds (i) for the payment or discharge of any such primary obligation or
(ii) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency or any balance sheet item, level
of income or financial condition of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor in respect
thereof to make payment of such primary obligation or (d) otherwise to assure or
hold harmless the owner of any such primary obligation against loss or failure
or inability to perform in respect thereof. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated or
7
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by such Person
in good faith.
"Covenant Compliance Worksheet" shall mean a fully completed certificate in
the form of Attachment A to EXHIBIT F.
"Credit Parties" shall have the meaning given to such term in the
Participation Agreement.
"Debt" shall mean, with respect to any Person, without duplication, (i) all
indebtedness of such Person for money borrowed, (ii) all reimbursement
obligations of such Person with respect to surety bonds, letters of credit and
bankers' acceptances (in each case, whether or not matured), (iii) all
obligations of such Person evidenced by notes, bonds, debentures or similar
instruments, (iv) all obligations of such Person to pay the deferred purchase
price of property or services (including seller subordinated notes, contingent
or otherwise), other than trade payables, (v) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such property), (vi) all Capital Lease Obligations of
such Person, (vii) all obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any capital stock or other
equity securities that, by their stated terms (or by the terms of any equity
securities issuable upon conversion thereof or in exchange therefor), or upon
the occurrence of any event, mature or are mandatorily redeemable, or are
redeemable at the option of the holder thereof, in whole or in part, (viii) all
indebtedness referred to in clauses (i) through (vii) above to the extent
secured by any lien on any property or asset owned or held by such Person
regardless of whether the indebtedness secured thereby shall have been assumed
by such Person or is nonrecourse to the credit of such Person and (x) any
Contingent Obligation of such Person.
"Debt Service" shall mean, with respect to the Borrower and its
Subsidiaries on a consolidated basis as of the last day of any fiscal quarter,
the sum of (a) Fixed Charges for the fiscal quarter ending on such date
multiplied by four (4) plus (b) current maturities (due within twelve months) of
all Debt (provided that the amount outstanding under the Facility shall not be
considered a current maturity of Debt solely by reason of the Maturity Date
falling within such twelve month period).
"Default" shall mean any event that, with the passage of time or giving of
notice, or both, would constitute an Event of Default.
"Dollars" or "$" shall mean dollars of the United States of America.
"EBITDA" shall mean, for any period, an amount equal to, without
duplication, the sum of (a) net income (determined in accordance with Generally
Accepted Accounting Principles) earned in such period, plus (b) to the extent
net income has been reduced thereby, the sum of (i) depreciation and
amortization expense, plus (ii) Interest Expense, plus (iii) federal and state
income taxes.
8
"Eligible Assignee" shall mean (i) a commercial bank organized under the
laws of the United States or any state thereof and having total assets in excess
of $5,000,000,000, (ii) a commercial bank organized under the laws of any other
country that is a member of the OECD or a political subdivision of any such
country and having total assets in excess of $5,000,000,000, provided that such
bank is acting through a branch or agency located in the United States, in the
country under the laws of which it is organized or in another country that is
also a member of the OECD, (iii) the central bank of any country that is a
member of the OECD, (iv) a finance company, mutual fund, insurance company or
other financial institution that is engaged in making, purchasing or otherwise
investing in commercial loans in the ordinary course of its business and having
total assets in excess of $500,000,000, (v) any Affiliate of an existing Lender
or (vi) any other Person (other than an Affiliate of the Borrower) approved by
the Agent and the Borrower, which approval shall not be unreasonably withheld;
provided, however, that in no event shall the withholding of approval by the
Borrower under this definition or SECTION 10.5 be considered unreasonable if (i)
the Borrower has had prior dealings with such Person which the Borrower regards
as unfavorable or (ii) such Person provides banking or other financial services
to any of the Borrower's competitors.
"ELLF shall mean the End Loaded Lease Facility as embodied in the
Participation Agreement and the other Operative Agreements (as defined in the
Participation Agreement).
"Employee Plan" shall mean any "employee benefit plan" within the meaning
of Section 3(3) of ERISA maintained by the Borrower or any Subsidiary.
"Environmental Claims" shall mean any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigations (other than internal reports prepared
by the Borrower or any Subsidiary solely in the ordinary course of its business
and not in response to any third party action or request of any kind) or
proceedings relating in any way to any Environmental Law or any permit issued,
or any approval given, under any such Environmental Law (hereinafter, "Claims"),
including, without limitation, (i) any and all Claims by Governmental
Authorities for enforcement, cleanup, removal, response, remedial or other
actions or damages pursuant to any applicable Environmental Law and (ii) any and
all Claims by any third party seeking damages, contribution, indemnification,
cost recovery, compensation or injunctive relief resulting from Hazardous
Substances or arising from alleged injury or threat of injury to health or the
environment.
"Environmental Laws" shall mean any and all applicable laws, subsequent
enactments, amendments and modifications, including, without limitation,
federal, state and local laws, statutes, ordinances, rules, regulations,
permits, licenses, approvals, interpretations and orders of courts or
Governmental Authorities, relating to the protection of the environment (and
related human health issues), including, but not limited to, requirements
pertaining to the manufacture, processing, distribution, use, treatment,
storage, disposal, transportation, handling, reporting, licensing, permitting,
investigation or remediation of Hazardous Substances. Environmental Laws
include, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. (S) 9601 et seq.) ("CERCLA"), the
Hazardous Material Transportation Act (49 U.S.C. (S) 1801 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. (S) 6901 et seq.) ("RCRA"), the Federal
Water Pollution Control Act (33 U.S.C. (S) 1251 et
9
seq.), the Clean Air Act (42 U.S.C. (S) 7401 et seq.), the Toxic Substances
Control Act (15 U.S.C. (S) 2601 et seq.), the Safe Drinking Water Act (42 U.S.C.
(S) 300, et seq.), the Environmental Protection Agency's regulations relating to
underground storage tanks (40 C.F.R. Parts 280 and 281), and the Occupational
Safety and Health Act (29 U.S.C. (S) 651 et seq.) ("OSHA"), as such laws have
been amended or supplemented and any analogous federal, state or local, statutes
and the rules and regulations promulgated thereunder.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and all rules and regulations from time to time
promulgated thereunder.
"ERISA Affiliate" shall mean any Person that would be deemed to be under
"common control" with, or a member of the same "controlled group" as, the
Borrower or any of its Subsidiaries within the meaning of Section 414(b), (c),
(m) or (o) of the Internal Revenue Code or Section 4001 of ERISA.
"ERISA Event" means (a) a Reportable Event with respect to a Qualified Plan
(as defined in SECTION 4.10(C)); (b) a withdrawal by any ERISA Affiliate from
a Qualified Plan subject to Section 4063 of ERISA during a plan year in which it
was a substantial employer (as defined in Section 4001(a)(2) of ERISA); (c) a
complete or partial withdrawal by any ERISA Affiliate from a Multiemployer Plan;
(d) the filing of a notice of intent to terminate, the treatment of a plan
amendment as a termination under Section 4041 or 4041A of ERISA or the
commencement of proceedings by the Pension Benefit Guaranty Corporation to
terminate a Qualified Plan or Multiemployer Plan subject to Title IV of ERISA;
(e) a failure to make required contributions to a Qualified Plan or
Multiemployer Plan; (f) an event or condition which might reasonably be expected
to constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Qualified Plan or Multiemployer
Plan; (g) the imposition of any liability under Title IV of ERISA, other than
Pension Benefit Guaranty Corporation premiums due but not delinquent under
Section 4007 of ERISA, upon any ERISA Affiliate; (h) an application for a
funding waiver or an extension of any amortization period pursuant to Section
412 of the Internal Revenue Code with respect to any Qualified Plan; (i) any
ERISA Affiliate engages in or otherwise becomes liable for a non-exempt
prohibited transaction; or (j) a violation of the applicable requirements of
Section 404 or 405 of ERISA or the exclusive benefit rule under Section 401(a)
of the Internal Revenue Code by any fiduciary with respect to any Qualified Plan
for which any ERISA Affiliate may be directly or indirectly liable.
"Event of Default" shall have the meaning specified in ARTICLE VII hereof.
"Facility" shall mean the reducing revolving line of credit facility
established by the Lenders under SECTION 2.1.
"Federal Funds Rate" shall mean, for any day, the interest rate per annum
equal to the weighted average of the rates of overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of Richmond, or
if such rate is not so published on the relevant Business Day, the average of
the
10
quotations for such day on such transactions received by the Agent from three
federal funds brokers of recognized standing selected by the Agent.
"Financials" or "Financial Statements" shall mean the audited consolidated
financial statements of the Borrower and its Subsidiaries for the fiscal years
ended December 31, 1995 and December 31, 1996; the unaudited consolidated
interim financial statements of the Borrower and its Subsidiaries for the nine
months ended September 30, 1997; and all other financial statements of the
Borrower and its Subsidiaries subsequent to December 31, 1995 that have
previously been delivered by the Borrower or any Subsidiary to the Agent or any
Lender in connection with this Agreement, including without limitation interim
financial statements.
"Financing Statements" shall mean financing statements approved for filing
in accordance with the applicable adopted version of the Uniform Commercial Code
and all other titles, documents, and certificates that the Agent may require
from the Borrower or any Guarantor to describe and perfect the security
interests created hereunder or under the other Loan Documents, and all
assignments thereof and amendments thereto, in form and substance satisfactory
to the Agent.
"First Union" shall mean First Union National Bank, a national banking
association, and its successors and assigns.
"Fixed Charges" shall mean at any time, with respect to the Borrower and
its Subsidiaries on a consolidated basis as of the last day of any fiscal
quarter, without duplication, the sum of Interest Expense and Lease Expense for
such fiscal quarter.
"Generally Accepted Accounting Principles" shall mean generally accepted
accounting principles, as recognized by the American Institute of Certified
Public Accountants, consistently applied and maintained on a consistent basis
for the Borrower and its Subsidiaries on a consolidated basis throughout the
period indicated and consistent with the financial practice of the Borrower and
its Subsidiaries after the date hereof.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof and any central bank thereof, any municipal,
local, city or county government, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guarantors" shall mean AOR, Inc., AOR Management Company of Indiana, Inc.,
AOR Holding Company of Indiana, Inc., AOR Management Company of Oregon, Inc.,
AOR Management Company of Oklahoma, Inc., AOR Management Company of
Pennsylvania, Inc., AOR Management Company of Missouri, Inc., AOR Management
Company of Arizona, Inc., AOR Management Company of South Carolina, Inc., AOR
Management Company of Virginia, Inc., AOR Management Company of North Carolina,
Inc., AOR Management Company of New York, Inc., AOR Management Company of
Florida, Inc., AOR Management Company of Nevada, Inc., AOR Management Company of
Texas, Inc., AOR Real Estate, Inc., AORT Holding Company, Inc., RMCC Cancer
Center, Inc., AORIP. Inc. (each of the foregoing a Delaware corporation and a
direct or indirect wholly-owned Subsidiary of the Borrower), AOR
11
of Texas Management Limited Partnership and AOR of Indiana Management
Partnership, their successors and assigns, each future direct and indirect
Subsidiary and any other Person that guarantees the Obligations of the Borrower
and the obligations of the other Guarantors under the Guaranty Agreement;
provided, that unless requested by the Required Lenders AOR Synthetic Real
Estate, Inc. shall not be required to become a Guarantor so long as it (i) is
the Lessee (as defined in the Participation Agreement) under the ELLF, (ii) is
not a party to any Management Services Agreements and (iii) does not have any
Subsidiaries.
"Guarantors' Security Agreement" shall mean the Third Amended and Restated
Guarantors' Security Agreement, substantially in the form of EXHIBIT E-2,
together with any amendments, modifications and supplements thereto, any
replacements, renewals, extensions and restatements thereof, and any substitutes
therefor, in whole or in part.
"Guaranty Agreement" shall mean the Second Amended and Restated Guaranty
Agreement substantially in the form of EXHIBIT D, together with accessions
thereto at various dates thereafter, and all other similar guaranty agreements
and accessions executed and delivered from time to time by any Guarantor or
future Guarantor in form and substance satisfactory to the Lenders, together
with any amendments, modifications, supplements and accessions thereto, any
replacements, renewals, extensions and restatements thereof, and any substitutes
therefor, in whole or in part.
"HCFA" shall mean the United States Health Care Financing Administration
and any successor agency.
"Hazardous Substances" means any substances or materials (i) that are or
become defined as hazardous wastes, hazardous substances, pollutants,
contaminants or toxic substances under any Environmental Law, including, without
limitation, underground or above ground storage tanks; (ii) that are toxic,
explosive, corrosive, flammable, infectious, radioactive, mutagenic or otherwise
hazardous and that, in each case, are or become regulated under any
Environmental Law by any Governmental Authority; or (iii) the presence of which
requires investigation or remediation under any Environmental Law.
"IRS" shall mean the Internal Revenue Service and any successor thereto.
"Indemnified Costs" shall have the meaning assigned to such term in SECTION
10.7.
"Indemnified Person" shall have the meaning assigned to such term in
SECTION 10.7.
"Interest Expense" shall mean, for any period, total interest expense of
the Borrower and its Subsidiaries on a consolidated basis for such period
(including, without limitation, capitalized interest expense and interest
expense attributable to Capital Lease Obligations), determined in accordance
with Generally Accepted Accounting Principles, and all lease payments made by
the Borrower and its Subsidiaries pursuant to the ELLF.
"Interest Period" shall have the meaning set forth in SECTION 2.10 hereof.
12
"Interest Rate Protection Agreements" shall mean all interest rate swap
agreements, interest rate cap agreements, interest rate collar agreements,
interest rate insurance or other hedging arrangements and all other similar
agreements or arrangements designed to protect against fluctuations in interest
rates.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Invitation for Bids" shall have the meaning given to such term in SECTION
2.3(B).
"Issuing Bank" shall mean First Union in its capacity as issuer of Letters
of Credit, and its successors or assigns in such capacity.
"L/C Participant" shall have the meaning assigned to such term in SECTION
2.20(C) hereof.
"Lease Expense" shall mean, for any period, all amounts paid, payable or
accrued during such period by the Borrower and its Subsidiaries on a
consolidated basis with respect to all leases of real and personal property,
excluding Capital Leases and intercompany items.
"Lender" shall mean each financial institution signatory hereto and each
other financial institution that becomes a "Lender" hereto pursuant to SECTION
10.5, and their permitted successors and assigns.
"Lending Office" shall mean, with respect to any Lender, the office of such
Lender designated as its "Lending Office" on its signature page hereto or in an
Assignment and Acceptance, or such other office as may be otherwise designated
in writing from time to time by such Lender to the Borrower and the Agent. A
Lender may designate separate Lending Offices as provided in the foregoing
sentence for the purposes of making or maintaining different Types of Loans,
and, with respect to LIBOR Loans, such office may be a domestic or foreign
branch or Affiliate of such Lender.
"Letter of Credit Outstandings" shall mean, at any time, the sum of (i) the
aggregate Stated Amount of all outstanding Letters of Credit at such time and
(ii) the aggregate amount of all Reimbursement Obligations at such time
(exclusive of Reimbursement Obligations that are repaid with the proceeds of,
and simultaneously with the incurrence of, Loans).
"Letter of Credit Request" shall have the meaning assigned to such term in
SECTION 2.20(B) hereof.
"Letters of Credit" shall have the meaning set forth in SECTION 2.20(A)
hereof.
"LIBOR Auction" shall mean a solicitation of Bids setting forth LIBOR Bid
Margins pursuant to SECTION 2.3.
"LIBOR Bid Loan" shall mean, at any time, any Bid Loan that bears interest
at such time at a rate equal to the LIBOR Rate as in effect at such time plus
(or minus) a LIBOR Bid Margin established pursuant to a LIBOR Auction.
13
"LIBOR Bid Margin" shall have the meaning given to such term in SECTION
2.3(C)(IV).
"LIBOR Committed Loan" shall mean, at any time, any outstanding Committed
Loan that bears interest at such time at the Adjusted LIBOR Rate as in effect at
such time.
"LIBOR Loan" shall mean any LIBOR Bid Loan or any LIBOR Committed Loan.
"LIBOR Rate" shall mean, with respect to each LIBOR Loan comprising part of
the same borrowing for any Interest Period, an interest rate per annum equal to
(i) the rate of interest appearing on Telerate Page 3750 (or any successor page)
or (ii) if no such rate is available, the rate of interest determined by the
Agent to be the rate or the arithmetic mean of rates (rounded upward, if
necessary to the nearest 1/16 of one percentage point) at which Dollar deposits
in immediately available funds are offered by First Union to first-tier banks in
the London interbank Eurodollar market, in each case under (i) and (ii) above at
approximately 11:00 a.m., London time, two (2) Business Days prior to the first
day of such Interest Period for a period substantially equal to such Interest
Period and in an amount substantially equal to the amount of First Union's Loan
comprising part of such LIBOR Loan. For purposes of this definition, with
respect to LIBOR Bid Loans comprising a Bid Borrowing in which First Union is
not participating, the LIBOR Rate shall be determined as if such LIBOR Bid Loans
were LIBOR Committed Loans.
"Loan" or "Loans" shall mean and collectively refer to the Committed Loans
and the Bid Loans.
"Loan Documents" shall mean and collectively refer to this Agreement, the
Notes, the Security Agreements, the Guaranty Agreement, the Financing
Statements, Interest Rate Protection Agreements (if any) with any Lenders
relating to the Notes, and any and all agreements, instruments and documents,
including, without limitation, notes, guaranties, mortgages, deeds to secure
debt, deeds of trust, chattel mortgages, pledges, powers of attorney, consents,
assignments, contracts, notices, security agreements, trust account agreements
and all other written matters, whether heretofore, now or hereafter, executed by
or on behalf of the Borrower or any Subsidiary and delivered to the Agent or any
Lender, with respect to this Agreement or with respect to the transactions
contemplated by this Agreement, and in each case, together with any amendments,
modifications and supplements thereto, any replacements, renewals, extensions
and restatements thereof, and any substitutes therefor, in whole or in part.
"Management Services Agreements" shall mean the management services
agreements of Borrower and its Subsidiaries, whether now existing or hereafter
acquired or arising, together with any and all extensions, modifications,
amendments, renewals, substitutions or replacements thereof.
"Margin Stock" shall have the meaning given to such term in Regulation U or
Regulation G.
"Material Adverse Effect" or "Material Adverse Change" shall mean, in the
good faith and reasonable opinion of the Required Lenders, a material adverse
effect upon, or a material adverse change in, any of (a) the financial
condition, operations, business or properties of the
14
Borrower and its Subsidiaries, taken as a whole; or (b) the ability of the
Borrower and its Subsidiaries, taken as a whole, to perform under the Loan
Documents.
"Maturity Date" shall mean December 31, 2002.
"Medicaid Certification" shall mean, with respect to any health care
facility, certification by HCFA or another Governmental Authority, or any Person
under contract with HCFA, that such health care facility is in compliance with
all conditions of participation set forth in the Medicaid Regulations, except
where the failure to so comply would not have a Material Adverse Effect.
"Medicaid Provider Agreement" shall mean an agreement entered into between
any Person administering the Medicaid program and a health care facility under
which the health care facility agrees to provide services for Medicaid patients
in accordance with the terms of the agreement and Medicaid Regulations.
"Medicaid Regulations" shall mean, collectively, (i) all federal statutes
(whether set forth in Title XIX of the Social Security Act, 42 USC (S)(S) 1396
et seq., or elsewhere) affecting the medical assistance program established by
Title XIX of the Social Security Act, and any statutes succeeding thereto; (ii)
all applicable provisions of all federal rules, regulations, manuals having the
force of law and orders of all Governmental Authorities promulgated pursuant to
or in connection with the statutes described in clause (i) above and all federal
administrative, reimbursement and other guidelines of all Governmental
Authorities having the force of law promulgated pursuant to or in connection
with the statutes described in clause (i) above; (iii) all state statutes and
plans for medical assistance enacted in connection with the statutes and
provisions described in clauses (i) and (ii) above; and (iv) all applicable
provisions of all rules, regulations, manuals and orders of all Governmental
Authorities promulgated pursuant to or in connection with the statutes described
in clause (iii) above and all state administrative, reimbursement and other
guidelines of all Governmental Authorities having the force of law promulgated
pursuant to or in connection with the statutes described in clause (iii) above,
in each case as may be amended, supplemented or otherwise modified from time to
time.
"Medicare Certification" shall mean, with respect to any health care
facility, certification by HCFA or any other Governmental Authority, or any
Person under contract with HCFA, that such health care facility is in compliance
with all the conditions of participation set forth in the Medicare Regulations,
except where the failure to so comply would not have a Material Adverse Effect.
"Medicare Provider Agreement" shall mean an agreement entered into between
any Person administering the Medicare program and a health care facility under
which the health care facility agrees to provide services for Medicare patients
in accordance with the terms of the agreement and Medicare Regulations.
"Medicare Regulations" shall mean, collectively, all federal statutes
(whether set forth in Title XVIII of the Social Security Act, 42 USC (S)(S) 1396
et seq., or elsewhere) affecting the health insurance program for the aged and
disabled established by Title XVIII of the Social Security Act
15
and any statutes succeeding thereto; together with all applicable provisions of
all rules, regulations, manuals having the force of law and orders and
administrative, reimbursement and other guidelines having the force of law of
all Governmental Authorities (including without limitation, Health and Human
Services ("HHS"), HCFA, the Office of the Inspector General for HHS, or any
Person succeeding to the functions of any of the foregoing) promulgated pursuant
to or in connection with any of the foregoing having the force of law, in each
case as may be amended, supplemented or otherwise modified from time to time.
"Multiemployer Plan" shall mean any "multiemployer plan" within the meaning
of Section 4001(a)(3) of ERISA to which any Borrower or any Subsidiary is
required to make contributions.
"Notes" shall mean the Committed Loan Notes and the Bid Loan Notes.
"Notice of Committed Borrowing" shall have the meaning assigned to such
term in SECTION 2.2(A).
"Notice of Conversion/Continuation" shall have the meaning assigned to such
term in SECTION 2.11B).
"OECD" shall mean the Organization for Economic Cooperation and Development
and any successor thereto.
"OSHA" shall mean the Occupational Safety and Health Act, as amended from
time to time, and all rules and regulations from time to time promulgated
thereunder.
"Obligations" shall mean (i) the Loans and Reimbursement Obligations and
all other loans, advances, indebtedness, liabilities, obligations, covenants and
duties owing, arising, due or payable from the Borrower to the Agent or any
Lender or Issuing Bank of any kind or nature, present or future, howsoever
evidenced, created, incurred, acquired or owing, arising under this Agreement,
the Notes or the other Loan Documents or in any other way related to this
Agreement, whether direct or indirect (including those acquired by an Assignment
and Acceptance), absolute or contingent, primary or secondary, due or to become
due, now existing or hereafter arising and however acquired, (ii) all interest
(including, to the extent permitted by law, all post-petition interest),
charges, expenses, fees, attorneys' fees and any other sums payable by the
Borrower to the Agent or any Lender under this Agreement or any of the other
Loan Documents, (iii) all obligations to any Lender pursuant to any Interest
Rate Protection Agreement (if any) in respect of the Notes, (iv) the obligations
of the Borrower to First Union arising pursuant to the Swingline Note, and, (v)
for purposes of Sections 4.19, 7.1(q) and 9.10(b), the obligations of the
Borrower and its Subsidiaries as Credit Parties under the ELLF.
"Participant" shall mean any Person, now or at any time hereafter,
participating with any Lender in the Loans pursuant to this Agreement, and its
permitted successors and assigns.
"Participation Agreement" shall mean the Participation Agreement, dated as
of a date on or about the date hereof (together with any amendments,
modifications, replacements, substitutes
16
and supplements thereto and any renewals or extensions thereof, in whole or in
part), among the Borrower, First Security Bank, National Association, as owner
trustee, and First Union, as agent.,
"Partnership Interests" shall mean all ownership or profit-sharing
interests (howsoever designated) in any general or limited partnership, limited
liability company or other non-corporate company or entity and all agreements,
instruments and documents convertible, in whole or in part, into any one or more
or all of the foregoing.
"Pension Plan" shall mean any "employee pension benefit plan" within the
meaning of Section 3(2) of ERISA maintained by the Borrower or any Subsidiary
(other than any Multiemployer Plan that is subject to the provisions of Title IV
of ERISA).
"Percentage" shall mean, with respect to any Lender at any time, a fraction
(expressed as a percentage) the numerator of which is the Commitment of such
Lender at such time and the denominator of which is the Total Commitment at such
time; provided that if the Percentage of any Lender is to be determined after
the Commitments have been terminated, then such Percentage shall be determined
immediately prior (and without giving effect) to such termination.
"Permitted Liens" shall mean any of the following liens, restrictions or
encumbrances securing any liability or indebtedness of the Borrower or any
Subsidiary on, or otherwise affecting, any of the Borrower's or such
Subsidiary's property, real or personal, whether now owned or hereafter
acquired:
(a) Liens granted to the Agent, for the benefit of the Lenders;
(b) Liens imposed by mandatory provisions of law of carriers, warehousemen,
mechanics, repairmen and materialmen and other like liens required by provisions
of law and incurred in the ordinary course of business for sums not yet due and
payable (or with respect to any obligation not greater than $50,000, not more
than sixty (60) days past the date of service) or that are being contested in
good faith and with due diligence by appropriate proceedings;
(c) Liens incurred in the ordinary course of business in connection with
worker's compensation, unemployment insurance or other forms of governmental
insurance or benefits, or liens arising from good faith deposits in connection
with letters of credit, bids, tenders, statutory obligations, leases and
contracts (other than for borrowed money) entered into in the ordinary course of
business, or to secure obligations on surety or appeal bonds provided that all
such liens in the aggregate have no Material Adverse Effect;
(d) Liens for current taxes, assessments or other governmental charges that
are not delinquent or remain payable without any penalty or that are being
contested in good faith and with due diligence by appropriate proceedings,
provided that all such liens in the aggregate have no Material Adverse Effect
and, if reasonably requested by the Agent, the Borrower or such Subsidiary has
established reserves reasonably satisfactory to the Agent with respect thereto;
(e) Liens upon property leased under a Capital Lease and either (i) placed
upon such property at the time of, or within ten (10) days after, the
commencement of the lease thereof to
17
secure the lease payments under such Capital Lease, provided that any such lien
(A) shall not encumber any other property of the Borrower or any Subsidiary and
(B) shall not exceed the total of such lease payments, or (ii) entered into or
arising in compliance with the terms of the ELLF;
(f) Liens set forth on SCHEDULE 1.1(A) attached hereto, provided that such
liens are not renewed, extended or increased;
(g) Purchase money liens (x) incurred in the purchase of equipment
permitted under SECTION 6.10 hereof, provided that any such lien (i) attaches to
such asset concurrently with or within ten (10) days after the acquisition
thereof, (ii) shall not encumber any other property of the Borrower or any
Subsidiary and (iii) shall not exceed the purchase price of such asset or (y)
that have been disclosed to the Agent and the Lenders and assumed in any
Permitted Physician Transaction in accordance with SECTION 5.14 or Physician
Transaction approved in accordance with SECTION 6.2 hereof;
(h) Other liens disclosed to the Agent and Lenders and incurred, assumed or
otherwise acquired in connection with any Permitted Physician Transaction or
permitted in connection with any Physician Transaction approved under SECTION
6.2;
(i) Assignment Restrictions;
(j) Easements, rights of way, zoning restrictions and other similar
encumbrances on real estate that do not materially impair the value of the
property to which they relate;
(k) Any other liens or encumbrances as the Required Lenders may approve in
writing from time to time;
(l) Liens on Margin Stock, to the extent the value thereof exceeds 25% of
the value of the total assets of the Borrower and its Subsidiaries (including
Margin Stock); and
(m) Liens granted pursuant to the ELLF.
"Permitted Physician Transaction" shall mean a Physician Transaction that,
upon satisfaction of all of the following conditions, may be consummated without
the consent of the Agent or the Lenders: (A) the assets acquired, or the
business of the Person whose stock is acquired, shall be of an oncology,
hematology or radiation oncology physician practice; (B) those Physician
Transactions that are structured as asset acquisitions shall be for an entire
business, division, facility, operation or product line of such Person,
excluding medical assets not acquired by the Borrower or Subsidiary; (C) those
Physician Transactions that are structured as stock acquisitions shall be
effected through a purchase of 100% of the capital stock of such Person by the
Borrower or through a merger between such Person and the Borrower or a direct
wholly-owned Subsidiary of the Borrower, as the case may be, so that after
giving effect to such merger 100% of the capital stock of the surviving
corporation of such merger is owned by the Borrower or a direct wholly-owned
Subsidiary of the Borrower; (D) the Transaction Amount for such Physician
Transaction shall not exceed $75,000,000 (subject to the proviso below); and (E)
in the fiscal year of such Physician Transaction, the aggregate Transaction
Amount for all Permitted Physician Transactions in such year shall not exceed
$120,000,000; provided, that within 45 days
18
following receipt by the Lenders of documentation (pursuant to SECTION 5.14(E))
of any Permitted Physician Transaction with a Transaction Amount in excess of
$30,000,000, the Required Lenders in their sole discretion may by notice to the
Borrower from and after the date of delivery of such notice reduce the
individual Permitted Physician Transaction limit in clause (D) above to
$30,000,000. Notwithstanding anything to the contrary contained in the
immediately preceding sentence, a Physician Transaction shall be a Permitted
Physician Transaction only if, in addition to the foregoing, all requirements of
SECTIONS 5.11 (if any new Subsidiaries are acquired or created in connection
with such Physician Transaction) and 5.14 are met with respect thereto.
"Permitted Subordinated Debt" shall mean any Debt of the Borrower or any
Subsidiary incurred in respect of a Permitted Physician Transaction and
evidenced by a written instrument. The terms and conditions of any Permitted
Subordinated Debt shall be substantially similar to those shown on SCHEDULE
1.1(B), including, without limitation, (i) an express statement of subordination
to the payment and performance of the Obligations, (ii) an interest rate not
exceeding the greater of 7% per annum and three percentage points per annum over
the Base Rate (other than upon a default), (iii) a term for repayment that
provides for no more than 20% of the total original principal amount of such
Permitted Subordinated Debt to be repaid in any fiscal year, (iv) a final
maturity of such Permitted Subordinated Debt not less than five (5) years from
the date of the Permitted Physician Transaction and (v) a payment blockage on
such Permitted Subordinated Debt in the event of a payment default on any senior
debt or an event of default allowing senior creditors to accelerate such senior
debt (provided that such payment blockage may expire if the senior debt has not
been accelerated within at least ninety (90) days from the commencement of such
blockage).
"Person" shall mean a corporation, an association, a joint venture, a
partnership, an organization, a business, an individual, a trust or a government
or political subdivision thereof or any government agency or any other legal
entity.
"Physician Transaction" shall mean any bona fide transaction or series of
related transactions, consummated after the date hereof, by which the Borrower
or any Subsidiary (i) acquires all or part of the assets, or a going business or
division, of any Person, whether through purchase of assets or securities,
merger or otherwise, (ii) directly or indirectly acquires control of any Person
or (iii) acquires the right to manage the non-medical aspects of the business of
any Person. For the purpose of this definition, "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of
management and non-medical policies, whether through the ownership of voting
securities, by contract or otherwise. Notwithstanding the above, "control"
shall not include, and shall not be implied to include, the power to direct any
physician's practice of medicine or the power to interfere in any
physician/patient relationship.
"Practice" shall have the meaning assigned to such term in SECTION
5.14(C)(I).
"Pro Rata Share" of any amount shall mean, with respect to any Lender at
any time, the product of (i) such amount, multiplied by (ii) such Lender's
Percentage at such time.
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"Prohibited Transaction" shall mean any transaction described in (i)
Section 406 of ERISA that is not exempt by reason of Section 408 of ERISA or
(ii) Section 4975(c) of the Internal Revenue Code that is not exempt by reason
of Section 4975(c) or 4975(d).
"Regulations D, G, T, U and X" shall mean Regulations D, G, T, U and X,
respectively, of the Federal Reserve Board and any successor regulations.
"Reimbursement Obligations" shall have the meaning set forth in SECTION
2.20(D) hereof.
"Reportable Event" shall mean a reportable event as defined in Section
4043(b) of ERISA (other than an event for which notice is waived under the ERISA
regulations).
"Required Lenders" shall mean, at any time, the Lenders with 66-2/3% or
more of the aggregate of all Commitments at such time or, if the Commitments
have been terminated, Lenders owning or holding 66-2/3% or more of the then
aggregate principal amount of the Loans and Letter of Credit Outstandings then
outstanding.
"Requirement of Law" means, as to any Person, the charter, articles or
certificate of incorporation and bylaws or other organizational or governing
documents of such Person, and any statute, law, treaty, rule, regulation, order,
decree, writ, injunction or determination of any arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
"Reserve Requirement" shall mean, with respect to any Interest Period, the
reserve percentage (expressed as a decimal) in effect from time to time during
such Interest Period, as provided by the Board of Governors of the Federal
Reserve System (or any successor governmental body), applied for determining the
reserve requirement (including, without limitation, basic, supplemental,
marginal and emergency reserves) applicable to First Union under Regulation D
with respect to "Eurocurrency liabilities" within the meaning of Regulation D,
or under any similar or successor regulation with respect to Eurocurrency
liabilities or Eurocurrency funding.
"Security Agreement" shall mean the Third Amended and Restated Security
Agreement, substantially in the form of EXHIBIT E-1, together with any
amendments, modifications and supplements thereto, any replacements, renewals,
extensions and restatements thereof, and any substitutes therefor, in whole or
in part.
"Security Agreements" shall mean the Security Agreement and the Guarantors'
Security Agreement.
"Solvent" shall mean, as to any Person on any particular date, that such
Person (i) has capital sufficient to carry on its business and transactions and
all business and transactions in which it is about to engage, (ii) is able to
pay its debts as they mature, (iii) owns property having a fair saleable value
greater than the amount required to pay its probable liability on existing debts
as they mature (including known reasonable contingencies and contingencies that
should be included in notes of the Financial Statements pursuant to Generally
Accepted Accounting
20
Principles), and (iv) does not intend to, and does not believe that it will,
incur debts or probable liabilities beyond its ability to pay such debts or
liabilities as they mature.
"Stated Amount" shall mean, with respect to any Letter of Credit at any
time, the maximum amount available to be drawn thereunder at such time
(regardless of whether any conditions for drawing could then be met).
"Stock" shall mean all shares, interests, rights to purchase, options,
participations or other equivalents of or interests in (howsoever designated)
the equity of any Person, whether voting or non-voting, including, without
limitation, common stock, warrants, preferred stock, convertible debentures and
all agreements, instruments and documents convertible, in whole or in part, into
any one or more or all of the foregoing.
"Subordinated Debt" shall mean any Debt of the Borrower or any Subsidiary
to the extent such Debt is expressly subordinated and made junior to the payment
and performance of the Obligations and evidenced as such by a written instrument
the terms and conditions (including, without limitation, subordination
provisions) of which are satisfactory in form and substance to the Required
Lenders and are approved in writing by the Agent in accordance with SECTION 6.2
or 6.3 hereof.
"Subsidiary" shall mean any corporation of which more than fifty percent
(50%) of the outstanding Stock having ordinary voting power to elect a majority
of the board of directors, or other entity of which more than fifty percent
(50%) of the Partnership Interest or voting power, is at the time, directly or
indirectly, owned by any Person or one or more of its Subsidiaries (irrespective
of whether, at the time, the ownership interests or Stock of any other class or
classes of such entity or corporation shall have or might have voting power by
reason of the happening of any contingency). When used without reference to a
parent, the term "Subsidiary" shall be deemed to refer to a Subsidiary of the
Borrower.
"Swingline Note" shall mean the note from Borrower to First Union in a
principal amount of $5,000,000 delivered in connection with the Borrower's cash
management facility.
"Taxes" shall have the meaning assigned to such term in SECTION 2.12(A).
"Termination Date" shall mean the Maturity Date, or such earlier date of
termination of the Total Commitment in accordance with SECTION 2.6 or SECTION
8.1.
"Total Commitment" shall mean, at any time, the sum of the Commitments of
each Lender at such time.
"Total Unutilized Commitment" shall mean, at any time, the sum of the
Unutilized Commitments of each Lender at such time.
"Transaction Amount" shall mean, with respect to any Physician Transaction,
the sum (without duplication) of the following, in each case determined in
accordance with Generally Accepted Accounting Principles: (i) the aggregate
original principal amount of all Loans the proceeds of which are utilized to
finance such Physician Transaction, in part or in whole, (ii) the
21
amount of cash paid by the Borrower and its Subsidiaries in connection with such
Physician Transaction, (iii) the fair market value of all capital stock or other
ownership interests of the Borrower or any Subsidiary issued or given (or to be
issued or given in the future) to the seller in connection with such Physician
Transaction, (iv) the outstanding principal amount of all Debt incurred, assumed
or acquired in connection with such Physician Transaction, (v) all additional
purchase price amounts in the form of notes and other contingent obligations, as
recorded or disclosed on the financial statements (including the notes to such
statements) of the Borrower and its Subsidiaries, (vi) all amounts paid in
consideration of parties' entering into covenants not to compete and consulting
agreements in connection with such Physician Transaction and (vii) the aggregate
fair market value of all other consideration given by the Borrower and its
Subsidiaries in connection with such Physician Transaction.
"Type" shall have the meaning assigned to such term in SECTION 2.1(D).
"Uniform Commercial Code" shall mean the Uniform Commercial Code of the
State of North Carolina, as amended from time to time, unless in any particular
instance the Uniform Commercial Code of another state is applicable, in which
case it shall mean the Uniform Commercial Code of such state.
"Unutilized Commitment" shall mean, with respect to any Lender at any time,
such Lender's Commitment at such time less (i) the aggregate principal amount of
all Committed Loans made by such Lender that are outstanding at such time, (ii)
such Lender's Pro Rata Share of Letter of Credit Outstandings and (iii) such
Lender's Pro Rata Share of all Bid Loans outstanding at such time (even though
such Lender may not have made some or all of the Bid Loans).
1.2 Accounting Terms. Any accounting terms used in this Agreement that are
not specifically defined shall have the meanings customarily given them in
accordance with Generally Accepted Accounting Principles; provided, however,
that, in the event that changes in Generally Accepted Accounting Principles
shall be mandated by the Financial Accounting Standards Board, or any similar
accounting body of comparable standing, or shall be recommended by the
Borrower's certified public accountants, to the extent that such changes would
modify or could modify such accounting terms (including accounting terms
otherwise defined in this Agreement) or the interpretation or computation
thereof, such changes shall be followed in defining such accounting terms only
from and after the date this Agreement shall have been amended to the extent
necessary to reflect any such changes in the financial covenants and other terms
and conditions of this Agreement.
1.3 Singular/Plural. Unless the context otherwise requires, words in the
singular include the plural and words in the plural include the singular.
1.4 Other Terms. The terms "Lease Agreement", "Agency Agreement", "Credit
Agreement", "Tranche A Obligations", and "Operative Agreements" have the
meanings set forth in Appendix A to the Participation Agreement. All other terms
contained in this Agreement shall, when the context so indicates, have the
meanings provided for by the Uniform Commercial Code of the State of North
Carolina to the extent the same are used or defined therein.
22
ARTICLE II.
AMOUNT AND TERMS OF THE LOANS
2.1 Commitments; Loans.
(a) Each Lender severally agrees, subject to and on the terms and
conditions of this Agreement, to make loans (each, a "Committed Loan," and
collectively, the "Committed Loans") to the Borrower, from time to time on any
Business Day during the period from the date hereof to but not including the
Termination Date; provided, that no Lender shall make any Committed Loan in an
amount that would exceed such Lender's Unutilized Commitment at such time.
Subject to and on the terms and conditions of this Agreement, the Borrower may
borrow, repay and reborrow Committed Loans.
(b) In addition to Committed Loans, each Lender severally agrees that the
Borrower may, subject to and on the terms and conditions of this Agreement and
as more particularly set forth in SECTION 2.3, request the Lenders to submit
offers to make loans (each, a "Bid Loan," and collectively, the "Bid Loans") to
the Borrower, from time to time on any Business Day during the period from the
date hereof to but not including the earlier of (i) the date that is one (1)
Business Day prior to the seventh (7th) day prior to the Maturity Date or (ii)
the Termination Date; provided, that the Lenders may, but shall have no
obligation to, submit such offers and the Borrower may, but shall have no
obligation to, accept any such offers.
(c) No Borrowing (i) shall be made if, immediately after giving effect
thereto, the sum of (y) the aggregate principal amount of Loans outstanding at
such time (exclusive of Loans that are repaid with the proceeds of, and
simultaneously with the incurrence of, a Borrowing) plus (z) the aggregate
Letter of Credit Outstandings at such time (exclusive of Reimbursement
Obligations that are repaid with the proceeds of, and simultaneously with the
incurrence of, a Borrowing) would exceed the Total Commitment and (ii) shall be
required of any Lender if, immediately after giving effect thereto, a Default or
Event of Default would exist.
(d) The Loans shall, at the option of the Borrower and subject to the
terms and conditions of this Agreement, be (i) in the case of Committed Loans,
either Base Rate Loans or LIBOR Committed Loans, or (ii) in the case of Bid
Loans, either Absolute Rate Loans or LIBOR Bid Loans (Base Rate Loans, LIBOR
Committed Loans, Absolute Rate Loans and LIBOR Bid Loans, each, a "Type" of
Loan), provided that all Loans comprising the same Borrowing shall, unless
otherwise specifically provided herein, be of the same Type.
(e) Any Loans made on the Closing Date shall be made initially as Base Rate
Loans.
(f) Any borrowings outstanding under the Original Agreement shall not be
continued as Loans under this Agreement and shall be repaid, together with all
interest and fees accrued thereon (including the accrued commitment fee pursuant
to SECTION 2.7(A) of the Original Agreement and all amounts required to be paid
pursuant to SECTION 2.13 of the Original Agreement), on or prior to the Closing
Date.
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2.2 Committed Borrowings.
(a) Whenever the Borrower desires to make a Committed Borrowing hereunder
(other than continuations or conversions of outstanding Loans pursuant to
SECTION 2.11 or any Borrowing pursuant to SECTION 2.20), the Borrower will give
the Agent written notice (by telecopier or otherwise), prior to 9:00 a.m.,
Charlotte time, at least two (2) Business Days prior to each Borrowing to be
comprised of LIBOR Committed Loans and on the same Business Day of each
Borrowing to be comprised of Base Rate Loans; provided, that Base Rate Loans may
be borrowed upon written notice delivered prior to 12:00 p.m. (noon), Charlotte
time, on the same Business Day of the proposed Borrowing Date for any Bid
Borrowing of Absolute Rate Loans duly requested in accordance with SECTION 2.3.
Each such notice (each, a "Notice of Committed Borrowing") shall be irrevocable,
shall be given in the form of EXHIBIT B-1 and shall be appropriately completed
to specify (i) the aggregate principal amount and Type of the Loans to be made
pursuant to such Borrowing (and, in the case of LIBOR Committed Loans, the
initial Interest Period to be applicable thereto) and (ii) the requested date of
the Borrowing (the "Borrowing Date"), which shall be a Business Day.
Notwithstanding anything to the contrary contained herein:
(i) the aggregate principal amount of each Borrowing hereunder (y)
in the case of Borrowings comprised of Base Rate Loans, shall not be less
than $2,000,000 and, if greater, shall be in an integral multiple of
$500,000 in excess thereof and (z) in the case of Borrowings comprised of
LIBOR Committed Loans, shall not be less than $3,000,000 and, if greater,
shall be in an integral multiple of $1,000,000 in excess thereof;
(ii) if the Borrower shall have failed to designate the Type of
Loans comprising a Borrowing, the Borrower shall be deemed to have
requested a Borrowing comprised of Base Rate Loans;
(iii) if the Borrower shall have failed to select the duration of
the Interest Period to be applicable to any Borrowing of LIBOR Committed
Loans, then the Borrower shall be deemed to have selected an Interest
Period with a duration of one month; and
(iv) LIBOR Committed Loans under the Facility may not be outstanding
under more than ten (10) separate Interest Periods at any one time, less
the number of Bid Loans outstanding at such time.
(b) Upon its receipt of a Notice of Committed Borrowing, the Agent will
promptly notify each Lender of the proposed Borrowing, of such Lender's Pro Rata
Share thereof and of the other matters specified in the Notice of Committed
Borrowing. Each such Lender will make the amount of its Pro Rata Share of such
Borrowing available to the Agent at its office referred to in SECTION 10.4, for
the account of the Borrower, in Dollars and in immediately available funds,
prior to 2:00 p.m., Charlotte time, on the Borrowing Date. To the extent the
relevant Lenders have made such amounts available to the Agent as provided
hereinabove, the Agent will make the aggregate of such amounts available to the
Borrower in accordance with SECTION 2.4(A) below and in like funds as received
by the Agent, as soon as practicable prior to 3:30 p.m., Charlotte time, on the
Borrowing Date.
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2.3 Bid Borrowings.
(a) In order to request the Lenders to submit Bids to make Bid Loans
hereunder, the Borrower will give the Agent written notice not later than 11:00
a.m., Charlotte time, (y) four (4) Business Days prior to the requested Bid
Borrowing, in the case of a LIBOR Auction, or (z) two (2) Business Days prior to
the requested Bid Borrowing, in the case of an Absolute Rate Auction. The
Borrower may request offers to make Bid Loans for up to three (3) separate
Interest Periods in a single notice, and each such request for offers for a
separate Interest Period shall be deemed a request for a separate Bid Borrowing.
Each such notice (each, a "Bid Request") shall be given in the form of EXHIBIT
C-1 and shall specify, with respect to each requested Bid Borrowing for a
particular Interest Period:
(i) the Interest Period to be applicable to such Bid Borrowing;
(ii) the aggregate amount of such requested Bid Borrowing, which
shall not (with respect to any single Interest Period) be less than
$5,000,000 or, if greater, an integral multiple of $1,000,000 in excess
thereof, but shall not cause the limits specified in Section 2.1(c) to be
exceeded as of the proposed Borrowing Date of the Bid Borrowing;
(iii) whether the Bid Borrowing requested for a particular Interest
Period is to be comprised of LIBOR Bid Loans or Absolute Rate Loans; and
(iv) the requested Borrowing Date, which shall be a Business Day;
provided, however, that (w) no Interest Period applicable to any Bid Borrowing
shall expire on a date later than the Business Day prior to the Maturity Date,
(x) the Borrower may not submit a Bid Request within five (5) Business Days
after the date of submission of any previous Bid Request, (y) the Borrower may
not submit more than three (3) Bid Requests in any calendar month, and (z) no
Bid Borrowing shall be made if, immediately after giving effect thereto, there
would be outstanding Bid Loans having more than four (4) separate Interest
Periods or outstanding LIBOR Committed Loans and Bid Loans together having more
than ten (10) separate Interest Periods (for which purpose Interest Periods
applicable to LIBOR Committed Loans and Interest Periods applicable to LIBOR Bid
Loans shall be deemed to be separate Interest Periods even if they are
coterminous). A Bid Request not given in the form of EXHIBIT C-1 or otherwise
not given in compliance with the requirements of this subsection (a) may be
rejected by the Agent in its sole discretion, and the Agent shall promptly
notify the Borrower of any such rejection.
(b) Upon receipt of a Bid Request that is not rejected as aforesaid, the
Agent will promptly deliver to the Lenders a notice in substantially the form of
EXHIBIT C-2 (each such notice, an "Invitation for Bids"), the delivery of which
shall constitute an invitation by the Borrower to each Lender to submit Bids, on
the terms and subject to the conditions of this Agreement, offering to make Bid
Loans pursuant to such Bid Request.
(c) Each Lender may, at its discretion, submit a Bid containing an offer or
offers to make Bid Loans in response to any Invitation for Bids; provided that
such Lender may submit a
25
single Bid containing an offer or offers to make up to three separate Bid Loans
for each Interest Period specified in the relevant Bid Request. Each Bid must
comply with the requirements of this subsection (c) and must be submitted to the
Agent in writing (by facsimile transmission or otherwise) not later than 10:30
a.m., Charlotte time, (y) two (2) Business Days prior to the requested Borrowing
Date, in the case of a LIBOR Auction, or (z) on the requested Borrowing Date, in
the case of an Absolute Rate Auction; provided, however, that Bids submitted by
the Agent (or any Affiliate of the Agent) in its capacity as a Lender may be
submitted only if the Agent or such Affiliate notifies the Borrower of the terms
of the offer or offers contained therein not later than 10:15 a.m., Charlotte
time, (y) two (2) Business Days prior to the requested Bid Borrowing, in the
case of a LIBOR Auction, or (z) on the requested Borrowing Date, in the case of
an Absolute Rate Auction. Each Bid by a Lender shall (subject to the conditions
of Article III and Section 7.1) be irrevocable, shall be submitted in
substantially the form of EXHIBIT C-3 and shall specify:
(i) the identity of such Lender;
(ii) the Interest Period with respect to each Bid Loan for which
such Bid is being made;
(iii) with respect to each such Interest Period, the principal
amount of each Bid Loan for which such Bid is being made, which principal
amounts shall, in the aggregate with respect to each such Interest Period,
be not less than $5,000,000 or, if greater, in an integral multiple of
$1,000,000 in excess thereof, provided that (y) the aggregate principal
amount of all Bid Loans for which a Bid is submitted may be equal to,
greater than or less than the Commitment of such Lender, and (z) the
aggregate principal amount of all Bid Loans offered by such Lender for a
single Interest Period shall not exceed the requested principal amount of
the Bid Borrowing for such Interest Period;
(iv) in the case of a LIBOR Auction, the margin above or below the
applicable LIBOR Rate (the "LIBOR Bid Margin") offered for each such Bid
Loan, expressed as a percentage (rounded to the nearest 1/1000 of 1%) to be
added to or subtracted from the applicable LIBOR Rate;
(v) in the case of an Absolute Rate Auction, the fixed rate of
interest per annum (rounded to the nearest 1/1000th of 1%) offered for each
such Bid Loan (the "Absolute Rate"); and
(vi) the proposed Borrowing Date.
A Bid shall be disregarded by the Agent if it (w) is not given
substantially in the form of EXHIBIT C-3 or fails to specify all of the
information required by this subsection (c), (x) contains qualifying,
conditional or similar language, (y) proposes terms other than or in addition to
those set forth in the applicable Invitation for Bids (other than setting forth
separate offers for any Interest Period as contemplated by the preceding
sentence), or (z) is submitted to the Agent after 10:30 a.m., Charlotte time,
(i) two (2) Business Days prior to the requested Borrowing Date, in the case of
a LIBOR Auction, or (ii) on the requested Borrowing Date, in the case of an
Absolute Rate Auction.
26
(d) Promptly upon receipt thereof and in any event not later than 11:00
a.m., Charlotte time, (y) two (2) Business Days prior to the requested Borrowing
Date, in the case of a LIBOR Auction, or (z) on the requested Borrowing Date, in
the case of an Absolute Rate Auction, the Agent will notify the Borrower of the
terms (i) of each Bid, if any, submitted by a Lender in compliance with the
provisions of subsection (c) above, and (ii) of each Bid, if any, submitted by a
Lender that amends, modifies or is otherwise inconsistent with a previous Bid
submitted by such Lender with respect to the same Bid Request. Any such
subsequent Bid shall be disregarded by the Agent unless such subsequent Bid is
submitted solely to correct a manifest error in such former Bid and is timely
received as provided in subsection (c) above. The Agent's notice to the
Borrower shall specify the aggregate principal amount of each Bid Borrowing in
respect of which Bids were made for each Interest Period specified in the
relevant Bid Request, the respective principal amounts and LIBOR Bid Margins or
Absolute Rates, as the case may be, so offered, and the identity of the Lender
that made each such Bid.
(e) Not later than 11:30 a.m., Charlotte time, (y) two (2) Business Days
prior to the requested Borrowing Date, in the case of a LIBOR Auction, or (z) on
the requested Borrowing Date, in the case of an Absolute Rate Auction, the
Borrower will notify the Agent of its acceptance or rejection of the offers
referred to in subsection (d) above. The Borrower shall be under no obligation
to accept any offer and may choose in its discretion to reject all offers,
provided that the failure by the Borrower to give such notice in a timely manner
shall be deemed to constitute a rejection of all Bids. In the case of
acceptance, such notice shall specify the aggregate principal amount of offers
for each Interest Period that are accepted. The Borrower may accept any Bid in
whole or in part, subject to the limitations on the aggregate outstanding
principal amount of Bid Loans set forth in Section 2.1(b) and provided that:
(i) the aggregate principal amount of each Bid Borrowing with regard
to each Interest Period shall not exceed the applicable amount set forth in
the related Bid Request;
(ii) the aggregate principal amount of each Bid Borrowing shall not
be less than $5,000,000 or, if greater, an integral multiple of $1,000,000
in excess thereof (subject to the provisions of clause (v) below);
(iii) acceptance of Bids may be made only on the basis of ascending
(i.e., from the lowest effective yield to the highest) LIBOR Bid Margins or
Absolute Rates within each Interest Period, as the case may be (subject to
clause (v) below);
(iv) the Borrower may not accept any Bid that has been disregarded
under the provisions of subsection (c) above or that otherwise fails to
comply with the terms and conditions of this Section 2.3; and
(v) if offers are made by two or more Lenders with the same LIBOR
Bid Margins or Absolute Rates, as the case may be, for a greater aggregate
principal amount than the amount in respect of which such offers are
permitted to be accepted for the related Interest Period, then if the
Borrower elects to accept any such offers, the aggregate principal amount
of Bid Loans in respect of which such offers are accepted shall be
allocated by the Borrower among such Lenders (after consultation with the
Agent) as nearly as practicable
27
(in such integral multiples of not less than $1,000,000 as the Borrower,
after consultation with the Agent, may deem appropriate) in proportion to
the respective aggregate principal amounts of such offers. Determinations
by the Borrower and the Agent of the amounts of Bid Loans shall be
conclusive absent manifest error.
(f) The Agent will promptly notify each Lender having submitted a Bid
whether its offer has been accepted or rejected and, if accepted, with regard to
each applicable Interest Period, of the amount and Absolute Rate or LIBOR Bid
Margin, as the case may be). Not later than 2:00 p.m., Charlotte time, on the
requested Borrowing Date, each Lender that has received such notice of an
accepted Bid will make available to the Agent at its office referred to in
SECTION 10.4 (or at such other location as the Agent may designate) an amount,
in Dollars and in immediately available funds, equal to the amount of the Bid
Loan or Bid Loans required to be made by such Lender. To the extent the
relevant Lenders have made such amounts available to the Agent as provided
hereinabove, the Agent will make the aggregate of such amounts available to the
Borrower by 3:30 p.m. Charlotte time in accordance with SECTION 2.4(A) and in
like funds as received by the Agent. The Agent, in its discretion, may provide
details of the Bids to the Lenders.
(g) In respect of each Bid Request received by the Agent hereunder
(regardless of whether any Bid Loans shall be offered or made in response
thereto), the Borrower will pay to the Agent, on the date of receipt by the
Agent of such Bid Request, a fee of $1,500.
(h) Notwithstanding the foregoing provisions of this SECTION 2.3, if on the
last day of any Interest Period applicable to one or more Bid Loans the Borrower
is unable to make a Committed Borrowing or Bid Borrowing because of the
Borrower's inability to meet the conditions of SECTION 3.2(B) or (C), any Lender
of one or more such Bid Loans may in its sole discretion agree (but in no event
more than one time with respect to any Bid Loan) in writing to extend the
Interest Period applicable to any such Bid Loan for no more than thirty (30)
days at an Absolute Rate equal to the Base Rate or, if applicable, the interest
rate on Committed Loans then in effect pursuant to SECTION 2.8(B). An extension
of any Bid Loan as provided herein shall require the agreement and consent only
of the extending Lender and the Borrower. On or prior to the Business Day
following any such extension, the Borrower and extending Lender each shall give
written notice of the terms thereof to the Agent, which shall give prompt
notice thereof to the Lenders.
2.4 Disbursements; Funding Reliance; Domicile of Loans.
(a) The Borrower hereby authorizes the Agent to disburse the proceeds of
each Borrowing in accordance with the terms of any written instructions from any
of the Authorized Officers, provided that the Agent shall not be obligated under
any circumstances to forward amounts to any account not listed in an Account
Designation Letter. The Borrower may at any time deliver to the Agent an
Account Designation Letter listing any additional accounts or deleting any
accounts listed in a previous Account Designation Letter.
(b) Unless the Agent has received, prior to 1:00 p.m., Charlotte time, on
any Borrowing Date, written notice from a Lender that such Lender will not make
available to the Agent its Bid Loan or Pro Rata Share of the relevant Committed
Loan, the Agent may assume
28
that such Lender has made its Loan available to the Agent on such Borrowing Date
in accordance with the terms of this Agreement, and the Agent may, in reliance
upon such assumption, make a corresponding amount available to the Borrower on
such Borrowing Date. If and to the extent that such Lender shall not have made
such Loan available to the Agent, and the Agent shall have made such
corresponding amount available to the Borrower, such Lender, on the one hand,
and the Borrower, on the other, severally agree to pay to the Agent forthwith on
demand such corresponding amount, together with interest thereon for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Agent, (i) if recovered from such Lender, at the Federal
Funds Rate, and (ii) if recovered from the Borrower, at the rate of interest
applicable to Loans comprising such Borrowing, as determined under SECTION 2.8.
If such Lender shall repay to the Agent such corresponding amount, such amount
so repaid shall constitute such Lender's Loan as part of such Borrowing for
purposes of this Agreement.
(c) The failure of any Lender to make any Loan required to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation
hereunder to make its Loan on the respective Borrowing Date, but no Lender shall
be responsible for the failure of any other Lender to make the Loan to be made
by such other Lender as part of any Borrowing.
(d) Each Lender may, at its option, make and maintain any Loan at, to or
for the account of any of its Lending Offices, provided that any exercise of
such option shall not increase or otherwise adversely affect the obligation of
the Borrower to compensate or otherwise make additional payments to such Lender
or to repay such Loan to or for the account of such Lender in accordance with
the terms of this Agreement.
2.5 Notes
(a) The Loans made by each Lender shall be evidenced by a Note
appropriately completed in substantially the form of EXHIBIT A-1, with respect
to Committed Loans and EXHIBIT A-2 with respect to the Bid Loans. The Notes
issued to each Lender shall (i) be executed by the Borrower, (ii) be payable to
the order of such Lender, (iii) be dated as of the date hereof (or, in the case
of Notes issued pursuant to an Assignment and Acceptance, as of the effective
date thereof), (iv) bear interest in accordance with the provisions of SECTION
2.8, as the same may be applicable to the Loans made by such Lender from time to
time, and (v) be entitled to all of the benefits of this Agreement and the other
Loan Documents and subject to the provisions hereof and thereof. Committed Loan
Notes shall be in a stated principal amount equal to such Lender's Commitment
and Bid Loan Notes shall be in a stated principal amount equal to the Total
Commitment.
(b) Each Lender will record on its internal records the amount of each Loan
made by it and each payment received by it in respect thereof and will, in the
event of any transfer of any of its Notes, either endorse on the reverse side
thereof the outstanding principal amount of the Loans evidenced thereby as of
the date of transfer or provide such information on Annex I to the Assignment
and Acceptance relating to such transfer; provided, however, that the failure of
any Lender to make any such recordation or provide any such information, or any
error in such recordation or information, shall not affect the Borrower's
obligations in respect of such Loans.
29
2.6 Termination and Reduction of Commitments.
(a) The Commitments shall be automatically and permanently terminated on
the Maturity Date unless sooner terminated pursuant to subsection (B) or (C)
below or SECTION 8.1.
(b) On each date set forth below, the Total Commitment shall automatically
be permanently reduced by the amount set forth below opposite such date):
Amount of Reduction in
Date Aggregate Commitments
---- ----------------------
December 31, 2000 $37,500,000
December 31, 2001 37,500,000
December 31, 2002 75,000,000
(c) At any time and from time to time, upon at least five (5) Business
Days' prior written notice to the Agent, the Borrower may terminate in whole or
reduce in part the Total Commitment, provided that the amount of any partial
reduction (i) may not exceed the Total Unutilized Commitment at such time (after
taking into account any prepayments to be made at such time) and (ii) shall be
in an aggregate amount of not less than $5,000,000 or integral multiples
thereof. The amount of any termination or reduction made under this subsection
(C) may not thereafter be reinstated.
(d) The Total Commitment shall automatically be permanently reduced by the
amount of the proceeds of sales to physicians as described in SECTION 6.6 (III).
(e) Each reduction of the Total Commitment under this Section shall be
applied ratably to the Commitments of the Lenders according to their respective
Percentages. After any such reduction, the fee provided for in SECTION 2.9
shall be calculated with respect to the reduced Commitments. Each reduction of
the Total Commitment under subsections (C) and (D) of this Section shall be
applied to reduce the scheduled reduction amounts in subsection (B) in
chronological order.
2.7 Payments; Voluntary, Mandatory.
(a) The Borrower shall have the right from time to time to prepay the
Loans, in whole or in part, without premium or penalty, upon written notice to
the Agent prior to 9:00 a.m., Charlotte time, at least two (2) Business Days'
prior to each intended prepayment of LIBOR Loans and on the same Business Day of
each intended prepayment of Base Rate Loans or Absolute Rate Loans, provided
that (i) each partial prepayment of Committed Loans shall be in an aggregate
principal amount of no less than $2,000,000 and, if greater, in an integral
multiple of $500,000 in excess thereof, (ii) each partial prepayment of Bid
Loans shall be in an aggregate principal amount of no less than $5,000,000 and,
if greater, in an integral multiple of $1,000,000 in excess thereof, (iii) no
partial prepayment of LIBOR Loans made pursuant to any single Borrowing shall
reduce the outstanding principal amount of the remaining LIBOR Loans under such
Borrowing to less than $3,000,000 or to any greater amount not an integral
multiple of
30
$1,000,000 in excess thereof, and (iv) unless made together with all amounts
required under SECTION 2.15 to be paid as a consequence of such prepayment, a
prepayment of a LIBOR Loan or Absolute Rate Loan may be made only on the last
day of the Interest Period applicable thereto. Each such notice shall specify
(y) the proposed date of such prepayment and (z) the aggregate principal amount
and the Types of the Loans to be prepaid (and, in the case of LIBOR Loans and
Absolute Rate Loans, the specific Borrowing or Borrowings pursuant to which
made) and shall be irrevocable and shall bind the Borrower to make such
prepayment on the terms specified therein. Amounts prepaid pursuant to this
subsection (A) may be reborrowed, subject to the terms and conditions of this
Agreement.
(b) In the event that the aggregate principal amount of the Loans
outstanding plus Letter of Credit Outstandings on any date exceeds the Total
Commitment as of such date (after giving effect to any termination or reduction
thereof as of such date), the Borrower will repay the principal amount of the
Loans on such date in the amount of such excess; provided that, to the extent
such excess amount is greater than the aggregate principal amount of Loans
outstanding immediately prior to the application of such prepayment, the amount
so prepaid shall be retained by the Agent and held in the Cash Collateral
Account as collateral for the Letter of Credit Outstandings, as more
particularly described in SECTION 2.20(J), and thereupon such cash shall be
deemed to reduce the aggregate Letter of Credit Outstandings by an equivalent
amount. Each such Prepayment shall be applied (i) first, to the outstanding
principal amount of the Committed Loans, ratably among the Lenders based upon
their Percentages and (ii) second, to the outstanding principal amount of the
Bid Loans, ratably among the Lenders holding Bid Loans in proportion to the
aggregate principal amount of Bid Loans held by each. Such payment shall be
accompanied by all amounts required under SECTION 2.15 if applied to a LIBOR
Loan or Absolute Rate Loan and such payment is not made on the last day of the
Interest Period applicable thereto.
(c) The Borrower shall repay the Notes in full on the Termination Date.
2.8 Interest.
(a) The Borrower will pay interest in respect of the unpaid principal
amount of each Loan, from the date of Borrowing thereof until such principal
amount shall be paid in full,
(i) in respect of each Committed Loan, (y) at the Base Rate, as in
effect from time to time during such periods as such Loan is a Base Rate
Loan, and (z) at the Adjusted LIBOR Rate, as in effect from time to time
during such periods as such Loan is a LIBOR Loan, and
(ii) in respect of each Bid Loan, (y) at the applicable Absolute
Rate established in accordance with the provisions of SECTION 2.3, if such
Loan is an Absolute Rate Loan, and (z) at a rate per annum equal to the
LIBOR Rate, as in effect from time to time during the applicable Interest
Period, plus (or minus) the applicable LIBOR Bid Margin, if such Loan is a
LIBOR Bid Loan.
(b) Upon the occurrence and during the continuance of an Event of Default
under SECTION 7.1(A), (I) or (J), and (at the election of the Required Lenders)
upon the occurrence and
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during the continuance of any other Event of Default, all outstanding principal
amounts of the Loans and, to the greatest extent permitted by law, all interest
accrued on the Loans and all other fees and amounts not paid when due hereunder,
shall bear interest at a rate per annum equal to the interest rate applicable
from time to time thereafter to such Loans plus 2% (or, in the case of fees and
other amounts, at the Base Rate plus 2%), and, in each case, such default
interest shall be payable on demand. To the greatest extent permitted by law,
interest shall continue to accrue after the filing by or against the Borrower of
any petition seeking any relief in bankruptcy or under any law pertaining to
insolvency or debtor relief.
(c) Accrued (and theretofore unpaid) interest shall be payable as follows:
(i) in respect of each Base Rate Loan (including any Base Rate Loan
or portion thereof paid or prepaid pursuant to the provisions of SECTION
2.7, except as provided in the proviso hereinbelow), in arrears on the last
Business Day of each calendar quarter; provided, that in the event the Base
Rate Loans are repaid or prepaid in full and the Commitments have been
terminated, then accrued interest in respect of all Base Rate Loans shall
be payable together with such repayment or prepayment on the date thereof;
(ii) in respect of each LIBOR Loan (including any LIBOR Committed
Loan or portion thereof paid or prepaid pursuant to the provisions of
SECTION 2.7, except as provided in the proviso hereinbelow), in arrears (y)
on the last Business Day of the Interest Period applicable thereto (subject
to the provisions of clause (iv) in SECTION 2.10) and (z) in the case of a
LIBOR Loan having an Interest Period of six months, on the date three
months after the first day of such Interest Period; provided, that in the
event all LIBOR Loans made pursuant to a single Borrowing are repaid or
prepaid in full, then accrued interest in respect of such LIBOR Loans shall
be payable together with such repayment or prepayment on the date thereof;
(iii) in respect of each Absolute Rate Loan, (y) in arrears on the
last day of the Interest Period applicable thereto, and (2) on the date of
any repayment or prepayment thereof in full; and
(iv) in respect of any Loan, at maturity (whether pursuant to
acceleration or otherwise) and, after maturity, on demand.
(d) Nothing contained in this Agreement or in any other Loan Document shall
be deemed to establish or require the payment of interest to any Lender at a
rate in excess of the maximum rate permitted by applicable law. If the amount
of interest payable for the account of any Lender on any interest payment date
would exceed the maximum amount permitted by applicable law to be charged by
such Lender, the amount of interest payable for its account on such interest
payment date shall be automatically reduced to such maximum permissible amount.
In the event of any such reduction affecting any Lender, if from time to time
thereafter the amount of interest payable for the account of such Lender on any
interest payment date would be less than the maximum amount permitted by
applicable law to be charged by such Lender, then the amount of interest payable
for its account on such subsequent interest payment date shall be automatically
increased to such maximum permissible amount, provided that at no time shall the
32
aggregate amount by which interest paid for the account of any Lender has been
increased pursuant to this sentence exceed the aggregate amount by which
interest paid for its account has theretofore been reduced pursuant to the
previous sentence.
(e) The Agent shall promptly notify the Borrower and the Lenders upon
determining the interest rate for each Borrowing after its receipt of the
relevant Notice of Committed Borrowing, Notice of Conversion/Continuation or
Bid; provided, however, that the failure of the Agent to provide the Borrower or
the Lenders with any such notice shall neither affect any obligations of the
Borrower or the Lenders hereunder nor result in any liability on the part of the
Agent to the Borrower or any Lender. Each such determination (including each
determination of the Reserve Requirement in connection with a Borrowing of LIBOR
Loans) shall, absent manifest error, be final and conclusive and binding on all
parties hereto.
2.9 Fees.
(a) The Borrower agrees to pay the Agent, for the ratable benefit of each
Lender, a facility fee per annum determined pursuant to the following table, for
the period from the Closing Date to the Termination Date.
Ratio of Consolidated
Debt to Annualized EBITDA Facility Fee
------------------------- ------------
Greater than 3.0 to 1.0 0.250%
Greater than 2.0 to 1.0 0.200%
but less than or equal
to 3.0 to 1.0
Less than or equal to 0.175%
2.0 to 1.0
The facility fee shall be applied to the average daily Total Commitment,
payable in arrears on the last Business Day of each fiscal quarter, commencing
with the fiscal quarter ending March 31, 1998, and calculated on the basis of
actual days elapsed over a year of 360 days. From the Closing Date until the
fifth (5th) day after receipt by the Agent of the March 31, 1998 financial
statements pursuant to SECTION 5.1(A) below, the facility fee shall be .20% per
annum. The facility fee shall be reset from time to time in accordance with the
above matrix on the fifth (5th) day after receipt by the Agent in accordance
with SECTIONS 5.1(A) and (B) of financial statements together with a Compliance
Certificate (reflecting the computation of the ratio of Consolidated Debt to
Annualized EBITDA as of the last day of the preceding fiscal quarter or fiscal
year, as appropriate).
(b) The Borrower agrees to pay to the Agent, for its own account, an annual
administrative fee of $40,000, payable quarterly in advance on the last Business
Day of each fiscal quarter.
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2.10 Interest Periods. Concurrently with the giving of any Notice of
Committed Borrowing or Notice of Conversion/Continuation in respect of any
Borrowing comprised of LIBOR Committed Loans and concurrently with the giving of
a Bid Request in respect of any requested Bid Loans, the Borrower shall have the
right to elect, pursuant to such notice, the interest period (each, an "Interest
Period") to be applicable to such Loans, which Interest Period, (x) in the case
of any LIBOR Committed Loan and at the option of the Borrower, shall be a one,
two, three or six (subject to availability for all Lenders) month period, (y) in
the case of any LIBOR Bid Loan and as agreed to by the Borrower and the Lender
making such LIBOR Bid Loan, shall be a one, two, three or six month period, or
(z) in the case of any Absolute Rate Loan and as agreed to by the Borrower and
the Lender making such Absolute Rate Loan, shall be a period of not less than
seven (7) nor more than one hundred eighty (180) days; provided, however, that:
(i) all LIBOR Loans comprising a single Borrowing shall at all times
have the same Interest Period;
(ii) the initial Interest Period for any LIBOR Loan shall commence
on the date of the Borrowing of such Loan (including the date of any
continuation of, or conversion into, such LIBOR Loan), and each successive
Interest Period applicable to such LIBOR Loan shall commence on the day
following the day on which the next preceding Interest Period applicable
thereto expires;
(iii) the Borrower may not select any Interest Period that expires
after the Maturity Date;
(iv) if any Interest Period would expire on a day that is not a
Business Day, such Interest Period shall expire on the next succeeding
Business Day unless such next succeeding Business Day falls in another
calendar month, in which case such Interest Period shall expire on the next
preceding Business Day;
(v) if any Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month during which such
Interest Period would otherwise expire, such Interest Period shall expire
on the last Business Day of such calendar month; and
(vi) if, upon the expiration of any Interest Period applicable to
Committed LIBOR Loans, the Borrower shall have failed to elect a new
Interest Period to be applicable to such LIBOR Loans, then the Borrower
shall be deemed to have elected to convert such LIBOR Loans into Base Rate
Loans as of the expiration of the then current Interest Period applicable
thereto.
2.11 Conversions and Continuations.
(a) The Borrower shall have the right, on any Business Day, to elect (y) to
convert all (or a portion in an amount not less than (A) in the case of Base
Rate Loans, $2,000,000 or, if greater, an integral multiple of $500,000 in
excess thereof and (B) in the case of LIBOR Committed Loans, $3,000,000 or, if
greater, an integral multiple of $1,000,000 in excess thereof)
34
of the outstanding principal amount of any such Committed Loans of one Type made
pursuant to one or more Borrowings (and, in the case of LIBOR Committed Loans,
having the same Interest Period) into a Borrowing or Borrowings of Committed
Loans of the other Type, or (z) to continue all (or a portion, subject to the
restrictions as to amount set forth in clause (B) of the parenthetical in clause
(y) above) of the outstanding principal amount of any LIBOR Committed Loans made
pursuant to one or more Borrowings (having the same Interest Period) for an
additional Interest Period, provided that (i) except as otherwise provided for
in SECTION 2.13(D), LIBOR Committed Loans may be converted into Base Rate Loans
only on the last day of the Interest Period applicable thereto (and, in any
event, if a LIBOR Committed Loan is converted into a Base Rate Loan on any day
other than the last day of the Interest Period applicable thereto, the Borrower
will pay, upon such conversion, all amounts required under SECTION 2.15 to be
paid as a consequence thereof), (ii) if any partial conversion of LIBOR
Committed Loans into Base Rate Loans shall have reduced the outstanding
principal amount of the remaining LIBOR Committed Loans made pursuant to a
single Borrowing (and thereby continued) to less than $3,000,000, such remaining
LIBOR Committed Loans shall be converted immediately into Base Rate Loans and
may not thereafter be converted into or continued as LIBOR Committed Loans
unless the requirements of clause (y) above are satisfied, (iii) no conversion
of Base Rate Loans into LIBOR Committed Loans or continuation of LIBOR Committed
Loans shall be permitted during the continuance of an Event of Default and (iv)
no conversion or continuation under this Section shall result in a greater
number of separate Interest Periods in respect of LIBOR Loans than is permitted
under SECTION 2.2(A)(IV).
(b) The Borrower shall make each such election by delivering written notice
to the Agent prior to 9:00 a.m., Charlotte time, at least two (2) Business Days
prior to the effective date of any conversion of Base Rate Loans into, or
continuation of, LIBOR Committed Loans and on the same Business Day of any
conversion of LIBOR Committed Loans into Base Rate Loans. Each such notice
(each, a "Notice of Conversion/Continuation") shall be irrevocable, shall be
given in the form of EXHIBIT B-2 and shall be appropriately completed to specify
(x) the date of such conversion or continuation, (y) in the case of a conversion
into, or a continuation of, LIBOR Committed Loans, the Interest Period to be
applicable thereto and (z) the aggregate amount and Type of the Committed Loans
being converted or continued. Upon the receipt of a Notice of
Conversion/Continuation, the Agent will promptly notify each Lender having a
Commitment of the proposed conversion or continuation, of such Lender's Pro Rata
Share thereof and of the other matters specified in the Notice of
Conversion/Continuation. In the event that the Borrower shall fail to deliver a
Notice of Conversion/Continuation as provided hereinabove with respect to any
Borrowing of LIBOR Committed Loans, such LIBOR Committed Loans shall
automatically be converted to Base Rate Loans upon the expiration of the then
current Interest Period applicable thereto.
2.12 Method of Payments; Computations.
(a) All payments by the Borrower hereunder and under the Notes shall be
made without setoff, counterclaim or other defense, in Dollars and in
immediately available funds to the Agent, for the account of the Lenders (except
as otherwise provided herein as to payments required to be made to the Agent or
Issuing Bank for its own account or directly to the Lenders) at its office
referred to in SECTION 10.4, prior to 12:00 noon, Charlotte time, on the date
payment
35
is due. Any payment made as required hereinabove, but after 12:00 noon,
Charlotte time, shall be deemed to have been made on the next succeeding
Business Day. If any payment falls due on a day that is not a Business Day, then
such due date shall be extended to the next succeeding Business Day (except that
in the case of LIBOR Loans to which the provisions of clause (iv) in SECTION
2.10 are applicable, such due date shall be the next preceding Business Day),
and such extension of time shall then be included in the computation of payment
of interest, fees or other applicable amounts.
(b) The Agent will distribute payments made to the Agent for the account of
the Lenders as follows: (i) with respect to fees and Committed Loans, to each
Lender such Lender's Pro Rata Share of such payment and (ii) with respect to Bid
Loans, to each Lender participating in such Bid Loan, its pro rata share based
on its respective principal amount of the relevant Bid Loans. If any such
payment is received by 12:00 noon, Charlotte time, in immediately available
funds, the Agent will make available on the same date, by wire transfer of
immediately available funds, the amounts to each Lender as provided in the
foregoing sentence. If such payment is received after 12:00 noon, Charlotte
time, or in other than immediately available funds, the Agent will make
available to each such Lender its respective payment by wire transfer of
immediately available funds on the next succeeding Business Day (or in the case
of uncollected funds, as soon as practicable after collected). If the Agent
shall not have made a required distribution to the appropriate Lenders as
required hereinabove after receiving a payment for the account of such Lenders,
the Agent will pay to each such Lender, on demand, the principal amount of its
respective payment with interest thereon at the Federal Funds Rate for each day
from the date such amount was required to be disbursed by the Agent until the
date repaid to such Lender.
(c) Unless the Agent shall have received notice from the Borrower prior to
the date on which any payment is due to any Lender hereunder that such payment
will not be made in full, the Agent may assume that the Borrower has made such
payment in full to the Agent on such date, and the Agent may, in reliance on
such assumption, cause to be distributed to each Lender on such due date an
amount equal to the amount then due to each such Lender. If and to the extent
the Borrower shall not have so made such payment in full to the Agent, and
without limiting the obligation of the Borrower to make such payment in
accordance with the terms hereof, each such Lender shall repay to the Agent
forthwith on demand such amount so distributed to such Lender, together with
interest thereon for each day from the date such amount is so distributed to
such Lender until the date repaid to the Agent, at the Federal Funds Rate.
(d) The Borrower hereby authorizes each Lender, if and to the extent that
any payment owed to such Lender is not made to the Agent or such Lender when due
hereunder or under any Note held by such Lender, to charge from time to time
against any or all of the accounts of the Borrower with such Lender any amount
so due in accordance with SECTION 8.2 hereof (with prompt notice to the Agent
and the Borrower); provided that the failure to give such notice shall not
affect the validity of such debit by such Lender.
(e) With respect to each payment on the Loans hereunder, except as
specifically provided otherwise herein or in any of the other Loan Documents,
the Borrower may designate by written notice to the Agent prior to or
concurrently with such payment the Types of Loans that
36
are to be repaid or prepaid and, in the case of LIBOR Loans and Absolute Rate
Loans, the specific Borrowing or Borrowings pursuant to which made, provided
that (i) unless made together with all amounts required under SECTION 2.15 to be
paid as a consequence thereof, a prepayment of a LIBOR Loan or Absolute Rate
Loan may be made only on the last day of the Interest Period applicable thereto,
(ii) if any partial prepayment of LIBOR Loans made pursuant to any single
Borrowing shall reduce the outstanding principal amount of the remaining LIBOR
Loans under such Borrowing to less than $3,000,000, such remaining LIBOR Loans
shall be converted immediately into Base Rate Loans and (iii) each prepayment of
Loans comprising a single Borrowing shall be applied pro rata among such Loans.
In the absence of any such designation by the Borrower, or if an Event of
Default has occurred and is continuing, the Agent shall, subject to the
foregoing, make such designation in its sole discretion or as the Required
Lenders may direct, subject to the foregoing and the other provisions of this
Agreement.
(f) All computations of interest and fees hereunder (including computations
of the Reserve Requirement) shall be made on the basis of a year consisting of
360 days and the actual number of days (including the first day, but excluding
the last day) elapsed for LIBOR Loans and Absolute Rate Loans and of 365/366
days and the actual number of days (including the first day, but excluding the
last day) elapsed for Base Rate Loans.
2.13 Increased Costs, Change in Circumstances, etc.
(a) If, at any time after the Closing Date and from time to time, the
adoption or modification of any applicable law, rule or regulation, or any
interpretation or administration thereof by any Governmental Authority or
central bank (whether or not having the force of law) charged with the
interpretation, administration or compliance of the Lenders with any of such
requirements, in each case affecting banking institutions generally shall:
(i) subject any Lender to, or increase the net amount of, any tax,
impost, duty, charge or withholding with respect to any amount received or
to be received hereunder in connection with LIBOR Loans (other than taxes
imposed on net income or profits of, or any branch or franchise tax
applicable to, such Lender or a Lending Office of such Lender);
(ii) change the basis of taxation of payments to any Lender in
connection with LIBOR Loans (other than changes in taxes on the net income
or profits of, or any branch or franchise tax applicable to, such Lender or
a Lending Office of such Lender);
(iii) impose, increase or render applicable any reserve (other than
the Reserve Requirement), capital adequacy, special deposit or similar
requirement against assets of, deposits with or for the account of, or
loans, credit or commitments extended by, any Lender or a Lending Office of
such Lender; or
(iv) impose on any Lender or in the London interbank Eurodollar
market any other condition or requirement affecting this Agreement or LIBOR
Loans;
37
and the result of any of the foregoing is to increase the costs to any Lender of
agreeing to make, making, funding or maintaining any LIBOR Loans or to reduce
the yield or rate of return of such Lender on any LIBOR Loans to a level below
that which such Lender could have achieved but for the adoption or modification
of any such requirements, the Borrower will, within fifteen (15) days after
delivery to the Borrower by such Lender of written demand therefor (with a copy
thereof to the Agent), pay to such Lender such additional amounts as shall
compensate such Lender for such increase in costs or reduction in return.
(b) If, at any time after the Closing Date and from time to time, any
Lender shall have determined that the adoption or modification of any applicable
federal, state or local law, rule or regulation regarding such Lender's required
level of capital (including any allocation of capital requirements or
conditions, but excluding federal, state or local income tax liability), or the
implementation of any such requirements previously adopted but not implemented
prior to the Closing Date, or any interpretation or administration thereof by
any Governmental Authority (whether or not having the force of law) charged with
the interpretation, administration or compliance of such Lender with any of such
requirements, in each case affecting banking institutions generally, has or
would have the effect of reducing the rate of return on such Lender's capital as
a consequence of its Commitment or Loans hereunder to a level below that which
such Lender could have achieved but for such adoption, modification,
implementation or interpretation (taking into account such Lender's policies
with respect to capital adequacy), the Borrower will, within fifteen (15) days
after delivery to the Borrower by such Lender of written demand therefor (with a
copy thereof to the Agent), pay to such Lender such additional amounts as will
compensate such Lender for such reduction in return.
(c) If, on or prior to the first day of any Interest Period, (i) the Agent
shall have received written notice from any Lender of such Lender's
determination that Dollar deposits in the amount of such Lender's required LIBOR
Committed Loan pursuant to such Borrowing are not generally available in the
London interbank Eurodollar market or that the rate at which such Dollar
deposits are being offered will not adequately and fairly reflect the cost to
such Lender of making or maintaining its LIBOR Committed Loan during such
Interest Period or (ii) the Agent shall have determined that adequate and
reasonable means do not exist for ascertaining the applicable LIBOR Rate for
such Interest Period, the Agent will forthwith so notify the Borrower and the
Lenders, whereupon the obligation of (y) in the case of clause (i) above, each
such affected Lender, and (z) in the case of clause (ii) above, all Lenders, in
each case to make, to convert Base Rate Loans into, or to continue, LIBOR
Committed Loans shall be suspended (including pursuant to the Borrowing to which
such Interest Period applies), and any Notice of Borrowing or Notice of
Conversion/Continuation given at any time thereafter with respect to LIBOR
Committed Loans shall be deemed to be a request for Base Rate Loans (but in the
case of clause (i) above, only to the extent of such affected Lender's Pro Rata
Share thereof) until the Agent or the affected Lender, as the case may be, shall
have determined that the circumstances giving rise to such suspension no longer
exist.
(d) Notwithstanding any other provision in this Agreement, if, at any time
after the Closing Date and from time to time, any Lender shall have determined
that the adoption or modification of any applicable law, rule or regulation, or
any interpretation or administration thereof by any Governmental Authority or
central bank (whether or not having the force of law)
38
charged with the interpretation, administration or compliance of such Lender
with any of such requirements, has or would have the effect of making it
unlawful for such Lender to honor its obligation to make LIBOR Loans or to
continue to make or maintain LIBOR Loans, such Lender will forthwith so notify
the Agent and the Borrower, whereupon (i) each of such Lender's outstanding
LIBOR Loans shall automatically, on the expiration date of the respective
Interest Period applicable thereto or, to the extent any such LIBOR Loan may not
lawfully be maintained as a LIBOR Loan until such expiration date, upon such
notice, be converted into a Base Rate Loan and (ii) the obligation of such
Lender to make, to convert Base Rate Loans into, or to continue, LIBOR Loans
shall be suspended, and any Notice of Borrowing or Notice of
Conversion/Continuation given at any time thereafter with respect to LIBOR
Committed Loans shall, as to such Lender, be deemed to be a request for Base
Rate Loans, until such Lender shall have determined that the circumstances
giving rise to such suspension no longer exist.
(e) Determinations by the Agent or any Lender for purposes of this Section
of any increased costs, reduction in return, market contingencies, illegality or
any other matter shall, absent manifest error, be conclusive, provided that such
determinations are made reasonably and in good faith. Each Lender agrees that,
upon the occurrence of any event giving rise to the operation of this Section
with respect to such Lender, it will, if requested by the Borrower and to the
extent permitted by law, endeavor in good faith to designate another Lending
Office for its LIBOR Loans, but only if such designation would make it lawful
for such Lender to continue to make or maintain LIBOR Loans hereunder; provided
that such designation is made on such terms that such Lender, in its good faith
determination, suffers no increased cost or economic, legal or regulatory
disadvantage, with the object of avoiding the consequence of the event giving
rise to the operation of this Section.
(f) Each demand for payment under this Section shall be preceded by a
notice to the Borrower of such anticipated demand, which notice shall specify in
reasonable detail the basis for such demand and the calculation of the amount
requested hereunder, but the failure to provide such advance notice shall not
relieve the Borrower of any of its obligations hereunder. No failure by the
Agent or any Lender to demand payment of any amounts payable under this Section
shall constitute a waiver of its right to demand payment of any additional
amounts arising at any subsequent time. Nothing in this Section shall be
construed or so operate as to require the Borrower to pay any interest, fees,
costs or charges in excess of that permitted by applicable law.
2.14 Taxes.
(a) Any and all payments by the Borrower hereunder or under any Note shall
be made, in accordance with the terms hereof and thereof, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto
(other than taxes imposed on the net income or profit of, or any branch or
franchise tax applicable to, the Agent or any Lender) (y) by the jurisdiction
under the laws of which the Agent or such Lender, as the case may be, is
organized or any political subdivision thereof and (z) in the case of each
Lender, by the jurisdiction in which any Lending Office of such Lender is
located or any political subdivision thereof (all such nonexcluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law
to deduct any Taxes from or in respect of any
39
sum payable hereunder or under any Note to the Agent or any Lender, (i) the sum
payable shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section), the Agent or such Lender, as the case may be, receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
the Borrower will make such deductions and (iii) the Borrower will pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) The Borrower will indemnify the Agent and each Lender for the full
amount of Taxes (including, without limitation, any Taxes imposed by any
jurisdiction on amounts payable under this Section) paid by the Agent or such
Lender, as the case may be, and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such Taxes
were correctly or legally asserted. This indemnification shall be made within
thirty (30) days from the date the Agent or any Lender, as the case may be,
makes written demand therefor. Within thirty (30) days after the date of any
payment of Taxes pursuant to this Section, the Borrower will furnish to the
Agent or the relevant Lender, as the case may be, the original or a certified
copy of a receipt evidencing payment thereof.
(c) If any Lender is a "foreign corporation, partnership or trust" within
the meaning of the Code, and such Lender claims exemption from United States
withholding tax under Section 1441 or 1442 of the Code, such Lender will deliver
to the Agent and the Borrower:
(i) if such Lender claims an exemption from, or a reduction of,
withholding tax under a United States tax treaty, properly completed IRS
Forms 1001 and W-8 before the payment of any interest in the first calendar
year, and before the payment of any interest in each third succeeding
calendar year, during which interest may be paid to such Lender under this
Agreement;
(ii) if such Lender claims that interest paid under this Agreement
is exempt from United States withholding tax because it is effectively
connected with a United States trade or business of such Lender, two
properly completed and executed copies of IRS Form 4224 before the payment
of any interest is due in the first taxable year of such Lender, and in
each succeeding taxable year of such Lender, during which interest may be
paid to such Lender under this Agreement, and IRS Form W-9; and
(iii) such other form or forms as may be required under the Code or
other laws of the United States as a condition to exemption from, or
reduction of, United States withholding tax.
Each such Lender will promptly notify the Agent and the Borrower of any
changes in circumstances that would modify or render invalid any claimed
exemption or reduction.
(d) If any Lender is entitled to a reduction in the applicable withholding
tax, the Agent may withhold from any interest payment to such Lender an amount
equivalent to the applicable withholding tax after taking into account such
reduction. If the forms or other documentation required under subsection (C)
above are not delivered to the Agent, then the Agent
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may withhold from any interest payment to such Lender not providing such forms
or other documentation an amount equivalent to the applicable withholding tax.
For purposes of this Section, a distribution hereunder by the Agent to or for
the account of any Lender shall be deemed a payment by the Borrower.
(e) If at any time the Borrower requests any Lender to deliver any forms or
other documentation pursuant to subsection (C) above, then the Borrower shall,
upon demand of such Lender, reimburse such Lender for any reasonable costs or
expenses incurred by such Lender in the preparation or delivery of such forms or
other documentation.
(f) Each Lender agrees that, upon the occurrence of any event giving rise
to the Borrower's obligation to make any payments or incur any other expenses in
respect of any Taxes under this SECTION 2.14 with respect to such Lender, it
will, if requested by the Borrower and to the extent permitted by law, endeavor
in good faith to designate another Lending Office for its Loans, but only if
such designation would relieve the Borrower from or lessen the amount of any
further such payments or expenses; provided that such designation is made on
such terms that such Lender, in its good faith determination, suffers no
increased cost or economic, legal or regulatory disadvantage.
2.15 Compensation.
(a) The Borrower will compensate each Lender, upon its written request
(which request shall set forth the basis for requesting such compensation and
shall be copied to the Agent), for all losses, expenses and liabilities
(including, without limitation, any loss, expense or liability incurred by
reason of the liquidation or reemployment of deposits or other funds required by
such Lender to fund its LIBOR Loans or Absolute Rate Loans) that such Lender may
sustain (i) if for any reason (other than a default by such Lender or the Agent
or, with respect to any Borrowing, a change in law described in SECTION 2.13 or
any Taxes payable as described in SECTION 2.14 or additional costs under SECTION
2.15(B), in each such case arising during the two (2) Business Days after a
Notice of Borrowing and of which the Borrower did not have knowledge at the time
the Borrower submitted such Notice of Borrowing; provided further that the
Lenders shall not be required to extend such Borrowing as a LIBOR Committed Loan
if such extension would create undue hardship for such Lender) a Borrowing of,
or conversion of or into, LIBOR Loans or Absolute Rate Loans does not occur on a
date specified therefor in a Notice of Borrowing, Invitation for Bids or Notice
of Conversion/Continuation, (ii) if any repayment, prepayment or conversion of
any of its LIBOR Loans or Absolute Rate Loans occurs on a date other than the
last day of an Interest Period applicable thereto (other than a conversion of a
LIBOR Loan pursuant to SECTIONS 2.13(C) or (D)), (iii) if any prepayment of any
of its LIBOR Loans or Absolute Rate Loans is not made on any date specified in a
notice of prepayment given by the Borrower or (iv) as a consequence of any other
failure by the Borrower to make any payments with respect to LIBOR Loans or
Absolute Rate Loans when due hereunder, including as a consequence of
acceleration of the maturity of such Loans pursuant to SECTION 8.1. In
addition, the Borrower will pay to the Agent, for its own account, an
administrative fee of $1,000 concurrently with any payments made in respect of
any single occurrence pursuant to this Section. Calculation of all amounts
payable to a Lender under this Section with respect to LIBOR Loans shall be made
as though such Lender had actually funded its relevant LIBOR Loan
41
through the purchase of a Eurodollar deposit bearing interest at the LIBOR Rate
in an amount equal to the amount of such LIBOR Loan, having a maturity
comparable to the relevant Interest Period and through the transfer of such
Eurodollar deposit from an offshore Lending Office of such Lender to a Lending
Office of such Lender in the United States; provided, however, that each Lender
may fund each of its LIBOR Loans in any manner it sees fit and the foregoing
assumption shall be utilized only for the calculation of amounts payable under
this Section.
(b) Each Lender may require the Borrower to pay, contemporaneously with
each payment of interest on LIBOR Committed Loans, additional interest at a rate
per annum equal to the excess of (i) (A) the applicable LIBOR Rate divided by
(B) one minus the Reserve Requirement for such Lender over (ii) the rate
specified in clause (i)(A). Any Lender electing to require payment of such
additional interest (x) shall so notify the Borrower and the Agent, in which
case such additional interest on the LIBOR Committed Loans of such Lender shall
be payable to such Lender with respect to each Interest Period commencing at
least four (4) Business Days after the giving of such notice and (y) shall
notify the Borrower at least five (5) Business Days prior to each date on which
interest is payable on the LIBOR Committed Loans of the amount then due it under
this subparagraph (b); provided that, if the original notice from such Lender
indicates that such additional interest shall continue to be due on each LIBOR
Committed Loan until such Lender withdraws its notice, then no further notice
shall be due.
2.16 Use of Proceeds. The proceeds of the Loans shall be used by the
Borrower and its Subsidiaries (i) to finance Physician Transactions made
pursuant to SECTION 5.14 or SECTION 6.2 hereof, together with legal and
accounting fees and other transaction costs incurred in connection therewith,
(ii) to pay certain fees and expenses in connection with this Facility, and
(iii) to provide working capital for, and to finance, the Borrower's and its
Subsidiaries' general business purposes. The Borrower will not use any of the
proceeds of the Loans or any advances under the Swingline Note to purchase or
carry Margin Stock, or to extend credit to others for that purpose and will at
all times be in compliance with Section 4.7.
2.17 Recovery of Payments.
(a) The Borrower agrees that to the extent the Borrower makes a payment or
payments to or for the account of the Agent or the Lenders, which payment or
payments or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to a trustee,
receiver or any other party under any bankruptcy, insolvency or similar state or
federal law, or otherwise at law or equity, then, to the extent of such payment
or repayment, the Obligation intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not been received.
(b) If any amounts distributed by the Agent to a Lender are subsequently
returned or repaid by the Agent to the Borrower or its representative or
successor in interest, whether by court order or by settlement approved by the
Lender in question, such Lender will, promptly upon receipt of notice thereof
from the Agent, pay the Agent such amount. If any such amounts are recovered by
the Agent from the Borrower or its representative or successor in interest, the
Agent shall redistribute such amounts to the Lenders on the same basis as such
amounts were originally distributed.
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2.18 Pro Rata Borrowings.
(a) All Borrowings, continuations and conversions of Committed Loans shall
be made by the Lenders pro rata on the basis of their respective Percentages, as
appropriate from time to time, rounded to the nearest ▇▇▇▇▇.
(b) Each Lender agrees that if it shall receive any amount hereunder
(whether by voluntary payment, realization upon security, exercise of the right
of setoff or banker's lien, counterclaim or cross action, enforcement of any
right under the Loan Documents, or otherwise) applicable to the payment of any
of the Obligations (other than Bid Loans or obligations arising under the
Swingline Note) that exceeds its Pro Rata Share of payments on account of such
Obligations then or therewith obtained by all the Lenders to which such payments
are required to have been made, such Lender shall forthwith purchase from the
other Lenders such participations in such Obligations as shall be necessary to
cause such purchasing Lender to share the excess payment or other recovery
ratably with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender, such
purchase from each such other Lender shall be rescinded and each such other
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such other Lender's ratable share
(according to the proportion of (i) the amount of such other Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to the provisions of
this Section may, to the fullest extent permitted by law, exercise any and all
rights of payment (including, without limitation, setoff, banker's lien or
counterclaim) with respect to such participation as fully as if such participant
were a direct creditor of the Borrower in the amount of such participation. If
any Lender receives an amount (as described in the first sentence of this
section) applicable to the payment of any Bid Loans that exceeds its ratable
share of payments on account of such Bid Loans, then the foregoing provisions of
this section shall be applied with respect to those Lenders also participating
in such Bid Loans.
2.19 Substitution of Lender. If (i) the obligation of any Lender to make
LIBOR Committed Loans has been suspended pursuant to SECTION 2.13 or (ii) any
Lender has demanded compensation under SECTION 2.13 or SECTION 2.15(B), or if
any Lender has notified the Borrower to make any payments under SECTION 2.14,
the Borrower shall have the right, with the assistance of the Agent, to seek a
substitute bank or banks (which may be one or more of the Lenders), each of
which must be an Eligible Assignee, acceptable to the Borrower and the Agent, to
purchase the Note and assume the Commitment of such Lender in accordance with
SECTION 10.5 hereof by executing an Assignment and Acceptance.
2.20 Letters of Credit.
(a) Issuance. Subject to and upon the terms and conditions herein set
forth, so long as no Default or Event of Default has occurred and is continuing,
the Issuing Bank will, at any time and from time to time on and after the
Closing Date and prior to the earlier of (i) the seventh day prior to the
Maturity Date and (ii) the Termination Date, upon request by the Borrower in
43
accordance with the provisions of SECTION 2.20(B), issue for the account of the
Borrower one or more irrevocable standby letters of credit denominated in
Dollars and in a form customarily used or otherwise reasonably approved by the
Issuing Bank (together with all amendments, modifications and supplements
thereto, substitutions therefor and renewals and restatements thereof,
collectively, the "Letters of Credit"). The Stated Amount of each Letter of
Credit shall not be less than such amount as may be acceptable to the Issuing
Bank but in all events any amount greater than or equal to $5,000 shall be
deemed acceptable. Notwithstanding the foregoing:
(i) No Letter of Credit shall be issued the Stated Amount upon
issuance of which (i) when added to all other Letter of Credit Outstandings
at such time, would exceed $5,000,000 or (ii) when added to all other
Letter of Credit Outstandings at such time and the aggregate principal
amount of all Loans then outstanding, would exceed the Total Commitment at
such time;
(ii) No Letter of Credit shall be issued that by its terms expires
later than the seventh day prior to the Maturity Date or, in any event,
more than one (1) year after its date of issuance (subject to renewal as
provided below); provided, however, that a Letter of Credit may, if
requested by the Borrower, provide by its terms, and on terms acceptable to
the Issuing Bank, for renewal for successive periods of one year or less
(but not beyond the seventh day prior to the Maturity Date), unless and
until the Issuing Bank shall have delivered a notice of nonrenewal to the
beneficiary of such Letter of Credit; and
(iii) The Issuing Bank shall be under no obligation to issue any
Letter of Credit if, at the time of such proposed issuance, (A) any order,
judgment or decree of any Governmental Authority or arbitrator shall
purport by its terms to enjoin or restrain the Issuing Bank from issuing
such Letter of Credit, or any Requirement of Law applicable to the Issuing
Bank or any request or directive (whether or not having the force of law)
from any Governmental Authority with jurisdiction over the Issuing Bank
shall prohibit, or request that the Issuing Bank refrain from, the issuance
of letters of credit generally or such Letter of Credit in particular or
shall impose upon the Issuing Bank with respect to such Letter of Credit
any restriction or reserve or capital requirement (for which the Issuing
Bank is not otherwise compensated) not in effect on the Closing Date, or
any unreimbursed loss, cost or expense that was not applicable or in effect
as of the Closing Date and that the Issuing Bank reasonably deems material
to it, or (B) the Issuing Bank shall have actual knowledge, or shall have
received notice from any Lender, prior to the issuance of such Letter of
Credit that one or more of the conditions specified in ARTICLE III are not
then satisfied or that the issuance of such Letter of Credit would violate
the provisions of subsection (I) above.
(b) Notices. Whenever the Borrower desires the issuance of a Letter of
Credit, the Borrower will notify the Issuing Bank (with copies to the Agent) in
writing, by 11:00 a.m., Charlotte, North Carolina local time, at least three (3)
Business Days (or such shorter period as is acceptable to the Issuing Bank in
any given case) prior to the requested date of issuance thereof. Each such
request (each, a "Letter of Credit Request") shall be irrevocable, shall be
given in the form of EXHIBIT B-3 and shall be appropriately completed to specify
(i) the proposed date of
44
issuance (which shall be a Business Day), (ii) the proposed Stated Amount and
expiry date of the Letter of Credit, and (iii) the name and address of the
proposed beneficiary or beneficiaries of the Letter of Credit. The Borrower will
also complete any application procedures and documents required by the Issuing
Bank in connection with the issuance of any Letter of Credit; provided, however,
that the terms of this Agreement shall govern in the event that there is any
inconsistency between the terms of such application and any of the terms and
conditions hereof and, without limiting the generality of the foregoing, no
provision in any letter of credit application or agreement shall give the
Issuing Bank, the Agent or any Lender any rights that are in addition to or
greater than the rights such Person would otherwise have under this Agreement.
The Agent will, promptly upon its receipt thereof, notify each Lender of the
Letter of Credit Request. Upon its issuance of any Letter of Credit, the Issuing
Bank will promptly notify each Lender of such issuance and the amount of its
participation therein under SECTION 2.20(C).
(c) Participations. Immediately upon the issuance of any Letter of Credit,
the Issuing Bank shall be deemed to have sold and transferred to each Lender,
and each Lender (each, in such capacity, an "L/C Participant") shall be deemed
irrevocably and unconditionally to have purchased and received from the Issuing
Bank, without recourse or warranty, an undivided interest and participation, pro
rata to the extent of its Percentage at such time, in such Letter of Credit,
each drawing made thereunder, and the obligations of the Borrower under this
Agreement with respect thereto and any security therefor (including the
Collateral) or guaranty pertaining thereto; provided, however, that the fees and
other charges relating to Letters of Credit described in SECTIONS 2.20(L)(II)
and 2.20(L)(III) shall be payable directly to the Issuing Bank as provided
therein, and the L/C Participants shall have no right to receive any portion
thereof. Upon any change in the Commitments of any of the Lenders pursuant to
SECTION 10.5, with respect to all outstanding Letters of Credit and
Reimbursement Obligations there shall be an automatic adjustment to the
participations pursuant to this Section to reflect the new Percentages of the
assigning Lender and the Eligible Assignee.
(d) Reimbursement. The Borrower hereby agrees to reimburse the Issuing
Bank for any drawing made under any Letter of Credit and, subject to SECTION
2.20(E), shall make payment to the Agent, for the account of the Issuing Bank,
in immediately available funds, for any payment made by the Issuing Bank under
any Letter of Credit (each such amount so paid until reimbursed (including by a
loan under SECTION 2.20(E)), together with interest thereon payable as provided
hereinbelow, a "Reimbursement Obligation") immediately after, and in any event
within one (1) Business Day after its receipt of notice of, such payment,
together with interest on the amount so paid by the Issuing Bank, to the extent
not reimbursed prior to 1:00 p.m., Charlotte time, on the date of such payment
or disbursement, for the period from the date of the respective payment to the
date the Reimbursement Obligation created thereby is satisfied, at the Base Rate
as in effect from time to time during such period, such interest also to be
payable on demand. The Issuing Bank will provide the Agent and the Borrower
with prompt notice of any payment or disbursement made under any Letter of
Credit, although the failure to give, or any delay in giving, any such notice
shall not release, diminish or otherwise affect the Borrower's obligations under
this Section or any other provision of this Agreement. The Agent will promptly
pay to the Issuing Bank any such amounts received by it under this Section.
45
(e) Payment by Loans. In the event that the Issuing Bank makes any payment
under any Letter of Credit and the Borrower shall not have timely satisfied in
full its Reimbursement Obligation to the Issuing Bank pursuant to SECTION
2.20(D), and to the extent that any amounts then held in the Cash Collateral
Account established pursuant to SECTION 2.20(J) shall be insufficient to satisfy
such Reimbursement Obligation in full, the Issuing Bank will promptly notify the
Agent, and the Agent will promptly notify each L/C Participant, of such failure.
If the Agent gives such notice prior to 11:00 a.m., Charlotte, North Carolina
local time, on any Business Day to any L/C Participant, such L/C Participant
will make available to the Agent, for the account of the Issuing Bank, its Pro
Rata Share (based on its Percentage) of the amount of such payment on such
Business Day in immediately available funds. If the Agent gives such notice
after 11:00 a.m., Charlotte, North Carolina local time, on any Business Day to
any such L/C Participant, such L/C Participant shall make its Pro Rata Share of
such amount available to the Agent on the next succeeding Business Day. If and
to the extent such L/C Participant shall not have so made its Pro Rata Share of
the amount of such payment available to the Agent, such L/C Participant agrees
to pay to the Agent, for the account of the Issuing Bank, forthwith on demand
such amount, together with interest thereon, for each day from such date until
the date such amount is paid to the Agent at the Federal Funds Rate. The failure
of any L/C Participant to make available to the Agent its Pro Rata Share of any
payment under any Letter of Credit shall not relieve any other L/C Participant
of its obligation hereunder to make available to the Agent its Pro Rata Share of
any payment under any Letter of Credit on the date required, as specified above,
but no L/C Participant shall be responsible for the failure of any other L/C
Participant to make available to the Agent such other L/C Participant's Pro Rata
Share of any such payment. Each such payment by an L/C Participant under this
SECTION 2.20(E) of its Pro Rata Share of an amount paid by the Issuing Bank
shall constitute a Loan by such Lender (the Borrower being deemed to have given
a timely Notice of Borrowing therefor) and shall be treated as such for all
purposes of this Agreement; provided that for purposes of determining the Total
Unutilized Commitment immediately prior to giving effect to the application of
the proceeds of such Loans, the Reimbursement Obligation being satisfied thereby
shall be deemed not to be outstanding at such time.
(f) Payment to L/C Participants. Whenever the Issuing Bank receives a
payment in respect of a Reimbursement Obligation as to which the Agent has
received, for the account of the Issuing Bank, any payments from the L/C
Participants pursuant to SECTION 2.20(E), the Issuing Bank will promptly pay to
the Agent, and the Agent will promptly pay to each L/C Participant that has paid
its Pro Rata Share thereof, in immediately available funds, an amount equal to
such L/C Participant's ratable share (based on the proportionate amount funded
by such L/C Participant to the aggregate amount funded by all L/C Participants)
of such Reimbursement Obligation.
(g) Obligations Absolute. The Reimbursement Obligations of the Borrower,
and the obligations of the L/C Participants to make payments to the Agent, for
the account of the Issuing Bank, with respect to Letters of Credit, shall be
irrevocable, shall remain in effect until the Issuing Bank shall have no further
obligations to make any payments or disbursements under any circumstances with
respect to any Letter of Credit, and, shall not be subject to counterclaim,
setoff or other defense or any other qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including,
46
without limitation, any of the following circumstances; provided, that the
making of such reimbursement payments shall not affect the rights of the
Borrower or the L/C Participants to seek damages or other remedies arising from
any breach of the Issuing Bank's standard of care as set forth in the final
paragraph of this subsection (G):
(i) Any lack of validity or enforceability of this Agreement, any of
the other Loan Documents or any documents or instruments relating to any
Letter of Credit;
(ii) Any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations in respect of any Letter
of Credit or any other amendment, modification or waiver of or any consent
to departure from any Letter of Credit or any documents or instruments
relating thereto, in each case whether or not the Borrower has notice or
knowledge thereof;
(iii) The existence of any claim, setoff, defense or other right
that the Borrower may have at any time against a beneficiary named in a
Letter of Credit, any transferee of any Letter of Credit (or any Person for
whom any such transferee may be acting), the Agent, the Issuing Bank, any
Lender or other Person, whether in connection with this Agreement, any
Letter of Credit, the transactions contemplated hereby or any unrelated
transactions (including any underlying transaction between the Borrower and
the beneficiary named in any such Letter of Credit);
(iv) Any draft, certificate or any other document presented under
the Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect,
any errors, omissions, interruptions or delays in transmission or delivery
of any messages, by mail, telecopier or otherwise, or any errors in
translation or in interpretation of technical terms;
(v) Any defense based upon the failure of any drawing under a Letter
of Credit to conform to the terms of the Letter of Credit, any
nonapplication or misapplication by the beneficiary or any transferee of
the proceeds of such drawing or any other act or omission of such
beneficiary or transferee in connection with such Letter of Credit;
(vi) The exchange, release, surrender or impairment of any
Collateral or other security for the Obligations;
(vii) The occurrence of any Default or Event of Default; or
(viii) Any other circumstance or event whatsoever, including,
without limitation, any other circumstance that might otherwise constitute
a defense available to, or a discharge of, the Borrower or a guarantor.
None of the foregoing shall impair, prevent or otherwise affect any of the
rights and powers granted to the Issuing Bank hereunder. Any action taken or
omitted to be taken by the Issuing Bank under or in connection with any Letter
of Credit, if taken or omitted in accordance with the Uniform Commercial Code
and the Uniform Customs and Practice for Documentary Credits (1993 Revision), to
the extent applicable, and in the absence of fraud, gross negligence or
47
willful misconduct, shall be binding upon Borrower and each L/C Participant and
shall not create or result in any liability of the Issuing Bank to the Borrower
or any L/C Participant. It is expressly understood and agreed that, for
purposes of determining whether a wrongful payment under a Letter of Credit
resulted from the Issuing Bank's gross negligence or willful misconduct, (i) the
Issuing Bank's acceptance of documents that appear on their face to comply with
the terms of such Letter of Credit, without responsibility for further
investigation, regardless of any notice or information to the contrary, (ii) the
Issuing Bank's exclusive reliance on the documents presented to it under such
Letter of Credit as to any and all matters set forth therein, including the
amount of any draft presented under such Letter of Credit, whether or not the
amount due to the beneficiary thereunder equals the amount of such draft and
whether or not any document presented pursuant to such Letter of Credit proves
to be insufficient in any respect (so long as such document appears on its face
to comply with the terms of such Letter of Credit), and whether or not any other
statement or any other document presented pursuant to such Letter of Credit
proves to be forged or invalid or any statement therein proves to be inaccurate
or untrue in any respect whatsoever, and (iii) any noncompliance in any
immaterial respect of the documents presented under such Letter of Credit with
the terms thereof shall, in each case, be deemed not to constitute gross
negligence or willful misconduct of the Issuing Bank.
(h) Increased Costs. If at any time after the Closing Date the Issuing
Bank or any L/C Participant determines that the introduction of or any change in
any applicable law, rule, regulation, order, guideline or request or in the
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof, or compliance by the Issuing
Bank or any L/C Participant with any request or directive after the Closing Date
by any such authority (whether or not having the force of law) shall either (i)
impose, modify or make applicable any reserve, deposit, capital adequacy or
similar requirement against Letters of Credit issued by the Issuing Bank or
participated in by any L/C Participant or (ii) impose on the Issuing Bank or any
L/C Participant any other conditions relating, directly or indirectly, to this
Agreement or any Letter of Credit, and the result of any of the foregoing is to
increase the cost to the Issuing Bank or L/C Participant of issuing, maintaining
or participating in any Letter of Credit, or to reduce the amount of any sum
received or receivable by the Issuing Bank or such L/C Participant hereunder or
reduce the rate of return on its capital with respect to Letters of Credit, then
the Borrower will, within fifteen (15) days after delivery to the Borrower by
the Issuing Bank or such L/C Participant of written demand therefor (with a copy
thereof to the Agent), pay to the Issuing Bank or such L/C Participant such
additional amounts as shall compensate the Issuing Bank or such L/C Participant
for such increase in costs or reduction in return. A certificate submitted to
the Borrower by the Issuing Bank or such L/C Participant, as the case may be (a
copy of which certificate shall be sent by the Issuing Bank or such L/C
Participant to the Agent), setting forth a reasonably detailed calculation of
such additional amount and the basis for the determination of such additional
amount or amounts necessary to compensate the Issuing Bank or such L/C
Participant as aforesaid, shall be presumptively correct.
(i) INTENTIONALLY OMITTED.
(j) Cash Collateral Account. At any time and from time to time (i) during
the continuance of an Event of Default, the Agent, at the direction, or with the
consent, of the Required Lenders, may require the Borrower to deliver to the
Agent such additional amount of
48
cash as is equal to the aggregate Stated Amount of all Letters of Credit at any
time outstanding (whether or not any beneficiary under any Letter of Credit
shall have drawn or be entitled at such time to draw thereunder) and (ii) in the
event of a prepayment under SECTION 2.5(B), the Agent will retain such amount as
may then be required to be retained under the proviso in SECTION 2.5(B), such
amounts in each case under clauses (i) and (ii) above to be held by the Agent in
a cash collateral account (the "Cash Collateral Account") as security for, and
for application to, the Borrower's Reimbursement Obligations as and when the
same shall arise. The Agent shall have exclusive dominion and control, including
the exclusive right of withdrawal, over such account. Other than any interest on
the investment of such amounts in Cash Equivalents, which investments shall be
made at the direction of the Borrower (unless a Default or Event of Default
shall have occurred and be continuing, in which case the determination as to
which investments shall be made shall be at the option and in the discretion of
the Agent; provided that the Agent shall have no liability with respect
thereto), amounts in the Cash Collateral Account shall not bear interest.
Interest and profits, if any, on such investments shall accumulate in such
account. In the event of a drawing, and subsequent payment by the Issuing Bank,
under any Letter of Credit at any time during which any amounts are held in the
Cash Collateral Account, the Agent will deliver to the Issuing Bank an amount
equal to the Reimbursement Obligation created as a result of such payment (or,
if the amounts so held are less than such Reimbursement Obligation, all of such
amounts) to reimburse the Issuing Bank therefor. Any amounts remaining in the
Cash Collateral Account after the expiration of all Letters of Credit and
reimbursement in full of the Issuing Bank for all of its obligations thereunder
shall be held by the Agent (i) in the case of funds held pursuant to clause (i)
above during the continuance of an Event of Default, for the benefit of the
Borrower, to be applied against the Obligations then or as they become due and
payable in such order as the Agent may direct and (ii) in the event funds held
pursuant to clause (ii) above, where the Borrower is required to provide cash
collateral pursuant to SECTION 2.5(B), such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower on demand, provided that after
giving effect to such return (i) the sum of (y) the aggregate principal amount
of all Loans outstanding at such time and (z) the aggregate Letter of Credit
Outstandings at such time would not exceed the Total Commitment at such time and
(ii) no Default or Event of Default shall have occurred and be continuing at
such time. If the Borrower is required to provide cash collateral as a result of
an Event of Default, such amount (to the extent not applied as aforesaid) shall
be returned to the Borrower within two (2) Business Days after all Events of
Default have been cured or waived.
(k) Effectiveness. Notwithstanding any termination of the Commitments or
repayment of the Loans, or both, the obligations of the Borrower under this
SECTION 2.18 shall remain in full force and effect until the Issuing Bank and
the L/C Participants shall have no further obligations to make any payments or
disbursements under any circumstances with respect to any Letter of Credit.
(l) Fees. In connection with the Letters of Credit, the Borrower agrees to
pay:
(i) To the Agent, for the account of each Lender, a letter of credit
fee in respect of each Letter of Credit for the period from the date of its
issuance to the date of its termination, at a rate per annum equal to the
Applicable Margin in effect from time to time during such period on the
daily average Stated Amount thereof, payable in arrears
49
(x) on the last Business Day of each fiscal quarter, beginning with the
last Business Day of the fiscal quarter ending March 31, 1998, and (y) on
the later of the Termination Date and the date of termination of the last
outstanding Letter of Credit, in each case calculated on the basis of
actual days elapsed over a year of 360 days;
(ii) To the Issuing Bank, for its own account, a facing fee in
respect of each Letter of Credit for the period from the date of its
issuance to the date of its termination, at the rate of 0.125% per annum on
the daily average Stated Amount thereof, payable in arrears (i) on the last
Business Day of each fiscal quarter, beginning with the last Business Day
of the fiscal quarter ending March 31, 1998, and (ii) on the later of the
Termination Date and the date of termination of the last outstanding Letter
of Credit; and
(iii) To the Issuing Bank, for its own account, such reasonable
commissions, issuance fees, transfer fees and other fees and charges
incurred in connection with the issuance and administration of each Letter
of Credit as are customarily charged from time to time by the Issuing Bank
for the performance of such services in connection with similar letters of
credit, or as may be otherwise agreed to by the Issuing Bank, but without
duplication of amounts payable under subsection (II) above.
ARTICLE III.
CLOSING; CONDITIONS OF CLOSING AND BORROWING
3.1 Conditions of Initial Borrowing. The obligation of each Lender to make
Loans in connection with the initial Borrowing hereunder, and the obligation of
the Issuing Bank to issue Letters of Credit hereunder, is subject to the
satisfaction of the following conditions precedent:
(a) The Agent shall have received the following, each dated as of the
Closing Date (unless otherwise specified) and, except for the Notes and the
certificates and instruments required to be delivered under the Security
Agreements, in sufficient copies for each Lender:
(i) counterparts hereof signed by each of the parties hereto;
(ii) a Committed Loan Note and Bid Loan Note for the account of each
Lender that is a party hereto as of the Closing Date, in the amount of such
Lender's Commitment and duly completed and executed by the Borrower;
(iii) the Guaranty, duly completed and executed by the Guarantors;
(iv) the Security Agreements, duly completed and executed by the
Borrower and the Guarantors owning any property of the type covered
thereby, together with all certificates evidencing the capital stock being
pledged thereunder and undated stock powers for each such certificate, duly
executed in blank, and any promissory notes being pledged thereunder, duly
endorsed in blank;
50
(v) an acknowledgment copy, or other evidence satisfactory to the
Agent, of the proper filing or recording of each document (including
Financing Statements) required by law or reasonably requested by the Agent
to be filed or recorded in each jurisdiction in which the filing or
recording is so required or requested in order to create in favor of the
Agent, for the benefit of the Lenders, a valid, legal and perfected first
priority security interest in or lien on the Collateral that is the subject
of the Security Agreements, subject only to Permitted Liens;
(vi) a certificate, signed by the chief executive officer or chief
financial officer of the Borrower, in form and substance satisfactory to
the Agent, certifying that (A) all representations and warranties of the
Borrower contained in this Agreement and the other Loan Documents are true
and correct as of the Closing Date, both immediately before and after
giving effect to any Loans to be made on the Closing Date hereunder and the
application of the proceeds thereof, (B) no Default or Event of Default has
occurred and is continuing, both immediately before and after giving effect
to any Loans to be made on the Closing Date hereunder and the application
of the proceeds thereof, (C) both immediately before and after giving
effect to the consummation of the transactions contemplated by this
Agreement, no Material Adverse Change has occurred since December 31, 1996,
and there exists no event, condition or state of facts related to the
business of the Borrower and its Subsidiaries that could reasonably be
expected to result in a Material Adverse Change and (D) the Borrower has
satisfied each of the conditions set forth in this Section applicable to
the Borrower and its Subsidiaries;
(vii) a certificate of the secretary or an assistant secretary of
each of the Borrower and its Subsidiaries, in form and substance
satisfactory to the Agent, certifying (A) that attached thereto is a true
and complete copy of the articles or certificate of incorporation and all
amendments thereto of the Borrower or such Subsidiary, as the case may be,
certified as of a recent date by the Secretary of State (or comparable
Governmental Authority) of its jurisdiction of organization, and that the
same has not been amended since the date of such certification, (B) that
attached thereto is a true and complete copy of the bylaws of the Borrower
or such Subsidiary, as the case may be, as then in effect and as in effect
at all times from the date on which the resolutions referred to in clause
(C) below were adopted to and including the date of such certificate, and
(C) that attached thereto is a true and complete copy of resolutions
adopted by the board of directors of the Borrower or such Subsidiary, as
the case may be, authorizing the execution, delivery and performance of the
Loan Documents to which it is a party, and as to the incumbency and
genuineness of the signature of each officer of the Borrower or such
Subsidiary executing any of such Loan Documents, and attaching all such
copies of the documents described above; provided, that non-corporate
Subsidiaries shall provide comparable documentation as appropriate and
reasonably satisfactory to the Agent.
(viii) certificates as of a recent date of (A) the good standing of
each of the Borrower and its Subsidiaries under the laws of its
jurisdiction of organization, from the Secretary of State (or comparable
Governmental Authority) of such jurisdiction, (B) the qualification of each
of the Borrower and its Subsidiaries to conduct business as foreign
corporations in the states where each is qualified to conduct business and,
(C) where
51
reasonably available from the department of revenue or other appropriate
Governmental Authority, that the Borrower and each Subsidiary has filed all
required tax returns and owes no delinquent taxes; provided, that non-
corporate Subsidiaries shall provide comparable certificates to the extent
available and such other documentation reasonably requested by the Agent.
(ix) the favorable opinion of Mayor, Day, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.,
counsel to the Borrower, addressed to the Agent and the Lenders, in form
and substance satisfactory to the Agent and each Lender;
(x) certificates, and copies of policies, of insurance, in form and
substance satisfactory to the Agent, upon the Collateral and the business
of the Borrower and each Guarantor.
(b) All legal matters, documentation and corporate or other proceedings
incident to the transactions contemplated hereby shall be reasonably acceptable
to the Agent; all approvals, permits and consents of any Governmental
Authorities or other Persons required in connection with the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby shall have been obtained (without the imposition of conditions that are
not reasonably acceptable to the Agent), and all related filings, if any, shall
have been made, and all such approvals, permits, consents and filings shall be
in full force and effect and the Agent shall have received such copies thereof
as it shall have requested; all applicable waiting periods shall have expired
without any adverse action being taken by any Governmental Authority having
jurisdiction; and no action, proceeding, investigation, regulation or
legislation shall have been instituted, threatened or proposed before, and no
order, injunction or decree shall have been entered by, any court or other
Governmental Authority, in each case to enjoin, restrain or prohibit, to obtain
substantial damages in respect of, or that is otherwise related to or arises out
of, this Agreement or the consummation of the transactions contemplated hereby,
or that, in the opinion of the Agent, would otherwise be reasonably likely to
have a Material Adverse Effect.
(c) Since December 31, 1996, both immediately before and after giving
effect to the consummation of the transactions contemplated by this Agreement,
there shall not have occurred any Material Adverse Change or any event,
condition or state of facts relating to the business of the Borrower and its
Subsidiaries that could reasonably be expected to result in a Material Adverse
Change, other than as specifically contemplated by this Agreement and the other
Loan Documents.
(d) The Borrower shall have paid (i) to the Agent, the initial quarterly
installment of the annual administrative fee described in SECTION 2.9(B), and
(ii) all other fees and expenses of the Agent and the Lenders for which the
Borrower has received an invoice required hereunder or under any other Loan
Document to be paid on or prior to the Closing Date (including fees and expenses
of counsel) in connection with this Agreement and the transactions contemplated
hereby.
52
(e) The Agent shall have received an Account Designation Letter, together
with written instructions from an Authorized Officer of the Borrower, including
wire transfer information, directing the payment of the proceeds of the initial
Loans to be made hereunder.
(f) The Lenders shall have received the Financial Statements from the
Borrower, in form and substance satisfactory to the Lenders.
(g) All taxes, fees and other charges in connection with the execution,
delivery, recording, filing and registration of any of the Loan Documents shall
have been paid by the Borrower.
(h) The Agent and each Lender shall have received such other documents,
certificates, and instruments as the Agent or any Lender shall have reasonably
requested.
3.2 Conditions of All Borrowings. The obligation of the Lenders to make
any Loans hereunder, including the initial Loans, and the obligation of the
Issuing Bank to issue any Letters of Credit hereunder, is subject to the
satisfaction of the following conditions precedent on the relevant Borrowing
Date or date of issuance:
(a) The Agent shall have received a Notice of Borrowing, if required, in
accordance with SECTION 2.2(A), a Bid Request in accordance with SECTION 2.3(A)
or a Letter of Credit Request in accordance with SECTION 2.18(B), as applicable;
(b) Each of the representations and warranties made by the Borrower
contained in ARTICLE IV shall be true and correct on and as of such Borrowing
Date for new Borrowings (other than conversions with no new funds advanced),
with the same effect as if made on and as of the Borrowing Date, except to the
extent the facts upon which such representation and warranty are based may be
changed as a result of transactions permitted or contemplated hereby or such
representation or warranty relates solely to a prior date and except for new
Subsidiaries for whom the representations and warranties shall apply only as of
the date of representation;
(c) No Default or Event of Default shall have occurred and be continuing on
such date, both immediately before and after giving effect to the Loans to be
made or Letter of Credit to be issued on such date; and
(d) The security interests in the Collateral previously pledged to the
Agent, for the benefit of the Lenders, pursuant to the Loan Documents shall
remain in full force and effect.
Each giving of a Notice of Borrowing or a Letter of Credit Request, and the
consummation of each Borrowing or issuance of a Letter of Credit, shall be
deemed to constitute a representation by the Borrower that the statements
contained in subsections (B) and (C) above are true, both as of the date of such
notice or request and as of the relevant Borrowing Date or date of issuance.
3.3 Waiver of Conditions Precedent. If any Lender makes any Loan
hereunder, prior to the fulfillment of any of the conditions precedent set forth
in this ARTICLE III, the making of such Loan or the issuance of such Letter of
Credit shall constitute only an extension of time for
53
the fulfillment of such condition and not a waiver thereof, and unless the
Required Lenders indicate otherwise in writing, the Borrower shall thereafter
use its best efforts to fulfill each such condition promptly. No failure by the
Borrower to fulfill any such condition precedent shall constitute a Default or
an Event of Default hereunder, except to the extent any such failure is
continuing after the expiration of any period within which such condition is
specifically required to be fulfilled.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Loan Agreement and extend
the credit contemplated hereby, the Borrower makes the following warranties and
representations to the Agent and each Lender:
4.1 Corporate Organization and Power. The Borrower and each Subsidiary (a)
is a corporation duly organized, validly existing and in good standing or other
legal entity duly organized and validly existing under the laws of the
jurisdiction set forth opposite its name on SCHEDULE 4.1; (b) is qualified to do
business and is in good standing in every other jurisdiction where the nature of
its business or the ownership of its properties requires it to be so qualified
and where the failure to be so qualified would have a Material Adverse Effect,
which jurisdictions are set forth on SCHEDULE 4.1; (c) except as set forth on
SCHEDULE 4.1, has no Subsidiaries or Affiliates (other than its officers,
directors and shareholders and other than the physician groups not owned by the
Borrower or a Subsidiary to which the Borrower or its Subsidiaries provide
management services) and is not a partner or joint venturer in any partnerships
or joint ventures; (d) has the power (corporate or otherwise) to own and give a
lien on and security interest in its respective Collateral and to engage in the
transactions contemplated hereby; and (e) has the full power (corporate or
otherwise), authority and legal right to execute and deliver this Agreement and
the other Loan Documents to which it is a party and to perform and observe the
terms and provisions thereof. Neither the Borrower nor any of its Subsidiaries
has, during the preceding five (5) years, been known as or used any other
corporate, fictitious or trade names in the United States other than as set
forth on SCHEDULE 4.1.
4.2 Litigation; Government Regulation. Except as set forth in SCHEDULE
4.2, (a) there are no judgments, injunctions or similar orders or decrees and no
actions, suits, investigations or proceedings pending (pursuant to which the
Borrower or any Subsidiary has been served) or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or any Subsidiary or its
business that is reasonably likely to have a Material Adverse Effect, or that
question the validity of this Agreement or any of the Loan Documents, at law or
in equity before any court, arbitrator or Governmental Authority, and (b)
neither the Borrower nor any Subsidiary is in violation of or in default under
any Requirement of Law where such violation could reasonably be expected to have
a Material Adverse Effect.
4.3 Taxes. Except as set forth in SCHEDULE 4.3, neither the Borrower nor
any Subsidiary is delinquent in the payment of any taxes that have been levied
or assessed by any
54
Governmental Authority against it or its assets. Except as set forth in SCHEDULE
4.3, the Borrower and each Subsidiary (a) has timely filed all tax returns that
are required by law to be filed prior to the date hereof, and has paid all taxes
shown on said returns and all other assessments or fees levied upon it or upon
its properties to the extent that such taxes, assessments or fees have become
due, and if not due, such taxes have been adequately provided for and sufficient
reserves therefor established on its books of account, and (b) is current with
respect to payment of all federal and state withholding taxes, social security
taxes and other payroll taxes.
4.4 Enforceability of Loan Documents; Compliance with Other
Instruments. Each of the Loan Documents to which the Borrower or any Guarantor
is a party, as the case may be, has been duly authorized by all necessary
corporate action on the part of the Borrower or such Guarantor, has been validly
executed and delivered by the Borrower or such Guarantor and is the legal, valid
and binding obligation of the Borrower or such Guarantor, enforceable against
the Borrower or such Guarantor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditor's rights
generally or by general principles of equity. Except as set forth in SCHEDULE
4.4, neither the Borrower nor any Subsidiary is in default with respect to any
indenture, loan agreement, mortgage, lease, deed or similar agreement related to
the borrowing of monies to which it is a party or by which it, or any of its
property, is bound except where such default would not have a Material Adverse
Effect. Neither the execution, delivery or performance of the Loan Documents by
the Borrower and the Guarantors, nor compliance by the Borrower and the
Guarantors therewith: (a) conflicts or will conflict with or results or will
result in any breach of, or constitutes or will constitute with the passage of
time or the giving of notice or both, a default under, (i) any Requirement of
Law or (ii) any written or oral agreement or instrument to which the Borrower or
any Guarantor is a party or by which it, or any of its property, is bound,
except where such conflict, breach or default would not have a Material Adverse
Effect, or (b) results or will result in the creation or imposition of any lien,
charge or encumbrance upon the properties of the Borrower or any Subsidiary
pursuant to any such agreement or instrument, except for Permitted Liens.
4.5 Governmental Authorization. No authorization, consent or approval of,
notice to, or declaration or filing with, any Governmental Authority is required
for the valid execution, delivery and performance by the Borrower or any
Guarantor of the Loan Documents to which it is a party or the consummation by
the Borrower or any Guarantor of the transactions contemplated thereby, except
for the filing of Financing Statements. The Borrower and each Subsidiary has,
and is in good standing with respect to, all material licenses, approvals,
permits, certificates, inspections, consents and franchises of Governmental
Authorities and other Persons necessary to continue to conduct its business as
heretofore conducted and to own or lease and operate its respective properties
as now owned or leased by it, except where the failure to be in good standing
would not have a Material Adverse Effect. Without limitation of the foregoing,
the Borrower and each Subsidiary has, to the extent applicable, (i) obtained (or
been duly assigned) all required certificates of need or determinations of need,
as required by the relevant state Governmental Authority, for the acquisition,
construction, expansion of, investment in or operation of its businesses as
currently operated; (ii) obtained and maintains in good standing all required
licenses, except where the failure to do so would not have a Material Adverse
Effect; and (iii) to the extent prudent and customary in the industry in which
the Borrower or such
55
Subsidiary is engaged, obtained and maintains accreditation from all generally
recognized accrediting agencies for the Borrower and its Subsidiaries. No
Medicaid Certification or Medicare Certification is required for the operation
of the business) of the Borrower or any Guarantor and neither the Borrower nor
any Guarantor is required to have entered into Medicare Provider Agreement or
Medicaid Provider Agreement for the operation of its business).
4.6 Event of Default. No Default or Event of Default has occurred and is
continuing.
4.7 Margin Securities. No proceeds of the Loans or advances under the
Swingline Note will be used, directly or indirectly, to purchase or carry any
Margin Stock, to extend credit for such purpose or for any other purpose that
would violate or be inconsistent with Regulations G, T, U or X. As of the date
hereof and at all times during the term of this Agreement, including following
the application of the proceeds of each Loan and each advance under the
Swingline Note, the Borrower will conduct its business and cause its
Subsidiaries to conduct their respective businesses such that not more than 25%
of the value of the assets of the Borrower will consist of assets which are
Margin Stock and such that not more than 25% of the value of the assets of the
Borrower and its Subsidiaries will consist of assets which are Margin Stock.
4.8 Full Disclosure. The written estimates, projections and forecasts
provided to the Lenders and the Agent with the syndication materials dated
December 1997 were prepared, at the request of the Agent, on the basis of the
assumption that the Borrower would not consummate any additional Physician
Transactions after December 31, 1998, and on the basis of the good faith
estimate of the Borrower's senior management concerning probable financial
condition and performance based on other assumptions, data, tests or conditions
believed to be reasonable or to represent industry conditions existing at the
time such estimates, projections or forecasts were made. All other written
estimates, projections and forecasts furnished by or on behalf of the Borrower
or any Subsidiary to the Agent or any Lender for purposes of or in connection
with this Agreement, or in connection with any extension of credit hereunder,
were and will be prepared on the basis of the good faith estimate of the
Borrower's senior management concerning probable financial condition and
performance based on assumptions, data, tests or conditions believed to be
reasonable or to represent industry conditions existing at the time such
estimates, projections or forecasts were made. None of (i) the other statements
furnished to the Agent or any Lender by or on behalf of the Borrower or any
Subsidiary in connection with the Loan Documents or (ii) the Loan Documents, as
of the date furnished, contained any untrue statement of a material fact or, to
the Borrower's knowledge, omitted to state a material fact necessary to make the
statements contained therein or herein, in light of the circumstances under
which they were made, not misleading. To the Borrower's knowledge, there is no
fact related to the business of the Borrower and its Subsidiaries that the
Borrower has not disclosed to the Agent or the Lenders that may reasonably be
expected to result in a Material Adverse Effect.
4.9 Principal Places of Business. SCHEDULE 4.9 lists the chief executive
office and principal place of business, as provided in the Uniform Commercial
Code, of the Borrower and each Subsidiary as of the Closing Date.
56
4.10 ERISA; Employee Benefits.
(a) SCHEDULE 4.10 (i) lists, as of the Closing Date, all material Employee
Plans and Pension Plans ("Plans") maintained or sponsored by the Borrower and
its Subsidiaries or to which the Borrower or any Subsidiary is obligated to
contribute and (ii) separately identifies all Qualified Plans (as defined below)
and all Multiemployer Plans.
(b) Each such Plan is in compliance in all material respects (or may be
brought into compliance without a Material Adverse Effect) with the applicable
provisions of ERISA, the Internal Revenue Code and other federal or state law,
including all requirements under the Internal Revenue Code or ERISA for filing
reports (which are true and correct in all material respects as of the date
filed), and benefits have been paid in accordance with the provisions of each
such Plan.
(c) The form of each Plan intended to be qualified under Section 401 of the
Internal Revenue Code ("Qualified Plan") in the opinion of Borrower qualifies
under Section 401 of the Internal Revenue Code, and any trust or trusts created
thereunder are, in the opinion of the Borrower, exempt from tax under the
provisions of Section 501 of the Internal Revenue Code, and to the knowledge of
the Borrower nothing has occurred that would cause the loss of such
qualification or tax-exempt status.
(d) There is no outstanding liability under Title IV of ERISA with respect
to any Qualified Plan maintained or sponsored by the Borrower and its
Subsidiaries (as to which the Borrower or any Subsidiary is or may be liable),
nor to the knowledge of the Borrower with respect to any Plan to which the
Borrower or any Subsidiary (wherein the Borrower or any Subsidiary is or may be
liable) contributes or is obligated to contribute.
(e) None of the Qualified Plans subject to Title IV of ERISA has any
unfunded benefit liability, as defined in Section 4001(a)(18) of ERISA (as to
which the Borrower or any Subsidiary is or may be liable).
(f) No Plan maintained or sponsored by the Borrower or any Subsidiary
provides medical or other welfare benefits or extends coverage relating to such
benefits beyond the date of a participant's termination of employment with the
Borrower or such Subsidiary, except to the extent required by Section 4980B of
the Internal Revenue Code and at the sole expense of the participant or the
beneficiary of the participant to the fullest extent permissible under such
Section of the Internal Revenue Code. The Borrower and its Subsidiaries have
complied in all material respects with the notice and continuation coverage
requirements of Section 4980B of the Internal Revenue Code.
(g) No ERISA Event has occurred or is reasonably expected to occur with
respect to any Plan maintained or sponsored by the Borrower and its Subsidiaries
or to the knowledge of the Borrower, to which the Borrower or any Subsidiaries
is obligated to contribute.
(h) As of the Closing Date, there are no pending or, to the knowledge of
the Borrower, threatened claims, actions or lawsuits, other than routine claims
for benefits in the
57
usual and ordinary course, asserted or instituted against (i) any Plan
maintained or sponsored by the Borrower and its Subsidiaries or their assets, or
(ii) any fiduciary with respect to any Plan for which the Borrower or any
Subsidiary may be directly or indirectly liable, through indemnification
obligations or otherwise.
(i) Neither the Borrower nor any Subsidiary has incurred or, to the
knowledge of the Borrower, reasonably expects to incur (i) any liability (and no
event has occurred that, with the giving of notice under Section 4219 of ERISA,
would result in such liability) under Section 4201 or 4243 of ERISA with respect
to a Multiemployer Plan or (ii) any liability under Title IV of ERISA (other
than premiums due and not delinquent under Section 4007 of ERISA) with respect
to a Plan.
(j) Neither the Borrower nor any Subsidiary has engaged, directly or
indirectly, in a non-exempt prohibited transaction (as defined in Section 4975
of the Internal Revenue Code or Section 406 of ERISA) in connection with any
Plan maintained or sponsored by the Borrower that has a Material Adverse Effect.
4.11 Subsidiaries. SCHEDULE 4.11 contains a complete and accurate list of
the Subsidiaries of the Borrower as of the Closing Date, showing, as to each
Subsidiary, the number of shares of each class of capital stock or the amount
and type of other equity interests authorized and outstanding, if applicable.
Except as expressly set forth on SCHEDULE 1.1(A) as an encumbrance on stock or
equity interest, all of such issued and outstanding shares of capital stock or
other equity interests of all of the Borrower's Subsidiaries have been duly
authorized and validly issued, are, in the case of Subsidiaries that are
corporations, fully paid and nonassessable and are owned by the Borrower, free
and clear of any liens, charges, encumbrances, security interests, claims or
restrictions of any nature whatsoever, except for liens in favor of the Agent,
for the benefit of the Lenders, granted under the Loan Documents, except for
Permitted Liens, and there are no other equity securities of any Subsidiary
issued and outstanding or reserved for any purpose.
4.12 Financial Statements. The Financial Statements delivered to the
Lenders have been prepared by the Borrower and its Subsidiaries and, in the case
of the annual Financial Statements, audited in accordance with Generally
Accepted Accounting Principles by Price Waterhouse LLP, independent certified
public accountants, contain no material misstatement or omission and fairly
present the financial position, assets and liabilities of the Borrower and its
Subsidiaries on a consolidated basis as of the respective dates thereof and the
consolidated results of operations of the Borrower and its Subsidiaries for the
respective periods then ended. Except for the transactions contemplated by the
Loan Documents, since the date of the most recent audited Financial Statements
there has been no Material Adverse Change.
4.13 Title to Assets. Except as set forth on SCHEDULE 4.13, (a) the
Borrower and each Subsidiary holds interests as lessee under leases in full
force and effect with respect to all leased real and personal property used in
connection with its business, and has good and indefeasible title to the
Collateral and the other assets owned by it that are reflected in the most
recent Financial Statements, in each case free and clear of all liens, claims,
security interests and encumbrances except Permitted Liens; and (b) no financing
statement that names the Borrower
58
or any Subsidiary as debtor has been filed and is still in effect or has been
authorized to be filed, other than Financing Statements evidencing Permitted
Liens.
4.14 Solvency. The Borrower and each Subsidiary (i) is Solvent, and (ii)
after giving effect to the transactions contemplated hereby, will be Solvent.
4.15 Use of Proceeds. The Borrower's use of the proceeds of any Loans made
by the Lenders to the Borrower pursuant to this Agreement are and will be legal
and proper corporate uses, duly authorized by the Board of Directors of the
Borrower, and such uses are and will be consistent in all material respects with
all applicable laws and statutes, as in effect from time to time.
4.16 Assets for Conduct of Business. The Borrower and each Subsidiary
possess adequate assets, licenses and trade names to continue to conduct its
business as heretofore conducted without any material conflict with the rights
of other Persons.
4.17 Compliance with Laws. The Borrower and each Subsidiary have duly
complied with, and their business operations and leaseholds are in compliance in
all material respects with, all Requirements of Law other than those failures to
comply which would not have a Material Adverse Effect.
4.18 Environmental Matters. Except where failure to comply with the
following provisions of this SECTION 4.18 would not have a Material Adverse
Effect:
(a) All activities and operations of the Borrower and its Subsidiaries are
in material compliance with all applicable Environmental Laws.
(b) Neither the Borrower nor any Subsidiary is involved in any suit or
proceeding, or has received any notice from any Governmental Authority, with
respect to a release of Hazardous Substances or has received notice of any
claims against the Borrower or any of its Subsidiaries from any Person relating
to personal injuries from exposure to Hazardous Substances.
(c) The Borrower and each Subsidiary has timely filed all reports required
to be filed, has acquired all necessary certificates, approvals and permits and
has generated and maintained in all material respects all required data,
documentation and records under all applicable Environmental Laws.
(d) To the knowledge of the Borrower, neither the Borrower nor any
Subsidiary has ever sent a Hazardous Substance to a site that, pursuant to any
Environmental Law, (1) has been placed on the "National Priorities List" or
"CERCLIS List" of hazardous waste sites (or any similar state list) or (2) that
is subject to a claim, an administrative order or other request to take
"removal" or "remedial" action (as defined under CERCLA) or to pay for the costs
of cleaning up such a site.
4.19 First Priority. Except for Permitted Liens, when the initial Loans
are made hereunder, this Agreement, together with the other Loan Documents, will
create valid and perfected first priority security interests and liens in and
upon the Collateral covered thereby, in
59
each case enforceable against the Borrower or a Subsidiary and all other Persons
in all relevant jurisdictions and securing the payment of all Obligations
purported to be secured thereby.
4.20 Contracts; Labor Disputes. Neither the Borrower nor any Subsidiary is
a party to any contract or agreement, or subject to any charge, corporate
restriction, judgment, injunction, decree, rule, regulation or order of any
court or other Governmental Authority, that has or could reasonably be expected
to have a Material Adverse Effect. Neither the Borrower nor any Subsidiary is a
party to, and there is not pending or, to the Borrower's knowledge, threatened,
any labor dispute, strikes, lock-out, grievance, work stoppage or walkouts
relating to any labor contract to which the Borrower or any Subsidiary is a
party, in each case, which could reasonably be expected to have a Material
Adverse Effect.
4.21 Insurance. SCHEDULE 4.21 accurately summarizes all insurance policies
or programs of the Borrower and its Subsidiaries in effect as of the Closing
Date, and indicates the insurer's name, policy number, expiration date, amount
of coverage, type of coverage, annual premiums, exclusions and deductibles, and
also indicates any self-insurance program that is in effect.
4.22 Reimbursement from Third Party Payors. The accounts receivable for
the physician groups for which the Borrower and its Subsidiaries provide
management services 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 and other third party payors. In particular, the accounts
receivable relating to such third party payors do not and shall not exceed
amounts the relevant physician group is entitled to receive under any capitation
arrangement, fee schedule, discount formula, cost-based reimbursement or other
adjustment or limitation to the usual charges of such physician group.
4.23 Fraud and Abuse. Neither the Borrower nor any Subsidiary, nor any of
their respective stockholders, officers or directors have engaged on behalf of
Borrower or any Subsidiary in any of the following: (i) knowingly and willfully
making or causing to be made a false statement or representation of a material
fact in any applications for any benefit or payment under the Medicare or
Medicaid program; (ii) knowingly and willfully making or causing to be made any
false statement or representation of a material fact for use in determining
rights to any benefit or payment under the Medicare or Medicaid program; (iii)
failing to disclose knowledge by a claimant of the occurrence of any event
affecting the initial or continued right to any benefit or payment under the
Medicare or Medicaid program on its own behalf or on behalf of another, with
intent to secure such benefit or payment fraudulently; (iv) knowingly and
willfully soliciting or receiving any remuneration (including any kickback,
bribe or rebate), directly or indirectly, overtly or covertly, in cash or in
kind or offering to pay such remuneration (a) in return for referring an
individual to a Person for the furnishing or arranging for the furnishing of any
item or service for which payment may be made in whole or in part by Medicare or
Medicaid, or (b) in return for purchasing, leasing or ordering or arranging for
or recommending the purchasing, leasing or ordering of any good, facility,
service, or item for which payment may be made in whole or in part by Medicare
or Medicaid. With respect to this Section, knowledge by an individual
stockholder, director or officer of the Borrower or a Subsidiary of any of the
events
60
described in this Section shall not be imputed to the Borrower or such
Subsidiary unless such knowledge was obtained or learned by the stockholder,
director or officer in his or her official capacity as a stockholder, director
or officer of the Borrower or such Subsidiary. No activity of the Borrower or
any Subsidiary shall be considered to be a breach of this Section, except in the
case of a knowing and willful violation thereof, until the Borrower or such
Subsidiary has received notification, written or oral, by a Governmental
Authority of competent jurisdiction as to any such violation. The provisions of
SUBSECTION (III) hereof shall not require the Borrower or any Subsidiary (unless
otherwise required by law) to disclose to the Agent, Lenders or any other Person
any activity or omission by a third party (including associated physician
groups) unless such activity or omission (x) constitutes willful fraud or abuse,
(y) would reasonably be likely to have a Material Adverse Effect or (z) is not
being corrected, cured or remedied by the Borrower and any other relevant
Persons diligently, in good faith and in the exercise of sound business
judgment.
4.24 Single Business Enterprise. The Borrower and the Guarantors have
historically operated as, and intend to continue operating as, a single business
enterprise. Although separate entities, the Borrower and the Guarantors operate
under a common business plan. Each of the Borrower and the Guarantors will
accordingly benefit from the financing arrangement established by this
Agreement. The Borrower acknowledges that, but for the agreement by each
Guarantor to execute and deliver the Guaranty and Guarantors' Security
Agreement, the Borrower would not have qualified separately for the total amount
of the credit facilities established hereby.
4.25 Continuing Security Interest. All Loans to and other Obligations of
the Borrower under the Loan Agreement and the Notes will continue to be secured
by the Agent's security interest in all of the Collateral granted under the Loan
Documents. Such security interest will relate back to the date of initial
perfection of the security interests under the Loan Documents, and nothing
herein will affect the validity, perfection or enforceability of such security
interests.
ARTICLE V.
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that, until the termination of the
Commitments and all Letters of Credit and the payment in full of all principal
and interest with respect to the Loans and Letter of Credit Outstandings
together with all other amounts then due and owing hereunder, it will, and will
cause each of its Subsidiaries to comply with the following covenants.
5.1 Financial and Business Information about the Borrower. The Borrower
shall deliver to the Agent and the Lenders:
(a) Within forty-five (45) days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, beginning with the fiscal
quarter ending March 31, 1998, the unaudited consolidated and consolidating
balance sheets of the Borrower and its Subsidiaries as of the close of such
fiscal quarter and unaudited consolidated and consolidating statements of
income, retained earnings and cash flows for the Borrower and its Subsidiaries
for the fiscal
61
quarter then ended and for that portion of the fiscal year then ended, all
prepared in accordance with Generally Accepted Accounting Principles (subject to
the absence of notes required by Generally Accepted Accounting Principles and
subject to normal and reasonable year-end audit adjustment) applied on a basis
consistent with that of the preceding quarter or containing disclosure of the
effect on the financial position or results of operation of any change in the
application of accounting principles and practices during the quarter, certified
by the Chief Executive Officer or Chief Financial Officer of the Borrower to
fairly present, in all material respects, the financial condition of the
Borrower and its Subsidiaries on a consolidated basis as of the date thereof or
the results of operation of the Borrower and its Subsidiaries on a consolidated
basis for the period covered thereby;
(b) Within one hundred (100) days after the close of each fiscal year of
the Borrower, beginning with the fiscal year ending December 31, 1997, an
audited consolidated and unaudited consolidating balance sheet of the Borrower
and its Subsidiaries as of the close of such fiscal year and audited
consolidated and unaudited consolidating statements of income, retained earnings
and cash flows for the Borrower and its Subsidiaries for the fiscal year then
ended, including the notes to each, prepared by Price Waterhouse or any other
independent certified public accountant reasonably acceptable to the Required
Lenders, in accordance with Generally Accepted Accounting Principles applied on
a basis consistent with that of the preceding year or containing disclosure of
the effect on the financial position or results of operation of any change in
the application of accounting principles and practices during the year, and
accompanied by a report thereon by such certified public accountants, containing
an opinion that is not qualified with respect to scope limitations imposed by
the Borrower or its Subsidiaries or with respect to accounting principles
followed by the Borrower or its Subsidiaries not in accordance with Generally
Accepted Accounting Principles;
(c) Concurrently with the delivery of the financial statements described in
subsection (B) above, a report from the independent certified public accountant
that in making its audit of the consolidated financial statements of the
Borrower and its Subsidiaries, that nothing came to their attention regarding
any Event of Default, or Default under SECTIONS 6.11 through 6.15 as of December
31 of the fiscal year subject to audit or a statement specifying the nature and
period of existence of any such Default or Event of Default disclosed by their
examination, it being understood that such audit was not performed primarily for
the purpose of obtaining knowledge of noncompliance with this Agreement or the
Loan Documents;
(d) Concurrently with the delivery of the financial statements described in
subsections (A) and (B) above, a Compliance Certificate with respect to the
period covered by the financial statements then being delivered, attaching a
Covenant Compliance Worksheet reflecting the computation of the financial
covenants set forth in ARTICLE VI as of the last day of the period covered by
such financial statements;
(e) As soon as practicable and in any event within thirty (30) days after
the close of each fiscal year of the Borrower, beginning with the current fiscal
year, an annual operating budget and capital budget prepared on a quarterly
basis for the Borrower and its Subsidiaries on a consolidated basis, in form and
detail reasonably acceptable to the Agent;
62
(f) Promptly upon their becoming available, copies of (i) all financial
statements, reports, notices and proxy statements that the Borrower or any
Subsidiary shall send or make available generally to its stockholders, (ii) all
regular, periodic and special reports, registration statements and prospectuses
that the Borrower or any Subsidiary shall render to or file with the Securities
and Exchange Commission, the National Association of Securities Dealers or any
national securities exchange, (iii) all material reports and other statements
(other than routine reports prepared in the ordinary course of business that
would not result in any adverse action) that the Borrower or any Subsidiary may
render to or file with any other Governmental Authority, including, without
limitation, HCFA, the Environmental Protection Agency, OSHA and state
environmental and health authorities and agencies, (iv) all press releases and
other statements that the Borrower or any Subsidiary shall make available
generally to the public concerning developments in the business of the Borrower
or any of its Subsidiaries, other than press releases or statements issued in
the ordinary course of business, and (v) all material consulting reports and
other similar business reports that the Borrower or any Subsidiary shall request
of any Person from time to time, other than routine reports received in the
ordinary course of business;
(g) Promptly after review by the Borrower's Board of Directors, but in any
event within thirty (30) days after the Borrower's receipt thereof, copies of
any management letters from certified public accountants;
(h) Concurrently with each delivery of the financial statements described
in subsections (A) and (B) an aging of the accounts receivable of the Borrower
and its Subsidiaries by payor class as of the end of such fiscal quarter; and
(i) Upon the Agent's or any Lender's request, such other information about
the Collateral or the financial condition and operations of the Borrower and its
Subsidiaries as the Agent or any Lender may from time to time reasonably
request.
5.2 Notice of Certain Events. The Borrower shall promptly, but in no event
later than five (5) Business Days after the Borrower obtains knowledge thereof
(or in the shorter period required by subsection (G) below), give written notice
to the Agent and the Lenders of:
(a) Any litigation or proceeding brought against the Borrower or any
Subsidiary that could reasonably be expected to have a Material Adverse Effect;
(b) Any written notice of a violation received by the Borrower or any
Subsidiary from any Governmental Authority that, if such violation were
established and not promptly corrected, could reasonably be expected to have a
Material Adverse Effect;
(c) Any attachment, judgment, lien, levy or order in excess of $100,000
that may be placed on, assessed against or threatened against the Borrower or
any Subsidiary or any of the Collateral, except for Permitted Liens;
(d) Any Default or Event of Default;
(e) Any material default or event of default under any agreement or
instrument to which the Borrower or any Subsidiary is a party or by which the
Borrower or any Subsidiary, or
63
any of their respective property, is bound, the termination of which could
reasonably be expected to have a Material Adverse Effect;
(f) Any other matter that has resulted in a Material Adverse Change;
(g) Any default on any Subordinated Debt or Permitted Subordinated Debt
(notice of which shall be delivered to the Agent and Lenders within one Business
Day following any such default); and
(h) Any default under any Management Services Agreement.
(i) In addition, the Borrower shall give the notice to the Agent required
by Section 4.4(h) of the Security Agreement concerning disputes, waivers,
defaults or terminations of Management Services Agreements and shall cause the
Subsidiaries to give the equivalent notices required by Section 4.4(h) of the
Guarantors' Security Agreement.
5.3 Corporate Existence and Maintenance of Properties. The Borrower shall,
and shall cause each of its Subsidiaries to:
(a) Maintain and preserve in full force and effect (i) its corporate
existence, except as otherwise permitted by SECTION 6.1 and (ii) all material
rights, privileges and franchises;
(b) Conduct its business in an orderly and efficient manner, keep its
properties in good working order and condition (normal wear and tear excepted)
and from time to time make all needed repairs to, renewals of or replacements of
its properties (except to the extent that any of such properties are obsolete or
are being replaced) so that the efficiency of its business operations shall be
fully maintained and preserved; and
(c) File or cause to be filed in a timely manner all reports, applications,
estimates and licenses required by any Governmental Authority that, if not
timely filed, could reasonably be expected to have a Material Adverse Effect.
5.4 Payment of Debt. The Borrower shall, and shall cause each of its
Subsidiaries to, pay all Debt when due and all other obligations in accordance
with customary trade practices.
5.5 Maintenance of Insurance.
(a) The Borrower shall, and shall cause each of its Subsidiaries to,
maintain and pay for insurance on its properties, assets and business, now owned
or hereafter acquired, against such casualties, risks and contingencies, and in
such types and amounts and with such insurance companies, as shall be reasonably
satisfactory to the Agent and deliver certificates and copies of policies of
such insurance to the Agent, provided, however, that such types and amounts of
insurance in effect at the Closing Date shall continue to be satisfactory for
the business of the Borrower and its Subsidiaries (in existence as of the date
hereof) as currently conducted.
(b) If the Borrower or any Subsidiary fails to obtain and maintain any of
the policies of insurance required to be maintained hereunder or to pay any
premium in whole or in part, then
64
the Agent may, at the Borrower's expense, without waiving or releasing any
obligation or Default by the Borrower hereunder, procure the same, but shall not
be required to do so. All sums so disbursed by the Agent, including reasonable
attorneys' fees, court costs, expenses and other charges related thereto, shall
be payable on demand by the Borrower to the Lenders and shall be additional
Obligations hereunder, secured by the Collateral.
(c) Upon the reasonable request of the Agent from time to time, the
Borrower shall deliver to the Agent evidence that the insurance required to be
maintained pursuant to this Agreement is in effect.
5.6 Maintenance of Books and Records; Inspection. The Borrower shall,
and shall cause each of its Subsidiaries to, maintain adequate books, accounts
and records, and prepare all financial statements required under this Agreement
in accordance with Generally Accepted Accounting Principles (except as set forth
in SECTION 5.1 and in material compliance with the regulations of any
Governmental Authority having jurisdiction over it. The Borrower shall, upon
request, permit employees or agents of the Agent or any Lender to inspect the
properties of the Borrower and any of its Subsidiaries and to examine or audit
the books, records, working papers and accounts of the Borrower and any
Subsidiary and make copies and memoranda of them, and to discuss the affairs,
finances and accounts of the Borrower and any Subsidiary with its officers and,
upon notice to the Borrower, and (at the Borrower's option) in the presence of
the Borrower, with the independent public accountants of the Borrower or its
Subsidiaries (and by this provision the Borrower and each Subsidiary authorize
such accountants to so discuss the finances and affairs of the Borrower or any
Subsidiary), all at such times and from time to time during business hours as
may be reasonably requested.
5.7 COBRA. The Employee Plans of the Borrower and its Subsidiaries shall
be operated in such a manner that neither the Borrower nor any Subsidiary will
incur any material tax liability under Section 4980B of the Internal Revenue
Code or any material liability to any qualified beneficiary as defined in
Section 4980B.
5.8 Payment of Taxes. The Borrower shall, and shall cause each of its
Subsidiaries to, pay and discharge all taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits, or upon any
properties belonging to it, prior to the date on which penalties would attach
thereto, and all lawful claims when due that, if unpaid, might become a lien or
charge upon any of its properties; provided, however, that the Borrower or any
Subsidiary may in good faith by appropriate proceedings and with due diligence
contest any such tax, assessment, charge, levy or claim if the Borrower or such
Subsidiary establishes any reserves reasonably requested by the Agent with
respect thereto in accordance with Generally Accepted Accounting Principles.
5.9 Compliance with Laws. The Borrower shall, and shall cause each of its
Subsidiaries to, (i) have all material licenses, permits, certifications,
approvals and authorizations required by Governmental Authorities necessary to
the ownership, occupation or use of its properties or the conduct of its
business, including, without limitation, certificates of need, and maintain the
same at all times in full force and effect for so long as is required, and (ii)
comply with all Requirements of Law in respect of the conduct of its business,
the ownership of its
65
property and the Collateral, including, without limitation, Titles XVIII and XIX
of the Social Security Act, Medicare Regulations, Medicaid Regulations, ERISA,
OSHA, Environmental Laws and the Bloodborne Pathogens Standard, other than
those, in the case of each of clauses (i) and (ii), the failure to have or
comply with which would not have a Material Adverse Effect.
5.10 Name Change. The Borrower shall notify the Agent and the Lenders at
least thirty (30) days prior to the effective date of any change of its name or
the name of any Subsidiary, and prior to such effective date the Borrower or
such Subsidiary shall have executed any required amended or new Financing
Statements and other Loan Documents necessary to maintain and continue the
perfected security interest of the Agent in all of its Collateral and shall have
taken such other actions and executed such documents as the Agent shall
reasonably require.
5.11 Creation or Acquisition of New Subsidiaries. The Borrower and its
Subsidiaries may from time to time create or acquire new Subsidiaries, provided
that, at any time promptly upon request by the Agent (and in any event, with
respect to any new Subsidiary that is created or acquired in connection with a
Physician Transaction or that receives proceeds of any Borrowings, prior to or
concurrently with satisfaction of the conditions set forth in clauses (y) and
(z) of clause (i) below or, if earlier, the consummation of such Physician
Transaction), (i) each such new Subsidiary (y) having assets with a gross value
(determined in accordance with Generally Accepted Accounting Principles) in
excess of $100,000, and (z) having commenced the conduct of an active business,
will execute and deliver to the Agent (with sufficient copies for each Lender)
an amendment or supplement to the Guaranty Agreement, Guarantors' Security
Agreement if such Subsidiary owns any property of the type covered thereby and
such other documents to effectuate the foregoing as may be reasonably requested
by the Required Lenders, including without limitation Financing Statements, each
in form and substance satisfactory to the Agent, pursuant to which such new
Subsidiary shall become a party thereto, (ii) the Borrower will execute and
deliver to the Agent (with sufficient copies for each Lender) an amendment or
supplement to the Security Agreement, in form and substance satisfactory to the
Agent, pursuant to which all of the capital stock or other ownership interests
of such new Subsidiary that is directly or indirectly owned by the Borrower
shall be pledged to the Agent under the Security Agreement, together with the
certificates representing such capital stock or other ownership interests and
stock powers duly executed in blank, and (iii) the Borrower will cause each such
new Subsidiary to execute and deliver, and will cause to be delivered, all
documentation of the type described in SECTIONS 3.1(A)(VII) and (VIII) as such
new Subsidiary would have had to deliver were it a Subsidiary on the Closing
Date.
5.12 Recoveries in Bankruptcy Proceedings. Should any Subsidiary become a
debtor under the Bankruptcy Code, the Agent, on behalf of the Lenders, is
authorized, but not required, to file proofs of claim on the Borrower's behalf
and vote the rights of the Borrower in any plan of reorganization, in each case
with respect to such advances and other amounts owed by any Subsidiary of the
Borrower to the Borrower. The Agent, on behalf of the Lenders, is further
empowered to demand, ▇▇▇ for, collect and receive every payment and distribution
on such Debt owing to the Borrower in such Subsidiary's bankruptcy proceeding.
5.13 Solvency of Subsidiaries. The Borrower shall cause each of its
Subsidiaries to remain Solvent (taking into account rights of contribution).
66
5.14 Certain Physician Transactions.
(a) Subject to the remaining provisions of this SECTION 5.14 applicable
thereto and the requirements contained in the definition of Permitted Physician
Transaction, as the case may be, the Borrower may from time to time after the
Closing Date effect Physician Transactions approved by the Required Lenders
pursuant to SECTION 6.2 and Permitted Physician Transactions, so long as with
respect to each Physician Transaction, no Default or Event of Default shall have
occurred or be continuing at the time of the consummation of such Physician
Transaction or would exist after giving effect thereto.
(b) At the time of each Physician Transaction involving the creation or
acquisition of a Subsidiary, or the acquisition of capital stock or other equity
interest of any Person, all capital stock or other interest thereof created or
acquired in connection with such Physician Transaction shall be directly or
indirectly owned by the Borrower, and the Borrower and each new Subsidiary shall
have complied with SECTION 5.11.
(c) Not less than five (5) days prior to the consummation of any Permitted
Physician Transaction financed in part or in full by a Borrowing, the Borrower
shall deliver to the Agent and the Lenders the following items, each in form and
substance reasonably satisfactory to the Agent:
(i) a description of the practice whose stock, equity interests or
assets are to be acquired ("Practice");
(ii) a description of the material terms of such Permitted Physician
Transaction known as of such date (including, without limitation, the
purchase price and method and structure of payment), provided that a
description of any additional or changed material terms of such Permitted
Physician Transaction shall be disclosed to the Agent within five (5) days
of such addition or change;
(iii) projected revenue and EBITDA contribution levels with respect
to the Practice to be acquired, prepared on a quarterly basis for the two-
year period following the consummation of such Permitted Physician
Transaction, in reasonable detail;
(iv) confirmation, supported by reasonably detailed calculations, of
projected covenant compliance over the four quarter period following such
Permitted Physician Transaction after giving effect to the pro forma
consolidation of the Practice to be acquired with the Borrower and its
Subsidiaries; and
(v) a description of any Liens to be incurred or assumed in
connection with such Permitted Physician Transaction, which Liens would not
be Permitted Liens without such disclosure.
(d) Within thirty (30) days after the closing of any Permitted Physician
Transaction not financed by a Borrowing and having an Transaction Amount greater
than $2,500,000, the Borrower shall deliver to the Lenders the items listed in
clauses (i), (ii) and (iii) of the above subsection (C).
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(e) Within thirty (30) days after the closing of each Physician
Transaction, the Borrower shall deliver to the Agent a copy of the form of each
material Physician Transaction document, including any purchase agreement,
master transaction agreement or Management Services Agreement relating to such
Physician Transaction.
(f) The consummation of each Physician Transaction shall be deemed to be a
representation and warranty by the Borrower that all conditions thereto have
been satisfied, that the same is permitted in accordance with the terms of this
Loan Agreement and that the information submitted by the Borrower pursuant to
subsections (C) and (D) above, as appropriate, is true and correct in all
material respects as of the date submitted, which representation and warranty
shall be deemed to be a representation and warranty for all purposes hereunder.
5.15 Year 2000 Compatibility. Borrower shall take all reasonable action
necessary to assure that Borrower's computer based systems are able to operate
and effectively process dates on and after January 1, 2000. At the reasonable
request of the Agent or the Required Lenders, Borrower shall provide the Lenders
with evidence of its Year 2000 compatibility.
ARTICLE VI.
NEGATIVE COVENANTS
The Borrower covenants and agrees that, until the termination of the
Commitments and all Letters of Credit and the payment in full of all principal
and interest with respect to the Loans and all Letter of Credit Outstandings
together with all other amounts then due and owing hereunder, it will not, and
will not permit any of its Subsidiaries to, individually or in the aggregate:
6.1 Merger, Consolidation. Liquidate, wind up or dissolve, or enter into
any consolidation, merger or other combination, or agree to do any of the
foregoing; provided, however, that:
(i) the Borrower may merge or consolidate with another Person so
long as (x) the Borrower is the surviving corporation, (y) the applicable
conditions of SECTIONS 5.11, 5.14 and 6.2 shall be satisfied and (z)
immediately after giving effect thereto, no Default or Event of Default
would exist; and
(ii) any Subsidiary may merge or consolidate with another Person so
long as (w) the Person surviving such merger or consolidation is the
Borrower or a Guarantor, (y) the applicable conditions of SECTIONS 5.11,
5.14 and 6.2 shall be satisfied and (z) immediately after giving effect
thereto, no Default or Event of Default would exist.
6.2 Physician Transactions. Make any Physician Transaction, other than a
Permitted Physician Transaction in compliance with SECTION 5.14, without the
prior written consent of the Required Lenders. In connection with any proposed
Physician Transaction that is not a Permitted Physician Transaction, as soon as
practicable prior to the proposed consummation of such
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Physician Transaction the Borrower shall deliver to the Agent and each Lender
(i) a description of any proposed Capital Expenditures related to such Physician
Transaction, (ii) the items described in SECTION 5.14(C) if the proposed
Physician Transaction is of an oncology, hematology or radiation oncology
physician practice and (iii) such other information as the Lenders may
reasonably request if the proposed Physician Transaction is for anything other
than an oncology, hematology or radiation oncology physician practice. The
Lenders shall use their best commercially reasonable efforts to respond to a
request from the Borrower for approval of a Physician Transaction (including
requests for Capital Expenditures and Subordinated Debt or Permitted
Subordinated Debt) within five (5) Business Days after receipt of the
information required by this Section; provided, however, the failure to approve
or disapprove a Physician Transaction during such period shall not constitute
approval.
6.3 Debt. Create, incur, assume or suffer to exist any Debt other than:
(i) Debt incurred pursuant to this Agreement;
(ii) unsecured Subordinated Debt and Permitted Subordinated Debt;
(iii) accrued expenses, current trade payables and other current
liabilities arising in the ordinary course of business and not incurred
through the borrowing of money;
(iv) unsecured Debt (x) of any Subsidiary to the Borrower (y) of any
Subsidiary to a Subsidiary and (z) of the Borrower to any Subsidiary,
provided that any such Debt under this clause (iv) is incurred in the
ordinary course of business consistent with past practice and is evidenced
by one or more promissory notes pledged to the Agent pursuant to the
Security Agreements;
(v) Contingent Obligations permitted by SECTION 6.4;
(vi) other Consolidated Debt (including, without limitation, Debt
secured by liens described in clauses (E) and (G) of the definition of
Permitted Liens and Capital Lease Obligations) in an aggregate principal
amount at any time outstanding not to exceed $30,000,000 for the Borrower
and its Subsidiaries;
(vii) Debt of the Borrower under any Interest Rate Protection
Agreements (if any) entered into with one or more Lenders in respect of the
Debt incurred pursuant to this Agreement; provided that the notional
amount of all such agreements at any time shall not exceed the aggregate
amount of the Commitments at such time;
(viii) Debt incurred pursuant to the Swingline Note; and
(ix) Debt incurred pursuant to the ELLF.
The Lenders shall use their best commercially reasonable efforts to respond
to a request from the Borrower for approval of Subordinated Debt (on terms
acceptable to the Required Lenders in their sole discretion) within five (5)
Business Days after the Agent's and the Lender's
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receipt of information regarding the amount and material terms thereof;
provided, however, the failure to approve or disapprove such Subordinated Debt
during such period shall not constitute approval.
6.4 Contingent Obligations. Create, incur, assume or suffer to exist any
Contingent Obligation other than:
(i) endorsements of instruments or items of payment for deposit or
collection in the ordinary course of business;
(ii) Contingent Obligations incurred pursuant to the Guaranty
Agreements;
(iii) guarantees by the Borrower or any Subsidiary of obligations
of the Borrower or any of its Subsidiaries under leases permitted
hereunder;
(iv) guarantees by the Borrower or any Subsidiary of any other Debt
permitted under SECTION 6.3; and
(v) guarantees by the Borrower of the obligations of any Subsidiary
under any Management Services Agreement to which such Subsidiary is a
party, provided that such guaranteed obligations are incurred in the
ordinary course of business of the Borrower and are consistent with the
obligations under the Management Services Agreements otherwise entered into
by the Borrower or its Subsidiaries.
6.5 Liens and Encumbrances. Create, assume or suffer to exist any deed of
trust, mortgage or encumbrance, lien (including a lien of attachment, judgment
or execution) or security interest (including the interest of a conditional
seller of goods), securing a charge or obligation, in or on any of its property,
real or personal, whether now owned or hereafter acquired, except for Permitted
Liens.
6.6 Disposition of Assets. Sell, lease, transfer, convey or otherwise
dispose of any of its assets or property, including, without limitation, the
Collateral, except for (i) sales of inventory in the ordinary course of
business; (ii) the sale or exchange of used equipment, to the extent the
proceeds of such sale are applied towards, or such equipment is exchanged for,
similar replacement equipment or the sale or exchange of obsolete equipment;
(iii) the sale of assets to physicians in accordance with Part II of SCHEDULE
1.1(A); provided that the Total Commitments shall be reduced by the amount of
the proceeds of such sales and such proceeds shall be used to make any repayment
required pursuant to SECTION 2.5(B) to the extent that (a) such sale arises from
the termination of any Management Services Agreement for cause by such
physicians or (b) the aggregate proceeds of sales under this subsection (III)
exceed the aggregate Transaction Amounts of Physician Transactions during any
period of two consecutive fiscal quarters following the Closing Date; (iv) other
dispositions not exceeding $1,000,000 in the aggregate, for the Borrower and its
Subsidiaries, for any fiscal year; (v) any sale, lease, transfer or conveyance
from one Subsidiary to another Subsidiary or to the Borrower or from the
Borrower to any Subsidiary in accordance with SECTION 6.7, provided that, with
respect to this clause (v), (y) immediately after giving effect thereto, no
Default or Event of Default would exist, and
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(z) with respect to any transfer from the Borrower or a Guarantor to a
Subsidiary that is not a Guarantor, the Borrower shall notify the Agent and the
Lenders thereof and, at the request of the Required Lenders, shall cause the
transferee Subsidiary to comply with the provisions of SECTION 5.11; (vi) the
sale or other disposition of any Margin Stock; and (vii) dispositions made in
compliance with the terms of the ELLF of property (y) financed with the proceeds
of the ELLF or (z) conveyed to the Trust (as defined in the Participation
Agreement) by the Borrower or any Subsidiary.
6.7 Transactions with Related Persons. Except as otherwise permitted by
SECTIONS 6.1, 6.3, 6.4, 6.6 and 6.8, directly or indirectly make any loan or
advance to, or purchase, assume or guarantee any Debt to or from, any of its
officers, directors, stockholders or Affiliates, or subcontract any operations
to any Affiliate, or enter into any transaction with any Affiliate, except (a)
in the ordinary course of and pursuant to the reasonable requirements of the
Borrower's or such Subsidiary's business and (b) upon fair and reasonable terms
no less favorable to the Borrower or such Subsidiary than would obtain in a
comparable arm's-length transaction with a Person not an Affiliate; provided,
that the Borrower or any of its Subsidiaries may (i) provide legal and
accounting services to their officers, directors and employees in the ordinary
course of business and consistent with past practice, (ii) provide
indemnification to their officers, directors and employees to the extent
permitted by applicable law, (iii) pay reasonable and customary fees to
directors, and (iv) provide other corporate management, cash management, back-
office, legal, accounting and consulting services to Affiliates who are not
Subsidiaries, provided, that the aggregate fair market value of such services
pursuant to this subsection (IV) (and not otherwise covered by subsections (I),
(II) OR (III)) shall not exceed $250,000 in any calendar year.
6.8 Restricted Investments; Loans. Purchase, own, invest in or otherwise
acquire, directly or indirectly, any Stock, Debt, evidence of indebtedness or
other obligation or security or any interest whatsoever in any other Person, or
make or permit to exist any loans, advances or extensions of credit to, or any
investment in cash or by delivery of property in, any Person, or make a
commitment or otherwise agree to do any of the foregoing, except for (a)
investments in Cash Investments, (b) loans and advances to employees for
reasonable travel and business expenses in the ordinary course of business, (c)
prepaid expenses incurred in the ordinary course of business, (d) accounts
receivable created in the ordinary course of business (e) investments in
Subsidiaries in existence as of the Closing Date or in new Subsidiaries created
or acquired in compliance with the applicable provisions of SECTIONS 5.11, 5.14,
6.2 and 6.18, (f) investments and loans set forth on SCHEDULE 6.8 attached
hereto, as renewed or extended, and (g) other investments not covered in clauses
(a) through (e) having an aggregate cost to the Borrower and its Subsidiaries
not to exceed $15,000,000 at any time. If any Person would become a Subsidiary
(but not a wholly-owned Subsidiary) of the Borrower or any Subsidiary solely by
reason of an investment made pursuant to SUBSECTION (G) hereof, then such Person
shall not be considered a Subsidiary for purposes of this Agreement or any Loan
document; provided, that if Generally Accepted Accounting Principles require
such Person to be included in the Borrower's consolidated financial statements,
then such Person shall be so included in the financial statements for all
purposes including the calculation of the financial covenants in SECTIONS 6.11
through 6.15.
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6.9 Restricted Payments. (a) Declare or pay any dividends upon any of its
Stock (other than dividends paid in Stock and dividends paid to the Borrower or
by a Subsidiary to another Subsidiary), or (b) (in the case of the Borrower)
purchase, redeem, retire or otherwise acquire, directly or indirectly, any
shares of its Stock, or any option, warrant or other right to acquire shares of
its Stock or make any distribution of cash, property or assets other than Stock
among the holders of shares of its Stock; provided, however, that so long as no
Default or Event of Default shall have occurred and be continuing or would occur
after giving effect thereto, the Borrower may expend an aggregate amount up to
$25,000,000 to repurchase shares of its Stock.
6.10 Capital Expenditures. Make any Capital Expenditures (other than in
connection with a Physician Transaction allowed under SECTIONS 5.14 or 6.2
hereof) if, after giving effect to such Capital Expenditures, the aggregate
amount of all such Capital Expenditures made by the Borrower and its
Subsidiaries during any fiscal quarter, beginning with the current fiscal
quarter, shall exceed the amount equal to ten percent (10%) of Consolidated Net
Revenue for such fiscal quarter; provided, however, that in addition to the
foregoing permitted Capital Expenditures, the Borrower and its Subsidiaries may
make additional Capital Expenditures during the term of the Facility in
connection with and as permitted under the ELLF.
6.11 Consolidated Net Worth. Permit Consolidated Net Worth at the end of
any fiscal quarter, beginning with the fiscal quarter ending December 31, 1996,
to be less than (i) $200,000,000, increased by 80% of Consolidated Net Income
(if positive) for each fiscal quarter thereafter, plus (ii) 90% of the positive
amount of all increases in capital stock and additional paid-in capital from
issuances of equity securities or other capital investments.
6.12 EBITDA to Interest Expense. Permit the ratio of EBITDA for the
relevant fiscal quarter to Interest Expense for the relevant fiscal quarter at
the end of any fiscal quarter to be less than 3.5 to 1.0.
6.13 Annualized EBITDAR to Debt Service Ratio. Permit the ratio of
Annualized EBITDAR to Debt Service at the end of any fiscal quarter to be less
than 1.35 to 1.0.
6.14 Consolidated Debt to Annualized EBITDA. Permit the ratio of
Consolidated Debt to Annualized EBITDA as of the end of any fiscal quarter to be
greater than 3.50 to 1.0.
6.15 Consolidated Debt to Consolidated Total Capital. Permit the ratio of
Consolidated Debt to Consolidated Total Capital as of the end of any fiscal
quarter to be greater than 0.55 to 1.0.
6.16 Sale and Leaseback. Enter into any arrangement with any Person (other
than the Borrower or any Subsidiary, provided the provisions of SECTION 6.7 are
satisfied) providing for the leasing by the Borrower or any Subsidiary of any
asset that has been sold or transferred by the Borrower or such Subsidiary to
such Person, other than a lease pursuant to the ELLF of property transferred as
permitted under SECTION 6.6(VII).
6.17 New Business. Engage in any business other than the business in which
the Borrower or such Subsidiary is currently engaged or a business reasonably
related thereto
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(including without limitation the development of radiation and medical oncology
facilities and the acquisition and construction of properties in connection
therewith) or make any material change in any of its business objectives,
purposes and operations that would be reasonably likely to materially adversely
affect the repayment of the Obligations.
6.18 Subsidiaries or Partnerships. Except as otherwise permitted by
SECTION 6.8, (a) become a partner or joint venturer in any partnership or joint
venture, or (b) create or acquire any new Subsidiary; provided that the Borrower
or any Subsidiary may (i) create or acquire one or more Subsidiaries in
connection with a Permitted Physician Transaction or an approved Physician
Transaction consummated in compliance with SECTION 5.14 or 6.2, respectively, of
this Agreement, and (ii) create a direct or indirect wholly-owned Subsidiary de
novo; provided further that, in any such instance, the created or acquired
Subsidiary complies with the provisions of SECTION 5.11.
6.19 Transactions Affecting the Collateral. Enter into any transaction
that materially adversely affects a material portion of the Collateral.
Notwithstanding the foregoing, the Borrower and its Subsidiaries may sell
certain assets as provided in SECTION 6.6(III) hereof.
6.20 Hazardous Wastes. Permit any Hazardous Substances the removal of
which is required or the maintenance of which is restricted, prohibited or
penalized by any Governmental Authority, to be unlawfully brought on to any real
property owned or leased by the Borrower or any Subsidiary, or if so brought or
found located thereon, fail to promptly commence and continue removal of such
materials, with proper disposal, in accordance with required cleanup procedures
under applicable Environmental Laws, except where any of the foregoing would not
have a Material Adverse Effect.
6.21 Fiscal Year. Change its fiscal year from a December 31 year end.
6.22 Amendments; Prepayments of Subordinated Debt or Permitted
Subordinated Debt, etc. (a) Amend or modify (or permit the amendment or
modification of) any of the terms or provisions of any Subordinated Debt or
Permitted Subordinated Debt or any agreement related thereto or (b) make any
voluntary or optional payment or prepayment or redemption or acquisition for
value of (including, without limitation, by way of depositing with any trustee
with respect thereto money or securities before due for the purpose of paying
when due), or exchange, any Subordinated Debt or Permitted Subordinated Debt;
provided, that the terms or provisions of any Permitted Subordinated Debt may be
amended or modified if (i) such Permitted Subordinated Debt, as amended or
modified, complies with the conditions set forth in the definition of "Permitted
Subordinated Debt" and (ii) such amendment or modification does not adversely
effect the rights or interests of the Agent or Lenders.
6.23 Fraud and Abuse. Neither the Borrower nor any Subsidiary, nor any of
their respective officers or directors, shall engage on behalf of Borrower or
any Subsidiary in any of the following: (i) knowingly and willfully making or
causing to be made a false statement or representation of a material fact in any
applications for any benefit or payment under Medicare or Medicaid programs;
(ii) knowingly and willfully making or causing to be made any false statement or
representation of a material fact for use in determining rights to any benefit
or
73
payment under Medicare or Medicaid programs; (iii) failing to disclose knowledge
by a claimant of the occurrence of any event affecting the initial or continued
right to any benefit or payment under Medicare or Medicaid programs on its own
behalf or on behalf of another, with intent to secure such benefit or payment
fraudulently; (iv) knowingly and willfully soliciting or receiving any
remuneration (including any kickback, bribe or rebate), directly or indirectly,
overtly or covertly, in cash or in kind or offering to pay such remuneration (a)
in return for referring an individual to a person for the furnishing or
arranging for the furnishing of any item or service for which payment may be
made in whole or in part by Medicare or Medicaid, or (b) in return for
purchasing, leasing or ordering or arranging for or recommending the purchasing,
leasing or order of any good, facility, service, or item for which payment may
be made in whole or in part by Medicare or Medicaid. With respect to this
Section, knowledge by an individual director or officer of the Borrower or a
Subsidiary of any of the event described in this Section shall not be imputed to
the Borrower or such Subsidiary unless such knowledge was obtained or learned by
the director or officer in his or her official capacity as a director or officer
of the Borrower or such Subsidiary. Neither the Borrower nor any Subsidiary
shall be considered to have breached this Section, except in the case of a
knowing and willful violation thereof, until the Borrower or such Subsidiary has
received notification, written or oral, by a Governmental Authority of competent
jurisdiction as to any such violation. The provisions of SUBSECTION (III) hereof
shall not require the Borrower or any Subsidiary (unless otherwise required by
law) to disclose to the Agent, Lenders or any other Person any activity or
omission by a third party (including associated physician groups) unless such
activity or omission (x) constitutes willful fraud or abuse, (y) would
reasonably be likely to have a Material Adverse Effect or (z) is not being
corrected, cured or remedied by the Borrower and any other relevant Persons
diligently, in good faith and in the exercise of sound business judgment.
ARTICLE VII.
EVENTS OF DEFAULT
7.1 Events of Default. The occurrence of any one or more of the following
events shall constitute an "Event of Default":
(a) The Borrower fails to pay when due any principal of any Note when the
same becomes due or fails to pay any fees or interest or other Obligations under
this Agreement or any other Loan Document within three (3) days of when due;
(b) The Borrower or any Subsidiary fails or neglects to observe, perform or
comply with any term, provision, condition or covenant contained in SECTIONS
2.14, 5.1, 5.2, 5.3(A)(I) or ARTICLE VI (except, in the case of SECTION 6.5, to
the extent permitted under SECTION 7.1(S) below);
(c) The Borrower or any Subsidiary fails or neglects to observe, perform or
comply with any term, provision, condition or covenant contained herein except
those specified in subsections (A) and (B) above (and except to the extent that
violations of any such provisions or covenants otherwise trigger an Event of
Default under any of the other subparagraphs of this
74
SECTION 7.1), and the same is not cured to the Required Lenders' satisfaction
within thirty (30) Business Days after the earlier of (i) notice thereof from
the Agent or (ii) Borrower or such Subsidiary acquires knowledge thereof;
(d) If any representation or warranty made in writing by or on behalf of
the Borrower or any Subsidiary in this Agreement, in the other Loan Documents or
in any other agreement now existing or hereafter executed between the Borrower
or any Subsidiary and the Agent or any Lender in connection with any Loan
Document, or in connection with the transactions contemplated hereby or thereby,
shall prove to have been false or misleading in any material respect when made;
(e) The occurrence of any default or event of default on the part of the
Borrower or any Subsidiary (including specifically, but without limitation,
defaults due to nonpayment) under the terms of any agreement, document or
instrument (including, without limitation, the Operative Documents (as defined
in the definition of "ELLF" herein)) pursuant to which the Borrower or such
Subsidiary has incurred any Debt having an aggregate outstanding principal
amount of greater than $250,000 (other than the intercompany loans), which
default would permit acceleration of such Debt;
(f) The termination of any one or more agreements, contracts or instruments
to which a Borrower or any Subsidiary is a party or by which it or any of its
properties are bound, and such termination or aggregate terminations results in
a Material Adverse Effect;
(g) The occurrence of an "Event of Default" under any of the Loan
Documents;
(h) The occurrence of any material uninsured damage to or loss, theft or
destruction of the Collateral or other assets of the Borrower or any Subsidiary
that has a Material Adverse Effect;
(i) The Borrower or any of its Subsidiaries shall (i) file a voluntary
petition or commence a voluntary case seeking liquidation, winding-up,
reorganization, dissolution, arrangement, readjustment of debts or any other
relief under the Bankruptcy Code or under any other applicable bankruptcy,
insolvency or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to controvert in a timely and appropriate manner, any
petition or case of the type described in subsection (J) below, (iii) apply for
or consent to the appointment of or taking possession by a custodian, trustee,
receiver or similar official for or of itself or all or a substantial part of
its properties or assets, (iv) fail generally, to pay its debts generally as
they become due, or (v) make a general assignment for the benefit of creditors;
(j) Any involuntary petition or case shall be filed or commenced against
the Borrower or any of its Subsidiaries seeking liquidation, winding-up,
reorganization, dissolution, arrangement, readjustment of debts, the appointment
of a custodian, trustee, receiver or similar official for it or all or a
substantial part of its properties or any other relief under the Bankruptcy Code
or under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, and such petition or case shall continue undismissed and
unstayed for a period of sixty
75
(60) days; or an order, judgment or decree approving or ordering any of the
foregoing shall be entered in any such proceeding;
(k) (i) The Borrower ceases to be Solvent (taking into account any rights
of contribution), or (ii) the Borrower or any of its Subsidiaries (x) ceases to
conduct its business as now conducted or (y) is enjoined, restrained or in any
way prevented by court order from conducting all or any material part of its
business affairs, except as otherwise specifically permitted under SECTION 6.1
or except where such cessation, injunction, restraint or order would not have a
Material Adverse Effect;
(l) A notice of lien, levy or assessment in excess of $250,000 is filed of
record against any portion of the assets of the Borrower or any Subsidiary by
the United States, or any department, agency or instrumentality thereof, or by
any other Governmental Authority, including, without limitation, the Pension
Benefit Guaranty Corporation, or if any taxes or debts in excess of $250,000
owing at any time or times hereafter to any one of them becomes a lien or
encumbrance (other than a Permitted Lien) upon the Collateral or any other asset
of the Borrower or any Subsidiary, and the same is not dismissed, released,
discharged or stayed pending appeal within thirty (30) days after the same
becomes a lien or encumbrance or, in the case of ad valorem taxes, prior to the
last day when payment may be made without penalty;
(m) The entry of a judgment or the issuance of a warrant of attachment,
execution or similar process against the Borrower or any Subsidiary or any of
their respective assets that are $200,000 or more in excess of proceeds of
insurance which shall not be dismissed, discharged, stayed pending appeal or
bonded within sixty (60) days after entry unless the Borrower or its Subsidiary
is diligently contesting such judgment in good faith by appropriate proceedings
with adequate funded reserves being set aside on its books in accordance with
Generally Accepted Accounting Principles;
(n) The occurrence of any of the following events: (i) the happening of a
Reportable Event that could give rise to liability (that is not waived by the by
the Pension Benefit Guaranty Corporation or by the Required Lenders, or if such
liability can be avoided by any corrective action of the Borrower, such
corrective action is not completed within ninety (90) days after the occurrence
of such Reportable Event) with respect to any Pension Plan; (ii) the termination
of any Pension Plan in a "distress termination" under the provisions of Section
4041 of ERISA; (iii) the appointment of a trustee by an appropriate United
States District Court to administer any Pension Plan; (iv) the institution of
any proceedings by the Pension Benefit Guaranty Corporation to terminate any
Pension Plan or to appoint a trustee to administer any such plan; and (v) the
failure of the Borrower to notify the Lenders promptly upon receipt by the
Borrower of any notice of the institution of any proceeding or any other actions
that may result in the termination of any such plan;
(o) The Borrower or any Subsidiary, to the extent, if any, presently
participating or required by law to participate, in Medicaid or Medicare
programs shall fail to be eligible for any reason to participate in Medicaid or
Medicare programs or to accept assignments or rights to reimbursement under
Medicaid Regulations or Medicare Regulations and such failure shall have
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a Material Adverse Effect and such failure shall also continue beyond the
completion of any appeal process diligently pursued by the Borrower or such
Subsidiary in good faith;
(p) For any reason other than the satisfaction in full of all Obligations
and termination of this Agreement or the release of any relevant Subsidiary from
its Obligations under the Guaranty Agreement in accordance with the terms
thereof, (i) the guaranty given by any Subsidiary of the Borrower under the
Guaranty Agreement shall cease to be in full force and effect at any time or is
declared to be null and void or (ii) any such Subsidiary denies that it has any
further liability under the Guaranty Agreement or gives notice to such effect,
and such denial or notice is not revoked within one Business Day after the
earlier of (A) receipt by the Borrower of notice from the Agent or any Lender of
such denial or notice or (B) the Borrower becomes aware of such denial or notice
being made or given, as the case may be;
(q) For any reason other than the satisfaction in full of all Obligations
and termination of this Agreement and termination of the ELLF, the release of
any relevant Subsidiary from its Obligations under the Guarantors Security
Agreement in accordance with the terms thereof or hereof, or the release of any
Collateral under either Security Agreement in accordance with the terms thereof
or hereof, (i) either Security Agreement shall cease to be in full force and
effect at any time or is declared to be null and void with respect to any
material portion of the Collateral, (ii) the Agent ceases to have a perfected,
first priority security interest in any material portion of the Collateral
(subject to Permitted Liens), (iii) the Borrower denies that it has any further
liability under the Security Agreement or gives notice to such effect or (iv)
any Subsidiary denies that it has any further liability under the Guarantors'
Security Agreement or gives notice to such effect, and such denial or notice is
not revoked within one Business Day after the earlier of (A) receipt by the
Borrower of notice from the Agent or any Lender of such denial or notice or (B)
the Borrower becomes aware of such denial or notice being made or given, as the
case may be;
(r) The occurrence of any Material Adverse Change;
(s) Change of Control shall occur; or
(t) The existence of any security interests, liens or other encumbrances in
excess of $250,000 in the aggregate at any time, arising from or relating to any
Physician Transaction or Subsidiary acquired in such Physician Transaction,
other than Permitted Liens.
ARTICLE VIII.
RIGHTS AND REMEDIES AFTER EVENT OF DEFAULT
8.1 Remedies: Termination of Commitments, Acceleration, etc. Upon and
at any time after the occurrence and during the continuance of any Event of
Default, the Agent shall at the direction, or may with the consent, of the
Required Lenders, take any or all of the following actions at the same or
different times:
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(a) Declare the Commitments of each Lender and the Issuing Bank's
obligations to issue Letters of Credit to be terminated, whereupon the same
shall terminate (provided that, upon the occurrence of an Event of Default
pursuant to SECTIONS 7.1(I) or (J), all of the Commitments shall automatically
be terminated);
(b) Declare all or any part of the outstanding principal amount of the
Loans, all unpaid interest accrued thereon, and all other amounts (excluding
unearned interest) payable under this Agreement, the Notes and the other Loan
Documents to be immediately due and payable, whereupon such outstanding
principal amounts, accrued interest and other such amounts shall become
immediately due and payable without presentment, demand, protest, notice of
intent to accelerate or other notice or legal process of any kind, all of which
are hereby knowingly and expressly waived by the Borrower (provided that, upon
the occurrence of an Event of Default pursuant to SECTIONS 7.1(I) or (J), all of
such outstanding principal amounts, accrued interest and other such amounts
shall automatically become immediately due and payable);
(c) Direct the Borrower to deposit (and the Borrower hereby agrees,
forthwith upon receipt of notice of such direction from the Agent, to deposit)
with the Agent from time to time such additional amount of cash as is equal to
the aggregate Stated Amount of all Letters of Credit then outstanding (whether
or not any beneficiary under any Letter of Credit shall have drawn or be
entitled at such time to draw thereunder), such amount to be held by the Agent
in the Cash Collateral Account as security for the Letter of Credit Outstandings
as described in SECTION 2.20(J); and
(d) Exercise all rights and remedies available to it under this
Agreement, the other Loan Documents and applicable law.
8.2 Right of Setoff. The Agent and each Lender (including, without
limitation, the Issuing Bank and the L/C Participants) may, and are hereby
authorized by the Borrower, at any time and from time to time, to the fullest
extent permitted by applicable law, without advance notice to the Borrower (any
such notice being expressly waived by the Borrower) and irrespective of demand
for payment, to set off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held in other than a fiduciary
account and any other indebtedness at any time owing by such Lender to or for
the credit or the account of the Borrower against any or all of the Obligations
now or hereafter existing, which are then due and payable. The Agent agrees to
notify the Borrower after any such setoff or application, provided that the
failure to give such notice shall not affect the validity of such setoff and
application.
8.3 Rights and Remedies Cumulative; Non-Waiver; etc. The enumeration
of the Agent's and the Lenders' rights and remedies set forth in this Agreement
is not intended to be exhaustive, and the exercise by the Agent or any Lender of
any right or remedy shall not preclude the exercise of any other rights or
remedies, all of which shall be cumulative, and shall be in addition to any
other right or remedy given hereunder, under the Loan Documents or under any
other agreement between the Borrower or any Subsidiary and the Agent or the
Lenders or that may now or hereafter exist in law or in equity or by suit or
otherwise. No delay or failure to take
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action on the part of the Agent or any Lender in exercising any right, power or
privilege shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or privilege preclude other or further
exercise thereof or the exercise of any other right, power or privilege or shall
be construed to be a waiver of any Event of Default. No course of dealing
between the Borrower or any Subsidiary and the Agent or the Lenders or their
agents or employees shall be effective to change, modify or discharge any
provision of this Agreement or any of the other Loan Documents or to constitute
a waiver of any Event of Default.
ARTICLE IX.
THE AGENT
9.1 Appointment. Each Lender hereby irrevocably appoints and
authorizes First Union to act as Agent hereunder and under the other Loan
Documents and to take such actions as agent on its behalf hereunder and under
the other Loan Documents, and to exercise such powers and to perform such
duties, as are specifically delegated to the Agent by the terms hereof or
thereof, together with such other powers and duties as are reasonably incidental
thereto.
9.2 Nature of Duties. The Agent shall have no duties or
responsibilities other than those expressly set forth in this Agreement and the
other Loan Documents. The Agent shall not have, by reason of this Agreement or
any other Loan Document, a fiduciary relationship in respect of any Lender; and
nothing in this Agreement or any other Loan Document, express or implied, is
intended to or shall be so construed as to impose upon the Agent any obligations
or liabilities in respect of this Agreement or any other Loan Document except as
expressly set forth herein or therein. The Agent may execute any of its duties
under this Agreement or any other Loan Document by or through agents or
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact that it selects with reasonable care. The
Agent shall be entitled to consult with legal counsel, independent public
accountants and other experts selected by it with respect to all matters
pertaining to this Agreement and the other Loan Documents and its duties
hereunder and thereunder and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts. The Lenders hereby acknowledge that the Agent shall not
be under any duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement or any other Loan Document unless
it shall be requested in writing to do so by the Required Lenders (or, where a
higher percentage of the Lenders is expressly required hereunder, such Lenders).
9.3 Exculpatory Provisions. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(i) liable to any Lender for any action taken or omitted to be taken by it or
such Person under or in connection with the Loan Documents, except for its or
such Person's own gross negligence or willful misconduct, (ii) responsible in
any manner to any Lender for any recitals, statements, information,
representations or warranties herein or in any other Loan Document or in any
document, instrument, certificate, report or other writing delivered in
connection herewith or therewith, for
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the execution, effectiveness, genuineness, validity, enforceability or
sufficiency of this Agreement or any other Loan Document, or for the financial
condition of the Borrower, its Subsidiaries or any other Person, or (iii)
required to ascertain or make any inquiry concerning the performance or
observance of any of the terms, provisions or conditions of this Agreement or
any other Loan Document or the existence or possible existence of any Default or
Event of Default, or to inspect the properties, books or records of the Borrower
or any of its Subsidiaries.
9.4 Reliance by Agent. The Agent shall be entitled to rely, and shall
be fully protected in relying, upon any notice, statement, consent or other
communication (including, without limitation, any thereof by telephone,
telecopy, telex, telegram or cable) believed by it in good faith to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons. The Agent may deem and treat each Lender as the owner of its interest
hereunder for all purposes hereof unless and until a written notice of the
assignment, negotiation or transfer thereof shall have been given to the Agent
in accordance with the provisions of this Agreement. The Agent shall be entitled
to refrain from taking or omitting to take any action in connection with this
Agreement or any other Loan Document (i) if such action or omission would, in
the reasonable opinion of the Agent, violate any applicable law or any provision
of this Agreement or any other Loan Document or (ii) unless and until it shall
have received such advice or concurrence of the Required Lenders (or, where a
higher percentage of the Lenders is expressly required hereunder, such Lenders)
as it deems appropriate or it shall first have been indemnified to its
satisfaction by the Lenders against any and all liability and expense (other
than liability and expense arising from its own gross negligence or willful
misconduct) that may be incurred by it by reason of taking, continuing to take
or omitting to take any such action. Without limiting the foregoing, no Lender
shall have any right of action whatsoever against the Agent as a result of the
Agent's acting or refraining from acting hereunder or under any other Loan
Document in accordance with the instructions of the Required Lenders (or, where
a higher percentage of the Lenders is expressly required hereunder, such
Lenders), and such instructions and any action taken or failure to act pursuant
thereto shall be binding upon all of the Lenders (including all subsequent
Lenders).
9.5 Non-Reliance on Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representation or warranty to it and that no act by the Agent or any such Person
hereafter taken, including any review of the affairs of the Borrower and its
Subsidiaries, shall be deemed to constitute any representation or warranty by
the Agent to any Lender. Each Lender represents to the Agent that (i) it has,
independently and without reliance upon the Agent or any other Lender and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
properties, financial and other condition and creditworthiness of the Borrower
and its Subsidiaries and made its own decision to enter into this Agreement and
extend credit to the Borrower hereunder, and (ii) it will, independently and
without reliance upon the Agent or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
hereunder and under the other Loan Documents and to make such investigation as
it deems necessary to inform itself as to the business, prospects, operations,
properties, financial and other condition and
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creditworthiness of the Borrower and its Subsidiaries. Except as expressly
provided in this Agreement and the other Loan Documents, the Agent shall have no
duty or responsibility, either initially or on a continuing basis, to provide
any Lender with any credit or other information concerning the business,
prospects, operations, properties, financial or other condition or
creditworthiness of the Borrower, its Subsidiaries or any other Person that may
at any time come into the possession of the Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
9.6 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default unless
the Agent shall have received written notice from the Borrower or a Lender
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default." In the event that the Agent
receives such a notice, the Agent will give prompt notice thereof to the
Lenders; provided, however, that if any such notice has also been furnished to
the Lenders, the Agent shall have no obligation to notify the Lenders with
respect thereto. The Agent shall (subject to SECTIONS 9.4 and 10.8) take such
action with respect to such Default or Event of Default as shall reasonably be
directed by the Required Lenders; provided that, unless and until the Agent
shall have received such directions, the Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of
the Lenders.
9.7 Indemnification. To the extent the Agent is not reimbursed by or
on behalf of the Borrower, and without limiting the obligation of the Borrower
to do so, the Lenders agree (i) to indemnify the Agent and its officers,
directors, employees, agents, attorneys-in-fact and Affiliates, ratably in
proportion to their respective Percentages as used in determining the Required
Lenders as of the date of determination, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including, without limitation, attorneys' fees and expenses) or
disbursements of any kind or nature whatsoever that may at any time (including
at any time following the repayment in full of the Loans and the termination of
the Commitments) be imposed on, incurred by or asserted against the Agent in any
way relating to or arising out of this Agreement or any other Loan Document or
any documents contemplated by or referred to herein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Agent under
or in connection with any of the foregoing, and (ii) to reimburse the Agent upon
demand, ratably in proportion to their respective Percentages as used in
determining the Required Lenders as of the date of determination, for any
expenses incurred by the Agent in connection with the preparation, negotiation,
execution, delivery, administration, amendment, modification, waiver or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement
or any of the other Loan Documents (including, without limitation, reasonable
attorneys' fees and expenses and compensation of agents and employees paid for
services rendered on behalf of the Lenders); provided, however, that no Lender
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
to the extent resulting from the gross negligence or willful misconduct of the
party to be indemnified.
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9.8 The Agent in its Individual Capacity. With respect to its
Commitment, the Loans made by it, the Letters of Credit issued by it and the
Note or Notes issued to it, the Agent in its individual capacity and not as
Agent shall have the same rights and powers under the Loan Documents as any
other Lender and may exercise the same as though it were not performing the
agency duties specified herein; and the terms "Lenders," "Required Lenders,"
"holders of Notes" and any similar terms shall, unless the context clearly
otherwise indicates, include the Agent in its individual capacity. The Agent
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of banking, trust, financial advisory or other business with the
Borrower, any of its Subsidiaries or any of their respective Affiliates as if
the Agent were not performing the agency duties specified herein, and may accept
fees and other consideration from any of them for services in connection with
this Agreement and otherwise without having to account for the same to the
Lenders.
9.9 Successor Agent. The Agent may resign at any time by giving
thirty (30) days' prior written notice to the Borrower and the Lenders. Upon any
such notice of resignation, the Required Lenders will, with the prior written
consent of the Borrower (which consent shall not be unreasonably withheld),
appoint from among the Lenders a successor to the Agent (provided that the
Borrower's consent shall not be required in the event a Default or Event of
Default shall have occurred and be continuing). If no successor to the Agent
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within such thirty-day period, then the retiring Agent may, on
behalf of the Lenders and after consulting with the Lenders and the Borrower,
appoint a successor Agent from among the Lenders. Upon the acceptance of any
appointment as Agent by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations hereunder and under the other Loan Documents. After any
retiring Agent's resignation as Agent, the provisions of this Article shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent. If no successor to the Agent has accepted appointment as Agent by
the thirtieth (30th) day following a retiring Agent's notice of resignation, the
retiring Agent's resignation shall nevertheless thereupon become effective, and
the Lenders shall thereafter perform all of the duties of the Agent hereunder
and under the other Loan Documents until such time, if any, as the Required
Lenders appoint a successor Agent as provided for hereinabove.
9.10 Collateral Matters.
(a) The Agent is hereby authorized on behalf of the Lenders, without
the necessity of any notice to or further consent from the Lenders, from time to
time (but without any obligation) to take any action with respect to the
Collateral and the Security Documents that may be necessary to perfect and
maintain perfected the Liens upon the Collateral granted pursuant to the
Security Documents.
(b) The Lenders hereby irrevocably authorize the Agent, at its option
and in its discretion, to release any Lien granted to or held by the Agent upon
any Collateral (i) upon termination of the Commitments and payment in full of
all of the Obligations and termination of the ELLF, (ii) constituting property
sold or to be sold or disposed of as part of or in connection
82
with any disposition that may be permitted hereunder or under any other Loan
Document or (iii) otherwise pursuant to and in accordance with the provisions of
SECTION 10.8(B) or any applicable Loan Document. Upon request by the Agent at
any time, the Lenders will confirm in writing the Agent's authority to release
Collateral pursuant to this subsection (B).
9.11 Applicable Parties. The provisions of this ARTICLE IX, other
than the provisions of SECTION 9.9, are solely for the benefit of the Agent and
the Lenders, and the Borrower shall not have any rights as a third party
beneficiary or otherwise or any obligations under any of the provisions of this
ARTICLE IX, other than as provided in SECTION 9.9. In performing functions and
duties hereunder and under the other Loan Documents, the Agent shall act solely
as the Agent of the Lenders and does not assume, nor shall be deemed to have
assume, any obligation or relationship of trust or agency with or for the
Borrower or any legal representative, successor and assign of the Borrower.
ARTICLE X.
MISCELLANEOUS
10.1 Survival. The representations and warranties made by or on
behalf of the Borrower or any Subsidiary in this Agreement and in each other
Loan Document shall survive the execution and delivery of this Agreement and
each such other Loan Document until the satisfaction of all of Obligations and
the termination of the Commitments. Notwithstanding any other provision herein
or anything provided or implied by law to the contrary, no termination or
cancellation (regardless of cause or procedure) of the Commitments, this
Agreement or any of the other Loan Documents shall in any way affect or impair
the rights and obligations of the parties hereto with respect to any of the
provisions of (i) SECTION 2.17 or (ii) this Agreement and the other Loan
Documents relating to indemnification or payment of costs and expenses,
including, without limitation, all of the provisions of SECTIONS 2.13(A),
2.13(B), 2.14, 2.15, 9.7, 10.3, 10.6 and 10.7, and, in each case, such
provisions shall survive any such termination or cancellation and the making and
repayment of the Loans.
10.2 Governing Law; Consent to Jurisdiction; Waiver of Jury
Trial. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS HAVE BEEN EXECUTED, DELIVERED
AND ACCEPTED IN, AND SHALL BE DEEMED TO HAVE BEEN MADE IN, NORTH CAROLINA AND
SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NORTH CAROLINA (WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS
THEREOF); PROVIDED THAT EACH LETTER OF CREDIT SHALL BE GOVERNED BY AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT OR, IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND
PRACTICES FOR DOCUMENTARY CREDITS, INTERNATIONAL CHAMBER OF COMMERCE, AS IN
EFFECT FROM TIME TO TIME (THE "UNIFORM CUSTOMS"), AND, AS TO MATTERS NOT
GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE
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STATE OF NORTH CAROLINA (WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS
THEREOF). THE BORROWER HEREBY CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF ANY
STATE COURT WITHIN MECKLENBURG COUNTY, NORTH CAROLINA OR ANY FEDERAL COURT
LOCATED WITHIN THE WESTERN DISTRICT OF THE STATE OF NORTH CAROLINA FOR ANY
PROCEEDING INSTITUTED HEREUNDER OR UNDER ANY OF THE OTHER LOAN DOCUMENTS, OR
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS, OR ANY PROCEEDING TO WHICH THE AGENT OR ANY LENDER OR THE BORROWER IS
A PARTY, INCLUDING ANY ACTIONS BASED UPON, ARISING OUT OF, OR IN CONNECTION
WITH, ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER ORAL OR
WRITTEN) OR ACTIONS OF THE AGENT OR ANY LENDER OR THE BORROWER. THE BORROWER
IRREVOCABLY AGREES TO BE BOUND (SUBJECT TO ANY AVAILABLE RIGHT OF APPEAL) BY ANY
JUDGMENT RENDERED OR RELIEF GRANTED THEREBY AND FURTHER WAIVES ANY OBJECTION
THAT IT MAY HAVE BASED ON LACK OF JURISDICTION OR IMPROPER VENUE OR FORUM NON
CONVENIENS TO THE CONDUCT OF ANY SUCH PROCEEDING. THE BORROWER CONSENTS THAT ALL
SERVICE OF PROCESS BE MADE BY REGISTERED OR CERTIFIED MAIL DIRECTED TO IT AT ITS
ADDRESS SET FORTH HEREINBELOW, AND SERVICE SO MADE SHALL BE DEEMED TO BE
COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER
DEPOSIT IN THE UNITED STATES MAILS, PROPER POSTAGE PREPAID AND PROPERLY
ADDRESSED. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT TO SERVE LEGAL PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF ANY PARTY TO BRING
ANY ACTION OR PROCEEDING AGAINST ANY OTHER PARTY IN THE COURTS OF ANY OTHER
JURISDICTION. THE BORROWER, BY ITS ACCEPTANCE OF THE BENEFITS HEREOF, AND THE
AGENT AND EACH LENDER, HEREBY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
10.3 Arbitration; Preservation and Limitation of Remedies.
(a) Upon demand of any party hereto, whether made before or after
institution of any judicial proceeding (subject to the following limitation),
any dispute, claim or controversy arising out of, connected with or relating to
this Agreement or any other Loan Document ("Disputes") between or among the
Borrower, the Agent and the Lenders, or any of them, shall be resolved by
binding arbitration as provided herein; provided, however, that no party may
demand arbitration in any judicial proceeding to which it is a party more than
90 days from the later of (i) its commencement of such proceeding or (ii) the
date it is served with a complaint, counterclaim or third-party claim in such
proceeding. Disputes may include, without limitation, tort claims,
counterclaims, claims brought as class actions, claims arising from Loan
Documents executed in the future, or claims arising out of or connected with the
transactions contemplated by this
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Agreement and the other Loan Documents. Arbitration shall be conducted under and
governed by the Commercial Financial Disputes Arbitration Rules (the
"Arbitration Rules") of the American Arbitration Association (the "AAA"), as in
effect from time to time, and Title 9 of the U.S. Code, as amended. All
arbitration hearings shall be conducted in the city in which the principal
office of either the Agent or the Borrower is located. The expedited procedures
set forth in Rule 51 et seq. of the Arbitration Rules shall be applicable to
claims of less than $1,000,000. All applicable statutes of limitation shall
apply to any Dispute. All arbitrations commenced with respect to any of the Loan
Documents shall be consolidated for hearing before the same panel of arbitrators
as prescribed herein. Any attorney-client privilege or other protection against
disclosure of confidential information, including, without limitation, any
protection afforded the work product of any attorney, that would otherwise be
claimed by any party shall be available to and may be claimed by any such party
in any arbitration proceeding. A judgment upon the award may be entered in any
court having jurisdiction. The panel from which all arbitrators are selected
shall be comprised of licensed attorneys. The single arbitrator selected for
expedited procedure shall be a retired judge from the highest court of general
jurisdiction, state or federal, of the state where the hearing will be
conducted. Notwithstanding the foregoing, this arbitration provision does not
apply to Disputes under or related to Interest Rate Protection Agreements. An
arbitration arising from an Interest Rate Protection Agreement shall not be
consolidated with any other arbitration hereunder without the consent of all
parties to the arbitrations that are proposed to be consolidated.
(b) Notwithstanding the preceding binding arbitration provisions, the
parties hereto agree to preserve, without diminution, certain remedies that any
party hereto may employ or exercise freely, either alone, in conjunction with or
during a Dispute. Any party hereto shall have the right to proceed in any court
of proper jurisdiction or by self-help to exercise or prosecute the following
remedies, as applicable: (i) all rights to foreclose against any Collateral by
exercising a power of sale granted pursuant to any of the Loan Documents or
under applicable law other than judicial foreclosure and sale, including a
proceeding to confirm the sale; (ii) all rights of self-help, including peaceful
occupation of real property and collection of rents, setoff, and peaceful
possession of personal property; (iii) obtaining provisional or ancillary
remedies, including injunctive relief, sequestration, garnishment, attachment,
appointment of a receiver and filing an involuntary bankruptcy proceeding; and
(iv) when applicable, a judgment by confession of judgment. Preservation of
these remedies does not limit the power of an arbitrator to grant similar
remedies that may be requested by a party in a Dispute.
10.4 Notice. All notices and other communications provided for
hereunder or in connection herewith shall be in writing (including telegraphic,
telex, facsimile transmission or cable communication) and mailed, telegraphed,
telexed, telecopied, cabled or delivered to the party to be notified at the
following addresses:
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If to the Borrower: American Oncology Resources, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: L. ▇▇▇▇ Pounds, Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: Mayor, Day, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Agent: First Union National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndication Agency Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to any Lender: At the address set forth on its signature page hereto (or
if to any Lender not a party hereto as of the date
hereof, at the address for notices set forth in its
Assignment and Acceptance);
or to such other address as any party may designate for itself by like notice to
all other parties hereto. All such notices and communications shall be deemed
to have been given (i) if mailed as provided above by any method other than
overnight delivery service, on the third Business Day after deposit in the
mails, (ii) telegraphed, telexed, telecopied or cabled, when delivered to the
telegraph company, confirmed by telex answerback, transmitted by telecopier or
delivered to the cable company, respectively, or (iii) if delivered by hand, or
mailed by overnight delivery services upon delivery; provided that notices and
communications to the Agent shall not be effective until received by the Agent.
86
10.5 Assignments, Participations.
(a) Each Lender may assign to one or more other Eligible Assignees (each,
an "Assignee") all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment,
the outstanding Loans made by it, the Note or Notes held by it and its
participations in Letters of Credit); provided, however, that (i) so long as
First Union remains the Agent, it will retain a Commitment of ten percent (10%)
of the Total Commitment, up to a total exposure of $15,000,000 (including the
Commitment, Swingline Note and any commitment under the ELLF) at all times (free
of participation), (ii) each such assignment shall be of an equal percentage of
such Lender's rights and obligations (including its Commitment, the outstanding
Loans made by it, the Note or Notes held by it, its participations in Letters of
Credit and its commitment and loans as a Lender (as defined in the Participation
Agreement) under the ELLF), (iii) any such assignment (other than an assignment
to a Lender or an Affiliate of a Lender) shall not be made without the prior
written consent of the Agent and the Borrower (to be evidenced by their
counterexecution of the relevant Assignment and Acceptance), which consent shall
not be unreasonably withheld, (iv) except in the case of an assignment to a
Lender or an Affiliate of a Lender, the amount of the Commitment of the
assigning Lender being assigned pursuant to each such assignment (determined as
of the date of the Assignment and Acceptance with respect to each such
assignment) shall in no event be less than the lesser of (y) the entire
Commitment of such Lender immediately prior to such assignment or (z)
$5,000,000, and (v) the parties to each such assignment will execute and deliver
to the Agent, for its acceptance and recording in the Register, an Assignment
and Acceptance, together with any Note or Notes subject to such assignment, and
the assigning Lender will pay a nonrefundable processing fee of $3,000 to the
Agent for its own account. Upon such execution, delivery, acceptance and
recording of the Assignment and Acceptance, from and after the effective date
specified therein, which effective date shall be at least five (5) Business Days
after the execution and delivery to the Agent thereof (unless the Agent shall
otherwise agree), (A) the Assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Acceptance, shall have the rights and
obligations of the assigning Lender hereunder with respect thereto and (B) the
assigning Lender shall, to the extent that rights and obligations hereunder have
been assigned by it pursuant to such Assignment and Acceptance, and from and
after such assignment, relinquish its rights (other than rights under the
provisions of this Agreement and the other Loan Documents relating to
indemnification or payment of fees, costs and expenses, to the extent such
rights relate to the time prior to the effective date of such Assignment and
Acceptance) and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of such assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto). The terms and provisions of each
Assignment and Acceptance shall, upon the effectiveness thereof, be incorporated
into and made a part of this Agreement, and the covenants, agreements and
obligations of each Lender set forth therein shall be deemed made to and for the
benefit of the Agent and the other parties hereto as if set forth at length
herein.
(b) The Agent will maintain at its address for notices referred to herein a
copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of
87
the names and addresses of the Lenders and the Commitments of, and principal
amount of the Loans owing to, each Lender from time to time (the "Register").
The entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower and each Lender at any reasonable time and from time to time upon
reasonable prior notice.
(c) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an Assignee and counterexecuted by the Borrower (if
required above), together with any Note or Notes subject to such assignment and
the processing fee referred to in subsection (A) above, the Agent will (i)
accept such Assignment and Acceptance, (ii) on the effective date thereof,
record the information contained therein in the Register and (iii) give notice
thereof to the Borrower and the Lenders. Within five (5) Business Days after
its receipt of such notice, the Borrower, at its own expense, will execute and
deliver to the Agent in exchange for the surrendered Note or Notes a new Note or
Notes to the order of such Assignee in an aggregate principal amount equal to
the principal amount of the Commitment (or, if the Commitments have been
terminated, the principal amount of the Loans) assumed by it pursuant to such
Assignment and Acceptance and, to the extent the assigning Lender has retained
its Loans and/or Commitment hereunder, a new Note or Notes to the order of the
assigning Lender in an aggregate principal amount equal to the principal amount
of the Commitment (or, if the Commitments have been terminated, the principal
amount of the Loans) retained by it hereunder. Such new Note or Notes shall be
dated the effective date of such Assignment and Acceptance and shall otherwise
be in substantially the form of EXHIBITS A-1 and A-2. The Agent will return
canceled Notes to the Borrower.
(d) Subject to SECTION 10.5(A)(I), Each Lender may, without the consent of
the Borrower, the Agent or any other Lender, sell to one or more other Persons
engaged in making, purchasing or otherwise investing in commercial loans in the
ordinary course of its business (each, a "Participant") participations in any
portion comprising less than all of its rights and obligations under this
Agreement (including, without limitation, a portion of its Commitment, the
outstanding Loans made by it, the Note or Notes held by it and its
participations in Letters of Credit); provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged and such Lender shall
remain solely responsible for the performance of such obligations, (ii) no
Lender shall sell any participation that, when taken together with all other
participations, if any, sold by such Lender, covers all of such Lender's rights
and obligations under this Agreement, except that the foregoing shall not
prohibit a Lender from selling to an Affiliate of such Lender a participation in
all of such Lender's rights and obligations under this Agreement so long as
after reasonable investigation by such Lender (including due inquiry of the
Borrower, if necessary or advisable), such participation would not give rise to
a "prohibited transaction" under ERISA with respect to the Borrower, (iii) the
amount of the participation shall in no event be less than $3,000,000, (iv) the
Borrower, the Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and no Lender shall permit any Participant to
have any voting rights or any right to control the vote of such Lender with
respect to any amendment,
88
modification, waiver, consent or other action hereunder or under any other Loan
Document (except as to actions (to the extent such actions affect the rights of
such Participant) that would (x) reduce or forgive the principal amount of, or
rate of interest on, any Loan, or reduce or forgive any fees or other
Obligations, (y) extend any date (including the Maturity Date and any scheduled
date for the mandatory reduction of the Commitments) fixed for the payment of
any principal of or interest on any Loan, any fees or any other Obligations, or
(z) increase any Commitment of any Lender (it being understood that a waiver of
any Default or Event of Default or of any mandatory reduction of the Total
Commitment shall not constitute such an increase), and (v) no Participant shall
have any rights under this Agreement or any of the other Loan Documents, each
Participant's rights against the granting Lender in respect of any participation
to be those set forth in the participation agreement, and all amounts payable by
the Borrower hereunder shall be determined as if such Lender had not granted
such participation. Notwithstanding the foregoing, subject to SECTION 2.19
hereof each Participant shall have the rights of a Lender for purposes of
SECTIONS 2.13(A), 2.13(B), 2.14, 2.15 and 9.3, and shall be entitled to the
benefits thereto, to the extent that the Lender granting such participation
would be entitled to such benefits if the participation had not been made, but
only by acts and notices taken by the granting Lender provided that no
Participant shall be entitled to receive any greater amount pursuant to any of
such Sections than the Lender granting such participation would have been
entitled to receive in respect of the amount of the participation made by such
Lender to such Participant had such participation not been made.
(e) Nothing in this Agreement shall be construed to prohibit any Lender
from pledging or assigning all or any portion of its rights and interest
hereunder or under any Note to any Federal Reserve Bank as security for
borrowings therefrom; provided, however, that no such pledge or assignment shall
release a Lender from any of its obligations hereunder.
(f) Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section, disclose to the
Assignee or Participant or proposed Assignee or Participant any information
relating to the Borrower and its Subsidiaries furnished to it by or on behalf of
any other party hereto, provided that such Assignee or Participant or proposed
Assignee or Participant agrees in writing with the Agent and the Borrower to
keep such information confidential to the same extent required of the Lenders
under SECTION 10.17.
10.6 Fees and Expenses. The Borrower agrees (i) whether or not the
transactions contemplated by this Agreement shall be consummated, to pay upon
demand all reasonable out-of-pocket costs and expenses of the Agent (including,
without limitation, reasonable attorneys' fees, but excluding salaries of the
Agent's regularly employed personnel and overhead incurred or paid by the Agent)
in connection with the preparation, negotiation, execution, delivery and
syndication of this Agreement and the other Loan Documents, and any amendment,
modification or waiver hereof or thereof or consent with respect hereto or
thereto, (ii) to pay upon demand all reasonable out-of-pocket costs and expenses
of the Agent and (upon the occurrence and during the continuance of an Event of
Default) each Lender (including, without limitation, reasonable attorneys' fees,
but excluding salaries of any Lender's or the Agent's regularly employed
personnel and overhead incurred or paid by any Lender or the Agent) in
connection with (y) any
89
refinancing or restructuring of the credit arrangement provided under this
Agreement, whether in the nature of a "work-out," in any insolvency or
bankruptcy proceeding or otherwise and whether or not consummated, and (z) the
enforcement, attempted enforcement or preservation of any rights or remedies
under this Agreement or any of the other Loan Documents, whether in any action,
suit or proceeding (including any bankruptcy or insolvency proceeding) or
otherwise, and (iii) to pay and hold harmless the Agent and each Lender from and
against all liability for any intangibles, documentary, stamp or other similar
taxes, fees and excises, if any, including any interest and penalties, and any
finder's or brokerage fees, commissions and expenses (other than any fees,
commissions or expenses of finders or brokers engaged by the Agent or any
Lender), that may be payable in connection with the transactions contemplated by
this Agreement and the other Loan Documents.
10.7 Indemnification. From and at all times after the date of this
Agreement, and in addition to the costs and expenses payable under SECTION 10.6
and all of the Agent's and the Lenders' other rights and remedies against the
Borrower, the Borrower agrees to indemnify and hold harmless the Agent and each
Lender and each of their directors, officers, employees, agents and Affiliates
(each, an "Indemnified Person") against any and all claims, losses, damages,
liabilities, costs and expenses of any kind or nature whatsoever, including,
without limitation, reasonable attorneys' fees, costs and expenses
(collectively, "Indemnified Costs") incurred by or asserted against any such
Indemnified Person from and after the date hereof, whether direct or indirect,
as a result of or arising from or in any way relating to any suit, action or
proceeding (including any inquiry or investigation) by any Person, whether
threatened or initiated, asserting a claim for any legal or equitable remedy
under any statute or regulation, including, without limitation, any federal or
state securities laws, or under any common law or equitable cause or otherwise,
arising from or in connection with the negotiation, preparation, execution,
performance or enforcement of this Agreement or the other Loan Documents or any
of the transactions contemplated herein or therein, and including, without
limitation, Environmental Claims and any matters arising from the Borrower's
violation of SECTION 4.7, whether or not such Indemnified Person is a party to
any such action, proceeding or suit or the target of any such inquiry or
investigation; provided, however, that no Indemnified Person shall have the
right to be indemnified hereunder for any Indemnified Costs resulting primarily
from the fraud, gross negligence, willful misconduct or violation of law of such
Indemnified Person (as finally determined by a court of competent jurisdiction
or arbitration as provided herein). All of the foregoing losses, damages, costs
and expenses of any Indemnified Person shall be payable by the Borrower, as and
when incurred and upon demand, and shall be additional Obligations hereunder.
In the event that the foregoing indemnity is unavailable or insufficient to hold
each Indemnified Person harmless, then the Borrower will contribute to amounts
paid or payable by such Indemnified Persons in respect of their losses, claims,
damages or liabilities in such proportions as appropriately reflect the relative
benefits received by and fault of the Borrower and such Indemnified Persons in
connection with the matters as to which such losses, claims, damages or
liabilities relate and other equitable considerations. Neither the Borrower nor
any Subsidiary shall be liable to the Agent or any Lender or any other
Indemnified Person for any consequential damages. Neither the Agent nor any
Lender shall be liable to the Borrower or any Subsidiary or any of their
Affiliates for any consequential damages.
90
10.8 Amendments, Waivers, etc. Except as may be otherwise specifically set
forth in this Agreement or the other Loan Documents, neither this Agreement nor
any other Loan Document nor any provision hereof or thereof may be amended,
modified, waived, discharged or terminated, and no consent to any departure by
the Borrower from any provision hereof or thereof may be given, except in a
writing signed by the Required Lenders; provided, however, that:
(a) no such amendment, modification, waiver, discharge, termination or
consent shall, without the consent of each Lender holding Obligations directly
affected thereby, (i) reduce the principal amount of, or rate of interest on,
any Loan, or reduce any fees or other monetary Obligations (other than fees
payable to the Agent for its own account) or any monetary obligations of any
Person now or hereafter primarily or contingently liable with respect to the
Obligations or (ii) extend any date fixed for any payment of principal, interest
(other than additional interest payable under SECTION 2.6(B) during the
continuance of an Event of Default), fees (other than fees payable to the Agent
for its own account) or any other monetary Obligations;
(b) no such amendment, modification, waiver, discharge, termination or
consent shall, without the consent of all Lenders, (i) increase the Commitments
of any Lender (it being understood that a waiver of any Default or Event of
Default or of any mandatory reduction in the Total Commitment shall not
constitute such an increase), (ii) change the definition of "Required Lenders"
or otherwise change the number or percentage of Lenders that shall be required
for the Lenders or any of them to take or approve, or direct the Agent to take,
any action hereunder, (iii) amend, modify or waive any of the provisions for
extending, or take action to extend, the term of the Facility, (iv) amend any
provision of this Section, (v) release all or substantially all of the
Collateral, (vi) release all or substantially all of the Guarantors from their
obligations under the Guaranty Agreement or (vii) consent to the assignment or
transfer by the Borrower, or by any other Person now or hereafter primarily or
contingently liable with respect to the Obligations, of any of its rights and
obligations under this Agreement or any of the other Loan Documents; and
(c) no provision relating to the rights or obligations of the Agent or
Issuing Bank under this Agreement or any of the other Loan Documents may be
amended, modified or waived without the consent of the Agent or Issuing Bank, as
applicable.
10.9 Rights and Remedies Cumulative, Non-Waiver, etc."-""" The
enumeration of the Agent's and the Lenders' rights and remedies set forth in
this Agreement and the other Loan Documents is not intended to be exhaustive,
and the exercise by the Agent or any Lender of any right or remedy shall not
preclude the exercise of any other rights or remedies, all of which shall be
cumulative, and shall be in addition to any other right or remedy given
hereunder, under the other Loan Documents or under any other agreement between
the Borrower and the Lenders, or any of them (or the Agent on their behalf), or
that may now or hereafter exist in law or in equity or by suit or otherwise. No
delay or failure to take action on the part of the Agent or any Lender in
exercising any right, power or privilege shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or privilege
preclude other or further exercise thereof or the exercise of any other right,
power or privilege or shall be construed to be a waiver of any
91
Event of Default. No course of dealing between any of the Borrower and the Agent
or the Lenders or their agents or employees shall be effective to change, modify
or discharge any provision of this Agreement or to constitute a waiver of any
Event of Default. No notice to or demand upon the Borrower in any case shall
entitle the Borrower to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the right of the Agent or any
Lender to exercise any right or remedy or take any other or further action in
any circumstances without notice or demand.
10.10 Binding Effect, Assignment. All of the terms of this Agreement shall
be binding upon, inure to the benefit of and be enforceable by the respective
successors and assigns of the Borrower, the Agent and each Lender; provided,
however, that (i) the Borrower may not sell, assign or transfer this Agreement
or any portion hereof or thereof, including, without limitation, any of its
rights, title, interests, remedies, powers and duties hereunder or thereunder
and (ii) any assignees and participants shall have such rights and obligations
with respect to this Agreement and the other Loan Documents as are provided for
in and pursuant to SECTION 10.5.
10.11 Severability. To the extent any provision of this Agreement is
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
10.12 Entire Agreement. THIS AGREEMENT AND THE DOCUMENTS AND INSTRUMENTS
EXECUTED AND DELIVERED CONTEMPORANEOUSLY HEREWITH EMBODY THE ENTIRE AGREEMENT
AND UNDERSTANDING BETWEEN THE PARTIES HERETO AND SUPERSEDE ALL PRIOR AGREEMENTS
AND UNDERSTANDINGS OF SUCH PERSONS, VERBAL OR WRITTEN, RELATING TO THE SUBJECT
MATTER HEREOF EXCEPT FOR ANY AGENCY FEE LETTER, IF ANY, EXECUTED BY THE AGENT
AND THE BORROWER, THE PROVISIONS OF WHICH FEE LETTER ARE HEREBY INCORPORATED
INTO THIS AGREEMENT BY THIS REFERENCE. THIS AGREEMENT, THE NOTES, THE OTHER LOAN
DOCUMENTS AND THE INSTRUMENTS AND DOCUMENTS EXECUTED IN CONNECTION HEREWITH
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
10.13 Interpretation. The captions to the various sections and subsections
of this Agreement have been inserted for convenience only and shall not limit or
affect any of the terms hereof. Unless the context otherwise requires, words in
the singular include the plural and words in the plural include the singular,
and the use of any gender shall be applicable to all genders.
10.14 Counterparts, Effectiveness. This Agreement may be executed in any
number of counterparts and by different parties hereto on separate counterparts,
each of which, when so executed and delivered, shall be an original, but all of
which shall together constitute one and the
92
same instrument. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto.
10.15 Conflict of Terms. The provisions of the Exhibits and Schedules
hereto and the other Loan Documents are incorporated in this Agreement by this
reference thereto. Except as otherwise provided in this Agreement and except as
otherwise provided in the other Loan Documents, if any provision contained in
this Agreement is in conflict with, or inconsistent with, any provision of the
other Loan Documents, the provision contained in this Agreement shall control.
10.16 Injunctive Relief. The Borrower recognizes that in the event it
fails to perform, observe or discharge any of its obligations or liabilities
under this Agreement, any remedy of law may prove to be inadequate relief to the
Agent and the Lenders. The Borrower therefore agrees that the Agent and the
Lenders, if the Agent so requests, shall be entitled to temporary and permanent
injunctive relief without the necessity of proving actual damages in any case
where a remedy at law, would prove to be inadequate relief.
10.17 Confidentiality. Each of the Agent, the Issuing Bank and each Lender
agrees to take normal and reasonable precautions and exercise due care to
maintain the confidentiality of all non-public confidential information provided
in connection with this Agreement or any other Loan Document and agrees and
undertakes that it shall not use any such information for any purpose or in any
manner other than pursuant to the terms contemplated by this Agreement. Any
Lender may disclose such information (i) at the request of any bank regulatory
authority or in connection with an examination of such Lender by any such
authority, (ii) pursuant to subpoena or other court process, (iii) when required
to do so in accordance with the provisions of any applicable law or regulation,
(iv) at the express direction of any agency of any State of the United States of
America or of any other jurisdiction in which such Lender conducts its business,
(v) to such Lender's independent auditors and other professional advisors that
have a reasonable need or basis for access thereto, (vi) to such Lender's
Affiliates, provided that such Affiliates shall be bound by the provisions of
this SECTION 10.17 and the Lender shall remain liable for any breach hereof by
such Affiliate and (vii) in connection with any proceeding to enforce its rights
hereunder or under any other Loan document or any other litigation or proceeding
related hereto; provided, however, Agent or such Lender shall instruct such
independent auditors or other professional advisors to keep such information
confidential in accordance with the terms of this SECTION 10.17; provided
further, that in the event of any disclosure of non-public information pursuant
to any of clauses (ii), (iii), (iv) and (vii) of this SECTION 10.17, the Agent
or such Lender shall make a good faith attempt, to the extent practicable, to
notify Borrower of any such disclosure of non-public information at least three
(3) Business Days prior to disclosing such information, and in any event shall
notify Borrower of such disclosure as soon as practicable.
10.18 Post-Closing Matters. The Borrower will, and will cause each of its
Subsidiaries to, cooperate to assist the Agent in the syndication of the
Facilities and the resultant addition of Lenders after the Closing Date.
93
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their corporate names by their duly authorized corporate officers as
of the date first above written.
AMERICAN ONCOLOGY RESOURCES, INC.
By:
-------------------------------------------
L. ▇▇▇▇ Pounds, Vice President of Finance
ATTEST:
By:
--------------------------
▇▇▇ ▇. ▇▇▇▇▇, Secretary
FIRST UNION NATIONAL BANK, AS AGENT
By:
-------------------------------------------
▇▇▇ ▇. ▇▇▇▇, Senior Vice President
S-1
FIRST UNION NATIONAL BANK
By:
-----------------------------------------
▇▇▇ ▇. ▇▇▇▇, Senior Vice President
Commitment: $14,309,900
Address:
First Union National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndication Agency Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Wiring Instructions:
First Union National Bank
Charlotte, North Carolina
ABA #▇▇▇▇▇▇▇▇▇
Account #: 465906 RC5007
Reference: American Oncology
Resources, Inc.
Attention: Syndication Agency Services
S-2
CREDIT LYONNAIS NEW YORK BRANCH
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Commitment: $13,468,000
Address:
Credit Lyonnais New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ Choquart
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Wiring Instructions:
Credit Lyonnais New York Branch
New York, NY
ABA: ▇▇▇▇-▇▇▇▇-▇
Account: ▇▇-▇▇▇▇▇-▇▇▇▇
Reference: American Oncology Resources, Inc.
Attention: Loan Servicing
S-3
▇▇▇▇▇ FARGO BANK (TEXAS), NATIONAL ASSOCIATION
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Commitment: $11,447,800
Address:
▇▇▇▇▇ Fargo Bank (Texas) National Association
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇/▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Wiring Instructions:
▇▇▇▇▇ Fargo Bank (Texas) National Association
ABA: ▇▇▇▇▇▇▇▇▇
Account: #2712-507201
Attention: Commercial Banking Services
Reference: American Oncology Resources, Inc.
S-4
SUNTRUST BANK, TAMPA BAY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Commitment: $8,080,800
Address:
SunTrust Bank, Tampa Bay
Commercial Banking ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Wiring Instructions:
SunTrust Bank, Tampa Bay
ABA: ▇▇▇▇▇▇▇▇▇
Ref: G/L #9656004210
Reference: American Oncology Resources, Inc.
Attention: Commercial Loan Operations
S-5
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.
"RABOBANK NEDERLAND",
NEW YORK BRANCH
By:
--------------------------------------
Title:
By:
--------------------------------------
Title:
Commitment: $13,299,650
Address:
Lending Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Services Department
Telephone: 212/▇▇▇-▇▇▇▇
Telecopier: 212/818-0233
Wiring Instructions:
Bank of New York
ABA: ▇▇▇▇▇▇▇▇▇
A/C Rabobank New York
Account: 802-▇▇▇▇▇▇▇
Reference: American Oncology Resources, Inc.
S-6
ABN AMRO BANK N.V. ATLANTA AGENCY
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
Commitment: $13,299,650
Address:
(Loan Administration and Credit Contacts and (Credit Contacts and Financial Information)
Financial Information) ABN AMRO BANK N.V.
ABN AMRO BANK N.V. ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Attention: Loan Administration Telephone: 770/▇▇▇-▇▇▇▇ (Ext. 140)
Telephone: 312/▇▇▇-▇▇▇▇ Telecopier: 770/399-7397
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Wiring Instructions:
ABN AMRO Bank, New York
ABA: 26029530
Account: 650-001-1789-41
F/O: ABN AMRO Bank N.V. Chicago CPU
Reference: American Oncology Resources
Attention: Chicago CPU
S-7
CORESTATES BANK, N.A.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Commitment: $13,468,000
Address:
Corestates Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(Post Office Box 7618)
F.C. 1-8-3-22
Philadelphia, PA 19101-7618
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: 215/▇▇▇-▇▇▇▇
Telecopier: 215/973-2738
Wiring Instructions:
Corestates Bank, N.A.
Philadelphia, PA
ABA: ▇▇▇▇▇▇▇▇▇
Account: 132-0452
Reference: American Oncology Resources, Inc.
Attention: RC2490
S-8
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Commitment: $12,962,950
Address:
Texas Commerce Bank National Assoc.
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: 713/▇▇▇-▇▇▇▇
Telecopier: 713/795-7309
Wiring Instructions:
Texas Commerce Bank, N.A.
ABA: ▇▇▇▇▇▇▇▇▇
Account: G/L #13681-7800
Loan Acct. #▇▇▇▇-▇▇▇-▇▇▇▇▇▇▇
Reference: American Oncology Resources Inc.
S-9
THE LONG TERM CREDIT BANK OF JAPAN, LIMITED
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Commitment: $8,080,800
Address:
The Long Term Credit Bank of Japan, Ltd. The Long Term Credit Bank of Japan, Ltd.
N.Y. Branch Dallas Representative Office
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Attention: R. ▇▇▇▇▇ ▇▇▇▇
Telephone: 212/▇▇▇-▇▇▇▇ ▇elephone: 214/▇▇▇-▇▇▇▇
Telecopier: 212/608-2371 Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
LTCB NY Branch
Finance Operations Division
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: 212/▇▇▇-▇▇▇▇
Telecopier: 212/608-3452
Wiring Instructions:
Chase Manhattan Bank, NY.
ABA: ▇▇▇▇▇▇▇▇▇
For the Account of: The Long Term Credit Bank
of Japan, Ltd., New York Branch
Account: ▇▇▇-▇-▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Reference: American Oncology - $150mm RC
S-10
NATIONSBANK OF TEXAS, N.A.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Commitment: $13,468,000
Address:
NationsBank of Texas, N.A. NationsBank of Texas, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ TX1-492-14-05
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: 713/▇▇▇-▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: 713/247-6719 Telephone: 214/▇▇▇-▇▇▇▇
Telecopier: 214/508-1215
Wiring Instructions:
NationsBank of Texas
ABA: ▇▇▇▇▇▇▇▇▇
Further Credit: 1292000883
Attention: Corporate Loans
Reference: American Oncology Resources Inc.
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
S-11
THE FIRST NATIONAL BANK OF CHICAGO
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Commitment: $13,299,650
Address:
The First National Bank of Chicago The First National Bank of Chicago
One First National Plaza, Suite 0091 One First National Plaza, Suite 0091
Chicago, IL 60607 ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice Attention: ▇▇▇ ▇▇▇▇▇
President Telephone: 312/▇▇▇-▇▇▇▇
Telephone: 312/▇▇▇-▇▇▇▇ Telecopier: 312/732-4303
Telecopier: 312/732-2016
Wiring Instructions:
First National Bank of Chicago
ABA: ▇▇▇▇▇▇▇▇▇
For Further Credit: DES Incoming Clearing
Account # ▇▇▇▇▇▇▇
Reference: American Oncology Resources Inc.
▇-▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Commitment: $8,080,800
Address:
National City Bank of Kentucky
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ Boston
Telephone: ▇▇▇-▇▇▇-▇▇▇▇/▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇/▇▇▇-▇▇▇-▇▇▇▇
Wiring Instructions:
National City Bank of Kentucky
ABA 083 000 056
Louisville, KY
Commercial Loan Operations
Attention: ▇▇▇▇ Boston
Reference: American Oncology Resources Inc.
S-13
THE FUJI BANK, LIMITED,
HOUSTON AGENCY
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Commitment: $6,734,000
Address:
The Fuji Bank Limited Houston Agency Fuji Bank and Trust Company
One Houston Center Two World Trade Center
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telephone: 713/▇▇▇-▇▇▇▇ Telephone: 212/▇▇▇-▇▇▇▇
Telecopier: 713/650-7852 Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Wiring Instructions:
Texas Commerce Bank, N.A., Houston, Texas
ABA: ▇▇▇▇▇▇▇▇▇
Account: ▇▇▇▇-▇▇▇-▇▇▇▇
Beneficiary: The Fuji Bank, Ltd., Houston Agency
Reference: American Oncology Resources, Inc.
Attention: Loan Administrator
S-14