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$550,000,000
CREDIT AGREEMENT
DATED AS OF MARCH 15, 2001
Among
CAREMARK RX, INC.,
as Borrower,
and
THE INITIAL LENDERS, THE SWING LINE BANK AND
THE INITIAL ISSUING BANK NAMED HEREIN,
as Initial Lender Parties,
and
JPMORGAN,
A DIVISION OF CHASE SECURITIES INC.,
as Syndication Agent,
and
FIRST UNION NATIONAL BANK,
as Documentation Agent,
and
BANC OF AMERICA SECURITIES LLC
as Lead Arranger,
and
BANK OF AMERICA, N.A.
as Administrative Agent
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TABLE OF CONTENTS
PAGE
ARTICLE I
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods; Other Constructional Provisions 32
SECTION 1.03. Accounting Terms 33
SECTION 1.04. Currency Equivalents Generally 33
ARTICLE II
SECTION 2.01. The Advances and the Letters of Credit 33
SECTION 2.02. Making the Advances 34
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit 37
SECTION 2.04. Repayment of Advances 39
SECTION 2.05. Termination or Reduction of the Commitments 41
SECTION 2.06. Prepayments 42
SECTION 2.07. Interest 44
SECTION 2.08. Fees 45
SECTION 2.09. Conversion of Advances 45
SECTION 2.10. Increased Costs, Etc. 46
SECTION 2.11. Evidence of Debt 49
SECTION 2.12. Payments and Computations 49
SECTION 2.13. Taxes 52
SECTION 2.14. Sharing of Payments, Etc. 54
SECTION 2.15. Defaulting Lenders 55
SECTION 2.16. Use of Proceeds 57
ARTICLE III
CONDITIONS OF EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Initial Extensions of Credit 57
SECTION 3.03. Determinations Under Section 3.01 60
ARTICLE IV
SECTION 4.01. Representations and Warranties 60
ARTICLE V
SECTION 5.01. Affirmative Covenants 66
SECTION 5.02. Negative Covenants 69
SECTION 5.03. Reporting Requirements 80
SECTION 5.04. Financial Covenants 83
ARTICLE VI
SECTION 6.01. Events of Default 84
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default 87
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ARTICLE VII
SECTION 7.01. Authorization and Action 88
SECTION 7.02. Administrative Agent's Reliance, Etc. 89
SECTION 7.03. BofA, BAS and Affiliates 90
SECTION 7.04. Lender Credit Decision 90
SECTION 7.05. Indemnification 90
SECTION 7.06. Successor Administrative Agent 91
SECTION 7.07. Release of Collateral 92
SECTION 7.08. Release of Guarantor 92
ARTICLE VIII
SECTION 8.01. Amendments, Etc. 93
SECTION 8.02. Notices, Etc. 94
SECTION 8.03. No Waiver; Remedies 95
SECTION 8.04. Indemnification 95
SECTION 8.05. Right of Set-off 96
SECTION 8.06. Binding Effect 97
SECTION 8.07. Assignments and Participations 97
SECTION 8.08. No Liability of the Issuing Bank 101
SECTION 8.09. Confidentiality 102
SECTION 8.10. Execution in Counterparts 102
SECTION 8.11. Governing Law; Jurisdiction, Etc. 102
SECTION 8.12. WAIVER OF JURY TRIAL 104
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SCHEDULES
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Schedule I - Commitments and Applicable Lending Offices
Schedule II - Existing Letters of Credit
Schedule 2.06 - Properties held for sale
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(d) - Required Authorizations, Approvals, Etc.
Schedule 4.01(x) - Open Years
Schedule 4.01(y) - Existing Investments
Schedule 5.02(a) - Liens
Schedule 5.02(b) - Indebtedness
EXHIBITS
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Exhibit A-1 - Form of Term Loan Note
Exhibit A-2 - Form of Revolving Credit Note
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Form of Notice of Swing Line Borrowing
Exhibit B-3 - Form of Notice of Conversion
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Subsidiaries Guarantee
Exhibit E-1 - Form of Opinion of King & Spalding
Exhibit E-2 - Form of Opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇
Exhibit F - Form of Security Agreement
Exhibit G - Form of Trust Agreement
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CREDIT AGREEMENT
CREDIT AGREEMENT dated as of March 15, 2001 among CAREMARK,
RX, INC, a Delaware corporation (the "BORROWER"), the banks, financial
institutions and other institutional lenders listed on the signature pages
hereof under the caption "Initial Lenders" (the "INITIAL LENDERS"), BANK OF
AMERICA, N.A. ("BOFA"), as the initial issuer of Letters of Credit (as
hereinafter defined) (the "INITIAL ISSUING BANK") and as the provider of the
Swing Line Facility (as hereinafter defined) (the "SWING LINE BANK"), JPMORGAN,
a division of Chase Securities Inc., as the syndication agent (the "SYNDICATION
AGENT") for the Facilities (as hereinafter defined), FIRST UNION NATIONAL BANK,
as the documentation agent (the "DOCUMENTATION AGENT"), BANC OF AMERICA
SECURITIES LLC ("BAS"), as the lead arranger and book manager (the "LEAD
ARRANGER") for the Facilities, and BofA, as the administrative agent (together
with any successor thereto appointed pursuant to Article VII, the
"ADMINISTRATIVE AGENT") for the Lender Parties (as hereinafter defined).
PRELIMINARY STATEMENTS
(1) The Borrower entered into the Credit Agreement dated
as of September 5, 1996 (as amended and restated from time to time the
"EXISTING CREDIT AGREEMENT") with the banks, financial institutions and other
institutional lenders party thereto as lenders and Bank of America, N.A.
(formerly NationsBank, N.A.) as the administrative agent for the lenders
thereunder.
(2) The Borrower has requested that the Lender Parties
replace the Existing Credit Agreement in its entirety and agree to lend to the
Borrower from time to time up to $550,000,000 at any time outstanding in order
to replace the senior credit facilities provided for under the terms of the
Existing Credit Agreement, to pay certain fees and expenses incurred in
connection with the entry by the Borrower and certain of its Subsidiaries (as
hereinafter defined) into the Loan Documents (as hereinafter defined) and for
other general corporate purposes of the Borrower and its Subsidiaries not
otherwise prohibited under the terms of the Loan Documents. The Lenders have
indicated their willingness to agree to replace the Existing Credit Agreement
in its entirety and to lend such amounts on the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.
As used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and the plural forms of the terms defined):
"ACCEPTING LENDERS" has the meaning specified in Section
2.06(d).
"ADMINISTRATIVE AGENT" has the meaning specified in the
recital of parties to this Agreement.
"ADMINISTRATIVE AGENT'S ACCOUNT" means the account of the
Administrative Agent maintained by the Administrative Agent with BofA
at its office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ABA No. ▇▇▇-▇▇▇-▇▇▇, Account No. 1366212250600,
Reference: Caremark Rx, Attention: Corporate Credit Services, or such
other account maintained
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by the Administrative Agent and designated by the Administrative Agent
from time to time as such in a written notice to the Borrower and each
of the Lender Parties.
"ADVANCE" means a Term Loan Advance, a Revolving Credit
Advance, a Swing Line Advance or a Letter of Credit Advance, as the
context may require.
"AFFILIATE" means, with respect to any Person, any other
Person that, directly or indirectly, controls, is controlled by or is
under common control with such Person or is a director, or officer of
such Person; provided, however, that, solely for purposes of the
definition of "Net Cash Proceeds" set forth below in this Section
1.01, any Person in which the Borrower or any of its Subsidiaries
maintains a minority common Equity Interest pursuant to Section
5.02(e)(v)(B) shall not constitute an Affiliate of the Borrower or any
of its Subsidiaries. For purposes of this definition, the term
"control" (including the terms "controlling", "controlled by" and
"under common control with") of a Person means the possession, direct
or indirect, of the power to vote 5% or more of the Voting Interests
in such Person or to direct or cause the direction of the management
and policies of such Person, whether through the ownership of Voting
Interests, by contract or otherwise.
"AGENTS" means, collectively, the Administrative Agent, the
Syndication Agent, the Documentation Agent, the Lead Arranger and each
co-agent or subagent appointed by the Administrative Agent from time
to time pursuant to Section 7.01(b).
"AGREEMENT" means this Credit Agreement, as the same may be
amended, restated, supplemented or otherwise modified from time to
time.
"AGREEMENT VALUE" means, for each Hedge Agreement, on any
date of determination, an amount reasonably determined by the
Administrative Agent equal to: (a) in the case of a Hedge Agreement
documented pursuant to the Master Agreement (Multicurrency-Cross
Border) published by the International Swap and Derivatives
Association, Inc. (the "MASTER AGREEMENT"), the amount, if any, that
would be payable by any Loan Party or any of its Subsidiaries to its
counterparty in respect of such Hedge Agreement, as if (i) such Hedge
Agreement was being terminated early on such date of determination,
(ii) such Loan Party or Subsidiary was the sole "Affected Party", and
(iii) the Administrative Agent was the sole party determining such
payment amount (with the Administrative Agent making such
determination pursuant to the provisions of that specific form of
Master Agreement); or (b) in the case of a Hedge Agreement traded on
an exchange, the ▇▇▇▇-to-market value of such Hedge Agreement, which
will be the unrealized gain or loss on such Hedge Agreement to the
Loan Party or Subsidiary of a Loan Party to such Hedge Agreement
reasonably determined by the Administrative Agent based on the
settlement price of such Hedge Agreement on such date of
determination, or (c) in all other cases, the ▇▇▇▇-to-market value of
such Hedge Agreement, which will be the unrealized gain or loss on
such Hedge Agreement to the Loan Party or Subsidiary of a Loan Party
to such Hedge Agreement reasonably determined by the Administrative
Agent as the amount, if any, by which (i) the present value of the
future cash flows to be paid by such Loan Party or Subsidiary exceeds
(ii) the present value of the future cash flows to be received by such
Loan Party or Subsidiary pursuant to such Hedge Agreement; capitalized
terms used and not otherwise defined in this definition shall have the
respective meanings set forth in the above described Master Agreement.
"APPLICABLE LENDING OFFICE" means (a) with respect to each of
the Lenders, the Base Rate Lending Office of such Lender in the case
of a Base Rate Advance and the Eurodollar Lending Office of such
Lender in the case of a Eurodollar Rate Advance and (b) with respect
to the Issuing Bank and the Swing Line Bank, the Base Rate Lending
Office of the Issuing Bank and the Swing Line Bank, respectively, for
all purposes of this Agreement.
"APPLICABLE MARGIN" means (a) in the case of the Term Loan
Facility, 2.00% per annum for Base Rate Advances and 3.00% per annum
for Eurodollar Rate Advances and (b) in the case
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of the Revolving Credit Facility, (i) at any time during the period
from the date of this Agreement through the date of receipt by the
Administrative Agent of the Required Financial Information for the
Measurement Period ending December 31, 2000, 1.75% per annum for Base
Rate Advances and 2.75% per annum for Eurodollar Rate Advances and
(ii) at any time and from time to time thereafter, on any date of
determination, a percentage per annum equal to the applicable
percentage for the Performance Level set forth below as determined by
reference to the Leverage Ratio for the most recently completed
Measurement Period:
PERFORMANCE LEVEL BASE RATE ADVANCES EURODOLLAR RATE ADVANCES
Performance Level I 1.25% 2.25%
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Less than or equal to 3.00:1
Performance Level II 1.50% 2.50%
--------------------
Less than or equal to 3.50:1
Performance Level III 1.75% 2.75%
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Less than or equal to 4.00:1
Performance Level IV 2.00% 3.00%
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Greater than 4.00:1
For the purposes of:
(A) clause (b)(ii) of the immediately preceding
sentence, the Applicable Margin for each Base Rate Advance
shall be determined by reference to the Performance Level in
effect from time to time and the Applicable Margin for each
Eurodollar Rate Advance shall be determined by reference to
the Performance Level in effect on the first day of each
Interest Period for such Eurodollar Rate Advance; and
(B) determining the Performance Level in
respect of the Applicable Margin at any date of
determination, no change in the Performance Level shall be
effective until three Business Days after the date on which
the Administrative Agent and the Lender Parties receive the
Required Financial Information reflecting such change;
provided, however, that if the Borrower has not delivered to
the Administrative Agent and the Lender Parties all of the
information required under this clause (B) within five
Business Days after the date on which such information is
otherwise required under Section 5.03(b) or 5.03(c), as
applicable, and Section 5.03(d), the Performance Level shall
be deemed to be at Performance Level IV for so long as such
information has not been submitted.
"APPLICABLE PERCENTAGE" means, with respect to the Commitment
Fee, (a) at any time during the period from the date of this Agreement
through the date of receipt by the Administrative Agent of the
Required Financial Information for the Measurement Period ending
December 31, 2000, (ii) 0.50% per annum and (b) at any time and from
time to time thereafter, a rate per annum equal to the percentage set
forth below opposite the applicable Performance Level as determined by
reference to the Leverage Ratio for the most recently completed
Measurement Period:
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PERFORMANCE LEVEL COMMITMENT FEE
Performance Level I 0.375%
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Less than or equal to 3.00:1
Performance Level II 0.50%
--------------------
Less than or equal to 3.50:1
Performance Level III 0.50%
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Less than or equal to 4.00:1
Performance Level IV 0.50%
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Greater than 4.00:1
For the purposes of:
(A) clause (b) of the immediately preceding
sentence, the Applicable Percentage for the Commitment Fee
shall be determined by reference to the Performance Level in
effect from time to time; and
(B) determining the Performance Level in
respect of the Applicable Percentage at any date of
determination, no change in the Performance Level shall be
effective until three Business Days after the date on which
the Administrative Agent and the Lender Parties receive the
Required Financial Information reflecting such change;
provided, however, that if the Borrower has not delivered to
the Administrative Agent and the Lender Parties all of the
information required under this clause (B) within five
Business Days after the date on which such information is
otherwise required under Section 5.03(b) or 5.03(c), as
applicable, and Section 5.03(d), the Performance Level shall
be deemed to be at Performance Level IV for so long as such
information has not been submitted.
"APPROPRIATE LENDER" means, at any time, (a) with respect to
the Term Loan Facility or the Revolving Credit Facility, a Lender that
has a Commitment with respect to such Facility at such time, (b) with
respect to the Letter of Credit Facility, (i) the Issuing Bank and
(ii) if the Revolving Credit Lenders have made Letter of Credit
Advances pursuant to Section 2.03(c)(i) that are outstanding at such
time, each such Revolving Credit Lender, and (c) with respect to the
Swing Line Facility, (i) the Swing Line Bank and (ii) if the Revolving
Credit Lenders have made Swing Line Advances pursuant to Section
2.02(b)(ii) that are outstanding at such time, each such Revolving
Credit Lender.
"APPROVED FUND" means any Fund that is administered, advised
or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers, advises or
manages a Lender.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and
acceptance entered into by a Lender Party and an Eligible Assignee,
and accepted by the Administrative Agent and, if applicable, the
Borrower, in accordance with Section 8.07 and in substantially the
form of Exhibit C hereto.
"AVAILABLE AMOUNT" means, with respect to any Letter of
Credit at any time, the maximum amount available to be drawn under
such Letter of Credit at such time (assuming compliance at such time
with all conditions to drawing).
"BAS" has the meaning specified in the recital of parties to
this Agreement.
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"BASE RATE" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the higher of:
(a) the rate of interest established by BofA
from time to time as its prime rate (which rate of interest
may not be the lowest rate of interest charged by BofA to its
customers); and
(b) the Federal Funds Rate plus 0.50%.
"BASE RATE ADVANCE" means an Advance that bears interest as
provided in Section 2.07(a)(i).
"BASE RATE LENDING OFFICE" means, with respect to each of the
Lender Parties, the office of such Lender Party specified as its "Base
Rate Lending Office" opposite its name on Part B of Schedule I hereto
or in the Assignment and Acceptance pursuant to which it became a
Lender Party, as the case may be, or such other office of such Lender
Party as such Lender Party may from time to time specify to the
Borrower and the Administrative Agent for such purpose.
"BOFA" has the meaning specified in the recital of parties to
this Agreement.
"BORROWER" has the meaning specified in the recital of
parties to this Agreement.
"BORROWER COMMON STOCK" means shares of common stock of the
Borrower, par value $0.001 per share.
"BORROWER'S ACCOUNT" means such account of the Borrower as is
agreed from time to time in writing between the Borrower and the
Administrative Agent.
"BORROWING" means a Term Loan Borrowing, a Revolving Credit
Borrowing or a Swing Line Borrowing, as the context may require.
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized by law to close in New York, New York or
Charlotte, North Carolina and, if the applicable Business Day relates
to any Eurodollar Rate Advances, on which dealings are carried on in
U.S. dollar deposits in the London interbank market.
"CALIFORNIA PROPERTY AND ASSETS" means all of the property
and assets of certain Subsidiaries of the Borrower (and, solely to the
extent comprising part of the physician practice management businesses
of the Borrower in the State of California, of the Borrower).
"CALIFORNIA SETTLEMENT AGREEMENT" means the Second Amended
and Restated Operations and Settlement Agreement dated as of September
14, 2000, among the Borrower, MPN and the other parties thereto, as
such California Settlement Agreement may be amended, supplemented or
otherwise modified from time to time in accordance with the terms
thereof, but solely to the extent permitted under the terms of the
Loan Documents.
"CALIFORNIA TRANSITION PLAN" means the transition plan for
the orderly sale or other disposition of all of the California
Property and Assets and the resolution of all of the liabilities and
obligations of the Borrower and certain of its Subsidiaries related
thereto, all as contemplated by the California Settlement Agreement
and the California Transition Plan Documents.
"CALIFORNIA TRANSITION PLAN DOCUMENTS" means the California
Settlement Agreement, the Supplemental Plan Agreement and the MPN Plan
of Reorganization, in each case as such agreement, instrument or other
document may be amended, supplemented or otherwise modified from time
to time in accordance with the terms thereof, but solely to the extent
permitted under the terms of the Loan Documents.
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"CAPITAL ASSETS" means, with respect to any Person, all
equipment, fixed assets and real property or improvements of such
Person, or replacements or substitutions therefor or additions
thereto, that, in accordance with GAAP, have been or should be
reflected as additions to property, plant or equipment on the balance
sheet of such Person.
"CAPITAL EXPENDITURES" means, with respect to any Person for
any period, all expenditures made directly or indirectly by such
Person during such period for Capital Assets. For purposes of this
definition, the purchase price of equipment that is purchased
simultaneously with the trade-in of existing equipment or with
insurance proceeds shall be included in Capital Expenditures only to
the extent of the gross amount by which such purchase price exceeds
the credit granted by the seller of such equipment for the equipment
being traded in at such time or the amount of such insurance proceeds,
as the case may be.
"CAPITALIZED LEASE" means any lease with respect to which the
lessee is required to recognize concurrently the acquisition of
property or an asset and the incurrence of a liability in accordance
with GAAP.
"CAPTIVE PROFESSIONAL CORPORATION" means any professional
corporation, professional association or other service corporation in
which all of the Equity Interests are owned by one or more Persons
other than the Borrower and its Subsidiaries, but in respect of which
the Borrower and/or one or more of its Subsidiaries has the right to
exercise, pursuant to a voting trust agreement or other similar
agreement, a controlling influence over the management of such
professional corporation, professional association or other service
corporation (which controlling influence is limited by the
Requirements of Law relating to the corporate practice of medicine in
various states of the United States of America).
"CAREMARK" means Caremark International, Inc., a Delaware
corporation and a wholly owned Subsidiary of the Borrower on the date
of this Agreement.
"CAREMARK RECEIVABLES PURCHASE AGREEMENT" means the
Receivables Purchase Agreement dated as of January 31, 2001 between
Caremark Inc., as seller, and MP Receivables, as buyer, as such
agreement may be amended, supplemented or otherwise modified hereafter
from time to time in accordance with the terms thereof, but solely to
the extent permitted under the terms of the Loan Documents.
"CAREMARK RECEIVABLES SECURITIZATION" means limited recourse
sales and assignments from time to time by Caremark Inc. of its
accounts receivable to MP Receivables and by MP Receivables of such
accounts receivable or interests therein to one or more financial
institutions; provided, however, that (a) the aggregate net investment
made by such financial institutions in respect of all such accounts
receivable or interests therein shall not exceed at any one time
outstanding (i) $150,000,000 prior to December 31, 2001, (ii)
$175,000,000 from January 1, 2002 through and including December 31,
2002, and (iii) $200,000,000 during any calendar year thereafter, (b)
the maximum aggregate amount which may be recovered by such financial
institutions may not exceed the amount of the net investment made by
them in respect of such accounts receivable or interests therein
together with the yield thereon as set forth in the Caremark
Receivables Securitization Documents from time to time, and (c) each
such sale and assignment of such accounts receivable or interests
therein shall otherwise be effected on the terms and conditions set
forth in the Caremark Receivables Securitization Documents.
"CAREMARK RECEIVABLES SECURITIZATION DOCUMENTS" means,
collectively, the Caremark Receivables Purchase Agreement, the
Caremark Receivables Transfer Agreement and all of the other
agreements, instruments and other documents evidencing or otherwise
setting forth the terms of the Caremark Receivables Securitization, in
each case as such agreement, instrument or other document may be
amended, supplemented or otherwise modified hereafter from time to
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time in accordance with the terms thereof, but solely to the extent
permitted under the terms of the Loan Documents.
"CAREMARK RECEIVABLES TRANSFER AGREEMENT" means the Amended
and Restated Receivables Transfer Agreement dated as of January 31,
2001 among MP Receivables, as transferor, Caremark Inc., as originator
and collection agent, Redwood Receivables Corporation, Park Avenue
Receivables Corporation, The Chase Manhattan Bank, as agent for Park
Avenue Receivables Corporation and the PARCO APA Banks (as defined
therein), and General Electric Capital Corporation, as agent for
Redwood Receivables Corporation and Redwood Liquidity Providers (as
defined therein) and as funding agent, as such agreement may be
amended, supplemented or otherwise modified hereafter from time to
time in accordance with the terms thereof, but solely to the extent
permitted under the terms of the Loan Documents.
"CAREMARK TRUST" means Caremark Rx Capital Trust I, a
wholly-owned Subsidiary of the Borrower duly created and validly
existing as a statutory business trust in good standing under the
Business Trust Act of the State of Delaware.
"CASH COLLATERAL ACCOUNT" has the meaning specified in the
Security Agreement.
"CASH EQUIVALENTS" means any of the following types of
Investments, to the extent owned by the Borrower or any of its
Subsidiaries free and clear of all Liens (other than Liens created
under the Collateral Documents):
(a) readily marketable obligations issued or
directly and fully guaranteed or insured by the United States
of America or any agency or instrumentality thereof having
maturities of not more than 360 days from the date of
acquisition thereof; provided that the full faith and credit
of the United States of America is pledged in support
thereof;
(b) time deposits with, or insured certificates
of deposit or bankers' acceptances of, any commercial bank
that (i) (A) is a Lender Party or (B) is organized under the
laws of the United States of America, any state thereof or
the District of Columbia, or is the principal banking
subsidiary of a bank holding company organized under the laws
of the United States of America, any state thereof or the
District of Columbia, and is a member of the Federal Reserve
System, (ii) issues (or the parent of which issues)
commercial paper rated as described below in clause (c) of
this definition and (iii) has combined capital and surplus of
at least $1,000,000,000, in each case with a maturity of not
more than one year from the date of acquisition thereof;
(c) commercial paper issued by any Person
organized under the laws of any state of the United States of
America and rated at least "Prime-1" (or the then equivalent
grade) by ▇▇▇▇▇'▇ or at least "A-1" (or the then equivalent
grade) by S&P, in each case with a maturity of not more than
180 days from the date of acquisition thereof;
(d) Investments, classified in accordance with
GAAP as current assets of the Borrower or any of its
Subsidiaries, in money market investment programs registered
under the Investment Company Act of 1940, as amended, which
are administered by financial institutions that have the
highest rating obtainable from either ▇▇▇▇▇'▇ or S&P, and the
portfolios of which are limited solely to Investments of the
character, quality and maturity described in clauses (a), (b)
and (c) of this definition;
(e) repurchase agreements entered into with any
financial institution organized under the laws of any state
of the United States of America (i) the long term non-credit
enhanced debt obligations of which are rated at least "A2"
(or the then equivalent grade) by ▇▇▇▇▇'▇ or at least "A" (or
the then equivalent grade) by S&P and (ii) the commercial
paper of which is rated as described above in clause (c) of
this
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definition, in each case with a maturity of not more than 92
days from the date of acquisition thereof;
(f) general obligations issued or directly and
fully guaranteed or otherwise supported by the full taxation
authority of any state of the United States of America or any
municipal corporation or other agency or instrumentality
thereof and rated at the highest rating obtainable therefor
from either ▇▇▇▇▇'▇ or S&P, in each case with a maturity of
not more than one year from the date of acquisition thereof;
(g) general obligations of any state of the
United States of America or any municipal corporation or
other agency or instrumentality thereof which, based on the
escrow therefor, are rated as described above in clause (f)
of this definition and which have been irrevocably called for
redemption and advance refunded through the deposit in escrow
of (i) readily marketable obligations solely of the type
described above in clause (a) of this definition or (ii)
other debt securities which are (A) not callable at the
option of the issuer thereof prior to their stated maturity,
(B) irrevocably pledged solely in support of the payment of
all principal of and interest on such general obligations and
(C) in an aggregate principal amount and with such stated
rates of interest as shall be sufficient to pay in full all
principal of and interest and premiums, if any, on such
general obligations as the same become due and payable (as
verified by independent public accountants of recognized
standing), in each case with a maturity of not more than one
year from the date of acquisition thereof; and
(h) tax-exempt or tax adjustable rate preferred
stock issued by a Person organized under the laws of any
state of the United States of America whose long term
non-credit enhanced debt obligations are rated at least "A2"
(or the then equivalent grade) by ▇▇▇▇▇'▇ or at least "A" (or
the then equivalent grade) by S&P, in each case with a
maturity of not more than 120 days from the date of
acquisition thereof.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the United
States Environmental Protection Agency.
"CHANGE OF CONTROL" means, at any time:
(a) any "person" or "group" (each as used in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act) (i)
becomes the "beneficial owner" (as defined in Rule 13d-3 of
the Exchange Act), directly or indirectly, of Voting
Interests in the Borrower (including through securities
convertible into or exchangeable for such Voting Interests)
representing 25% or more of the combined voting power of all
of the Voting Interests in the Borrower (on a fully diluted
basis) or (ii) otherwise has the ability, directly or
indirectly, to elect a majority of the board of directors of
the Borrower;
(b) during any period of 24 consecutive months,
whether commencing before or after the date of this
Agreement, individuals who at the beginning of such 24-month
period were Continuing Directors shall cease for any reason
to constitute a majority of the board of directors of the
Borrower;
(c) any Person or two or more Persons acting in
concert shall have acquired by contract or otherwise, or
shall have entered into a contract or arrangement that, upon
consummation thereof, will result in its or their acquisition
of the power to exercise, directly or indirectly, a
controlling influence on the management or policies of the
Borrower; and
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(d) a Change of Control as defined in the
Convertible Securities Trust Agreement.
"COLLATERAL" means all of the "Collateral" referred to in the
Collateral Documents and all other property and assets that are or are
intended to be subject to any Lien in favor of the Collateral Trustee
for the benefit of the Secured Parties.
"COLLATERAL DOCUMENTS" means, collectively, the Trust
Agreement, the Security Agreement, the Intellectual Property Security
Agreement, Security Agreement Supplements, IP Security Agreement
Supplements, security agreements, pledge agreements or other similar
agreements delivered to the Administrative Agent and the Lender
Parties pursuant to Section 5.01(j), and each of the other agreements,
instruments or documents that creates or purports to create a Lien in
favor of the Collateral Trustee for the benefit of the Secured
Parties.
"COLLATERAL TRUSTEE" means LaSalle Bank National Association
in its capacity as trustee for the Secured Parties under the Trust
Agreement or any successor trustee appointed pursuant thereto.
"COMMITMENT" means a Term Loan Commitment, a Revolving Credit
Commitment, a Swing Line Commitment or a Letter of Credit Commitment,
as the context may require.
"COMMITMENT FEE" has the meaning specified in Section
2.08(a).
"CONFIDENTIAL INFORMATION" means information that is
furnished to the Administrative Agent or any of the Lender Parties by
or on behalf of the Borrower or any of its Subsidiaries in a writing
that is conspicuously marked as confidential or otherwise on an
expressly confidential basis, but does not include any such
information that (a) is or becomes generally available to the public
(other than as a result of a breach by the Administrative Agent or
such Lender Party of its confidentiality obligations under this
Agreement) or (b) is or becomes available to the Administrative Agent
or such Lender Party from a source other than the Borrower or any of
its Subsidiaries that is not, to the knowledge of the Administrative
Agent or such Lender Party, acting in violation of a confidentiality
agreement with the Borrower or any such Subsidiary.
"CONSOLIDATED" refers to the consolidation of accounts in
accordance with GAAP.
"CONSOLIDATED CASH TAXES" means, with respect to any Person
for any period, (a) the aggregate amount of all payments in respect of
income taxes made in cash by such Person and its Subsidiaries to any
applicable Governmental Authority during such period (other than
payments made by the Borrower during such period in connection with
the discontinued operations of the home infusion business sold by
Caremark prior to its acquisition by the Borrower (which tax
liabilities Caremark agreed to be obligated for pursuant to certain
tax sharing arrangements between Caremark and its former parent,
▇▇▇▇▇▇ International, Inc.)) so long as all such payments do not
exceed an aggregate amount of $20,000,000 less (b) the aggregate
amount of all cash refunds in respect of income taxes received by such
Person and its Subsidiaries from any applicable Governmental Authority
during such period, after giving effect, to the extent available, to
the application of net operating losses available to such Person or
any such Subsidiary.
"CONSOLIDATED EBITDA" means (x) for any period, the sum of
(a) the Consolidated Net Income for such period plus (b) the sum of
each of the following expenses that have been deducted from the
determination of the Consolidated Net Income for such period: (i) the
Consolidated Interest Expense for such period, (ii) all income tax
expense (whether federal, state, local, foreign or otherwise) for such
period, (iii) all depreciation expense for such period, (iv) all
amortization expense for such period, (v) all extraordinary noncash
losses deducted in determining the Consolidated Net Income for such
period but excluding all amounts so deducted in respect of current
assets less all extraordinary noncash gains added in determining the
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Consolidated Net Income for such period; provided for any period, the
amount of extraordinary noncash losses (other than extraordinary
noncash losses incurred during the Fiscal Year ended December 31, 2000
which may be added back in full for the relevant periods) that may be
included in this subclause (v) shall not exceed 10% of the
Consolidated EBITDA (before giving effect to any adjustments
contemplated by this subclause (v)) for such period), (vi) all fees,
costs and expenses, stamp, registration and similar taxes incurred in
connection with the Transaction, in each case determined on a
Consolidated basis for the Borrower and its Subsidiaries and in
accordance with GAAP for such period and (vii) all charges for
discontinued operations not in excess of $70,000,000 recorded as a
result of the bankruptcy proceedings of KPC Medical Management, Inc.
and its affiliated corporations and medical groups and (y) for each
such period ending during the twelve-month period immediately
following the closing of any acquisition permitted under Section
5.02(e), an amount equal to the Consolidated EBITDA (calculated on the
basis as provided herein) for each such acquisition for the period
from such closing to the date of determination, annualized for the
12-month period then ended.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any
Person for any period, the gross cash interest expense paid or payable
on all Indebtedness of such Person and its Subsidiaries during such
period, determined on a Consolidated basis and in accordance with GAAP
for such period, excluding the fees paid on the Effective Date to the
Initial Lenders in respect of this Agreement but including, without
limitation, (a) in the case of the Borrower, (i) cash interest expense
paid or payable in respect of Indebtedness resulting from Advances and
(ii) all fees paid or payable pursuant to Section 2.08(a), (b) the
cash interest component, paid or payable, of all Obligations in
respect of Capitalized Leases, (c) commissions, discounts and other
fees and charges paid or payable in cash in connection with letters of
credit (including, without limitation, pursuant to Section 2.08(b) in
respect of the Letters of Credit), (d) all amortization of original
issue discount in respect of all Indebtedness of such Person and its
Subsidiaries, (e) the net payment, if any, paid or payable in
connection with Hedge Agreements less the net credit, if any, received
in connection with Hedge Agreements, (f) the aggregate Discount on all
Transferred Interests (each as defined in Schedule A to the Caremark
Receivables Securitization Documents) purchased under the Caremark
Receivables Securitization on or prior to such date, (g) all Placement
Agent Fees (as defined in Schedule A to the Caremark Receivables
Securitization Documents) and all other program fees, facility fees,
commitment fees and other similar fees paid or payable under or in
respect of the Caremark Receivables Securitization and (h) all cash
interest payments, fees and other distributions paid or payable under
or in respect of the Convertible Preferred Securities.
"CONSOLIDATED NET INCOME" means, for any period, the net
income (or net loss) of any Person and its Subsidiaries for such
period, determined on a Consolidated basis and in accordance with
GAAP, but excluding for each such period (without duplication):
(a) the income (or loss) of any other Person
accrued prior to the date on which it became a Subsidiary of
such Person or was merged into or consolidated with such
Person or any of its Subsidiaries or all or substantially all
of the property and assets of such other Person were acquired
by such Person or any of its Subsidiaries;
(b) the income (or loss) of any other Person
(other than a Subsidiary of such Person) in which a Person
other than such Person or any of its Subsidiaries owns or
otherwise holds an Equity Interest, except to the extent such
income (or loss) shall have been received in the form of cash
dividends or other distributions actually paid to such Person
or any of its Subsidiaries by such other Person during such
period;
(c) the income of any Subsidiary of such Person
to the extent that the declaration or payment of any
dividends or other distributions by such Subsidiary of such
income is not permitted to be made or paid on the last day of
such period;
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(d) any gains or losses (on an after-tax basis)
attributable to the sale, lease, transfer or other
disposition of any property or assets of such Person or any
of its Subsidiaries;
(e) any earnings or charges resulting from the
write-up or write-down of any property or assets of such
Person or any of its Subsidiaries other than in the ordinary
course of business; and
(f) any gains attributable to the collection of
proceeds of insurance policies.
"CONSOLIDATED TOTAL ASSETS" means, at any date of
determination, the net book value of all property and assets of any
Person and its Subsidiaries (including, without limitation, all items
that are treated as intangibles in accordance with GAAP) that, in
accordance with GAAP, would be classified as such on the Consolidated
balance sheet of such Person and its Subsidiaries at such date.
"CONSTITUTIVE DOCUMENTS" means, with respect to any Person,
the certificate of incorporation or registration (including, if
applicable, certificate of change of name), articles of incorporation
or association, memorandum of association, charter, bylaws,
certificate of limited partnership, partnership agreement, trust
agreement, joint venture agreement, certificate of formation, articles
of organization, limited liability company operating or members
agreement, joint venture agreement or one or more similar agreements,
instruments or documents constituting the organization or formation of
such Person.
"CONTINGENT OBLIGATION" means, with respect to any Person,
any obligation of such Person to guarantee or intended to guarantee
any Indebtedness ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly,
including, without limitation, (a) the direct or indirect guaranty,
endorsement (other than for collection or deposit in the ordinary
course of business), co-making, discounting with recourse or sale with
recourse by such Person of any primary obligation of a primary
obligor, (b) the obligation to make take-or-pay or similar payments,
if required, regardless of nonperformance by any other party or
parties to an agreement or (c) any obligation of such Person, whether
or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to
advance or supply funds (A) for the purchase or payment of any such
primary obligation or (B) to maintain working capital, equity capital,
net worth or other balance sheet condition or any income statement
condition of the primary obligor or otherwise to maintain the solvency
of the primary obligor, (iii) to purchase, lease or otherwise acquire
property, assets, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the holder of such primary
obligation against loss in respect thereof. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of
which such Contingent Obligation is made (or, if less, the maximum
amount of such primary obligation for which such Person may be liable
pursuant to the terms of the agreement, instrument or other document
evidencing such Contingent Obligation) or, if not stated or
determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder), as
determined by such Person in good faith.
"CONTINUING DIRECTOR" means, for any period, an individual
who is a member of the board of directors of the Borrower on the first
day of such period or who has been nominated to the board of directors
of the Borrower by a majority of the other Continuing Directors who
were members of the board of directors of the Borrower at the time of
such nomination.
"CONVERSION", "CONVERT" and "CONVERTED" each refers to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.09 or 2.10.
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"CONVERTIBLE COMMON SECURITIES" means the 6,186,000 Common
Securities issued by Caremark Trust pursuant to the Convertible
Securities Trust Agreement.
"CONVERTIBLE PREFERRED SECURITIES" means the $200,000,000 7%
Share Preference Redeemable Preferred Securities issued by Caremark
Trust pursuant to the Convertible Securities Trust Agreement.
"CONVERTIBLE PREFERRED SECURITIES GUARANTEE" means the
Guarantee dated as of September 29, 1999 made by the Borrower to
guarantee the obligations of Caremark Trust in respect of the
Convertible Preferred Securities and containing certain provisions
subordinating the obligations of the Borrower thereunder to the
obligations of the Borrower hereunder, as such agreement may be
amended, supplemented or otherwise modified from time to time in
accordance with the terms thereof, but solely to the extent permitted
under the terms of the Loan Documents.
"CONVERTIBLE SECURITIES" means, collectively, the Convertible
Preferred Securities and the Convertible Common Securities.
"CONVERTIBLE SECURITIES DOCUMENTS" means, collectively, the
Convertible Securities Trust Agreement, the Convertible Subordinated
Debentures Indenture, the Convertible Preferred Securities Guarantee,
the Convertible Securities, the Convertible Subordinated Debentures
and all of the other agreements, instruments, certificates, and other
documents evidencing or otherwise setting forth the terms of the
Convertible Securities and/or, as the case may be, the Convertible
Subordinated Debentures, in each case as such agreement, instrument,
certificate or other document may be amended, supplemented or
otherwise modified hereafter from time to time in accordance with the
terms thereof, but solely to the extent permitted under the terms of
the Loan Documents.
"CONVERTIBLE SECURITIES TRUST AGREEMENT" means the Trust
Agreement dated as of September 29, 1999 between, inter alia, the
Borrower, Caremark Trust and Wilmington Trust Company, as Delaware
Trustee and Property Trustee (each such expression as defined
therein), entered into in connection with the issuance of the
Convertible Preferred Securities and the Convertible Common Securities
as such agreement may be amended, supplemented or otherwise modified
from time to time in accordance with the terms thereof, but solely to
the extent permitted under the terms of the Loan Documents.
"CONVERTIBLE SUBORDINATED DEBENTURES" means the $206,186,000
7% Convertible Subordinated Debentures due 2029 issued by the Borrower
pursuant to the terms of the Convertible Subordinated Debentures
Indenture.
"CONVERTIBLE SUBORDINATED DEBENTURES INDENTURE" means the
Indenture dated as of September 29, 1999 between the Borrower and the
Wilmington Trust Company, as trustee, as such agreement may be
amended, supplemented or otherwise modified hereafter from time to
time in accordance with the terms thereof, but solely to the extent
permitted under the terms of the Loan Documents.
"DECLINING LENDER" has the meaning specified in Section
2.06(d).
"DEFAULT" means any Event of Default or any event or
condition that would constitute an Event of Default but for the
requirement that notice be given or time elapse or both.
"DEFAULTED ADVANCE" means, with respect to any of the Lender
Parties at any time, the portion of any Advance required to be made by
such Lender Party to the Borrower pursuant to Section 2.01 at or prior
to such time that has not been made by such Lender Party or by the
Administrative Agent for the account of such Lender Party pursuant to
Section 2.02(e) as of such
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time. If a portion of a Defaulted Advance shall be deemed made
pursuant to Section 2.15(a), the remaining portion of such Defaulted
Advance shall be considered a Defaulted Advance originally required to
be made pursuant to Section 2.01 on the same date as the Defaulted
Advance so deemed made in part.
"DEFAULTED AMOUNT" means, with respect to any of the Lender
Parties at any time, any amount required to be paid by such Lender
Party to the Administrative Agent or any of the other Lender Parties
under this Agreement or any of the other Loan Documents at or prior to
such time that has not been so paid as of such time, including,
without limitation, any amount required to be paid by such Lender
Party to (a) the Swing Line Bank pursuant to Section 2.02(b)(ii) to
purchase a portion of a Swing Line Advance made by the Swing Line
Bank, (b) the Issuing Bank pursuant to Section 2.03(c)(i) to purchase
a portion of a Letter of Credit Advance made by the Issuing Bank, (c)
the Administrative Agent pursuant to Section 2.02(e) to reimburse the
Administrative Agent for the amount of any Advance made by the
Administrative Agent for the account of such Lender Party, (d) any of
the other Lender Parties pursuant to Section 2.14 to purchase any
participation in Advances owing to such other Lender Party and (e) the
Administrative Agent or the Issuing Bank pursuant to Section 7.05 to
reimburse the Administrative Agent or the Issuing Bank, as the case
may be, for such Lender Party's ratable share of any amount required
to be paid by the Lender Parties to the Administrative Agent or the
Issuing Bank as provided therein. If a portion of a Defaulted Amount
shall be deemed paid pursuant to Section 2.15(b), the remaining
portion of such Defaulted Amount shall be considered a Defaulted
Amount originally required to be paid under this Agreement or any of
the other applicable Loan Documents on the same date as the Defaulted
Amount so deemed paid in part.
"DEFAULTING LENDER" means, at any time, any of the Lender
Parties that, at such time, (a) owes a Defaulted Advance or a
Defaulted Amount or (b) shall take any action or be the subject of any
action or proceeding of a type described in Section 6.01(f).
"DOCUMENTATION AGENT" has the meaning specified in the
recital of parties to this Agreement.
"DOMESTIC SUBSIDIARY" means, at any time, any of the direct
or indirect Subsidiaries of the Borrower that is incorporated or
organized under the laws of any state of the United States of America
or the District of Columbia.
"EFFECTIVE DATE" means the first date on which the conditions
set forth in Section 3.01 shall have been satisfied.
"ELIGIBLE ASSIGNEE" means (a) with respect to any Facility
(other than the Letter of Credit Facility), (i) a Lender; (ii) an
Affiliate of a Lender; (iii) a commercial bank organized under the
laws of the United States, or any State thereof having a combined
capital and surplus of at least $100,000,000; (iv) a savings and loan
association or savings bank organized under the laws of the United
States, or any State thereof having a combined capital and surplus of
at least $100,000,000; (v) a commercial bank organized under the laws
of any other country which is a member of the OECD, or a political
subdivision of any such country, and having a combined capital and
surplus of at least $100,000,000, provided that such bank is acting
through a branch, agency or Affiliate located in the United States or
managed and controlled by a branch, agency or affiliate located in the
United States; (vi) the central bank of any country that is a member
of the OECD; (vii) a finance company, insurance company or other
financial institution, fund (whether a corporation, partnership, trust
or other entity) or other entity that is engaged in making, purchasing
or otherwise investing in commercial loans in the ordinary course of
its business having a combined capital and surplus of at least
$100,000,000 or, to the extent any such Person is taking an assignment
of Term Loan Advances only, having total assets of at least
$100,000,000; and (viii) any other Person approved by the
Administrative Agent and, provided no Event of Default is continuing,
the Borrower, provided that the approval of the Administrative
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Agent and the Borrower, when required, shall not be unreasonably
withheld or delayed, and (b) with respect to the Letter of Credit
Facility, a Person that is an Eligible Assignee under subclause (iii)
or (v) of clause (a) of this definition and is approved by the
Administrative Agent (such approval not to be unreasonably withheld or
delayed); provided, however, that neither any Loan Party nor any
Affiliate of a Loan Party shall qualify as an Eligible Assignee under
this definition.
"ENVIRONMENTAL ACTION" means any action, suit, demand, demand
letter, claim, notice of noncompliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement, abatement order or other order or
directive (conditional or otherwise) relating in any way to any
Environmental Law, any Environmental Permit or any Hazardous Materials
or arising from alleged injury or threat to health, safety, natural
resources or the environment, including, without limitation, (a) by
any Governmental Authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (b) by any
applicable Governmental Authority or other third party for damages,
contribution, indemnification, cost recovery, compensation or
injunctive relief.
"ENVIRONMENTAL LAW" means any Requirement of Law, or any
judicial or agency interpretation, policy, guideline or other
requirement of any Governmental Authority, relating to (a) the
generation, use, handling, transportation, treatment, storage,
disposal, release or discharge of Hazardous Materials, (b) pollution
or the protection of the environment, health, safety or natural
resources or (c) occupational safety and health, industrial hygiene,
land use or the protection of human, plant or animal health or
welfare, including, without limitation, CERCLA, in each case as
amended from time to time, and including the regulations promulgated
and the rulings issued from time to time thereunder.
"ENVIRONMENTAL PERMIT" means any permit, approval, license,
identification number or other authorization required under any
Environmental Law.
"EQUITY INTERESTS" means, with respect to any Person, all of
the shares of capital stock of (or other ownership or profit interests
in) such Person, all of the warrants, options or other rights for the
purchase or other acquisition from such Person of shares of capital
stock of (or other ownership or profit interests in) such Person, all
of the securities convertible into or exchangeable for shares of
capital stock of (or other ownership or profit interests in) such
Person or warrants, rights or options for the purchase or other
acquisition from such Person of such shares (or such other interests),
and all of the other ownership or profit interests in such Person
(including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are authorized or
otherwise existing on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated
and the rulings issued from time to time thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title
IV of ERISA is a member of the controlled group of any of the Loan
Parties, or under common control with any of the Loan Parties, within
the meaning of Section 414 of the Internal Revenue Code.
"ERISA EVENT" means:
(a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to
any Plan unless the 30-day notice requirement with respect to
such event has been waived by the PBGC or (ii) the
requirements of Section 4043(b) of ERISA are met with respect
to a contributing sponsor, as defined in Section 4001(a)(13)
of ERISA, of a Plan, and an event described in paragraph (9),
(10),
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(11), (12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to such Plan within the
following 30 days;
(b) the application for a minimum funding
waiver with respect to a Plan;
(c) the provision by the administrator of any
Plan of a notice of intent to terminate such Plan pursuant to
Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e) of
ERISA);
(d) the cessation of operations at a facility
of any of the Loan Parties or any of the ERISA Affiliates
under the circumstances described in Section 4062(e) of
ERISA;
(e) the withdrawal by any of the Loan Parties
or any of the ERISA Affiliates from a Plan or a Multiemployer
Plan;
(f) the conditions for the imposition of a lien
under Section 302(f) of ERISA shall have been met with
respect to any Plan;
(g) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or
(h) the institution by the PBGC of proceedings
to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section
4042 of ERISA, that constitutes grounds for the termination
of, or the appointment of a trustee to administer, a Plan.
"EUROCURRENCY LIABILITIES" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to each of
the Lenders, the office of such Lender specified as its "Eurodollar
Lending Office" opposite its name on Part B of Schedule I hereto or in
the Assignment and Acceptance pursuant to which it became a Lender, as
the case may be (or, if no such office is specified, its Base Rate
Lending Office), or such other office of such Lender as such Lender
may from time to time specify to the Borrower and the Administrative
Agent for such purpose.
"EURODOLLAR RATE" means, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) at which deposits in U.S. dollars appear on page
3750 (or any successor page thereto) of the Dow ▇▇▇▇▇ Telerate Screen
two Business Days before the first day of such Interest Period and for
a term comparable to such Interest Period or, if such rate does not so
appear on the Dow ▇▇▇▇▇ Telerate Screen on any date of determination,
on the Reuters Screen LIBO Page two Business Days before the first day
of such Interest Period and for a term comparable to such Interest
Period by (b) a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage for such Interest Period; provided, however, that
if the Reuters Screen LIBO Page is being used to determine the
Eurodollar Rate at any date of determination and more than one rate is
specified thereon as the London interbank offered rate for deposits in
U.S. dollars, the applicable rate shall be the arithmetic mean
(rounded upward, if necessary, to the nearest whole multiple of 1/100
of 1% per annum) of all such rates.
"EURODOLLAR RATE ADVANCE" means an Advance that bears
interest as provided in Section 2.07(a)(ii).
"EURODOLLAR RATE RESERVE PERCENTAGE" means, for any Interest
Period for all of the Eurodollar Rate Advances comprising part of the
same Borrowing, the reserve percentage
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applicable two Business Days before the first day of such Interest
Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor thereto) for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New
York, New York with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Rate Advances is determined) having a
term equal to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section
6.01.
"EXCESS CASH FLOW" means, for any period (without
duplication) the remainder, if positive, of the following :
(a) the aggregate amount of cash and Cash
Equivalents of the Borrower and its Subsidiaries as of the
last day of such period , less
(b) the outstanding principal amount of all
Revolving Credit Advances, Swingline Advances and Letter of
Credit Advances as of the last day of such period, less
(c) the aggregate amount of all principal and
interest payments required to be made on the last day of such
period and all voluntary payments of principal (other than in
respect of the Revolving Credit Facility) made during such
period, in each case in respect of any Indebtedness of the
Borrower or any of its Subsidiaries, less
(d) the amount of cash and Cash Equivalents of
the Borrower and its Subsidiaries as of the last day of such
period that represents proceeds of Equity Interests issued by
the Borrower or any of its Subsidiaries during such period or
proceeds of Indebtedness incurred by the Borrower or any of
its Subsidiaries during such period pursuant to Section
5.02(b)(xiii) or Section 5.02(b)(xi), less
(e) $50,000,000.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and the regulations promulgated and the
rulings issued thereunder.
"EXISTING CREDIT AGREEMENT" has the meaning specified in
Preliminary Statement (1) to this Agreement.
"EXISTING LETTERS OF CREDIT" means the irrevocable standby
letters of credit issued by BofA or one or more of its Affiliates
under the terms of the Existing Credit Agreement and outstanding on
the Effective Date, in each case as more fully described on Schedule
II hereto.
"FACILITY" means the Term Loan Facility, the Revolving
Credit Facility, the Swing Line Facility or the Letter of Credit
Facility, as the context may require.
"FAIR MARKET VALUE" means, with respect to any property or
assets (including, without limitation, any of the Equity Interests) of
any Person on any date of determination, the value of the
consideration obtainable in a sale of such property or assets in the
open market on such date assuming an arm's-length sale that has been
arranged without duress or compulsion between a willing seller and a
willing and knowledgeable purchaser in a commercially reasonable
manner over a reasonable period of time under all conditions necessary
or desirable for a fair sale (taking into account the nature and
characteristics of such property or asset); provided that in respect
of any transaction relevant hereto in which the consideration paid is
greater than $40,000,000, such determination shall be made in good
faith by a majority of the members of the board of directors of the
Borrower.
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"FEDERAL FUNDS RATE" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the immediately preceding Business Day) by the Federal
Reserve Bank of New York or, if such rate is not so published for any
day that is a Business Day, the average rate charged to the
Administrative Agent (in its individual capacity) on such day on such
transactions as determined by the Administrative Agent.
"FINANCE PARTIES" means, collectively, the Agents and the
Lender Parties.
"FISCAL QUARTER" means, with respect to the Borrower or any
of its Subsidiaries, the period commencing January 1 in any Fiscal
Year and ending on the next succeeding March 31, the period commencing
April 1 in any Fiscal Year and ending on the next succeeding June 30,
the period commencing July 1 in any Fiscal Year and ending on the next
succeeding September 30 or the period commencing October 1 in any
Fiscal Year and ending on the next succeeding December 31, as the
context may require, or, if any such Subsidiary was not in existence
on the first day of any such period, the period commencing on the date
on which such Subsidiary is incorporated, organized, formed or
otherwise created and ending on the last day of such period.
"FISCAL YEAR" means, with respect to the Borrower or any of
its Subsidiaries, the period commencing on January 1 in any calendar
year and ending on the next succeeding December 31 or, if any such
Subsidiary was not in existence on January 1 in any calendar year, the
period commencing on the date on which such Subsidiary is
incorporated, organized, formed or otherwise created and ending on the
next succeeding December 31.
"FIXED CHARGE COVERAGE RATIO" means, with respect to the
Borrower and its Subsidiaries for any period, the ratio of (a) the sum
of Consolidated EBITDA of the Borrower and its Subsidiaries for such
period and to (b) the sum (without duplication) of (i) all
Consolidated Interest Expense of the Borrower and its Subsidiaries for
such period, (ii) all Consolidated Cash Taxes paid by or on behalf of
the Borrower or any of its Subsidiaries during such period and (iii)
other than the Revolving Credit Advances scheduled to be repaid on
March 15, 2005, the aggregate amount of all outstanding Advances
scheduled to be repaid during such period pursuant to Section 2.04(a)
and 2.04(b) provided that for the purposes of determining the Fixed
Charge Coverage Ratio, the "Borrower and its Subsidiaries" shall be
deemed not to include any of their discontinued operations (as
determined in accordance with GAAP).
"FOREIGN SUBSIDIARY" means, at any time, any of the direct or
indirect Subsidiaries of the Borrower that is not a Domestic
Subsidiary at such time.
"FUND" means any Person (other than a natural Person) that is
(or will be) an "accredited investor" (as defined in Regulation D
under the Securities Act) engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.
"GAAP" has the meaning specified in Section 1.03.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state, province, city, municipal entity or other political subdivision
thereof, and any governmental, executive, legislative, judicial,
administrative or regulatory agency, department, authority,
instrumentality, commission, board or similar body, whether federal,
state, territorial, local or foreign.
"GOVERNMENTAL AUTHORIZATION" means any authorization,
approval, consent, franchise, license, covenant, order, ruling,
permit, certification, exemption, notice, declaration or similar
right, undertaking or other action of, to or by, or any filing,
qualification or registration with, any Governmental Authority.
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"GRANTING LENDER" has the meaning specified in Section
8.07(k).
"GUARANTEE SUPPLEMENT" has the meaning specified in Section
8(b) of the Subsidiaries Guarantee.
"GUARANTOR" means each Material Subsidiary of the Borrower
party to the Subsidiaries Guarantee or, as the case may be, a
Guarantee Supplement.
"HAZARDOUS MATERIALS" means (a) petroleum or petroleum
products, by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"HEDGE AGREEMENTS" means, collectively, interest rate swap,
cap or collar agreements, interest rate future or option contracts,
commodity future or option contracts, currency swap agreements,
currency future or option contracts and other similar agreements.
"HEDGE BANKS" means, collectively, any Persons which have
entered into interest rate Hedge Agreements permitted under Section
5.02(b)(iii).
"IMMATERIAL SUBSIDIARY" means, at any time, any of the
Subsidiaries of the Borrower that does not constitute a Material
Subsidiary at such time.
"INDEBTEDNESS" means, with respect to any Person (without
duplication):
(a) all indebtedness of such Person for
borrowed money;
(b) all Obligations of such Person for the
deferred purchase price of property and assets or services
(other than (i) trade payables or other accounts payable
incurred in the ordinary course of such Person's business and
not past due for more than one year after the date on which
each such trade payable or account payable was created and
(ii) deferred compensation to employees paid in the ordinary
course of business and in accordance with the past business
practices of such Person);
(c) all Obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, or
upon which interest payments are customarily made;
(d) all Obligations of such Person created or
arising under any conditional sale or other title retention
agreement with respect to property or assets acquired by such
Person (even though the rights and remedies of the seller or
the lender under such agreement in the event of default are
limited to repossession or sale of such property or assets);
(e) all Obligations of such Person as lessee
under Capitalized Leases;
(f) all Obligations, contingent or otherwise,
of such Person under acceptance, letter of credit or similar
facilities;
(g) all Obligations of such Person to purchase,
redeem, retire, defease or otherwise make any payment in
respect of any Equity Interests in such Person or any other
Person, valued, in the case of Redeemable Preferred
Interests, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends;
(h) all Obligations, contingent or otherwise,
of such Person in respect of Hedge Agreements, in each case
valued at the Agreement Value thereof;
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(i) all Off Balance Sheet Liabilities of such
Person;
(j) all Contingent Obligations of such Person
in respect of Indebtedness described in any other clause of
this definition of any other Person; and
(k) all Indebtedness referred to in clauses (a)
through (j) above secured by any Lien on property or assets
(including, without limitation, accounts and contract rights)
owned by such Person, even though such Person has not assumed
or become liable for the payment of such Indebtedness,
valued, in the case of any such Indebtedness as to which
recourse for the payment thereof is expressly limited to the
property or assets on which such Lien is granted, at the
lesser of (i) the stated or determinable amount of the
Indebtedness that is so secured or, if not stated or
determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform
thereunder) and (ii) the Fair Market Value of such property
or assets.
The Indebtedness of any Person shall include (i) all
Obligations of the types described in clauses (a) through (k) above of
any partnership in which such Person is a general partner and (ii) all
Obligations of the types described in clauses (a) through (k) above of
such Person to the extent such Person remains legally liable in
respect thereof, notwithstanding that any such Obligation is deemed to
be extinguished under GAAP at any date of determination.
"INDEMNIFIED PARTY" has the meaning specified in Section
8.04(b).
"INFORMATION MEMORANDUM" means the information memorandum
dated February 2001 used by the Lead Arranger in connection with the
syndication of the Commitments.
"INITIAL EXTENSIONS OF CREDIT" means, collectively, the
initial Borrowings under one or more of the Facilities and/or the
initial issuances of one or more Letters of Credit made (or deemed to
have been made) on the Effective Date.
"INITIAL ISSUING BANK" has the meaning specified in the
recital of parties to this Agreement.
"INITIAL LENDERS" has the meaning specified in the recital of
parties to this Agreement.
"INTELLECTUAL PROPERTY SECURITY AGREEMENT" has the meaning
specified in Section 3.01(g)(viii).
"INTEREST COVERAGE RATIO" means, with respect to the Borrower
and its Subsidiaries for any period, the ratio of (a) Consolidated
EBITDA of the Borrower and its Subsidiaries for such period to (b)
Consolidated Interest Expense of the Borrower and its Subsidiaries for
such period provided that for the purposes of determining the Interest
Coverage Ratio, the "Borrower and its Subsidiaries" shall be deemed
not to include any of their discontinued operations (as determined in
accordance with GAAP).
"INTEREST PERIOD" means, for each of the Eurodollar Rate
Advances comprising part of the same Borrowing, the period commencing
on the date of such Eurodollar Rate Advance or the date of the
Conversion of any Base Rate Advance into such Eurodollar Rate Advance,
as the case may be, and ending on the last day of the period selected
by the Borrower pursuant to the provisions below and, thereafter, each
subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period
selected by the Borrower pursuant to the provisions set forth below.
The duration of each such Interest Period shall be one, two, three or
six months as the Borrower may, upon notice received by the
Administrative Agent not later than 11:00 A.M. (Charlotte, North
Carolina time) on the third Business Day prior to the first day of
such Interest Period, select; provided, however, that:
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(a) the Borrower may not select any Interest
Period with respect to any Eurodollar Rate Advance under a
Facility at any time that ends (i) in the case of the Term
Loan Facility, after the scheduled Term Loan Maturity Date,
and (ii) in the case of the Revolving Credit Facility, after
the scheduled Termination Date for such Facility;
(b) Interest Periods commencing on the same
date for Eurodollar Rate Advances comprising part of the same
Borrowing shall be of the same duration;
(c) whenever the last day of any Interest
Period would otherwise occur on a day other than a Business
Day, the last day of such Interest Period shall be extended
to occur on the next succeeding Business Day; provided,
however, that if such extension would cause the last day of
such Interest Period to occur in the next succeeding calendar
month, the last day of such Interest Period shall occur on
the immediately preceding Business Day; and
(d) whenever the first day of any Interest
Period occurs on a day of an initial calendar month for which
there is no numerically corresponding day in the calendar
month that succeeds such initial calendar month by the number
of months equal to the number of months in such Interest
Period, such Interest Period shall end on the last Business
Day of such succeeding calendar month.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated
and the rulings issued thereunder.
"INVESTMENT" means, with respect to any Person, (a) any
direct or indirect purchase or other acquisition (whether for cash,
securities, property, services or otherwise) by such Person of, or of
a beneficial interest in, any Equity Interests or Indebtedness of any
other Person, (b) any direct or indirect purchase or other acquisition
(whether for cash, securities, property, services or otherwise) by
such Person of all or substantially all of the property and assets of
any other Person or of any division, branch or other unit of operation
of any other Person, (c) any direct or indirect redemption,
retirement, purchase or other acquisition for value by such Person
from any other Person of any Equity Interests in such other Person,
(d) the making of a deposit by such Person with, or any direct or
indirect loan, advance, other extension of credit or capital
contribution by such Person to, or any other investment by such Person
in, any other Person (including, without limitation, any indebtedness
or accounts receivable from such other Person that are not current
assets or did not arise from sales to such other Person in the
ordinary course of business and any arrangement pursuant to which the
investor incurs Indebtedness of the types referred to in clause (j) or
(k) of the definition of "Indebtedness" set forth above in this
Section 1.01 in respect of such other Person) and (e) any agreement to
make any Investment (including any "short sale" or any sale of any
securities at a time when such securities are not owned by the Person
entering into such sale). The amount of any Investment shall be the
original cost of such Investment plus the cost of all additions
thereto, without any adjustments for increases or decreases in value,
or write-ups, write-downs or write-offs with respect to such
Investment.
"IP SECURITY AGREEMENT SUPPLEMENT" has the meaning specified
in the Security Agreement.
"ISSUING BANK" means the Initial Issuing Bank and each other
Person to which the Letter of Credit Commitment has been assigned
pursuant to Section 8.07, in each case for so long as the Initial
Issuing Bank or such other Person, as the case may be, shall be a
party to this Agreement in such capacity.
"L/C CASH COLLATERAL ACCOUNT" has the meaning specified in
the Trust Agreement.
"L/C RELATED DOCUMENTS" has the meaning specified in Section
2.03(c)(ii)(A).
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"LEAD ARRANGER" has the meaning specified in the recital of
parties to this Agreement.
"LENDER PARTY" means any Lender, the Issuing Bank or the
Swing Line Bank, as the context may require.
"LENDERS" means, collectively, the Initial Lenders and each
Person that becomes a Lender pursuant to Section 8.07, in each case
for so long as such Initial Lender or such other Person, as the case
may be, shall a party to this Agreement in such capacity.
"LETTER OF CREDIT" has the meaning specified in Section
2.01(d).
"LETTER OF CREDIT ADVANCE" means an advance made by the
Issuing Bank or any of the Revolving Credit Lenders pursuant to
Section 2.03(c)(i).
"LETTER OF CREDIT AGREEMENT" has the meaning specified in
Section 2.03(a).
"LETTER OF CREDIT COMMITMENT" means, with respect to the
Issuing Bank at any time, the amount set forth opposite the Issuing
Bank's name on Part B of Schedule I hereto under the caption "Letter
of Credit Commitment" or, if the Issuing Bank has entered into one or
more Assignment and Acceptances, the amount set forth for the Issuing
Bank in the Register maintained by the Administrative Agent pursuant
to Section 8.07(e) as the Issuing Bank's "Letter of Credit
Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"LETTER OF CREDIT FACILITY" means, at any time, an amount
equal to the lesser of (a) the amount of the Letter of Credit
Commitment at such time and (b) $50,000,000, as such amount may be
reduced at or prior to such time pursuant to Section 2.05.
"LEVERAGE RATIO" means, with respect to the Borrower and its
Subsidiaries at any date of determination, the ratio of (a) (i) all
Indebtedness of the Borrower and its Subsidiaries outstanding on such
date that would (or would be required to) appear on the Consolidated
balance sheet of the Borrower and its Subsidiaries less the amount of
any such Indebtedness arising under or attributable to the Convertible
Preferred Securities plus (ii) to the extent not otherwise included in
subclause (a)(i) of this definition, (A) the face amount of all
letters of credit (including, without limitation, all Letters of
Credit) issued for the account of the Borrower or any of its
Subsidiaries and (B) the aggregate Net Investment in respect of all
Transferred Interests (each as defined in Schedule A to the Caremark
Receivables Securitization Documents) purchased under the Caremark
Receivables Securitization on or prior to such date to (b)
Consolidated EBITDA of the Borrower and the Material Subsidiaries for
the most recently completed Measurement Period prior to such date
provided that for the purposes of determining the Leverage Ratio, the
"Borrower and its Subsidiaries" shall be deemed not to include any of
their discontinued operations (as determined in accordance with GAAP).
"LIEN" means, with respect to any Person, (a) any mortgage,
lien (statutory or other), pledge, hypothecation, security interest,
charge or encumbrance of any kind, (b) any assignment, deposit
arrangement or lease intended as, or having the effect of, security,
(c) any easement, right of way or other encumbrance on title to real
property or (d) any interest or title of any vendor, lender or other
secured party under any conditional sale or other title retention
agreement.
"LOAN DOCUMENTS" means, collectively, for all purposes of
this Agreement and the Notes and any amendment, supplement or other
modification hereof or thereof and for all other purposes, (i) this
Agreement, (ii) the Notes, (iii) the Subsidiaries Guarantee, (iv) the
Collateral Documents, (v) each Letter of Credit Agreement and (vi)
each of the other agreements evidencing any of the Obligations of any
of the Loan Parties, or supporting any of the other Obligations of
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any of the Loan Parties, owing to the Finance Parties, as amended,
supplemented or otherwise modified hereafter from time to time in
accordance with the terms thereof and Section 8.01.
"LOAN PARTIES" means, collectively, the Borrower and each of
the Guarantors.
"MATERIAL ADVERSE CHANGE" means any material adverse change
in the business, condition (financial or otherwise), operations,
liabilities (actual or contingent), properties or prospects of the
Borrower, individually, or the Borrower and its Subsidiaries, taken as
a whole; provided that the occurrence or subsistence of any such
material adverse change which has been disclosed by the Borrower in
any filing made with the Securities and Exchange Commission prior to
the date of this Agreement shall not constitute a Material Adverse
Change.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
liabilities (actual or contingent), properties or prospects of the
Borrower and its Subsidiaries, taken as a whole, (b) the rights and
remedies of the Administrative Agent or any of the Lender Parties
under any of the Loan Documents or (c) the ability of any of the Loan
Parties to perform their respective Obligations under any of the Loan
Documents to which it is or is to be a party (including for purposes
of clauses (a) and (b) of this definition the imposition of materially
burdensome conditions thereon); provided that the occurrence or
subsistence of any such material adverse effect which has been
disclosed by the Borrowers in any filing made with the Securities and
Exchange Commission prior to the date of this Agreement shall not
constitute a Material Adverse Effect.
"MATERIAL SUBSIDIARY" means, at any date of determination,
any Subsidiary of the Borrower (x) other than MP Receivables, that
either individually or, together with its Subsidiaries, taken as a
whole, (a) owned more than 5% of the Consolidated Total Assets of the
Borrower and its Subsidiaries as of the last day of the most recently
completed Fiscal Quarter on or prior to such date or (b) accounted for
more than 5% of the Consolidated Net Income of the Borrower and its
Subsidiaries for the most recently completed Fiscal Quarter on or
prior to such date, in each case as reflected in the Required
Financial Information most recently delivered to the Administrative
Agent and the Lender Parties on or prior to such date and determined
in accordance with GAAP for such period; provided, however, that
solely for purposes of determining whether a Subsidiary of the
Borrower that was not a Subsidiary thereof on the first day of the
most recently completed Fiscal Quarter on or prior to any such date
constitutes a "Material Subsidiary" at such date, the organization,
creation, purchase or other acquisition of such Subsidiary shall be
given pro forma effect as though it had occurred on the first day of
such Fiscal Quarter; and provided further that in the event at any
time the aggregate Total Assets or the Net Income, as the case may be,
of the Immaterial Subsidiaries is in excess of 5% of the aggregate
Consolidated Total Assets or Consolidated Net Income of the Borrower
and its Subsidiaries, respectively, then the percentages set forth in
respect of Material Subsidiaries above shall be reduced so that the
aggregate Consolidated Total Assets or Consolidated Net Income of the
remaining Immaterial Subsidiaries (after giving effect to such
reduction and the resulting increase in number of Material
Subsidiaries) is less than 5% of the aggregate Consolidated Total
Assets or Consolidated Net Income of the Borrower and its
Subsidiaries, or (y) which is designated in writing by the Borrower to
the Administrative Agent as a "Material Subsidiary" under this
Agreement.
"MEASUREMENT PERIOD" means, at any date of determination, the
most recently completed four consecutive Fiscal Quarters on or
immediately prior to such date.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"MP RECEIVABLES" means MP Receivables Company, a Delaware
corporation and a wholly-owned indirect Subsidiary of the Borrower, or
any other Person organized under the laws of the United States or any
State thereof and a wholly-owned direct or indirect Subsidiary of the
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Borrower, in each case formed by the Borrower in connection with the
Caremark Receivables Securitization.
"MPN" means MedPartners Provider Network, Inc., a California
corporation and a wholly-owned Subsidiary of the Borrower on the date
of this Agreement.
"MPN PLAN OF REORGANIZATION" means the Second Amended Chapter
11 Plan of MedPartners Provider Network, Inc. dated July 7, 2000, as
amended, supplemented or otherwise modified from time to time in
accordance with the terms thereof, but solely to the extent permitted
under the terms of the Loan Documents.
"MULTIEMPLOYER PLAN" means a multiemployer plan (as defined
in Section 4001(a)(3) of ERISA) to which any of the Loan Parties or
any of the ERISA Affiliates is making or accruing an obligation to
make contributions, or has within any of the preceding five plan years
made or accrued an obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan (as
defined in Section 4001(a)(15) of ERISA) that (a) is maintained for
employees of any of the Loan Parties or any of the ERISA Affiliates
and at least one Person other than the Loan Parties and the ERISA
Affiliates or (b) was so maintained and in respect of which any of the
Loan Parties or any of the ERISA Affiliates is reasonably expected to
have liability under Section 4064 or 4069 of ERISA in the event such
plan has been or were to be terminated.
"NET CASH PROCEEDS" means, with respect to any sale, lease,
transfer or other disposition of any property or assets (other than
the sale of any Equity Interests of Team Health) or, as the case may
be, the incurrence or issuance of any Indebtedness, or the sale or
issuance of any Equity Interests in any Person (other than the sale of
any Equity Interests of Team Health), the aggregate amount of cash
received from time to time (whether as initial consideration or
through payment or disposition of deferred consideration) by or on
behalf of such Person for its own account in connection with any such
transaction, after deducting therefrom (without duplication) only:
(a) reasonable and customary brokerage
commissions, underwriting fees and discounts, legal fees,
accounting fees, finder's fees and other similar fees and
commissions and reasonable and customary printing expenses
and, solely in the case of any sale, lease, transfer or other
disposition of any property or assets, other reasonable and
customary costs and expenses incurred in connection with such
sale, lease, transfer or other disposition, in each case
under this clause (a) to the extent, but only to the extent,
that the amounts so deducted are actually paid (i) at the
time of the receipt of such cash or (ii) if later, within 30
days after the consummation of such transaction (based on
such Person's reasonable estimate of the aggregate amount of
all such commissions, discounts, fees, costs and expenses
therefor at the time of the consummation of such
transaction);
(b) the amount of taxes payable in connection
with or as a result of such transaction to the extent, but
only to the extent, that the amounts so deducted are actually
paid at the time of receipt of such cash or, so long as such
Person is not otherwise indemnified therefor, are reserved
for in accordance with GAAP at the time of receipt of such
cash based upon such Person's reasonable estimate of such
taxes;
(c) in the case of the sale, lease, transfer or
other disposition of any property or asset, the outstanding
principal amount of, the premium or penalty, if any, on, and
any accrued and unpaid interest on, any Indebtedness (other
than the Indebtedness under or in respect of the Loan
Documents) that is secured by a Lien on the property and
assets subject to such sale, lease, transfer or other
disposition and is required to be repaid under the terms
thereof as a result of such sale, lease, transfer or other
disposition, in each case
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under this clause (c) to the extent, but only to the extent,
that the amounts so deducted are actually paid at the time of
the receipt of such cash; and
(d) in the case of the sale, lease, transfer or
other disposition of any property and assets, the aggregate
amount of all reasonable and customary post-closing purchase
price adjustments to the cash consideration received by the
Borrower or any of its Subsidiaries for one or more prior
sales, leases, transfers or other dispositions of their
property and assets pursuant to Section 5.02(d)(vii) to the
extent (and only to the extent) that such purchase price
adjustments are for working capital reconciliations
determined on the basis of actual (as opposed to estimated)
financial statement information delivered pursuant to the
terms of the documentation for such prior sale, lease,
transfer or other disposition;
provided, however, that, notwithstanding any of the foregoing
provisions of this definition, (A) any and all amounts so
deducted by any such Person pursuant to clauses (a) through
(c) of this definition shall be properly attributable to the
transaction or to the property or assets that are the subject
thereof and shall be payable solely to one or more Persons
that are not Affiliates of such Person or of any of the Loan
Parties or any Affiliate of any of the Loan Parties and (B)
if, at the time any of the commissions, discounts, fees,
costs, expenses, taxes, contingent liabilities, insurance
premiums, notes or deferred payment obligations referred to
in clause (a) or (b) of this definition are actually paid or
otherwise satisfied, the reserve therefor or the amount
otherwise retained by such Person for the payment or
satisfaction thereof exceeds the amount so paid or otherwise
satisfied, then the amount of such excess reserve or retained
amount, as the case may be, shall constitute "Net Cash
Proceeds" on and as of the date of such payment or other
satisfaction for all purposes of this Agreement and, to the
extent required under Sections 2.05(b) and 2.06(b), the
Borrower shall reduce the Commitments on such date in
accordance with the terms of Section 2.05(b) and shall prepay
the outstanding Advances on such date in accordance with the
terms of Section 2.06(b), in an amount equal to the amount of
such excess reserve or retained amount.
"NOTE" means a Term Loan Note or a Revolving Credit Note, as
the context may require.
"NOTICE OF BORROWING" has the meaning specified in Section
2.02(a).
"NOTICE OF CONVERSION" has the meaning specified in Section
2.09(a).
"NOTICE OF ISSUANCE" has the meaning specified in Section
2.03(a).
"NOTICE OF RENEWAL" has the meaning specified in Section
2.01(d).
"NOTICE OF SWING LINE BORROWING" has the meaning specified in
Section 2.02(b).
"NOTICE OF TERMINATION" has the meaning specified in Section
2.01(d).
"NPL" means the National Priorities List under CERCLA.
"OBLIGATION" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether
or not the right of any creditor to payment in respect of such claim
is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured,
and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 6.01(f). Without
limiting the generality of the immediately preceding sentence, the
Obligations of the Loan Parties under or in respect of the Loan
Documents include (a) the obligation to pay principal, interest,
Letter of Credit commissions, charges, expenses, fees, attorneys' fees
and disbursements, indemnity
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payments and other amounts payable by any of the Loan Parties under or
in respect of any of the Loan Documents and (b) the obligation of any
of the Loan Parties to reimburse any amount in respect of any of the
items described above in clause (a) of this definition that the
Administrative Agent or any of the Lender Parties, in its sole
discretion, may elect to pay or advance on behalf of such Loan Party.
"OFF BALANCE SHEET LIABILITIES" means, with respect to any
Person, (a) any repurchase obligation or liability, contingent or
otherwise, of such Person with respect to any accounts or notes
receivable sold, transferred or otherwise disposed of by such Person,
(b) any repurchase obligation or liability, contingent or otherwise,
of such Person with respect to property or assets leased by such
Person as lessee and (c) all Obligations, contingent or otherwise, of
such Person under any synthetic lease, tax retention operating lease,
off balance sheet loan or similar off balance sheet financing if the
transaction giving rise to such Obligation (i) is considered
indebtedness for borrowed money for tax purposes but is classified as
an Operating Lease or (ii) does not (and is not required to) appear as
a liability on the Consolidated balance sheet of such Person and its
Subsidiaries, but excluding from the foregoing provisions of this
definition any obligations or liabilities of any such Person as lessee
under any Operating Lease so long as the terms of such Operating Lease
do not require any payment by or on behalf of such Person at the
scheduled termination date of such Operating Lease, pursuant to a
required purchase by or on behalf of such Person of the property or
assets subject to such Operating Lease, or under any arrangements
pursuant to which such Person guarantees or otherwise assures any
other Person of the value of the property or assets subject to such
Operating Lease.
"OPEN YEAR" means, with respect to any Person, any year for
which United States federal income tax returns have been filed by or
on behalf of such Person and for which the expiration of the
applicable statute of limitations for assessment, reassessment or
collection has not occurred (whether by reason of extension or
otherwise).
"OPERATING LEASE" means, with respect to any Person, any
lease (including, without limitation, leases that may be terminated by
the lessee at any time) of any property (whether real, personal or
mixed) that is not a Capitalized Lease or a lease under which such
Person is the lessor.
"OTHER TAXES" has the meaning specified in Section 2.13(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"PERFORMANCE LEVEL" means Performance Level I, Performance
Level II, Performance Level III and Performance Level IV as identified
in the definition of "Applicable Margin" and "Applicable Percentage"
specified above, in each case as the context may require.
"PERMITTED LIENS" means the following types of Liens
(excluding any such Lien imposed pursuant to Section 401(a)(29) or
412(n) of the Internal Revenue Code or by ERISA or any such Lien
relating to or imposed in connection with any Environmental Action),
in each case as to which no enforcement, collection, execution, levy
or foreclosure proceeding shall have been commenced:
(a) Liens for taxes, assessments and
governmental charges or levies to the extent not otherwise
required to be paid under Section 5.01(b);
(b) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's, storage and
repairmen's Liens and other similar Liens arising in the
ordinary course of business and securing obligations (other
than Indebtedness for borrowed money) (i) that are not
overdue for a period of more than 90 days or (ii) the amount,
applicability or validity of which are being contested in
good faith and by appropriate
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proceedings diligently conducted and with respect to which
the Borrower or its applicable Subsidiary, as the case may
be, has established reserves in accordance with GAAP;
(c) pledges or deposits to secure obligations
incurred in the ordinary course of business under workers'
compensation laws, unemployment insurance or other similar
social security legislation (other than in respect of
employee benefit plans subject to ERISA) or to secure public
or statutory obligations;
(d) Liens securing the performance of, or
payment in respect of, bids, tenders, government contracts
(other than for the repayment of borrowed money), surety and
appeal bonds and other obligations of a similar nature
incurred in the ordinary course of business;
(e) any interest or title of a lessor or
sublessor and any restriction or encumbrance to which the
interest or title of such lessor or sublessor may be subject
that is incurred in the ordinary course of business and,
either individually or when aggregated with all other
Permitted Liens in effect on any date of determination, is
not reasonably expected to have a Material Adverse Effect;
(f) Liens arising out of judgments or awards
that do not constitute an Event of Default under Section
6.01(g) or 6.01(h) and in respect of which the Borrower or
any of its Subsidiaries subject thereto shall be prosecuting
an appeal or proceedings for review in good faith and,
pending such appeal or proceedings, shall have secured within
ten Business Days after the entry thereof a subsisting stay
of execution and shall be maintaining reserves, in accordance
with GAAP, with respect to any such judgment or award; and
(g) easements, rights of way, zoning
restrictions and other encumbrances and survey exceptions,
title irregularities and other similar restrictions on title
to, or the use of, real property that do not, either
individually or in the aggregate, (i) materially detract from
the value of such real property or (ii) materially and
adversely affect the use of such real property for its
intended purposes or the conduct of the business of the
Borrower and its Subsidiaries in the ordinary course and, in
any case, that were not incurred in connection with and do
not secure Indebtedness or other extensions of credit.
"PERMITTED RECEIVABLES SECURITIZATIONS" means the Caremark
Receivables Securitization, with the maximum face amount of accounts
receivable which may be sold and the minimum price which may be paid
for such accounts receivables pursuant to the Caremark Receivables
Securitization being such face amount as may be sold from time to time
and such price as may be paid from time to time pursuant to the
Caremark Receivables Securitization Documents.
"PERMITTED SALE-LEASEBACK TRANSACTION" means any sale,
transfer or other disposition of any real property and related
improvements, fixtures and equipment owned by the Borrower or any of
its Subsidiaries as of the date of this Agreement to any lender or
investor and leased back by the Borrower or such Subsidiary, as the
case may be, upon or promptly following such sale, transfer or other
disposition (whether under a Capitalized Lease or an Operating Lease);
provided that:
(a) the gross proceeds received from any such
sale, transfer or other disposition shall be at least equal
to the Fair Market Value of the real property and related
improvements, fixtures and equipment so sold, transferred or
otherwise disposed of, determined at the time of such sale,
transfer or other disposition; and
(b) at least 80% of the value of the aggregate
consideration received from any such sale, transfer or other
disposition shall be in cash.
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"PERSON" means an individual, partnership, corporation
(including a business trust), limited liability company, unlimited
liability company, joint stock company, trust, unincorporated
association, joint venture or other entity, or a government or any
political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer
Plan, as the context may require.
"PLEDGED DEBT" has the meaning specified in the Security
Agreement.
"PLEDGED SHARES" has the meaning specified in the Security
Agreement.
"PREFERRED INTERESTS" means, with respect to any Person,
Equity Interests issued by such Person that are entitled to a
preference or priority over any other Equity Interests issued by such
Person upon any distribution of such Person's property and assets,
whether by dividend or upon liquidation.
"PREPAYMENT AMOUNT" has the meaning specified in Section
2.06(d).
"PREPAYMENT DATE" has the meaning specified in Section
2.06(d).
"PRIMARY OBLIGATIONS" has the meaning specified in the
definition of "Contingent Obligation" set forth above in this Section
1.01.
"PRIMARY OBLIGOR" has the meaning specified in the definition
of "Contingent Obligation" set forth above in this Section 1.01.
"PRO RATA SHARE" of any amount means, with respect to any of
the Lenders at any time, the product of (a) a fraction the numerator
of which is the amount of such Lender's Commitment(s) under the
applicable Facility or Facilities at such time (or, if the Commitments
shall have been terminated pursuant to Section 2.05 or 6.01 at or
prior to such time, such Lender's Commitment(s) under the applicable
Facility or Facilities as in effect immediately prior to such
termination) and the denominator of which is the aggregate amount of
such Facility or Facilities at such time (or, if the Commitments shall
have been terminated pursuant to Section 2.05 or 6.01 at or prior to
such time, the applicable Facility or Facilities as in effect
immediately prior to such termination) multiplied by (b) such amount.
"RECEIPT DATE" has the meaning specified in Section 2.06(d).
"REDEEMABLE" means, with respect to any Equity Interest
(including, without limitation, Preferred Interests), any Indebtedness
or any other right or Obligation, any such Equity Interest,
Indebtedness, right or Obligation that (a) the issuer has undertaken
to redeem at a fixed or determinable date or dates, whether by
operation of a sinking fund or otherwise, or upon the occurrence of a
condition not solely within the control of the issuer or (b) is
redeemable at the option of the holder.
"REGISTER" has the meaning specified in Section 8.07(e).
"REQUIRED FINANCIAL INFORMATION" means, at any date of
determination, the Consolidated financial statements of the Borrower
and its Subsidiaries most recently delivered to the Administrative
Agent and the Lender Parties on or prior to such date pursuant to, and
satisfying all of the requirements of, Section 5.03(b) or 5.03(c) and
accompanied by the certificates and other information required to be
delivered together therewith pursuant to Section 5.03(d).
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"REQUIRED LENDERS" means, at any time, Lenders owed or
holding at least a majority in interest of the sum of (a) the
aggregate principal amount of all Advances outstanding at such time,
(b) the aggregate Available Amount of all Letters of Credit
outstanding at such time and (c) the aggregate Unused Revolving Credit
Commitments at such time; provided, however, that if any Lender shall
be a Defaulting Lender at such time, there shall be excluded from the
determination of Required Lenders at such time (i) the aggregate
principal amount of all Advances owing to such Lender (in its capacity
as a Lender) and outstanding at such time, (ii) such Lender's Pro Rata
Share of the aggregate Available Amount of all Letters of Credit
outstanding at such time and (iii) the Unused Revolving Credit
Commitment of such Lender at such time. For purposes of this
definition, the aggregate principal amount of Swing Line Advances
owing to the Swing Line Bank and outstanding at such time and Letter
of Credit Advances owing to the Issuing Bank and outstanding at such
time and the Available Amount of all Letters of Credit outstanding at
such time shall be deemed to be owed to the Revolving Credit Lenders
in accordance with their respective Revolving Credit Commitments at
such time.
"REQUIRED PRINCIPAL PAYMENTS" means, with respect to any
Person for any period, the sum of all regularly scheduled principal
payments or redemptions and all required prepayments, repurchases,
redemptions or similar acquisitions for value of outstanding
Indebtedness made or required to be made during such period, but
excluding any such payments to the extent refinanced through the
incurrence of additional Indebtedness otherwise expressly permitted
under Section 5.02(b)(xiii).
"REQUIREMENTS OF LAW" means, with respect to any Person, all
laws, constitutions, statutes, treaties, ordinances, rules and
regulations, all orders, writs, decrees, injunctions, judgments,
determinations and awards of an arbitrator, a court or any other
Governmental Authority, and all Governmental Authorizations, binding
upon or applicable to such Person or to any of its property, assets or
businesses.
"RESPONSIBLE OFFICER" means the chief executive officer, the
president, the chief financial officer, the principal accounting
officer or the treasurer (or the equivalent of any of the foregoing)
of the Borrower or any of its Subsidiaries or any other officer,
partner or member (or person performing similar functions) of the
Borrower or any of its Subsidiaries responsible for overseeing the
administration of, or reviewing compliance with, all or any portion of
this Agreement or any of the other Loan Documents.
"REVOLVING CREDIT ADVANCE" means, with respect to each of the
Revolving Credit Lenders, any advance made by such Revolving Credit
Lender to the Borrower pursuant to Section 2.01(b).
"REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by the
Revolving Credit Lenders.
"REVOLVING CREDIT COMMITMENT" means, with respect to any of
the Revolving Credit Lenders at any time, the amount set forth
opposite such Revolving Credit Lender's name on Schedule I hereto
under the caption "Revolving Credit Commitment" or, if such Revolving
Credit Lender has entered into one or more Assignment and Acceptances,
the amount set forth for such Revolving Credit Lender in the Register
maintained by the Administrative Agent pursuant to Section 8.07(e) as
such Revolving Credit Lender's "Revolving Credit Commitment", as such
amount may be reduced at or prior to such time pursuant to Section
2.05.
"REVOLVING CREDIT FACILITY" means, at any time, the aggregate
Revolving Credit Commitments of all of the Revolving Credit Lenders at
such time.
"REVOLVING CREDIT LENDER" means, at any time, any of the
Lenders that has a Revolving Credit Commitment at such time.
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"REVOLVING CREDIT NOTE" means a promissory note of the
Borrower payable to the order of any of the Revolving Credit Lenders,
in substantially the form of Exhibit A-2 hereto, evidencing the
aggregate indebtedness of the Borrower to such Revolving Credit Lender
resulting from the Revolving Credit Advances made by such Revolving
Credit Lender.
"S&P" means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
"SECURED OBLIGATIONS" has the meaning specified in Section 2
of the Security Agreement.
"SECURED PARTIES" means, collectively, the Agents, the Lender
Parties, the Hedge Banks, the Collateral Trustee and the holders of
the Senior Notes.
"SECURITIES ACT" means the Securities Act of 1933, as
amended, and the regulations promulgated and the rulings issued
thereunder.
"SECURITY AGREEMENT" has the meaning specified in Section
3.01(g)(vii).
"SECURITY AGREEMENT SUPPLEMENT" has the meaning specified in
the Security Agreement.
"SENIOR FINANCIAL OFFICER" means the chief executive officer,
the chief financial officer, the principal accounting officer or the
treasurer of the Borrower.
"SENIOR NOTES" means the 7-3/8% senior unsecured notes of the
Borrower due 2006 in an aggregate principal amount of $450,000,000
issued pursuant to the terms of the Senior Notes Indenture.
"SENIOR NOTES DOCUMENTS" means the Senior Notes Indenture,
the Senior Notes and all of the other agreements, instruments and
other documents pursuant to which the Senior Notes were issued or
otherwise setting forth the terms of the Senior Notes, in each case as
such agreement, instrument or other document may be amended,
supplemented or otherwise modified hereafter from time to time in
accordance with the terms thereof, but solely to the extent permitted
under the terms of the Loan Documents.
"SENIOR NOTES INDENTURE" means the Indenture dated as of
October 8, 1996 between the Borrower and U.S. Bank Trust National
Association (as successor to The First National Bank of Chicago), as
Trustee, as such agreement may be amended, supplemented or otherwise
modified hereafter from time to time in accordance with the terms
thereof, but solely to the extent permitted under the terms of the
Loan Documents.
"SINGLE EMPLOYER PLAN" means a single employer plan (as
defined in Section 4001(a)(15) of ERISA) that (a) is maintained for
employees of any of the Loan Parties or any of the ERISA Affiliates
and no Person other than the Loan Parties and the ERISA Affiliates or
(b) was so maintained and in respect of which any of the Loan Parties
or any of the ERISA Affiliates is reasonably expected to have
liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
"SOLVENT" means, with respect to any Person on any date of
determination, that, on such date:
(a) the fair value of the property and assets
of such Person is greater than the total amount of
liabilities (including, without limitation, contingent
liabilities) of such Person;
(b) the present fair salable value of the
property and assets of such Person is not less than the
amount that will be required to pay the probable liability of
such Person on its debts as they become absolute and matured;
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(c) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond
such Person's ability to pay such debts and liabilities as
they mature; and
(d) such Person is not engaged in business or
in a transaction, and is not about to engage in business or
in a transaction, for which such Person's property and assets
would constitute an unreasonably small capital.
The amount of contingent liabilities of any such Person at any time
shall be computed as the amount that, in the light of all of the facts
and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability.
"SPC" has the meaning specified in Section 8.07(k).
"SPECIAL PURPOSE VEHICLE" means (a) in the case of the
Caremark Receivables Securitization, MP Receivables and (b) in the
case of any other Permitted Receivables Securitization, any Person
that is not a Material Subsidiary (i) which has been organized for the
sole purpose of effecting one or more Permitted Receivables
Securitizations, (ii) which has no property, assets or liabilities
other than those directly acquired or incurred in connection with such
Permitted Receivables Securitizations, (iii) all of the liabilities
and other Obligations of which are nonrecourse for the payment or
performance thereof to the Borrower or any of its Subsidiaries other
than reasonable and customary liabilities for the breach of
representations and warranties of the Borrower or any of its
Subsidiaries that are not related to the creditworthiness of the
accounts receivable of the Borrower or any of its Subsidiaries and
(iv) the legal structure (if other than a corporation, limited
partnership or limited liability company organized under the laws of
any state of the United States of America) and the capitalization of
which have been approved by the Administrative Agent, such approval
not to be unreasonably withheld or delayed.
"SUBORDINATED DEBT" means any unsecured Indebtedness of the
Borrower subordinated in right of payment to the payment in full of
the Obligations of the Borrower hereunder and such other senior
obligations of the Borrower as are provided therein; provided that (i)
the negative covenants in such subordinated Indebtedness are less
restrictive than the negative covenants in this Agreement as in effect
at the time such subordinated Indebtedness is incurred, (ii) the
affirmative covenants in such subordinated Indebtedness are no more
burdensome than the affirmative covenants in this Agreement as in
effect at the time such subordinated Indebtedness is incurred, (iii)
such subordinated Indebtedness does not cross-default to other
Indebtedness other than default in payment at final stated maturity
(but may cross-accelerate to other Indebtedness of the Borrower) and
contains other events of default customary for subordinated debt
instruments prevailing at the time such subordinated Indebtedness is
incurred and (iv) the subordination provisions in such subordinated
Indebtedness are acceptable to the Administrative Agent in its
reasonable discretion.
"SUBSIDIARIES GUARANTEE" has the meaning specified in Section
3.01(g)(v).
"SUBSIDIARY" means, with respect to any Person, any
corporation, partnership, joint venture, limited liability company,
unlimited liability company, trust or estate of which (or in which)
more than 50% of:
(a) the issued and outstanding shares of
capital stock having ordinary voting power to elect a
majority of the board of directors of such corporation
(irrespective of whether at the time shares of capital stock
of any other class or classes of such corporation shall or
might have voting power upon the occurrence of any
contingency);
(b) the interest in the capital or profits of
such partnership, joint venture, limited liability company or
unlimited liability company; or
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(c) the beneficial interest in such trust or
estate,
is at the time, directly or indirectly, owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by
one or more of such Person's other Subsidiaries; provided, however,
that, notwithstanding any of the other provisions of this Agreement,
none of the Captive Professional Corporations shall constitute a
Subsidiary of the Borrower or any of its Subsidiaries for purposes of
the Loan Documents.
"SUPPLEMENTAL PLAN AGREEMENT" means the Amended and Restated
Supplemental Plan Agreement, among MPN, the Borrower, Consenting MPI
Subs (as defined therein), Consenting MPPs (as defined therein) and
the Consenting Plans (as defined therein), in the form attached to the
Disclosure Statement which accompanied the MPN Plan of Reorganization,
as amended, supplemented or otherwise modified from time to time in
accordance with the terms thereof, but solely to the extent permitted
under the terms of the Loan Documents.
"SWING LINE ADVANCE" means an advance made by (a) the Swing
Line Bank pursuant to Section 2.01(c) or (b) any of the Revolving
Credit Lenders pursuant to Section 2.02(b)(ii).
"SWING LINE BANK" has the meaning specified in the recital of
parties to this Agreement.
"SWING LINE BORROWING" means a borrowing consisting of (a) a
Swing Line Advance made by the Swing Line Bank pursuant to Section
2.01(c) or (b) simultaneous Swing Line Advances made by the Revolving
Credit Lenders pursuant to Section 2.02(b)(ii).
"SWING LINE COMMITMENT" means, with respect to the Swing Line
Bank at any time, the amount set forth opposite the Swing Line Bank's
name on Part B of Schedule I hereto under the caption "Swing Line
Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"SWING LINE FACILITY" means, at any time, an amount equal to
the lesser of (a) the amount of the Swing Line Commitment at such time
and (b) $25,000,000, as such amount may be reduced at or prior to such
time pursuant to Section 2.05.
"SYNDICATION AGENT" has the meaning specified in the recital
of parties to this Agreement.
"TAXES" has the meaning specified in Section 2.13(a).
"TEAM HEALTH" means Team Health, Inc. and each of its
Subsidiaries comprising part of the contract services division of the
Borrower.
"TERM LOAN ADVANCE" means, with respect to each of the Term
Loan Lenders, the single advance to be made on the Effective Date by
such Term Loan Lender to the Borrower pursuant to Section 2.01(a).
"TERM LOAN BORROWING" means a borrowing consisting of
simultaneous Term Loan Advances of the same Type made by the Term Loan
Lenders.
"TERM LOAN COMMITMENT" means, with respect to any of the Term
Loan Lenders at any time, the amount set forth opposite such Term Loan
Lender's name on Part B of Schedule I hereto under the caption "Term
Loan Commitment" or, if such Term Loan Lender has entered into one or
more Assignment and Acceptances, the amount set forth for such Term
Loan Lender in the Register maintained by the Administrative Agent
pursuant to Section 8.07(e) as such Term Loan Lender's "Term
Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
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"TERM LOAN FACILITY" means, at any time, the aggregate Term
Loan Commitments of all of the Term Loan Lenders at such time.
"TERM LOAN LENDER" means, at any time, any of the Lenders
that has a Term Loan Commitment at such time.
"TERM LOAN MATURITY DATE" means the earlier of (a) the date
of termination in whole of the Term Loan Commitments of the Term Loan
Lenders pursuant to Section 2.05 or 6.01 and (b) March 15, 2006.
"TERM LOAN NOTE" means a promissory note of the Borrower
payable to the order of any of the Term Loan Lenders, in substantially
the form of Exhibit A-1 hereto, evidencing the indebtedness of the
Borrower to such Term Loan Lender resulting from the Term Loan Advance
made by such Term Loan Lender.
"TERMINATION DATE" means the earlier of (a) the date of
termination in whole of all of the Commitments of the Lender Parties
pursuant to Section 2.05 or 6.01 and (b) (i) with respect to the Term
Loan Facility, the Term Loan Maturity Date, and (ii) with respect to
the Revolving Credit Facility and the Swing Line Facility, March 15,
2005.
"TRANSACTION" means, collectively, (a) the entering into by
the Borrower and certain of its Subsidiaries of the Loan Documents to
which they are or are intended to be a party and (b) the payment of
the fees and expenses incurred in connection with the consummation of
the foregoing.
"TRUST AGREEMENT" has the meaning specified in Section
3.01(g)(vi).
"TYPE" refers to the distinction between Advances bearing
interest at the Base Rate and Advances bearing interest at the
Eurodollar Rate.
"UNUSED REVOLVING CREDIT COMMITMENT" means, with respect to
any of the Revolving Credit Lenders at any time, (a) the Revolving
Credit Commitment of such Revolving Credit Lender at such time less
(b) the sum of:
(i) the aggregate principal amount of all
Revolving Credit Advances, Swing Line Advances and Letter of
Credit Advances made by such Revolving Credit Lender (in its
capacity as a Lender) and outstanding at such time; and
(ii) such Revolving Credit Lender's Pro Rata
Share of (A) the aggregate Available Amount of all Letters of
Credit outstanding at such time, (B) the aggregate principal
amount of all Letter of Credit Advances made by the Issuing
Bank (in its capacity as the Issuing Bank) pursuant to
Section 2.03(c)(i) and outstanding at such time, (C) the
aggregate principal amount of all Swing Line Advances made by
the Swing Line Bank (in its capacity as the Swing Line Bank)
pursuant to Section 2.01(c) and outstanding at such time.
"VOTING INTERESTS" means shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person, the
holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons performing
similar functions) of such Person, even if the right so to vote has
been suspended by the happening of such a contingency.
"WITHDRAWAL LIABILITY" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods; Other
Constructional Provisions. In this Agreement and the other Loan Documents, in
the computation of periods of time from a specified date to
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a later specified date, the word "from" means "from and including", the word
"through" means "through and including" and the words "to" and "until" each
means "to but excluding". References in this Agreement or any of the other Loan
Documents to any agreement, instrument or other document "as amended" shall
mean and be a reference to such agreement, instrument or other document as
amended, amended and restated, supplemented or otherwise modified hereafter
from time to time in accordance with its terms, but solely to the extent
permitted hereunder. In this Agreement, the words "herein", "hereof" and words
of similar import refer to the entirety of this Agreement and not to any
particular Section, subsection, or Article of this Agreement.
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the Consolidated financial statements of the Borrower and its Subsidiaries
referred to in Section 4.01(f) ("GAAP").
SECTION 1.04. Currency Equivalents Generally. Any amount
specified in this Agreement (other than in Articles II, VII and VIII) or any of
the other Loan Documents to be in U.S. dollars shall also include and be a
reference to the equivalent of such amount in any currency other than U.S.
dollars, such equivalent amount to be determined at the rate of exchange quoted
by BofA in Charlotte, North Carolina at the close of business on the Business
Day immediately preceding any date of determination thereof to prime banks in
New York, New York for the spot purchase in the New York foreign exchange
market of such amount in U.S. dollars with such other currency.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit.
(a) The Term Loan Advances. Each Term Loan Lender
severally agrees, on the terms and conditions hereinafter set forth, to make a
single Term Loan Advance in U.S. dollars to the Borrower on the Effective Date
in an amount not to exceed the Term Loan Commitment of such Term Loan Lender at
such time. The Term Loan Borrowing shall consist of Term Loan Advances made
simultaneously by the Term Loan Lenders in accordance with their respective Pro
Rata Shares of the Term Loan Facility. Amounts borrowed under this Section
2.01(a) and repaid or prepaid may not be reborrowed.
(b) The Revolving Credit Advances. Each Revolving Credit
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make Revolving Credit Advances in U.S. dollars to the Borrower from time to
time on any Business Day during the period from the Effective Date until the
Termination Date for the Revolving Credit Facility, in each case in an amount
not to exceed the Unused Revolving Credit Commitment of such Revolving Credit
Lender at such time. Each Revolving Credit Borrowing shall be in an aggregate
amount of $5,000,000 or an integral multiple of $500,000 in excess thereof
(other than a Borrowing the proceeds of which shall be used solely to repay or
prepay in full outstanding Swing Line Advances or the outstanding Letter of
Credit Advances) or, if less, the amount of the aggregate Unused Revolving
Credit Commitments at such time. Each Revolving Credit Borrowing shall consist
of Revolving Credit Advances made simultaneously by the Revolving Credit
Lenders in accordance with their respective Pro Rata Shares of the Revolving
Credit Facility. Within the limits of each Revolving Credit Lender's Unused
Revolving Credit Commitment in effect from time to time, the Borrower may
borrow under this Section 2.01(b), prepay pursuant to Section 2.06(a) and
reborrow under this Section 2.01(b).
(c) The Swing Line Advances. The Borrower may request
the Swing Line Bank to make, and the Swing Line Bank shall make, unless it
promptly notifies the Borrower of its reasonable objection to doing so, on the
terms and conditions hereinafter set forth, Swing Line Advances to the
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Borrower from time to time on any Business Day during the period from the
Effective Date until the Termination Date for the Swing Line Facility in an
amount (i) for all outstanding Swing Line Advances not to exceed the Swing Line
Facility on such Business Day and (ii) for each such Swing Line Advance not to
exceed the aggregate Unused Revolving Credit Commitments of the Revolving
Credit Lenders on such Business Day. No Swing Line Advance shall be used for
the purpose of funding the payment of principal of any other Swing Line
Advance. Each Swing Line Advance shall be in an amount of $1,000,000 or an
integral multiple of $500,000 in excess thereof and shall be comprised of a
Base Rate Advance. Within the limits of the first sentence of this Section
2.01(c), so long as the Swing Line Bank has not notified the Borrower of its
reasonable objection to making Swing Line Advances, the Borrower may borrow
under this Section 2.01(c), repay pursuant to Section 2.04(c) or prepay
pursuant to Section 2.06(a) and reborrow under this Section 2.01(c).
(d) Letters of Credit. The Borrower, the Issuing Bank
and each of the Revolving Credit Lenders hereby agree that each of the Existing
Letters of Credit shall, on and after the Effective Date, continue as and be
deemed for all purposes of this Agreement to be a Letter of Credit issued and
outstanding under the terms of this Agreement. The Issuing Bank agrees, on the
terms and conditions hereinafter set forth, to issue standby letters of credit
(each a "LETTER OF CREDIT") in U.S. dollars for the account of the Borrower in
favor of any Person (other than the Borrower or any of its Subsidiaries) from
time to time on any Business Day during the period from the Effective Date to
ten Business Days before the scheduled Termination Date for the Revolving
Credit Facility (i) in an aggregate Available Amount for all outstanding
Letters of Credit not to exceed the Letter of Credit Facility on such Business
Day and (ii) in an Available Amount for each such Letter of Credit not to
exceed the aggregate Unused Revolving Credit Commitment of the Revolving Credit
Lenders on such Business Day. No Letter of Credit shall have an expiration date
(including all rights of the Borrower or the beneficiary of such Letter of
Credit to require renewal) later than the earlier of (A) ten Business Days
prior to the scheduled Termination Date for the Revolving Credit Facility and
(B) one year after the date of issuance thereof, but any such Letter of Credit
may by its terms be renewable annually upon notice (a "NOTICE OF RENEWAL")
given to the Issuing Bank and the Administrative Agent on or prior to any date
for notice of renewal set forth in such Letter of Credit but in any event at
least three Business Days prior to the date of the proposed renewal of such
Letter of Credit and upon fulfillment of the applicable conditions set forth in
Article III, unless such Issuing Bank has notified the Borrower (with a copy to
the Administrative Agent) on or prior to the date for notice of termination set
forth in such Letter of Credit but in any event at least ten Business Days
prior to the date of automatic renewal of its election not to renew such Letter
of Credit (a "NOTICE OF TERMINATION"); provided that the terms of each of the
Letters of Credit that is automatically renewable annually (1) shall require
the Issuing Bank to give the beneficiary of such Letter of Credit notice of any
Notice of Termination, (2) shall permit such beneficiary, upon receipt of such
notice, to draw under such Letter of Credit prior to the date on which such
Letter of Credit otherwise would have been automatically renewed and (3) shall
not permit the expiration date (after giving effect to any renewal) of such
Letter of Credit in any event to be extended to a date that is later than ten
Business Days prior to the scheduled Termination Date for the Revolving Credit
Facility. If either a Notice of Renewal is not given by the Borrower or a
Notice of Termination is given by the Issuing Bank pursuant to the immediately
preceding sentence, the related Letter of Credit shall expire on the date on
which it otherwise would have been automatically renewed; provided, however,
that in the absence of receipt of a Notice of Renewal the Issuing Bank may in
its discretion, unless instructed to the contrary by the Administrative Agent
or the Borrower, deem that a Notice of Renewal had been timely delivered and,
in such case, a Notice of Renewal shall be deemed to have been so delivered for
all purposes under this Agreement. Within the limits of the Letter of Credit
Facility, and subject to the limits referred to above in this Section 2.01(d),
the Borrower may request the issuance of Letters of Credit under this Section
2.01(d), repay any Letter of Credit Advances resulting from drawings thereunder
pursuant to Section 2.03(b) and request the issuance of additional Letters of
Credit under this Section 2.01(d).
SECTION 2.02. Making the Advances.
(a) Except as otherwise provided in Section 2.02(b) or
2.03 or in respect of any Borrowing requested to be made on the Effective Date
(in which case notice shall be given not later than
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one Business Day prior to the Effective Date and which Borrowing shall be
comprised of Base Rate Advances), each Borrowing (other than a Swing Line
Borrowing) shall be made on notice, given not later than 1:00 P.M. (Charlotte,
North Carolina time) on the third Business Day prior to the date of the
proposed Borrowing in the case of a Borrowing comprised of Eurodollar Rate
Advances, or on the same Business Day as the date of the proposed Borrowing in
the case of a Borrowing comprised of Base Rate Advances, by the Borrower to the
Administrative Agent, which shall give prompt notice thereof to each of the
Appropriate Lenders by telecopier. Each notice of a Borrowing (a "NOTICE OF
BORROWING") shall be by telephone, confirmed promptly (and, in any event, on
the same Business Day) in writing, or by telecopier, shall be in substantially
the form of Exhibit B-1 hereto and duly executed by a Responsible Officer of
the Borrower, and shall specify therein: (i) the requested date of such
Borrowing (which shall be a Business Day); (ii) the Facility under which such
Borrowing is requested to be made; (iii) the Type of Advances requested to
comprise such Borrowing; (iv) the requested aggregate principal amount of such
Borrowing; and (v) in the case of a Borrowing comprised of Eurodollar Rate
Advances, the requested duration of the initial Interest Period for each such
Advance. Each Appropriate Lender shall, before 3:00 P.M. (Charlotte, North
Carolina time) on the date of such Borrowing, make available for the account of
its Applicable Lending Office to the Administrative Agent at the Administrative
Agent's Account, in same day funds, such Lender's Pro Rata Share of such
Borrowing. After the Administrative Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the Borrower by
crediting the Borrower's Account; provided, however, that, in the case of any
Revolving Credit Borrowing, the Administrative Agent shall first make a portion
of such funds equal to the aggregate principal amount of any Swing Line
Advances and Letter of Credit Advances made by the Swing Line Bank and the
Issuing Bank, respectively, and by any Revolving Credit Lender and outstanding
on the date of such Revolving Credit Borrowing, together with all accrued and
unpaid interest thereon to and as of such date, available to the Swing Line
Bank or the Issuing Bank and to each such Revolving Credit Lender for repayment
of such outstanding Swing Line Advances and Letter of Credit Advances.
(b) (i) Each Swing Line Borrowing shall be made
initially by the Swing Line Bank on notice, given not later than 3:00
P.M. (Charlotte, North Carolina time) on the date of the proposed
Swing Line Borrowing, by the Borrower to the Swing Line Bank and the
Administrative Agent. Each notice of a Swing Line Borrowing (a "NOTICE
OF SWING LINE BORROWING") shall be by telephone, confirmed promptly
(and, in any event, on the same Business Day) in writing, or by
telecopier, shall be in substantially the form of Exhibit B-2 hereto
and duly executed by a Responsible Officer of the Borrower, and shall
specify therein: (A) the requested date of such Swing Line Borrowing
(which shall be a Business Day); (B) the requested amount of such
Swing Line Borrowing; and (C) the requested maturity of such Swing
Line Borrowing (which maturity shall be no later than the 30th day
after the requested date of such Swing Line Borrowing). Unless the
Swing Line Bank promptly notifies the Borrower of its reasonable
objection to making such Swing Line Borrowing, the Swing Line Bank
will make the amount thereof available for the account of its
Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds. After the
Administrative Agent's receipt of such funds and upon fulfillment of
the applicable conditions set forth in Article III, the Administrative
Agent will make such funds available to the Borrower by crediting the
Borrower's Account.
(ii) Upon demand by the Swing Line Bank, with a
copy of such demand to the Administrative Agent (which shall give
prompt notice thereof to each of the Revolving Credit Lenders), each
of the Revolving Credit Lenders shall purchase from the Swing Line
Bank, and the Swing Line Bank shall sell and assign to each of the
Revolving Credit Lenders, such Revolving Credit Lender's Pro Rata
Share of each of the outstanding Swing Line Advances owing to the
Swing Line Bank as of the date of such demand, by making available for
the account of its Applicable Lending Office to the Administrative
Agent at the Administrative Agent's Account for the account of the
Swing Line Bank, in same day funds, an amount equal to its Pro Rata
Share of each such outstanding Swing Line Advance. Promptly after
receipt of such funds, the Administrative Agent shall transfer such
funds to the Swing Line Bank at its Applicable
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Lending Office. Each of the Revolving Credit Lenders hereby agrees to
purchase its Pro Rata Share of each outstanding Swing Line Advance
owing to the Swing Line Bank for which a demand for the purchase
thereof has been made on (A) the Business Day on which demand therefor
is made by the Swing Line Bank so long as notice of such demand is
given not later than 2:00 P.M. (Charlotte, North Carolina time) on such
Business Day or (B) the first Business Day next succeeding such demand
if notice of such demand is given after such time. The Borrower hereby
agrees to each such sale and assignment. Upon any such assignment by
the Swing Line Bank to any of the Revolving Credit Lenders of a portion
of a Swing Line Advance owing to the Swing Line Bank, the Swing Line
Bank represents and warrants to such Revolving Credit Lender that the
Swing Line Bank is the legal and beneficial owner of such interest
being assigned by it, free and clear of any adverse claim, but makes no
other representation or warranty and assumes no responsibility with
respect to such Swing Line Advance, any of the Loan Documents or any of
the Loan Parties. If and to the extent that any of the Revolving Credit
Lenders shall not have so made its Pro Rata Share of any applicable
Swing Line Advance available to the Administrative Agent in accordance
with the foregoing provisions of this subsection (b)(ii), such
Revolving Credit Lender hereby agrees to pay to the Administrative
Agent forthwith on demand the amount of its Pro Rata Share of such
Swing Line Advance, together with all accrued and unpaid interest
thereon, for each day from the date of demand therefor by the Swing
Line Bank therefor until the date on which such amount is paid to the
Administrative Agent, at the Federal Funds Rate. If any of the
Revolving Credit Lenders shall pay to the Administrative Agent the
amount of its Pro Rata Share of any applicable Swing Line Advance for
the account of the Swing Line Bank on any Business Day, such amount so
paid in respect of principal shall constitute a Swing Line Advance made
by such Revolving Credit Lender on such Business Day for all purposes
of this Agreement, and the outstanding principal amount of the
applicable Swing Line Advance made by the Swing Line Bank shall be
reduced by such amount on such Business Day.
(iii) The Obligation of each of the Revolving
Credit Lenders to purchase their respective Pro Rata Shares of each
outstanding Swing Line Advance owing to the Swing Line Bank upon
demand for the purchase thereof pursuant to clause (ii) of this
Section 2.02(b) shall be absolute, unconditional and irrevocable, and
shall be made strictly in accordance with the terms thereof under all
circumstances, including, without limitation, the following
circumstances:
(A) any lack of validity or
enforceability of any of the Loan Documents or any
of the other agreements or instruments relating
thereto;
(B) the existence of any claim,
setoff, defense or other right that such Revolving
Credit Lender may have at any time against the Swing
Line Bank, the Borrower or any other Person, whether
in connection with the transactions contemplated by
the Loan Documents or any unrelated transaction;
(C) the occurrence and continuance of
any Default; or
(D) any other circumstance or
happening whatsoever, whether or not similar to any
of the foregoing.
(iv) The failure of any of the Revolving Credit
Lenders to purchase its Pro Rata Share of any outstanding Swing Line
Advance owing to the Swing Line Bank for which a demand for the
purchase thereof has been made pursuant to clause (ii) of this Section
2.02(b) shall not relieve any of the other Revolving Credit Lenders of
its obligation to purchase its Pro Rata Share of such outstanding
Swing Line Advance on the date of demand therefor, but none of the
Revolving Credit Lenders shall be responsible for the failure of any
of the other Revolving Credit Lenders to purchase its Pro Rata Share
of such outstanding Swing Line Advance on the date of demand therefor.
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(c) Anything in subsection (a) of this Section 2.02 to
the contrary notwithstanding, the Borrower may not select Eurodollar Rate
Advances for any Borrowing if the aggregate amount of such Borrowing is less
than $5,000,000 or if the obligation of the Appropriate Lenders to make
Eurodollar Rate Advances shall then be suspended pursuant to Section 2.09(b) or
2.10. In addition, the Term Loan Advances may not be outstanding as part of
more than one Borrowing comprised of Eurodollar Rate Advances and the Revolving
Credit Advances may not be outstanding as part of more than eight separate
Borrowings comprised of Eurodollar Rate Advances.
(d) Each Notice of Borrowing and Notice of Swing Line
Borrowing shall be irrevocable and binding on the Borrower. In the case of any
Borrowing that the related Notice of Borrowing specifies is to be comprised of
Eurodollar Rate Advances, the Borrower shall indemnify each of the Appropriate
Lenders against any loss, cost or expense incurred by such Lender as a result
of any failure to fulfill on or before the date specified in such Notice of
Borrowing for such Borrowing the applicable conditions set forth in Article
III, including, without limitation, any loss (excluding loss of anticipated
profits), cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Lender to fund the Eurodollar Rate
Advance to be made by such Lender as part of such Borrowing when such
Eurodollar Rate Advance, as a result of such failure, is not made on such date.
A certificate of the Lender requesting compensation pursuant to this subsection
(d), submitted to the Borrower by such Lender (with a copy to the
Administrative Agent) and specifying therein the amount of such additional
compensation (including the basis of calculation thereof), shall be conclusive
and binding for all purposes, absent manifest error.
(e) Unless the Administrative Agent shall have received
notice from an Appropriate Lender prior to the date of any Borrowing under a
Facility under which such Lender has a Commitment that such Lender will not
make available to the Administrative Agent such Lender's Pro Rata Share of such
Borrowing, the Administrative Agent may assume that such Lender has made the
amount of such Pro Rata Share available to the Administrative Agent on the date
of such Borrowing in accordance with subsection (a) of this Section 2.02 and
the Administrative Agent may, in reliance upon such assumption, make a
corresponding amount available to the Borrower on such date. If and to the
extent that such Lender shall not have so made the amount of such Pro Rata
Share available to the Administrative Agent, such Lender and the Borrower
severally agree to repay or to pay to the Administrative Agent forthwith on
demand such corresponding amount, together with all accrued and unpaid interest
thereon, for each day from the date on which such corresponding amount is made
available to the Borrower until the date on which such corresponding amount is
repaid or paid to the Administrative Agent, at (i) in the case of the Borrower,
the interest rate applicable under Section 2.07 at such time to Advances
comprising part of such Borrowing and (ii) in the case of such Lender, the
Federal Funds Rate. If such Lender shall pay to the Administrative Agent such
corresponding amount, such corresponding amount so paid shall constitute such
Lender's Advance as part of such Borrowing for all purposes under this
Agreement.
(f) The failure of any of the Lenders to make the
Advance to be made by it as part of any Borrowing shall not relieve any of the
other Lenders of its obligation, if any, hereunder to make its Advance on the
date of such Borrowing, but none of the Lenders shall be responsible for the
failure of any of the other Lenders to make the Advance to be made by such
other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement
Under Letters of Credit.
(a) Request for Issuance. Each Letter of Credit shall be
issued upon notice, given not later than 12:00 noon. (Charlotte, North Carolina
time) on the second Business Day prior to the date of the proposed issuance of
such Letter of Credit (or such later day as the Issuing Bank in its sole
discretion shall agree), by the Borrower to the Issuing Bank, which shall give
the Administrative Agent and each of the Revolving Credit Lenders prompt notice
thereof by telecopier. Each notice of issuance of a Letter of Credit (a "NOTICE
OF ISSUANCE") shall be by telephone, confirmed promptly (and, in any event, on
the same Business Day) in writing, or by telecopier, shall be duly executed by
a Responsible Officer of the Borrower, and shall specify therein: (i) the
requested date of such issuance (which shall be a Business
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Day); (ii) the requested Available Amount of such Letter of Credit; (iii) the
requested expiration date of such Letter of Credit (which shall comply with the
requirements of Section 2.01(d)); (iv) the name and address of the proposed
beneficiary of such Letter of Credit; and (v) the proposed form of such Letter
of Credit, and shall be accompanied by such application and agreement for
letter of credit as the Issuing Bank may specify to the Borrower for use in
connection with such requested Letter of Credit (a "LETTER OF CREDIT
AGREEMENT"). If the requested form of such Letter of Credit is acceptable to
the Issuing Bank in its reasonable discretion, the Issuing Bank will, upon
fulfillment of the applicable conditions set forth in Article III, make such
Letter of Credit available to the Borrower at its office referred to in Section
8.02 or as otherwise agreed with the Borrower in connection with such issuance.
If and to the extent that the provisions of any Letter of Credit Agreement
shall conflict with this Agreement, the provisions of this Agreement shall
govern.
(b) Letter of Credit Reports. The Issuing Bank shall
furnish to the Administrative Agent and each of the Revolving Credit Lenders on
the first Business Day of each calendar quarter a written report setting forth
(i) the issuance and expiration dates of all Letters of Credit issued during
the immediately preceding calendar quarter and the drawings under all Letters
of Credit outstanding during such immediately preceding calendar quarter and
(ii) the average daily aggregate Available Amount of all Letters of Credit
outstanding during the immediately preceding calendar quarter.
(c) Drawing and Reimbursement. (i) The payment by the
Issuing Bank of a draft drawn under any Letter of Credit shall constitute for
all purposes of this Agreement the making by the Issuing Bank of a Letter of
Credit Advance, which shall be a Base Rate Advance, in the amount of such
draft. Upon demand by the Issuing Bank, with a copy of such demand to the
Administrative Agent, each of the Revolving Credit Lenders shall purchase from
the Issuing Bank, and the Issuing Bank shall sell and assign to each of the
Revolving Credit Lenders, such Revolving Credit Lender's Pro Rata Share of each
of the outstanding Letter of Credit Advances owing to the Issuing Bank as of
the date of such demand, by making available for the account of its Applicable
Lending Office to the Administrative Agent for the account of the Issuing Bank,
at the Administrative Agent's Account, in same day funds, an amount equal to
its Pro Rata Share of each such outstanding Letter of Credit Advance. Promptly
after receipt of such funds, the Administrative Agent shall transfer such funds
to the Issuing Bank at its Applicable Lending Office. Each of the Revolving
Credit Lenders hereby agrees to purchase its Pro Rata Share of each outstanding
Letter of Credit Advance owing to the Issuing Bank for which a demand for the
purchase thereof has been made on (A) the Business Day on which demand therefor
is made by the Issuing Bank so long as notice of such demand is given not later
than 2:00 P.M. (Charlotte, North Carolina time) on such Business Day or (B) the
first Business Day next succeeding such demand if notice of such demand is
given after such time. The Borrower hereby agrees to each such sale and
assignment. Upon any such assignment by the Issuing Bank to any of the
Revolving Credit Lenders of a portion of a Letter of Credit Advance owing to
the Issuing Bank, the Issuing Bank represents and warrants to such Revolving
Credit Lender that the Issuing Bank is the legal and beneficial owner of such
interest being assigned by it, free and clear of any adverse claim, but makes
no other representation or warranty and assumes no responsibility with respect
to such Letter of Credit Advance, any of the Loan Documents or any of the Loan
Parties. If and to the extent that any of the Revolving Credit Lenders shall
not have so made its Pro Rata Share of any applicable Letter of Credit Advance
available to the Administrative Agent in accordance with the foregoing
provisions of this subsection (c)(i), such Revolving Credit Lender hereby
agrees to pay to the Administrative Agent forthwith on demand the amount of its
Pro Rata Share of such Letter of Credit Advance, together with all accrued and
unpaid interest thereon, for each day from the date of demand therefor by the
Issuing Bank until the date on which such amount is paid to the Administrative
Agent, at the Federal Funds Rate. If any of the Revolving Credit Lenders shall
pay to the Administrative Agent the amount of its Pro Rata Share of any
applicable Letter of Credit Advance for the account of the Issuing Bank on any
Business Day, such amount so paid in respect of principal shall constitute a
Letter of Credit Advance made by such Revolving Credit Lender on such Business
Day for all purposes of this Agreement, and the outstanding principal amount of
the applicable Letter of Credit Advance made by the Issuing Bank shall be
reduced by such amount on such Business Day.
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(ii) The Obligation of each of the Revolving
Credit Lenders to purchase their respective Pro Rata Shares of each
outstanding Letter of Credit Advance owing to the Issuing Bank upon
demand for the purchase thereof pursuant to clause (i) of this Section
2.03(c) shall be absolute, unconditional and irrevocable, and shall be
made strictly in accordance with the terms thereof under all
circumstances, including, without limitation, the following
circumstances:
(A) any lack of validity or
enforceability of any of the Loan Documents, any of
the Letter of Credit Agreements, any of the Letters
of Credit or any of the other agreements or
instruments relating thereto (collectively, the "L/C
RELATED DOCUMENTS");
(B) the existence of any claim,
setoff, defense or other right that such Revolving
Credit Lender may have at any time against any
beneficiary or any transferee of a Letter of Credit
(or any Persons for whom any such beneficiary or any
such transferee may be acting), the Issuing Bank,
the Borrower or any other Person, whether in
connection with the transactions contemplated by the
L/C Related Documents or any unrelated transaction;
(C) the occurrence and continuance of
any Default; or
(D) any other circumstance or
happening whatsoever, whether or not similar to any
of the foregoing.
(d) Failure to Make Letter of Credit Advances. The
failure of any of the Revolving Credit Lenders to purchase its Pro Rata Share
of any outstanding Letter of Credit Advance owing to the Issuing Bank for which
a demand for the purchase thereof has been made pursuant to Section 2.03(c)(i)
shall not relieve any of the other Revolving Credit Lenders of its obligation
to purchase its Pro Rata Share of such outstanding Letter of Credit Advance on
the date of demand therefor, but none of the Revolving Credit Lenders shall be
responsible for the failure of any of the other Revolving Credit Lenders to
purchase its Pro Rata Share of such outstanding Letter of Credit Advance on the
date of demand therefor.
SECTION 2.04. Repayment of Advances.
(a) Term Loan Facility. The Borrower shall repay to the
Administrative Agent for the ratable account of the Term Loan Lenders on each
of the dates set forth below the Term Loan Advances in an amount equal to the
percentage of the aggregate principal amount of all Term Loan Advances
outstanding on the Effective Date and set forth opposite such dates (in each
case which amounts shall be reduced as a result of the application of
prepayments in accordance with Section 2.06):
DATE PERCENTAGE
---- ----------
June 30, 2001 0.25%
September 30, 2001 0.25%
December 31, 2001 0.25%
March 31, 2002 0.25%
June 30, 2002 0.25%
September 30, 2002 0.25%
December 31, 2002 0.25%
March 31, 2003 0.25%
June 30, 2003 0.25%
September 30, 2003 0.25%
December 31, 2003 0.25%
March 31, 2004 0.25%
June 30, 2004 0.25%
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DATE PERCENTAGE
---- ----------
September 30, 2004 0.25%
December 31, 2004 0.25%
March 31, 2005 0.25%
June 30, 2005 0.25%
September 30, 2005 0.25%
December 31, 2005 0.25%
March 15, 2006 95.25%
provided, however, that, notwithstanding the foregoing provisions of this
Section 2.04(a), the final principal repayment installment of the Term Loan
Advances shall be repaid in full on the Termination Date for the Term Loan
Facility and in any event shall be in an amount equal to the aggregate
principal amount of all Term Loan Advances outstanding on such date.
(b) Revolving Credit Facility. The Borrower shall repay
to the Administrative Agent for the ratable account of the Revolving Credit
Lenders on the Termination Date for the Revolving Credit Facility the aggregate
principal amount of all Revolving Credit Advances outstanding on such date.
(c) Swing Line Advances. The Borrower shall repay to the
Administrative Agent for the account of the Swing Line Bank and, if applicable,
each of the Revolving Credit Lenders on the earlier of (i) the maturity date
for each Swing Line Advance as specified in the related Notice of Swing Line
Borrowing (which maturity shall be no later than the 30th day after the date on
which such Swing Line Borrowing was initially made by the Swing Line Bank) and
(ii) the Termination Date for the Revolving Credit Facility, the principal
amount of each such Swing Line Advance made by each of them and outstanding on
such date.
(d) Letter of Credit Advances.
(i) The Borrower shall repay to the
Administrative Agent for the account of the Issuing Bank and, if
applicable, each of the Revolving Credit Lenders on the earlier of (A)
the date of demand therefor and (B) the Termination Date for the
Revolving Credit Facility, the principal amount of each such Letter of
Credit Advance made by each of them and outstanding on such date.
(ii) The Obligations of the Borrower under this
Agreement, any of the Letter of Credit Agreements and any of the other
agreements or instruments relating to any Letter of Credit shall be
absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement, such Letter of Credit
Agreement and such other agreement or instrument under all
circumstances (subject to the rights afforded to the Borrower under
Section 8.08), including, without limitation, the following
circumstances:
(A) any lack of validity or
enforceability of any of the L/C Related Documents;
(B) any change in the time, manner or
place of payment of, or in any of the other terms
of, all or any of the Obligations of the Borrower in
respect of any of the L/C Related Documents or any
other amendment or waiver of or any consent to
departure from all or any of the L/C Related
Documents;
(C) the existence of any claim,
setoff, defense or other right that the Borrower may
have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for
whom any such beneficiary or any such transferee may
be acting), the Issuing Bank or any other Person,
whether in
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connection with the transactions contemplated by the
L/C Related Documents or any unrelated transaction;
(D) any statement or any other
document presented under a Letter of Credit proving
to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or
inaccurate in any respect;
(E) payment by the Issuing Bank under
a Letter of Credit against presentation of a draft
or certificate that does not strictly comply with
the terms of such Letter of Credit;
(F) any exchange, release or
nonperfection of any Collateral or other collateral,
or any release or amendment or waiver of or consent
to departure from the Subsidiaries Guarantee or any
other guarantee, for all or any of the Obligations
of the Borrower in respect of the L/C Related
Documents; or
(G) any other circumstance or
happening whatsoever, whether or not similar to any
of the foregoing, including, without limitation, any
other circumstance that might otherwise constitute a
defense available to, or a discharge of, the
Borrower or a guarantor.
SECTION 2.05. Termination or Reduction of the Commitments.
(a) Optional. The Borrower, upon at least three Business
Days' notice to the Administrative Agent (but in any event no more frequently
than three times during each Fiscal Quarter), may terminate in whole or reduce
in part the Unused Revolving Credit Commitments; provided, however, that each
partial reduction of the Revolving Credit Facility shall be in an aggregate
amount of $25,000,000 or an integral multiple of $5,000,000 in excess thereof
or, if less, the aggregate amount of the Revolving Credit Facility.
(b) Mandatory.
(i) On the Effective Date, after giving effect
to the Term Loan Borrowing to be made on such date, and from time to
time thereafter upon each repayment or prepayment of the Term Loan
Advances, the Term Loan Facility shall be automatically and
permanently reduced by an amount equal to the amount by which the Term
Loan Facility immediately prior to such reduction exceeds the
aggregate principal amount of the Term Loan Advances outstanding at
such time.
(ii) The Swing Line Facility shall be
automatically and permanently reduced on the date of each reduction in
the Revolving Credit Facility by the amount, if any, by which the
amount of the Swing Line Facility on such date exceeds the amount of
the Revolving Credit Facility on such date (after giving effect to
such reduction of the Revolving Credit Facility on such date).
(iii) The Letter of Credit Facility shall be
automatically and permanently reduced on the date of each reduction in
the Revolving Credit Facility by the amount, if any, by which the
amount of the Letter of Credit Facility on such date exceeds the
amount of the Revolving Credit Facility on such date (after giving
effect to such reduction of the Revolving Credit Facility on such
date).
(c) Application of Commitment Reductions. Upon each
reduction of any of the Facilities pursuant to this Section 2.05, the
Commitment of each of the Appropriate Lenders under such Facility shall be
reduced by such Lender's Pro Rata Share of the amount by which such Facility is
reduced.
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SECTION 2.06. Prepayments.
(a) Optional. The Borrower may, upon at least three
Business Days' notice to the Administrative Agent stating the Facility under
which Advances are proposed to be prepaid and the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Borrower
shall, prepay the aggregate principal amount of the Advances comprising part of
the same Borrowing and outstanding on such date, in whole or ratably in part;
provided, however, that (i) each partial prepayment of the Term Loan Advances or
Revolving Credit Advances shall be in an aggregate principal amount of
$5,000,000 or an integral multiple of $500,000 in excess thereof and (ii) no
such prepayment of a Eurodollar Rate Advance shall be made other than on the
last day of an Interest Period therefor. Each prepayment of the Term Loan
Advances pursuant to this subsection (a) shall be applied ratably to the
principal repayment installments thereof in inverse order of maturity.
(b) Mandatory.
(i) The Borrower shall, on the earlier of (A)
the tenth day following the date on which the Borrower delivers to the
Lender Parties the Required Financial Information and (B) 105 days
after the end of each Fiscal Year, commencing with such audited
Consolidated financial statements for the Fiscal Year ending December
31, 2001 prepay an aggregate principal amount of the Advances
comprising part of the same Borrowings equal to 50% of the amount of
Excess Cash Flow for such Fiscal Year. Each prepayment of Advances
required to be made pursuant to this clause (i) shall be applied to the
Term Loan Facility and to the principal repayment installments thereof
in inverse order of maturity on a pro rata basis.
(ii) The Borrower shall, on the date of receipt
of the Net Cash Proceeds by the Borrower or any of its Subsidiaries
from:
(A) the sale, lease, transfer or other
disposition of any property or assets of the Borrower or any
of its Subsidiaries (other than (x) the assets listed in
Schedule 2.06 and (y) any other property or assets expressly
permitted to be sold, leased, transferred or disposed of under
clause (i), (ii), (iii), (iv), (vi), (viii), (ix), (x) or (xi)
of Section 5.02(d) and, except to the extent such reduction is
expressly required thereunder, under clause (v) of Section
5.02(d);
(B) the incurrence or issuance by the Borrower
or any of its Subsidiaries of any Indebtedness (other than
Indebtedness expressly permitted to be incurred or issued
pursuant to clause (i), (ii), (iii), (iv), (v), (vi), (vii),
(viii), (ix), (x), (xi), (xii), (xiv), (xv) or (xvi) of
Section 5.02(b) and Subordinated Debt permitted to be issued
under Section 5.02(b)(xiii) and which is used to effect any
acquisition permitted hereunder, provided that in the case in
which the proceeds of such issuance are contemplated to be
used to effect such acquisition, then all the proceeds thereof
are used within 120 days of such issuance to effect such
acquisition and any such proceeds not so used by such 120th
day shall be applied as a prepayment as provided herein); and
(C) the issuance or sale by the Borrower or any
of its Subsidiaries of any Equity Interests therein (other
than the issuance by the Borrower of Equity Interests (i) upon
the conversion of the Convertible Preferred Securities upon
exchange thereof for Convertible Subordinated Debentures and
the immediate conversion of such Convertible Subordinated
Debentures, as provided in the Convertible Securities Trust
Agreement, (ii) to employees of the Borrower or its
Subsidiaries in the ordinary course of business or (iii) to
effect any acquisition permitted hereunder, provided that in
the case in which the proceeds of such issuance are
contemplated to be used to effect such acquisition, then all
the proceeds thereof are used within 120 days of such issuance
to effect such acquisition
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and any such proceeds not so used by such 120th day shall be
applied as a prepayment as provided herein),
prepay an aggregate principal amount of the Advances comprising part of the same
Borrowings equal to 100% of the amount of such Net Cash Proceeds. Each
prepayment of Advances pursuant to this clause (ii) shall be applied to the Term
Loan Facility and to the principal repayment installments thereof in inverse
order of maturity on a pro rata basis.
(iii) The Borrower shall, on each Business Day,
prepay an aggregate principal amount of the Revolving Credit Advances
comprising part of the same Borrowings, the Letter of Credit Advances
and the Swing Line Advances and, if applicable, deposit an amount into
the L/C Cash Collateral Account equal to the amount by which (A) the
sum of (1) the aggregate principal amount of all Revolving Credit
Advances, Letter of Credit Advances and Swing Line Advances outstanding
on such Business Day and (2) the aggregate Available Amount of all
Letters of Credit outstanding on such Business Day exceeds (B) the
Revolving Credit Facility on such Business Day (after giving effect to
any permanent reduction thereof pursuant to Section 2.05 on such
Business Day).
(iv) The Borrower shall, on each Business Day,
pay to the Administrative Agent for deposit into the L/C Cash
Collateral Account an amount sufficient to cause the aggregate amount
on deposit in the L/C Cash Collateral Account on such Business Day to
equal the amount by which (A) the aggregate Available Amount of all
Letters of Credit outstanding on such Business Day exceeds (B) the
Letter of Credit Facility on such Business Day (after giving effect to
any permanent reduction thereof pursuant to Section 2.05 on such
Business Day).
(v) Notwithstanding any of the other provisions
of clause (ii) of this Section 2.06(b), so long as no Default under
Section 6.01(a) or 6.01(f) or Event of Default shall have occurred and
be continuing, if, on any date on which a prepayment of Term Loan
Advances would otherwise be required to be made pursuant to clause (ii)
of this Section 2.06(b), the aggregate amount of Net Cash Proceeds
required by such clause to be applied to prepay Term Loan Advances on
such date is less than or equal to $10,000,000, the Borrower may defer
such prepayment until the date that is ten Business Days after the
aggregate amount of Net Cash Proceeds or other amounts otherwise
required hereunder to prepay Term Loan Advances and not previously so
applied equals at least $10,000,000. Upon the occurrence of a Default
under Section 6.01(a) or 6.01(f) or an Event of Default, the Borrower
shall immediately prepay the Term Loan Advances comprising part of the
same Borrowings in the amount of all Net Cash Proceeds received by the
Borrower and other amounts, as applicable, that are required to be
applied to prepay Term Loan Advances under this Section 2.06 but which
have not previously been so applied.
(c) Prepayments to Include Accrued Interest, Etc. All
prepayments under this Section 2.06 shall be made together with (A) accrued and
unpaid interest to the date of such prepayment on the principal amount so
prepaid and (B) in the case of any such prepayment of a Eurodollar Rate Advance
on a date other than the last day of an Interest Period therefor, any amounts
owing in respect of such Eurodollar Rate Advance pursuant to Section 8.04(c).
(d) Term Loan Opt-Out. Any Term Loan Lender, at its
option, may elect not to accept any prepayment of the Term Loan Facility under
this Section 2.06. Upon receipt by the Administrative Agent of any such
prepayment, the amount of the prepayment that is available to prepay the Term
Loan Advances shall be deposited into a suspense account of the Administrative
Agent (the "PREPAYMENT AMOUNT"), pending application of such amount on the
Prepayment Date as set forth below and promptly after such receipt (the date of
such receipt being the "RECEIPT DATE"), the Administrative Agent shall give
notice by way of telephone (to be confirmed promptly thereafter by way of
telecopy) to the Term Loan Lenders of the amount available to prepay the Term
Loan Advances and the date on which such prepayment shall be made (the
"PREPAYMENT DATE"), such Prepayment Date to occur on the third
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Business Day after the Receipt Date. Any Term Loan Lender declining such
prepayment (a "DECLINING LENDER") shall give written notice to the
Administrative Agent of its decision to do so by 11:00 A.M. (Charlotte, North
Carolina time) on the second Business Day after the Receipt Date provided that
failure by any Term Loan Lender to serve any such notice on the Administrative
Agent shall be deemed to be an acceptance by such Term Loan Lender of the
proposed prepayment. On the Prepayment Date, an amount equal to that portion of
the Prepayment Amount payable to the Term Loan Lenders other than the Declining
Lenders (such Term Loan Lenders being the "ACCEPTING LENDERS") shall be applied
by the Borrower to prepay Term Loan Advances owing to such Accepting Lenders on
a pro rata basis in inverse order of maturity. Any amounts that would otherwise
have been applied to prepay Advances under the Term Loan Facility owing to
Declining Lenders shall instead be applied ratably to prepay the remaining Term
Loan Advances in inverse order of maturity as provided in Section 2.06(a) or
(b), as applicable; provided further that on prepayment in full of all Term Loan
Advances owing to Accepting Lenders, the remainder of any Prepayment Amount
shall be applied ratably to prepay Term Loan Advances owing to Declining Lenders
in inverse order of maturity.
SECTION 2.07. Interest.
(a) Scheduled Interest. The Borrower shall pay interest
on the unpaid principal amount of each Advance owing to each Lender Party from
the date of such Advance until such principal amount shall be paid in full, at
the following rates per annum:
(i) Base Rate Advances. During such periods as
such Advance is a Base Rate Advance, a rate per annum equal at all
times to the sum of (A) the Base Rate in effect from time to time and
(B) the Applicable Margin for such Base Rate Advance in effect from
time to time, payable in arrears quarterly on the last day of each
June, September, December and March during such periods and on the date
such Base Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such
periods as such Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during each Interest Period for such Advance to the
sum of (A) the Eurodollar Rate for such Advance for such Interest
Period and (B) the Applicable Margin for such Advance in effect on the
first day of such Interest Period, payable in arrears on the last day
of such Interest Period and, if such Interest Period has a duration of
more than three months, on each day that occurs during such Interest
Period every three months from the first day of such Interest Period
and on the date such Eurodollar Rate Advance shall be Converted or paid
in full.
(b) Default Interest. Upon the occurrence and during the
continuance of a Default under Section 6.01(a) or 6.01(f) or any Event of
Default, the Borrower shall pay interest on (i) the unpaid principal amount of
each Advance owing to each Lender Party, payable in arrears on the dates
referred to in clause (i) or (ii) of Section 2.07(a), as applicable, and on
demand, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on such Advance pursuant to clause (i) or (ii) of
Section 2.07(a), as applicable, and (ii) to the fullest extent permitted under
applicable law, the amount of any interest, fee or other amount payable under
this Agreement or any of the other Loan Documents to any of the Agents or any of
the Lender Parties that is not paid when due, from the date such amount shall be
due until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid, in the case
of interest, on the Type of Advance on which such interest has accrued pursuant
to clause (i) or (ii) of Section 2.07(a), as applicable, and, in all other
cases, on Base Rate Advances pursuant to clause (i) of Section 2.07(a).
(c) Notice of Interest Rate. Promptly after receipt of a
Notice of Borrowing pursuant to Section 2.02(a), a Notice of Conversion pursuant
to Section 2.09(a) or a notice of selection of an Interest Period pursuant to
the definition of "Interest Period" set forth in Section 1.01, the
Administrative Agent shall give notice to the Borrower and each of the
Appropriate Lenders of the applicable interest
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rate determined by the Administrative Agent for purposes of clause (i) or (ii)
of Section 2.07(a), as applicable.
SECTION 2.08. Fees.
(a) Commitment Fee. The Borrower shall pay to the
Administrative Agent for the account of the Lenders a fee (the "COMMITMENT
FEE"), from the date of this Agreement in the case of each of the Initial
Lenders and from the effective date specified in the Assignment and Acceptance
pursuant to which it became a Lender in the case of each of the other Lenders
until the Termination Date for the Revolving Credit Facility, payable in arrears
quarterly on the last day of each June, September, December and March,
commencing June 30, 2001, and on the Termination Date for the Revolving Credit
Facility, at the rate per annum equal to the Applicable Percentage in effect
from time to time on the sum of (i) the average daily Unused Revolving Credit
Commitment of each of the Revolving Credit Lenders and (ii) such Revolving
Credit Lender's Pro Rata Share of the average daily outstanding Swing Line
Advances during such quarter; provided, however, that no commitment fee shall
accrue on any of the Commitments of a Defaulting Lender so long as such Lender
shall be a Defaulting Lender.
(b) Letter of Credit Fees, Etc.
(i) The Borrower shall pay to the Administrative
Agent for the account of each of the Revolving Credit Lenders a
commission, payable in arrears quarterly on the last day of each June,
September, December and March, commencing June 30, 2001, on the
earliest to occur of the full drawing, expiration, termination or
cancellation of any Letter of Credit and on the Termination Date for
the Revolving Credit Facility, on such Revolving Credit Lender's Pro
Rata Share of the average daily aggregate Available Amount of all
Letters of Credit outstanding from time to time during such quarter at
the rate per annum equal to the Applicable Margin in effect at such
time for Eurodollar Rate Advances under the Revolving Credit Facility.
(ii) The Borrower shall pay to the Issuing Bank,
for its own account, such commissions, issuance fees, fronting fees,
transfer fees and other fees and charges in connection with the
issuance or administration of each Letter of Credit as the Borrower and
the Issuing Bank shall from time to time agree.
(c) Agent's Fees. The Borrower shall pay to the
Administrative Agent for the account of the Agents such fees as may from time to
time be agreed between the Borrower and the Administrative Agent.
SECTION 2.09. Conversion of Advances.
(a) Optional. The Borrower may on any Business Day, upon
notice given to the Administrative Agent not later than 1:00 P.M. (Charlotte,
North Carolina time) on the third Business Day prior to the date of the proposed
Conversion in the case of a Conversion of Base Rate Advances into Eurodollar
Rate Advances or of Eurodollar Rate Advances of one Interest Period into
Eurodollar Rate Advances of another Interest Period, or 1:00 P.M. (Charlotte,
North Carolina time) on the Business Day immediately preceding the date of the
proposed Conversion in the case of a Conversion of Eurodollar Rate Advances into
Base Rate Advances, and subject to the provisions of Section 2.10, Convert all
or any portion of the Advances of one Type comprising the same Borrowing into
Advances of the other Type; provided, however, that:
(i) any Conversion of Eurodollar Rate Advances
into Base Rate Advances shall be made only on the last day of an
Interest Period for such Eurodollar Rate Advances;
(ii) any Conversion of Base Rate Advances into
Eurodollar Rate Advances shall be made only if no Default under Section
6.01(a) or 6.01(f) or Event of Default shall have
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occurred and be continuing and shall be in an amount not less than the
minimum amount specified in Section 2.02(c);
(iii) no Conversion of any Advances shall result
in more separate Borrowings than permitted under Section 2.02(c); and
(iv) each Conversion of Advances comprising part
of the same Borrowing under any Facility shall be made among the
Appropriate Lenders in accordance with their respective Pro Rata Shares
of such Facility.
Each notice of a Conversion (a "NOTICE OF CONVERSION") shall be delivered by
telephone, confirmed promptly (and, in any event, on the same Business Day) in
writing, or by telecopier, shall be in substantially the form of Exhibit B-3
hereto and duly executed by a Responsible Officer of the Borrower, and shall,
within the restrictions set forth in the immediately preceding sentence, specify
therein:
(A) the requested date of such Conversion (which shall be
a Business Day);
(B) the Advances requested to be Converted; and
(C) if such Conversion is into Eurodollar Rate Advances,
the requested duration of the Interest Period for such Eurodollar Rate
Advances.
The Administrative Agent shall give each of the Appropriate Lenders prompt
notice of each Notice of Conversion received by it, by telecopier. Each Notice
of Conversion shall be irrevocable and binding on the Borrower.
(b) Mandatory.
(i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising part of any
Borrowing shall be reduced, by payment or prepayment or otherwise, to
less than $5,000,000, such Eurodollar Rate Advances shall be
automatically Converted into Base Rate Advances.
(ii) If the Borrower shall fail to select the
duration of any Interest Period for any Eurodollar Rate Advances in
accordance with the provisions contained in the definition of "Interest
Period" set forth in Section 1.01, the Administrative Agent will
forthwith so notify the Borrower and the Appropriate Lenders, whereupon
each such Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate
Advance.
(iii) Upon the occurrence and during the
continuance of any Default under Section 6.01(a) or 6.01(f) or any
Event of Default, (A) each Eurodollar Rate Advance will automatically,
on the last day of the then existing Interest Period therefor, Convert
into a Base Rate Advance and (B) the obligation of the Lenders to make,
or to Convert Advances into, Eurodollar Rate Advances shall be
suspended.
SECTION 2.10. Increased Costs, Etc.
(a) If, due to either (i) the introduction of or any
change (other than any change by way of the imposition of or increase in reserve
requirements included in the Eurodollar Rate Reserve Percentage) in or in the
interpretation or application of any Requirement of Law after the date of this
Agreement or (ii) the compliance with any directive, guideline or request from
any central bank or other Governmental Authority or any change therein or in the
interpretation, application, implementation, administration or enforcement
thereof, that, in any case under this clause (ii), becomes effective or is
issued or made after the date of this Agreement (whether or not having the force
of law), there shall be any increase in the cost to any of the Lender Parties of
agreeing to make or making, agreeing to
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participate in or participating in, agreeing to renew or renewing or funding or
maintaining any Advances of either Type, or of agreeing to issue or of issuing,
maintaining or participating in Letters of Credit or of agreeing to make or of
making or maintaining Swing Line Advances or Letter of Credit Advances, or any
reduction in the amount owing to any of the Lender Parties or their respective
Applicable Lending Offices under this Agreement in respect of any Advances of
either Type (excluding, for purposes of this Section 2.10, any such increased
costs resulting from (A) Taxes or Other Taxes (as to which Section 2.13 shall
govern) and (B) changes in the basis of taxation of overall net income or
overall gross income by the United States of America or the jurisdiction under
the laws of which such Lender Party is organized or has either of its Applicable
Lending Offices or any political subdivision thereof), then the Borrower hereby
agrees to pay, from time to time upon demand by such Lender Party (with a copy
of such demand to the Administrative Agent), to the Administrative Agent for the
account of such Lender Party additional amounts sufficient to compensate or to
reimburse such Lender Party for all such increased costs or reduced amounts.
Each of the Lender Parties shall, as promptly as practicable after such Lender
Party obtains knowledge of such circumstances and the determination of such
Lender Party to request additional compensation from the Borrower pursuant to
this subsection (a), provide notice to the Administrative Agent and the Borrower
of the circumstances entitling such Lender Party to such additional compensation
and the amount of such additional compensation (including the basis of
calculation thereof), which notice shall be conclusive and binding for all
purposes, absent manifest error; provided, however, that none of the Lender
Parties shall be entitled to additional compensation under this subsection (a)
for any such cost incurred or reduced amount suffered from and after the date
that is 180 days prior to the date such Lender Party first delivers such notice
to the Borrower. In determining any such additional compensation, such Lender
Party may use reasonable averaging and attribution methods. If any of the
Lenders requests additional compensation from the Borrower under this subsection
(a) in respect of its making, participating in or renewing Eurodollar Rate
Advances, the Borrower may, upon notice to such Lender (with a copy of such
notice to the Administrative Agent), suspend the obligation of such Lender to
make, participate in and/or renew Eurodollar Rate Advances until the
circumstances giving rise to such request no longer exist and, during such time,
all Eurodollar Rate Advances that would otherwise be made by such Lender as part
of any Borrowing shall be made instead as Base Rate Advances and all payments of
principal of and interest on such Base Rate Advances shall, notwithstanding the
provisions of Section 2.07, be made at the same time as payments on the
Eurodollar Rate Advances otherwise comprising part of such Borrowing.
(b) If any of the Lender Parties determines that
compliance with any Requirement of Law or any directive, guideline or request
from any central bank or other Governmental Authority (whether or not having the
force of law), or any change therein or in the interpretation, application,
implementation, administration or enforcement thereof, that is enacted or
becomes effective, or is implemented or is first required or expected to be
complied with after the date of this Agreement, affects the amount of capital
required or expected to be maintained by such Lender Party (or either of the
Applicable Lending Offices of such Lender Party) or by any Person controlling
such Lender Party and that the amount of such capital is increased by or is
based upon the existence of the commitment of such Lender Party to lend
hereunder or to issue or participate in Letters of Credit hereunder and other
commitments of such type or the issuance or maintenance of or participation in
the Letters of Credit (or similar contingent obligations), then the Borrower
hereby agrees to pay, upon demand by such Lender Party (with a copy of such
demand to the Administrative Agent), to the Administrative Agent for the account
of such Lender Party, from time to time as specified by such Lender Party,
additional amounts sufficient to compensate such Lender Party or such Person in
light of such circumstances, to the extent that such Lender Party or such Person
reasonably determines such increase in capital to be allocable to the existence
of the commitment of such Lender Party to lend or to issue or participate in
Letters of Credit hereunder or to the issuance or maintenance of or
participation in any Letters of Credit. Each of the Lender Parties shall, as
promptly as practicable after such Lender Party obtains knowledge of such
circumstances and the determination of such Lender Party to request additional
compensation from the Borrower pursuant to this subsection (b), provide notice
to the Administrative Agent and the Borrower of the circumstances entitling such
Lender Party to such additional compensation and the amount of such additional
compensation (including the basis of calculation thereof), which notice shall be
conclusive and binding for all purposes, absent manifest error; provided,
however, that none of the Lender Parties shall
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be entitled to additional compensation under this subsection (b) for any such
increases in capital required from and after the date that is 180 days prior to
the date such Lender Party first delivers such notice to the Borrower. In
determining any such additional compensation, such Lender Party may use
reasonable averaging and attribution methods.
(c) If, with respect to any Eurodollar Rate Advances
under any of the Facilities, Lenders owed or holding not less than a majority in
interest of the aggregate principal amount of all Advances outstanding under
such Facility at any time notify the Administrative Agent that the Eurodollar
Rate for any Interest Period for such Advances will not adequately reflect the
cost to such Lenders of making, participating in or renewing, or funding or
maintaining, their Eurodollar Rate Advances for such Interest Period, the
Administrative Agent shall forthwith so notify the Borrower and the Appropriate
Lenders, whereupon (i) each such Eurodollar Rate Advance under such Facility
will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance and (ii) the obligation of the
Appropriate Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower (promptly following notice thereof from the Appropriate Lenders) that
such Lenders have determined that the circumstances causing such suspension no
longer exist.
(d) Notwithstanding any of the other provisions of this
Agreement, if the introduction of or any change in or in the interpretation of
any Requirements of Law shall make it unlawful, or any central bank or other
Governmental Authority shall assert that it is unlawful, for any Lender or its
Eurodollar Lending Office to perform its obligations hereunder to make
Eurodollar Rate Advances or to continue to fund or maintain Eurodollar Rate
Advances hereunder, then, upon notice thereof and demand therefor by such Lender
to the Borrower through the Administrative Agent, (i) each Eurodollar Rate
Advance of such Lender will automatically, on the last day of the then existing
Interest Period therefor, if permitted under applicable law, or otherwise upon
demand, Convert into a Base Rate Advance and (ii) the obligation of such Lender
to make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the Borrower (promptly
following notice thereof from such Lender) that such Lender has determined that
the circumstances causing such suspension no longer exist. If the obligation of
a Lender to make Eurodollar Rate Advances is suspended pursuant to this
subsection (d), then until the circumstances that gave rise to such suspension
no longer apply to such Lender, all Eurodollar Rate Advances that would
otherwise be made by such Lender as part of any Borrowing shall be made instead
as Base Rate Advances and all payments of principal of and interest on such Base
Rate Advances shall, notwithstanding the provisions of Section 2.07, be made at
the same time as payments on the Eurodollar Rate Advances otherwise comprising
part of such Borrowing.
(e) Each of the Lenders hereby agrees that, upon the
occurrence of any circumstances entitling such Lender to additional compensation
or to cease making, participating in or renewing, or funding or maintaining,
Eurodollar Rate Advances under any of the foregoing provisions of this Section
2.10, such Lender shall use reasonable efforts (consistent with its internal
policy and with legal and regulatory restrictions) to designate a different
Eurodollar Rate Lending Office for any Eurodollar Rate Advances affected by such
circumstances if the making of such designation, in the case of subsection (a)
or (b) of this Section 2.10, would avoid the need for, or reduce the amount of,
any such additional amounts that may thereafter accrue or, in the case of
subsection (c) or (d) of this Section 2.10, would allow such Lender to continue
to perform its obligations to make, to participate in or renew, or to fund or
maintain, Eurodollar Rate Advances, and, in any such case, would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
(f) If (i) any of the Lenders entitled to additional
compensation under any of the foregoing provisions of this Section 2.10 shall
fail to designate a different Eurodollar Rate Lending Office as provided in
subsection (e) of this Section 2.10 or if the circumstances entitling any of the
Lender Parties to additional compensation under subsection (a) or (b) of this
Section 2.10 shall continue to be in effect notwithstanding such designation or
since subsection (e) of this Section 2.10 is inapplicable or (ii) the inadequacy
or illegality contemplated under subsection (c) or (d) of this Section 2.10,
respectively,
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shall continue with respect to any of the Lenders notwithstanding such
designation, then, subject to the terms of Section 8.07(a), the Borrower may
cause such Lender Party to (and, if the Borrower so demands, such Lender Party
shall) assign all of its rights and obligations under this Agreement to one or
more other Persons in accordance with Section 8.07(a); provided that if, upon
such demand by the Borrower, such Lender Party elects to waive its request for
additional compensation pursuant to subsection (a) or (b) of this Section 2.10,
the demand by the Borrower for such Lender Party to so assign all of its rights
and obligations under the Agreement shall thereupon be deemed withdrawn. Nothing
in subsection (e) of this Section 2.10 or this subsection (f) shall affect or
postpone any of the rights of any of the Lender Parties or any of the
Obligations of the Borrower under any of the foregoing provisions of this
Section 2.10 in any manner.
SECTION 2.11. Evidence of Debt.
(a) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness of the
Borrower to such Lender resulting from each Advance owing to such Lender from
time to time, including the amounts of principal and interest payable and paid
to such Lender from time to time hereunder.
(b) The Register maintained by the Administrative Agent
pursuant to Section 8.07(e) shall include accounts for each Lender, in which
accounts (taken together) shall be recorded (i) the date and amount of each
Advance made hereunder, (ii) the terms of each Assignment and Acceptance
delivered to and accepted by it, (iii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iv) the amount of any sum received by the Administrative Agent
from the Borrower hereunder and each Lender's share thereof.
(c) The entries made as provided in this Section 2.11
shall be conclusive and binding for all purposes, absent manifest error.
SECTION 2.12. Payments and Computations.
(a) The Borrower shall make each payment hereunder and
under the Notes, irrespective of any right of counterclaim or setoff (except as
otherwise provided in Section 2.15), not later than 1:00 P.M. (Charlotte, North
Carolina time) on the day when due in U.S. dollars to the Administrative Agent
at the Administrative Agent's Account in same day funds, with payments received
by the Administrative Agent after 1:00 P.M. (Charlotte, North Carolina time) on
any such day being deemed to have been received on the next succeeding Business
Day. The Administrative Agent will promptly thereafter cause like funds to be
distributed (i) if such payment by the Borrower is in respect of principal,
interest, Commitment Fees or any of the other Obligations then due and payable
hereunder and under the Notes to more than one of the Lender Parties, to such
Lender Parties for the accounts of their respective Applicable Lending Offices
in accordance with their respective Pro Rata Shares of the amounts of such
Obligations due and payable to such Lender Parties at such time and (ii) if such
payment by the Borrower is in respect of any of the Obligations then due and
payable hereunder to one Lender Party, to such Lender Party for the account of
its Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 8.07(e), from and after the effective date of such Assignment and
Acceptance, the Administrative Agent shall make all payments hereunder and under
the Notes in respect of the interest assigned thereby to the Lender Party
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) The Borrower hereby authorizes each of the Lender
Parties, if and to the extent payment owed to such Lender Party is not made when
due hereunder or, in the case of any Lender, under the Note held by such Lender,
to charge from time to time against any or all of the Borrower's accounts with
such Lender Party any amount so due.
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(c) All computations of interest based on the Base Rate
shall be made by the Administrative Agent on the basis of a year of 365 or 366
days, as the case may be, and all computations of interest based on the
Eurodollar Rate or the Federal Funds Rate and of fees and Letter of Credit
commissions shall be made by the Administrative Agent on the basis of a year of
360 days, in each case for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest,
fees or commissions are payable. Each determination by the Administrative Agent
of an interest rate, fee or commission hereunder shall be conclusive and binding
for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes
shall be stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or Commitment
Fees, as the case may be; provided, however, that, if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances to be made in
the next succeeding calendar month, such payment shall be made on the
immediately preceding Business Day.
(e) Unless the Borrower or any Lender Party has notified
the Administrative Agent prior to the date any payment is required to be made by
it to the Administrative Agent hereunder, that the Borrower or such Lender
Party, as the case may be, will not make such payment, the Administrative Agent
may assume that the Borrower or such Lender Party, as the case may be, has
timely made such payment and may (but shall not be so required to), in reliance
thereon, make available a corresponding amount to the Person entitled thereto.
If and to the extent that such payment was not in fact made to the
Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, each
Lender Party shall forthwith on demand repay to the Administrative
Agent the portion of such assumed payment that was made available to
such Lender Party in immediately available funds, together with
interest thereon in respect of each day from and including the date
such amount was made available by the Administrative Agent to such
Lender Party to the date such amount is repaid to the Administrative
Agent in immediately available funds, at the Federal Funds Rate from
time to time in effect; and
(ii) if any Lender Party failed to make such payment, such
Lender Party shall forthwith on demand pay to the Administrative Agent
the amount thereof in immediately available funds, together with
interest thereon for the period from the date such amount was made
available by the Administrative Agent to the Borrower to the date such
amount is recovered by the Administrative Agent (the "COMPENSATION
PERIOD") at a rate per annum equal to the Federal Funds Rate from time
to time in effect. If such Lender Party pays such amount to the
Administrative Agent, then such amount shall constitute such Lender
Party's Advance included in the applicable Borrowing. If such Lender
Party does not pay such amount forthwith upon the Administrative
Agent's demand therefor, the Administrative Agent may make a demand
therefor upon the Borrower, and the Borrower shall pay such amount to
the Administrative Agent, together with interest thereon for the
Compensation Period at a rate per annum equal to the rate of interest
applicable to the applicable Borrowing. Nothing herein shall be deemed
to relieve any Lender Party from its obligation to fulfill its
applicable Commitment or to prejudice any rights which the
Administrative Agent or the Borrower may have against any Lender Party
as a result of any default by such Lender Party hereunder.
A notice from the Administrative Agent to any Lender Party
with respect to any amount owing under this subsection (e) shall be conclusive,
absent manifest error.
(f) Whenever any payment received by the Administrative
Agent under this Agreement or any of the other Loan Documents is insufficient to
pay in full all amounts due and payable to the Finance Parties under or in
respect of this Agreement and the other Loan Documents on any date,
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such payment shall be distributed by the Administrative Agent and applied by the
Finance Parties in the following order of priority:
(i) first, to the payment of all of the fees,
indemnification payments, costs and expenses that are due and payable
to the Agents (solely in their respective capacities as Agents) under
or in respect of this Agreement or any of the other Loan Documents on
such date, ratably in accordance with the respective aggregate amounts
of all such fees, indemnification payments, costs and expenses owing to
the Agents on such date;
(ii) second, to the payment of all of the fees,
indemnification payments, costs and expenses that are due and payable
to the Issuing Bank and the Swing Line Bank (solely in their respective
capacities as Issuing Bank and Swing Line Bank) under or in respect of
this Agreement or any of the other Loan Documents on such date, ratably
in accordance with the respective aggregate amounts of all such fees,
indemnification payments, costs and expenses owing to the Issuing Bank
and the Swing Line Bank on such date;
(iii) third, to the payment of all of the
indemnification payments, costs and expenses that are due and payable
to the Lender Parties under Section 8.04 hereof, Section 12 of the
Subsidiaries Guarantee or the applicable section of any of the other
Loan Documents on such date, ratably in accordance with the respective
aggregate amounts of all such indemnification payments, costs and
expenses owing to the Lender Parties on such date;
(iv) fourth, to the payment of all of the amounts
that are due and payable to the Administrative Agent and the Lender
Parties under Sections 2.10 and 2.13 hereof or Section 5 of the
Subsidiaries Guarantee on such date, ratably in accordance with the
respective aggregate amounts thereof owing to the Agents and the Lender
Parties on such date;
(v) fifth, to the payment of all of the fees
that are due and payable to the Lenders under Section 2.08 on such
date, ratably in accordance with the respective aggregate Commitments
of the Lenders under the applicable Facilities on such date;
(vi) sixth, to the payment of all of the accrued
and unpaid interest on the Obligations of the Borrower under or in
respect of the Loan Documents that is due and payable to the
Administrative Agent and the Lender Parties under Section 2.07(b) on
such date, ratably in accordance with the respective aggregate amounts
of all such interest owing to the Administrative Agent and the Lender
Parties on such date;
(vii) seventh, to the payment of all of the
accrued and unpaid interest on the Advances that is due and payable to
the Administrative Agent and the Lender Parties under Section 2.07(a)
on such date, ratably in accordance with the respective aggregate
amounts of all such interest owing to the Administrative Agent and the
Lender Parties on such date;
(viii) eighth, to the payment of the principal
amount of all of the outstanding Advances that is due and payable to
the Administrative Agent and the Lender Parties on such date, ratably
in accordance with the respective aggregate amounts of all such
principal owing to the Administrative Agent and the Lender Parties on
such date; and
(ix) ninth, to the payment of all other
Obligations of the Finance Parties owing under or in respect of the
Loan Documents that are due and payable to the Administrative Agent and
the other Finance Parties on such date, ratably in accordance with the
respective aggregate amounts of all such Obligations owing to the
Administrative Agent and the other Finance Parties on such date.
If the Administrative Agent receives funds for application to the Obligations of
the Loan Parties under or in respect of the Loan Documents under circumstances
for which the Loan Documents do not specify the
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Advances or the Facility to which, or the manner in which, such funds are to be
applied, the Administrative Agent may, but shall not be obligated to, elect to
distribute such funds to each of the Lender Parties in accordance with such
Lender Party's Pro Rata Share of the sum of (A) the aggregate principal amount
of all Advances outstanding at such time and (B) the aggregate Available Amount
of all Letters of Credit outstanding at such time, in repayment or prepayment of
such of the outstanding Advances or other Obligations then owing to such Lender
Party.
SECTION 2.13. Taxes.
(a) Any and all payments by the Borrower hereunder or
under the Notes shall be made, in accordance with Section 2.12, 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, excluding, in the case of each of the Lender Parties and each of the
Agents, taxes that are imposed on its overall net income by the United States
and taxes that are imposed on its overall net income (and franchise taxes
imposed in lieu thereof) by the state or foreign jurisdiction under the laws of
which such Lender Party or such Agent, as the case may be, is organized or is a
resident, or has a fixed place of business or a permanent establishment, or any
political subdivision of any of the foregoing, and, in the case of each of the
Lender Parties, taxes that are imposed on its overall net income (and franchise
taxes imposed in lieu thereof) by the state or foreign jurisdiction of either of
its Applicable Lending Offices or any political subdivision thereof (all such
nonexcluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities in respect of payments hereunder or under the Notes being,
collectively, "TAXES"). If the Borrower shall be required under any applicable
Requirements of Law to deduct any Taxes from or in respect of any sum payable
hereunder or under any of the Notes to any of the Lender Parties or any of the
Agents, (i) the sum payable by the Borrower shall be increased as may be
necessary so that after the Borrower and the Administrative Agent have made all
required deductions (including deductions applicable to additional sums payable
under this Section 2.13) such Lender Party or such Agent, 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 shall make all such deductions and (iii)
the Borrower shall pay the full amount deducted to the relevant taxation
authority or other Governmental Authority in accordance with applicable
Requirements of Law.
(b) In addition, the Borrower shall pay any present or
future stamp, recording, documentary, excise, property or similar taxes, charges
or levies that arise from any payment made hereunder or under the Notes or from
the execution, delivery or registration of, any performance under, or otherwise
with respect to, this Agreement or the Notes (collectively, "OTHER TAXES").
(c) The Borrower shall indemnify each of the Lender
Parties and each of the Agents for, and hold each of them harmless against, the
full amount of Taxes and Other Taxes, and the full amount of taxes of any kind
imposed by any jurisdiction on amounts payable under this Section 2.13, imposed
on or paid by such Lender Party or such Agent, as the case may be, and any
liability (including penalties, additions to tax, interest and expenses) arising
therefrom or with respect thereto. The indemnity by the Borrower provided for in
this subsection (c) shall apply and be made whether or not the Taxes or Other
Taxes for which indemnification hereunder is sought have been correctly or
legally asserted; provided, however, that such Lender or such Agent seeking such
indemnification shall take all reasonable actions (consistent with its internal
policy and legal and regulatory restrictions) requested by the Borrower to
assist the Borrower in recovering the amounts paid thereby pursuant to this
subsection (c) from the relevant taxation authority or other Governmental
Authority. Amounts payable by the Borrower under the indemnity set forth in this
subsection (c) shall be paid within 30 days from the date on which the
applicable Lender or Agent, as the case may be, makes written demand therefor.
(d) Within 30 days after the date of any payment of
Taxes, the Borrower shall furnish to the Administrative Agent, at its address
referred to in Section 8.02, the original or a certified copy of a receipt
evidencing payment thereof, to the extent such a receipt is issued therefor, or
other written proof of payment thereof that is reasonably satisfactory to the
Administrative Agent. In the case of any payment hereunder or under the Notes by
or on behalf of the Borrower through an account or
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branch outside the United States, or on behalf of the Borrower by a payor that
is not a United States person, if the Borrower determines that no Taxes are
payable in respect thereof, the Borrower shall furnish, or shall cause such
payor to furnish, to the Administrative Agent, at its address referred to in
Section 8.02, an opinion of counsel reasonably acceptable to the Administrative
Agent stating that such payment is exempt from Taxes. For purposes of this
subsection (d) and subsection (e) of this Section 2.13, the terms "United
States" and "United States person" shall have the meanings specified in Section
7701 of the Internal Revenue Code.
(e) Each of the Lender Parties organized under the laws
of a jurisdiction outside the United States shall, on or prior to the date of
its execution and delivery of this Agreement in the case of each of the Initial
Lenders, the Swing Line Bank and the Initial Issuing Bank, and on the date of
the Assignment and Acceptance pursuant to which it becomes a Lender Party in the
case of each of the other Lender Parties, and from time to time thereafter as
reasonably requested in writing by the Borrower or the Administrative Agent (but
only so long thereafter as such Lender Party remains lawfully able to do so),
provide each of the Borrower and the Administrative Agent with two original
Internal Revenue Service forms ▇-▇▇▇▇, ▇-▇▇▇▇ or W-8IMY or, in the case of any
of the Lender Parties that is claiming exemption from United States withholding
tax under Section 871(h) or 881(c) of the Internal Revenue Code with respect to
payments of "portfolio interest", form W-8BEN (and, if such Lender Party
delivers a form W-8BEN, a certificate representing that such Lender Party is not
(i) a "bank" for purposes of Section 881(c) of the Internal Revenue Code, (ii) a
ten-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Internal Revenue Code) of the Borrower or (iii) a controlled foreign corporation
related to the Borrower (within the meaning of Section 864(d)(4) of the Internal
Revenue Code), as appropriate), or any successor or other form prescribed by the
Internal Revenue Service, certifying that such Lender Party is exempt from or
entitled to a reduced rate of United States withholding tax on payments pursuant
to this Agreement or the Notes or, in the case of any of the Lender Parties
delivering a form W-8BEN, certifying that such Lender Party is a foreign
corporation, partnership, estate or trust. If the forms referred to above in
this subsection (e) that are provided by a Lender Party at the time such Lender
Party first becomes a party to this Agreement indicate a United States interest
withholding tax rate in excess of zero, withholding tax at such rate shall be
considered excluded from Taxes unless and until such Lender Party provides the
appropriate form certifying that a lesser rate applies, whereupon withholding
tax at such lesser rate shall be considered excluded from Taxes solely for the
periods governed by such form. However, if, on the date of the Assignment and
Acceptance pursuant to which a Lender Party becomes a party to this Agreement,
the Lender Party assignor was entitled to payments under subsection (a) of this
Section 2.13 in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent (and only to such extent), the
term "Taxes" shall include (in addition to withholding taxes that may be imposed
in the future or other amounts otherwise includable in Taxes) United States
withholding tax, if any, applicable with respect to such Lender Party assignee
on such date. If any of the forms, certificates or other documents referred to
in this subsection (e) requires the disclosure of information, other than
information necessary to compute the tax payable and information required on the
date hereof by Internal Revenue Service form ▇-▇▇▇▇, ▇-▇▇▇▇ or W-8IMY (or the
related certificate described above), that a Lender Party reasonably considers
to be confidential, such Lender Party shall give notice thereof to the Borrower
and the Administrative Agent and shall not be obligated to include in such form,
certificate or document such confidential information. None of the Lender
Parties shall be entitled to payment pursuant to subsection (a) or (c) of this
Section 2.13 with respect to any additional Taxes that resulted solely and
directly from the change in either of the Applicable Lending Offices of such
Lender Party (other than any such additional Taxes that are imposed as a result
of a change in any applicable Requirements of Law, or in the interpretation or
application thereof, occurring after the date of such change), unless such
change is made pursuant to the terms of Section 2.10(e) or subsection (g) of
this Section 2.13 or otherwise as a result of a request therefor by the
Borrower.
(f) For any period with respect to which any of the
Lender Parties has failed to provide the Borrower with the appropriate form,
certificate or other document described in subsection (e) of this Section 2.13
(other than if such failure is due to a change in any applicable Requirements of
Law, or in the interpretation or application thereof, occurring after the date
on which a form, certificate or other
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document originally was required to be provided or if such form, certificate or
other document otherwise is not required under subsection (e) of this Section
2.13), such Lender Party shall not be entitled to indemnification under
subsection (a) or (c) of this Section 2.13 with respect to Taxes imposed by the
United States by reason of such failure; provided, however, that should a Lender
Party become subject to Taxes because of its failure to deliver a form,
certificate or other document required hereunder, the Borrower shall take such
steps as such Lender Party shall reasonably request to assist such Lender Party
in recovering such Taxes.
(g) Each of the Lender Parties hereby agrees that, upon
the occurrence of any circumstances entitling such Lender Party to additional
amounts pursuant to this Section 2.13, such Lender Party shall use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office if the making
of such a change would avoid the need for, or reduce the amount of, any such
additional amounts that may thereafter accrue and would not, in the reasonable
judgment of such Lender Party, be otherwise disadvantageous to such Lender
Party.
(h) If any of the Lender Parties entitled to additional
compensation under any of the foregoing provisions of this Section 2.13 shall
fail to designate a different Applicable Lending Office as provided in
subsection (g) of this Section 2.13, then, subject to the terms of Section
8.07(a), the Borrower may cause such Lender Party to (and, if the Borrower so
demands, such Lender Party shall) assign all of its rights and obligations under
this Agreement to one or more other Persons in accordance with Section 8.07(a);
provided that if, upon such demand by the Borrower, such Lender Party elects to
waive its request for additional compensation pursuant to this Section 2.13, the
demand by the Borrower for such Lender Party to so assign all of its rights and
obligations under the Agreement shall thereupon be deemed withdrawn. Nothing in
subsection (g) of this Section 2.13 or this subsection (h) shall affect or
postpone any of the rights of any of the Lender Parties or any of the
Obligations of the Borrower under any of the foregoing provisions of this
Section 2.13 in any manner.
SECTION 2.14. Sharing of Payments, Etc. If any of the Lender
Parties shall obtain at any time any payment (whether voluntary, involuntary,
through the exercise of any right of setoff, or otherwise) (a) on account of
Obligations due and payable to such Lender Party under or in respect of this
Agreement or any of the other Loan Documents at such time (other than pursuant
to Section 2.10, 2.13, 8.04 or 8.07) in excess of its ratable share (according
to the proportion of (i) the amount of such Obligations due and payable to such
Lender Party at such time to (ii) the aggregate amount of the Obligations due
and payable to all of the Lender Parties at such time) of payments on account of
the Obligations due and payable to all of the Lender Parties under or in respect
of this Agreement and the other Loan Documents at such time obtained by all of
the Lender Parties at such time or (b) on account of Obligations owing (but not
due and payable) to such Lender Party under or in respect of this Agreement or
any of the other Loan Documents at such time (other than pursuant to Section
2.10, 2.13, 8.04 or 8.07) in excess of its ratable share (according to the
proportion of (i) the amount of such Obligations owing (but not due and payable)
to such Lender Party at such time to (ii) the aggregate amount of the
Obligations owing (but not due and payable) to all of the Lender Parties under
or in respect of this Agreement and the other Loan Documents at such time) of
payments on account of the Obligations owing (but not due and payable) to all of
the Lender Parties under or in respect of this Agreement and the other Loan
Documents at such time obtained by all of the Lender Parties at such time, such
Lender Party shall forthwith purchase from the other Lender Parties such
interests or participating interests in the Obligations due and payable or owing
to them, as the case may be, as shall be necessary to cause such purchasing
Lender Party to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender Party, such purchase from each of the
other Lender Parties shall be rescinded and such other Lender Party shall repay
to the purchasing Lender Party the purchase price to the extent of such Lender
Party's ratable share (according to the proportion of (A) the purchase price
paid to such Lender Party to (B) the aggregate purchase price paid to all of the
Lender Parties) of such recovery, together with an amount equal to such Lender
Party's ratable share (according to the proportion of (1) the amount of such
other Lender Party's required repayment to (2) the total amount so recovered
from the purchasing Lender Party) of any such interest or participating
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interest or other amount paid or payable by the purchasing Lender Party in
respect of the total amount so recovered. The Borrower hereby agrees that any of
the Lender Parties so purchasing a participation from another Lender Party
pursuant to this Section 2.14 may, to the fullest extent permitted under
applicable law, exercise all its rights of payment (including the right of
setoff) with respect to such participation as fully as if such Lender Party were
the direct creditor of the Borrower in the amount of such participation.
SECTION 2.15. Defaulting Lenders.
(a) If, at any time, (i) any of the Lender Parties shall
be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted
Advance to the Borrower and (iii) the Borrower shall be required to make any
payment hereunder or under any of the other Loan Documents to or for the account
of such Defaulting Lender, then the Borrower may, so long as no Default shall
occur or be continuing at such time and to the fullest extent permitted under
applicable law, set off and otherwise apply the Obligation of the Borrower to
make such payment to or for the account of such Defaulting Lender against the
obligation of such Defaulting Lender to make such Defaulted Advance. If, on any
date, the Borrower shall so set off and otherwise apply its obligation to make
any such payment against the obligation of such Defaulting Lender to make any
such Defaulted Advance on or prior to such date, the amount so set off and
otherwise applied by the Borrower shall constitute for all purposes of this
Agreement and the other Loan Documents an Advance by such Defaulting Lender made
on the date of such setoff and application under the Facility pursuant to which
such Defaulted Advance was originally required to have been made pursuant to
Section 2.01. Such Advance shall be a Base Rate Advance and shall be considered,
for all purposes of this Agreement, to comprise part of the Borrowing in
connection with which such Defaulted Advance was originally required to have
been made pursuant to Section 2.01, even if the other Advances comprising such
Borrowing shall be Eurodollar Rate Advances on the date such Advance is deemed
to be made pursuant to this subsection (a). The Borrower shall notify the
Administrative Agent at any time the Borrower exercises its right of setoff
pursuant to this subsection (a) and shall set forth in such notice (A) the name
of the Defaulting Lender and the Defaulted Advance required to be made by such
Defaulting Lender and (B) the amount set off and otherwise applied in respect of
such Defaulted Advance pursuant to this subsection (a). Any portion of such
payment otherwise required to be made by the Borrower to or for the account of
such Defaulting Lender which is paid by the Borrower, after giving effect to the
amount set off and otherwise applied by the Borrower pursuant to this subsection
(a), shall be applied by the Administrative Agent as specified in subsection (b)
or (c) of this Section 2.15.
(b) If, at any time, (i) any of the Lender Parties shall
be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount
to any of the Agents or any of the Lender Parties and (iii) the Borrower shall
make any payment hereunder or under any of the other Loan Documents to the
Administrative Agent for the account of such Defaulting Lender, then the
Administrative Agent may, on its behalf or on behalf of such other Agents or
such other Lender Parties and to the fullest extent permitted under applicable
law, apply at such time the amount so paid by the Borrower to or for the account
of such Defaulting Lender to the payment of each such Defaulted Amount to the
extent required to pay in full such Defaulted Amount. If the Administrative
Agent shall so apply any such amount to the payment of any such Defaulted Amount
on any date, the amount so applied by the Administrative Agent shall constitute
for all purposes of this Agreement and the other Loan Documents payment, to such
extent, of such Defaulted Amount on such date. Any such amount so applied by the
Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Agents or such other
Lender Parties, ratably in accordance with the respective portions of such
Defaulted Amounts payable at such time to the Administrative Agent, such other
Agents and such other Lender Parties and, if the amount of such payment made by
the Borrower shall at such time be insufficient to pay all Defaulted Amounts
owing to the Agents and the other Lender Parties at such time, then in the
following order of priority:
(A) first, to the Agents for any Defaulted Amount then
owing to the Agents (solely in their capacities as Agents), ratably in
accordance with the respective Defaulted Amounts owing to the Agents on
such date;
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(B) second, to the Swing Line Bank and the Issuing Bank
for any Defaulted Amounts then owing to them (solely in their
respective capacities as Swing Line Bank and Issuing Bank), ratably in
accordance with the respective Defaulted Amounts owing to the Swing
Line Bank and the Issuing Bank on such date; and
(C) third, to any of the other Lender Parties for any
Defaulted Amounts then owing to such other Lender Parties, ratably in
accordance with such respective Defaulted Amounts owing to such other
Lender Parties on such date.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) If, at any time, (i) any Lender Party shall be a
Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted Advance
or a Defaulted Amount and (iii) the Borrower, the Administrative Agent or any of
the other Lender Parties shall be required to pay or distribute any amount
hereunder or under any of the other Loan Documents to or for the account of such
Defaulting Lender, then the Borrower or such other Lender Party shall pay such
amount to the Administrative Agent to be held by the Administrative Agent, to
the fullest extent permitted under applicable law, in escrow or the
Administrative Agent shall, to the fullest extent permitted under applicable
law, hold in escrow such amount otherwise held by it. Any funds held by the
Administrative Agent in escrow under this subsection (c) shall be deposited by
the Administrative Agent in an account with BofA, in the name and under the
control of the Administrative Agent, but subject to the provisions of this
subsection (c). The terms applicable to such account, including the rate of
interest payable with respect to the credit balance of such account from time to
time, shall be BofA standard terms applicable to escrow accounts maintained with
it. Any interest credited to such account from time to time shall be held by the
Administrative Agent in escrow under, and applied by the Administrative Agent
from time to time in accordance with the terms of, this subsection (c). The
Administrative Agent shall, to the fullest extent permitted under applicable
law, apply all funds so held in escrow from time to time to the extent necessary
to make any Advances required to be made by such Defaulting Lender and to pay
any amount payable by such Defaulting Lender hereunder and under the other Loan
Documents to the Administrative Agent, any of the other Agents or any of the
other Lender Parties, as and when such Advances or amounts are required to be
made or paid and, if the amount so held in escrow shall at any time be
insufficient to make and pay all such Advances and all such amounts required to
be made or paid to the Agents and the other Lender Parties at such time, then in
the following order of priority:
(A) first, to the Agents for any amounts then due and
payable by such Defaulting Lender to the Agents (solely in their
capacities as Agents) hereunder and under the other Loan Documents,
ratably in accordance with such respective amounts due and payable to
the Agents on such date;
(B) second, to the Swing Line Bank and the Issuing Bank
for any amounts then due and payable by such Defaulting Lender to them
(solely in their respective capacities as Swing Line Bank and Issuing
Bank) hereunder and under the other Loan Documents, ratably in
accordance with such respective amounts due and payable to the Swing
Line Bank and the Issuing Bank on such date;
(C) third, to any of the other Lender Parties for any
amount then due and payable by such Defaulting Lender to such other
Lender Parties hereunder and under the other Loan Documents, ratably in
accordance with such respective amounts due and payable to such other
Lender Parties on such date; and
(D) fourth, to the Borrower for any Advance then required
to be made by such Defaulting Lender pursuant to one or more of the
Commitments of such Defaulting Lender.
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If any of the Lender Parties that is a Defaulting Lender shall, at any time,
cease to be a Defaulting Lender, any funds held by the Administrative Agent in
escrow at such time with respect to such Lender Party shall be distributed by
the Administrative Agent to such Lender Party and applied by such Lender Party
to the Obligations owing to such Lender Party at such time under or in respect
of this Agreement and the other Loan Documents, ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender
under this Section 2.15 are in addition to other rights and remedies that the
Borrower may have against such Defaulting Lender with respect to any Defaulted
Advance and that the Administrative Agent or any of the other Lender Parties may
have against such Defaulting Lender with respect to any Defaulted Amount.
SECTION 2.16. Use of Proceeds. The proceeds of the Advances
shall be available, and the Borrower hereby agrees that it shall use such
proceeds, solely to refinance existing Indebtedness (including, without
limitation, obligations under the Existing Credit Agreement), to pay certain
fees and expenses contemplated by the Loan Documents and for other general
corporate purposes of the Borrower and its Subsidiaries not otherwise prohibited
under the terms of the Loan Documents.
ARTICLE III
CONDITIONS OF EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Initial Extensions of
Credit. The obligation of each Lender to make an Advance or any Issuing Bank to
issue a Letter of Credit on the occasion of the Initial Extensions of Credit
hereunder is subject to the satisfaction of the following conditions precedent:
(a) The Lender Parties shall be reasonably satisfied with
the organizational and legal structure and capitalization of each Loan Party and
each of its Subsidiaries (including, without limitation, the terms and
conditions of the Constitutive Documents and each class of Equity Interests in
the Borrower and each such Subsidiary and of each agreement or instrument
relating to such structure or capitalization).
(b) All of the Governmental Authorizations, and all of
the consents, approvals and authorizations of, notices and filings to or with,
and other actions by, any other Person necessary in connection with any aspect
of the Transaction, any of the Loan Documents or any of the other transactions
contemplated thereby shall have been obtained (without the imposition of any
conditions that are not reasonably acceptable to the Lender Parties) and shall
remain in full force and effect; all applicable waiting periods shall have
expired without any action being taken by any competent authority; and no
Requirement of Law shall be applicable in the reasonable judgment of the Lender
Parties that restrains, prevents or imposes materially adverse conditions upon
any aspect of the Transaction, any of the Loan Documents or any of the other
transactions contemplated thereby.
(c) Before giving effect and immediately after giving pro
forma effect to the Transaction, no Material Adverse Change shall have occurred
since December 31, 1999.
(d) There shall exist no action, suit, investigation,
litigation, arbitration or proceeding pending or, to the best knowledge of the
Borrower, threatened against or affecting the Borrower or any of its
Subsidiaries or any of the property or assets thereof in any court or before any
arbitrator or by or before any Governmental Authority of any kind (i) that,
either individually or in the aggregate, is reasonably expected to have a
Material Adverse Effect or (ii) which purports to affect the legality, validity,
binding effect or enforceability of any aspect of the Transaction, any of the
Loan Documents or any of the other transactions contemplated thereby.
(e) Each aspect of the Transaction shall have been
consummated or shall be consummated on the Effective Date in compliance with all
applicable Requirements of Law. All amounts owing by the Borrower or any of its
Subsidiaries to the lenders and agents under the Existing Credit
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Agreement (other than the Existing Letters of Credit which on the Effective Date
shall become Letters of Credit hereunder) shall have been, or concurrently with
the Initial Extensions of Credit made on the Effective Date shall be, paid in
full, and all commitments of the lenders thereunder shall have been, or
concurrently with the Initial Extensions of Credit made on the Effective Date
shall be, terminated in accordance with the terms of the Existing Credit
Agreement.
(f) All of the fees and expenses of the Agents that are
required to be paid by the Borrower pursuant to Section 2.08(c) shall have been
or, concurrently with the Initial Extensions of Credit made on the Effective
Date shall be, paid in full.
(g) The Administrative Agent shall have received on or
before the Effective Date the following in form and substance reasonably
satisfactory to it (unless otherwise specified):
(i) The Term Loan Notes, payable to the order of
the Term Loan Lenders, and the Revolving Credit Notes, payable to the
order of the Revolving Credit Lenders.
(ii) Certified copies of the resolutions of the
board of directors (or persons performing similar functions) of each
Loan Party approving the Transaction and each of the Loan Documents to
which it is or is to be a party, and of all documents evidencing
necessary Governmental Authorizations, or other necessary consents,
approvals, authorizations, notices, filings or actions, with respect to
the Transaction and any of the Loan Documents to which it is or is to
be a party.
(iii) A copy of a certificate of the Secretary of
State (or equivalent Governmental Authority) of the jurisdiction of
organization of each Loan Party listing the certificate or articles of
incorporation (or similar Constitutive Document) of each such Loan
Party and each amendment thereto on file in the office of such
Secretary of State (or such Governmental Authority) and certifying (A)
that such amendments are the only amendments to such Person's
certificate or articles of incorporation (or similar Constitutive
Document) on file in its office, (B) if customarily available in such
jurisdiction, that such Person has paid all franchise taxes (or the
equivalent thereof) to the date of such certificate and (C) that such
Person is duly organized and is in good standing under the laws of the
jurisdiction of its organization.
(iv) A certificate of the Secretary or an
Assistant Secretary (or a person performing similar functions) of each
Loan Party certifying as to:
(A) the absence of any amendments to
the certificate or articles of incorporation (or
similar Constitutive Document) of such Loan Party
since the date of the Secretary of State's (or
equivalent Governmental Authority's), or the
Secretary's or Assistant Secretary's (or equivalent
person's) certificate referred to in clause (iv) of
this Section 3.01(g), or any steps taken by the board
of directors (or persons performing similar
functions) or the shareholders, partners, members or
equivalent persons of such Loan Party to effect or
authorize any further amendment, supplement or other
modification thereto;
(B) the accuracy and completeness of
the bylaws (or similar Constitutive Documents) of
such Loan Party as in effect on the date on which the
resolutions of the board of directors (or persons
performing similar functions) of such Loan Party
referred to in clause (ii) of this Section 3.01(g)
were adopted and on the Effective Date (a copy of
which shall be attached to such certificate); and
(C) the names and true signatures of
the officers of such Loan Party authorized to sign
each of the Loan Documents to which it is or is to be
a party and the other agreements, instruments and
documents to be delivered hereunder and thereunder.
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(v) A guarantee, in substantially the form of
Exhibit D hereto (the "SUBSIDIARIES GUARANTEE"), duly executed by each
of the Domestic Subsidiaries that are Material Subsidiaries.
(vi) A trust agreement in substantially the form
of Exhibit G hereto (the "TRUST AGREEMENT"), duly executed by the
Borrower and each of the Domestic Subsidiaries that are Material
Subsidiaries in favor of the Collateral Trustee.
(vii) A pledge and security agreement in
substantially the form of Exhibit F hereto (together with each other
security agreement and security agreement supplement delivered pursuant
to Section 5.01(j), in each case as amended, the "SECURITY
AGREEMENT")), duly executed by each Loan Party, together with:
(A) certificates representing the
Pledged Shares referred to therein accompanied by
undated stock powers executed in blank;
(B) executed financing statements to be
filed under the Uniform Commercial Code of all
jurisdictions that the Administrative Agent may deem
necessary or desirable in order to perfect and
protect the first priority Liens created under the
Security Agreement, covering the Collateral described
in the Security Agreement;
(C) all other documents for recording
or filing with respect to the Security Agreement that
the Administrative Agent may deem necessary or
desirable in order to perfect and protect the Liens
created thereby;
(D) to the extent the same is
obtainable on or before the date of this Agreement,
evidence of insurance naming the Collateral Trustee
as additional insured and loss payee with such
responsible and reputable insurance companies or
associations, and in such amounts and covering such
risks, required by the terms of the Security
Agreement; and
(E) evidence that all other action that
the Administrative Agent and, as the case may be, the
Collateral Trustee, may deem necessary or desirable
in order to perfect and protect the first priority
liens and security interests created under the
Security Agreement has been taken.
(viii) An intellectual property security agreement
in substantially the form annexed to the Security Agreement (together
with each other intellectual property security agreement and
intellectual property security agreement supplement delivered pursuant
to Section 5.01(j), in each case as amended, the "INTELLECTUAL PROPERTY
SECURITY AGREEMENT"), duly executed by each Loan Party, together with
executed security agreements to be filed with the Patent and Trademark
Office and Uniform Commercial Code financing statements.
(ix) Copies, certified by a Responsible Officer
of the Borrower, of (A) the audited Consolidated financial statements
of the Borrower and its Subsidiaries for the Fiscal Year ended December
31, 1999 , accompanied by an unqualified opinion of Ernst & Young LLP,
independent accountants of the Borrower, (B) the unaudited financial
statements of the Borrower and its Subsidiaries for the Fiscal Year
ended December 31, 2000, duly certified by a Responsible Officer of the
Borrower, and (C) forecasts prepared by management of the Borrower, in
form and substance reasonably satisfactory to the Lender Parties, of
balance sheets, income statements and cash flow statements on a
quarterly basis for the Fiscal Year in which the Effective Date occurs
and on an annual basis for each Fiscal Year thereafter through the
scheduled final Termination Date.
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(x) A duly completed and executed Notice of
Borrowing for each Borrowing to be made on the Effective Date and
Notice of Issuance for each Letter of Credit to be issued on the
Effective Date.
(xi) A favorable opinion of King & Spalding,
counsel for the Loan Parties, in substantially the form of Exhibit E-1
hereto, and addressing such other matters as any of the Lender Parties
through the Administrative Agent may reasonably request.
(xii) A favorable opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇,
California counsel to Caremark, Inc., in substantially the form of
Exhibit E-2 hereto and as to such other matters as any Lender Party
through the Administrative Agent may reasonably request.
SECTION 3.02. Conditions Precedent to Each Borrowing and
Issuance and Renewal. The obligation of each Appropriate Lender to make an
Advance (other than a Letter of Credit Advance made by the Issuing Bank or a
Revolving Credit Lender pursuant to Section 2.03(c) and a Swing Line Advance
made by a Revolving Credit Lender pursuant to Section 2.02(b)) on the occasion
of each Borrowing (including the initial Borrowing), and the obligation of the
Issuing Bank to issue a Letter of Credit (including the initial issuance) or
renew a Letter of Credit and the right of the Borrower to request a Swing Line
Borrowing, shall be subject to the further conditions precedent that on the date
of such Borrowing or issuance or renewal the following statements shall be true
(and each of the giving of the applicable Notice of Borrowing, Notice of Swing
Line Borrowing, Notice of Issuance or Notice of Renewal and the acceptance by
the Borrower of the proceeds of such Borrowing or of such Letter of Credit or
the renewal of such Letter of Credit shall constitute a representation and
warranty by the Borrower that both on the date of such notice and on the date of
such Borrowing or issuance or renewal such statements are true):
(a) the representations and warranties contained in each
Loan Document are correct in all material respects on and as of such date,
before and after giving effect to such Borrowing or issuance or renewal and to
the application of the proceeds therefrom, as though made on and as of such
date, other than any such representations or warranties that, by their terms,
refer to a specific date other than the date of such Borrowing or issuance or
renewal, in which case as of such specific date; and
(b) no Default has occurred and is continuing, or would
result from such Borrowing or issuance or renewal or from the application of the
proceeds therefrom.
SECTION 3.03. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each of
the Lender Parties shall be deemed to have consented to, approved or accepted or
to be satisfied with each document or other matter required thereunder to be
consented to or approved by, or acceptable or satisfactory to, the Lender
Parties unless an officer of the Administrative Agent responsible for the
transactions contemplated by the Loan Documents shall have received notice from
such Lender Party prior to the Effective Date specifying its objection thereto
and, if any such Lender has a Commitment on such date under any of the
Facilities under which a Borrowing is to be made (or deemed to have been made)
on such date, such Lender Party shall not have made available to the
Administrative Agent such Lender Party's Pro Rata Share of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties. The Borrower
hereby represents and warrants as follows:
(a) Each Loan Party and each of its Subsidiaries (i) is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, (ii) is duly
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qualified and in good standing as a foreign corporation in each other
jurisdiction in which it owns or leases property or in which the conduct of its
business requires it to so qualify or be licensed except where the failure to so
qualify or be licensed would not be reasonably likely to have a Material Adverse
Effect and (iii) has all requisite power and authority (including, without
limitation, all Governmental Authorizations) to own or lease and operate its
properties and to carry on its business as now conducted and as proposed to be
conducted.
(b) Set forth on Part A of Schedule 4.01(b) hereto is a
complete and accurate list of all of the Subsidiaries of the Borrower as of the
date of this Agreement, showing, as to each such Subsidiary, the correct legal
name thereof, the legal structure thereof, the jurisdiction of its organization,
the number and type of each class of its Equity Interests authorized and the
number outstanding, and the percentage of each such class of its Equity
Interests outstanding on such date that are owned by any of the Loan Parties,
and stating, as of such date, the number of shares covered by all outstanding
options, warrants, rights of conversion or purchase and similar rights and
whether or not such Subsidiary constitutes a Material Subsidiary. Except as set
forth on Part A of Schedule 4.01(b) hereto, as of the date of this Agreement,
all of the outstanding Equity Interests in each of the Subsidiaries of the
Borrower are owned directly or indirectly by one or more of the Loan Parties,
free and clear of all Liens (including, without limitation, preemptive or other
similar rights of the holders thereof) except those created under the Collateral
Documents. All of the outstanding Equity Interests in the Borrower and each of
its Subsidiaries have been validly issued and are fully paid and nonassessable.
(c) The execution, delivery and performance by each Loan
Party of each of the Loan Documents to which it is or is to be a party, and the
consummation of the Transaction and the transactions contemplated hereby, are
within such Loan Party's corporate powers, have been duly authorized by all
necessary action (including, without limitation, all necessary shareholder,
partner, member or other similar action) and do not:
(i) contravene the Constitutive Documents of
such Loan Party;
(ii) violate any Requirement of Law;
(iii) conflict with or result in the breach of, or
constitute a default under, any loan agreement, indenture, mortgage,
deed of trust, lease, instrument, contract or other agreement binding
on or affecting such Loan Party, any of its Subsidiaries or any of
their respective property or assets; or
(iv) except for the Liens created under the
Collateral Documents, result in or require the creation or imposition
of any Lien upon or with respect to any of the property or assets of
such Loan Party or any of its Subsidiaries.
No Loan Party nor any of its Subsidiaries is in violation of
any Requirement of Law or in breach of any loan agreement, indenture, mortgage,
deed of trust, lease, instrument, contract or other agreement referred to in the
immediately preceding sentence, the violation or breach of which, either
individually or in the aggregate, is reasonably expected to have a Material
Adverse Effect.
(d) No Governmental Authorization, and no other
authorization or approval or other action by, and no notice to or filing with,
any Governmental Authority or any other third party is required for (i) the due
execution, delivery, recordation, filing or performance by any Loan Party of any
Loan Document to which it is or is to be a party, or for the consummation of the
Transaction or the transactions contemplated hereby, (ii) the grant by any Loan
Party of the Liens granted by it pursuant to the Collateral Documents, (iii) the
perfection or maintenance of the Liens created under the Collateral Documents
(including the first priority nature thereof) or (iv) the exercise by any Agent
or any Lender Party of its rights under the Loan Documents or the remedies in
respect of the Collateral pursuant to the Collateral Documents, except for the
authorizations, approvals, actions, notices and filings listed on
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Schedule 4.01(d) hereto, all of which have been duly obtained, taken, given or
made and are in full force and effect.
(e) This Agreement has been, and each of the other Loan
Documents when delivered hereunder will have been, duly executed and delivered
by each of the Loan Parties intended to be a party thereto. This Agreement is,
and each of the other Loan Documents when delivered hereunder will be, the
legal, valid and binding obligations of each of the Loan Parties intended to be
a party thereto, enforceable against such Loan Party in accordance with their
respective terms, except to the extent such enforceability may be limited by the
effect of applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally or by
general principles of equity.
(f) The Consolidated balance sheets of the Borrower and
its Subsidiaries as of December 31, 1999, and the related Consolidated
statements of operations and cash flow, and changes in stockholders' equity, of
the Borrower and its Subsidiaries for the respective Fiscal Years then ended, in
each case including the schedules and notes thereto and accompanied by an
unqualified opinion of Ernst & Young LLP, the independent public accountants of
the Borrower, copies of all of which have been furnished to the Lender Parties,
fairly present the Consolidated financial condition of the Borrower and its
Subsidiaries as at such dates and the Consolidated results of operations and
cash flow of the Borrower and its Subsidiaries for the respective periods ended
on such dates. All of the Consolidated financial statements referred to above in
this Section 4.01(f), including the schedules and notes thereto, have been
prepared in accordance with generally accepted accounting principles applied
consistently throughout the respective periods covered thereby.
(g) The Consolidated balance sheet of the Borrower and
its Subsidiaries as of December 31, 2000, and the related Consolidated
statements of operations and cash flow, and changes in stockholders' equity, of
the Borrower and its Subsidiaries for the twelve-month period then ended, duly
certified by a Responsible Officer of the Borrower, copies of all of which have
been furnished to the Lender Parties, fairly present, subject to normal year-end
audit adjustments, the Consolidated financial condition of the Borrower and its
Subsidiaries as at such date and the Consolidated results of operations and cash
flow of the Borrower and its Subsidiaries for the period ended on such date. All
of the Consolidated financial statements referred to above in this Section
4.01(g) have been prepared, subject to normal year-end audit adjustments and the
absence of notes thereto, in accordance with generally accepted accounting
principles applied consistently throughout the period covered thereby.
(h) The forecasted Consolidated balance sheets,
statements of operations and cash flow statements of the Borrower and its
Subsidiaries delivered to the Lender Parties pursuant to Section 3.01(g)(ix) or
5.03(e) were prepared in good faith on the basis of the assumptions stated
therein, which assumptions were reasonable in the light of conditions existing
at the time of delivery of such forecasts, and represented, at the time of
delivery thereof to the Lender Parties, the Borrower's reasonable estimate of
its future financial performance (although the actual results during the periods
covered by such forecasts may differ from the forecasted results).
(i) Neither the Information Memorandum nor any other
information (other than financial projections and pro forma information)
furnished by or on behalf of the Borrower or any of its Subsidiaries to any of
the Agents or any of the Lender Parties or any of their representatives or
advisors in connection with the negotiation and syndication of the Loan
Documents or pursuant to the terms of the Loan Documents contained any untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements made therein, in light of the circumstances in which any
such statements were made, not misleading. No fact, event, condition or
circumstance is known to any of the Loan Parties which is reasonably expected to
have a Material Adverse Effect, which has not been set forth herein, in the
financial statements referred to in subsection (f) or (g) of this Section 4.01
or in writing to the Agents and the Lender Parties prior to the Initial
Extensions of Credit.
(j) There is no action, suit, investigation, litigation,
arbitration or proceeding pending or, to the best knowledge of the Borrower,
threatened against or affecting the Borrower or any of
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its Subsidiaries or any of the property or assets thereof in any court or before
any arbitrator or by or before any Governmental Authority of any kind (i) that,
either individually or in the aggregate, is reasonably expected to have a
Material Adverse Effect or (ii) which purports to affect the legality, validity,
binding effect or enforceability of any aspect of any Loan Document or any of
the transactions contemplated hereby.
(k) The Borrower and each of its Subsidiaries have good
and sufficient title to, or a valid and enforceable leasehold interest in, all
of the property and assets (real and personal) purported to be owned by them
(other than property and assets that, both individually and in the aggregate,
are not material to the business, financial condition or operations of the
Borrower or the Subsidiary thereof that owns them), in each case free and clear
of all Liens other than the Liens expressly permitted under this Agreement. All
of the material leases under which the Borrower or any of its Subsidiaries is a
lessor or a lessee are valid and subsisting and are in full force and effect.
(l) The Borrower and each of its Subsidiaries own or have
the legal right to use all of the patents, licenses, franchises, copyrights,
service marks, trademarks, trade secrets and trade names (or other rights
thereto) that are necessary to own or lease and operate their respective
property and assets and to conduct their respective businesses as now conducted
and as proposed to be conducted, without known conflict with the rights of any
other Person (other than patents, licenses, franchises, copyrights, service
marks, trademarks, trade secrets and trade names (or other rights thereto) that,
both individually and in the aggregate, are not material to the business,
financial condition or operations of the Borrower or the Subsidiary thereof that
owns or otherwise possesses them). No action, suit, investigation, litigation,
arbitration or proceeding is pending or, to the best knowledge of the Borrower,
threatened challenging the use by the Borrower or any of its Subsidiaries of any
such patent, license, franchise, copyright, service ▇▇▇▇, trademark, trade
secret, trade name or other right, or the validity or effectiveness thereof,
except for any such action, suit, investigation, litigation, arbitration or
proceeding that, either individually or in the aggregate, is not reasonably
expected to have a Material Adverse Effect.
(m) None of the proceeds of any Advance or the drawings
under any Letter of Credit will be used to acquire any equity security of a
class which is registered pursuant to Section 12 of the Exchange Act. Neither
the Borrower nor any of its Subsidiaries is engaged in the business of extending
credit for the purpose of purchasing or carrying any "margin stock" (within the
meaning of Regulation U of the Board of Governors of the Federal Reserve System
(12 CFR 207)). None of the proceeds of any Advance or the drawings under any
Letter of Credit will be used to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying margin stock.
(n) Neither the Borrower nor any of its Subsidiaries is
an "investment company" or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company" (each as defined in the
Investment Company Act of 1940, as amended). None of the making (or deemed
making) of any Advance, the issuance (or deemed issuance) of any Letter of
Credit or the application of the proceeds therefrom, or the repayment of any
Advance by the Borrower, or the consummation of the Transaction or any
transactions contemplated hereby, will violate any provision of the Investment
Company Act of 1940, as amended, or any rule, regulation or order of the
Securities and Exchange Commission thereunder. Neither the Borrower nor any of
its Subsidiaries is a "holding company" or an "affiliate" of a "holding company"
or a "subsidiary company" of a "holding company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
(o) The Borrower is, individually and together with its
Subsidiaries taken as a whole, Solvent.
(p) Neither the Borrower nor any of its Subsidiaries is a
party to any loan agreement, indenture, mortgage, deed of trust, lease,
instrument, contract or other agreement or is subject to any restriction in its
Constitutive Documents or any other corporate, partnership, limited liability
company or similar restriction that, either individually or in the aggregate, is
reasonably expected to have a Material Adverse Effect.
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(q) Neither the business nor the property or assets of
the Borrower or any of its Subsidiaries have been affected by any fire,
explosion, accident, strike, lockout or other labor dispute, drought, storm,
hail, earthquake, embargo or other act of God or of the public enemy or other
casualty (whether or not covered by insurance) that, either individually or in
the aggregate, is reasonably expected to have a Material Adverse Effect.
(r) Except as, either individually or in the aggregate,
is not reasonably expected to have a Material Adverse Effect, there is (i) no
unfair labor practice complaint pending or, to the best knowledge of the
Borrower, threatened against the Borrower or any of its Subsidiaries by or
before any Governmental Authority, and no grievance or arbitration proceeding
pending or, to the best knowledge of the Borrower, threatened against the
Borrower or any of its Subsidiaries which arises out of or under any collective
bargaining agreement, (ii) no strike, labor dispute, slowdown, stoppage or
similar action or grievance pending or, to the best knowledge of the Borrower,
threatened against the Borrower or any of its Subsidiaries and (iii) to the best
knowledge of the Borrower, no union representation question existing with
respect to the employees of the Borrower or any of its Subsidiaries and no union
organizing activity taking place with respect to any of the employees of any of
them.
(s) No ERISA Event has occurred or is reasonably expected
to occur with respect to any Plan that, either individually or in the aggregate,
has resulted or is reasonably expected to result in any material liability of
any of the Loan Parties or any of the ERISA Affiliates. Schedule B (Actuarial
Information) to the most recent annual report (form 5500 series) for each of the
Plans, copies of which have been filed with the Internal Revenue Service and
furnished to the Lender Parties, is complete and accurate and fairly presents
the funding status of such Plan; and, since the date of such Schedule B, there
has been no material adverse change in the funding status of such Plan. Neither
any of the Loan Parties nor any of the ERISA Affiliates (i) has incurred or is
reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan
or (ii) has been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or has been terminated, within the
meaning of Title IV of ERISA, and no such Multiemployer Plan is reasonably
expected to be in reorganization or to be terminated, within the meaning of
Title IV of ERISA.
(t) The operations and properties of the Borrower and
each of its Subsidiaries comply in all material respects with all applicable
Environmental Laws and Environmental Permits; all past noncompliance with such
Environmental Laws and Environmental Permits has been resolved without any
material ongoing obligations or costs; and no circumstance exists that, either
individually or in the aggregate, is reasonably expected to (i) form the basis
of an Environmental Action against the Borrower or any of its Subsidiaries or
any of their properties that, either individually or in the aggregate, is
reasonably expected to have a Material Adverse Effect or (ii) cause any such
property to be subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law that, either individually or in the
aggregate, is reasonably expected to have a Material Adverse Effect.
(u) (i) None of the properties owned or operated by the
Borrower or any of its Subsidiaries is listed or proposed for listing on the NPL
or on the CERCLIS or any analogous foreign, state or local list or, to the best
knowledge of the Borrower, is adjacent to any such property; and (ii) except as,
either individually or in the aggregate, is not reasonably expected to have a
Material Adverse Effect, (A) there are no, and never have been any, underground
or aboveground storage tanks or any surface impoundments, septic tanks, pits,
sumps or lagoons in which Hazardous Materials are being or have been treated,
stored or disposed of on any property owned or operated by the Borrower or any
of its Subsidiaries or, to the best knowledge of the Borrower, on any property
formerly owned or operated by the Borrower or any of its Subsidiaries, (B) there
is no asbestos or asbestos-containing material on any property owned or operated
by the Borrower or any of its Subsidiaries and (C) Hazardous Materials have not
been released, discharged or disposed of on any property owned or operated by
the Borrower or any of its Subsidiaries.
(v) Neither the Borrower nor any of its Subsidiaries is
undertaking, either individually or together with other potentially responsible
parties, any investigation or assessment or
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remedial or response action relating to any actual or threatened release,
discharge or disposal of Hazardous Materials at any site, location or operation,
either voluntarily or pursuant to the order of any Governmental Authority or the
requirements of any Environmental Law. All Hazardous Materials generated, used,
treated, handled or stored at, or transported to or from, any property owned or
operated by the Borrower or any of its Subsidiaries have been disposed of in a
manner that, either individually or in the aggregate, is not reasonably expected
to result in material liability to the Borrower or any of its Subsidiaries.
(w) The Borrower and each of its Subsidiaries has filed,
has caused to be filed or has been included in all tax returns (federal, state,
local and foreign) required to be filed and has paid all taxes, assessments,
levies, fees and other charges shown thereon to be due and payable, together
with applicable interest and penalties, except for any such taxes, assessments,
levies, fees and other charges the amount, applicability or validity of which is
being contested in good faith and by appropriate proceedings diligently
conducted and with respect to which the Borrower or such Subsidiary, as the case
may be, has established appropriate and adequate reserves in accordance with
GAAP.
(x) Set forth on Part A of Schedule 4.01(x) hereto is a
complete and accurate list, as of the date of this Agreement, of each of the
Open Years of the Borrower and each of its Subsidiaries. There are no
adjustments to (i) the federal income tax liability (including, without
limitation, interest and penalties) of the Borrower or any of its Subsidiaries
proposed in writing by the Internal Revenue Service with respect to Open Years
or (ii) any foreign, state or local tax liability (including, without
limitation, interest and penalties) of the Borrower or any of its Subsidiaries
proposed in writing by any foreign, state or local taxation authority or other
Governmental Authority that, in the aggregate for clauses (i) and (ii) of this
sentence, would exceed $50,000,000. No issue has been raised by the Internal
Revenue Service in respect of Open Years or by any such foreign, state or local
taxation authorities or other Governmental Authorities that, either individually
or in the aggregate, is reasonably expected to have a Material Adverse Effect.
Except as set forth on Part B of Schedule 4.01(x) hereto, neither the Borrower
nor any of its Subsidiaries has entered into an agreement or waiver or been
requested to enter into an agreement or waiver extending any statute of
limitations relating to the assessment, reassessment, payment or collection of
taxes of the Borrower or any such Subsidiary, or is aware of any circumstances
that would cause the taxable years or other taxable periods of the Borrower or
any such Subsidiary to no longer be subject to the normally applicable statute
of limitations. Neither the Borrower nor any of its Subsidiaries has provided,
with respect to itself or any property held by it, any consent under Section
341(f) of the Internal Revenue Code.
(y) Set forth on Schedule 4.01(y) hereto is a complete
and accurate list, as of the date of this Agreement, of all of the Investments
(other than cash and Cash Equivalents and intercompany Investments expressly
permitted under Section 5.02(e)(iii)) held by the Borrower or any of its
Subsidiaries, showing, as of such date, the amount, the obligor or issuer
thereof and the maturity, if any, thereof.
(z) On or before the Effective Date, each Loan Party will
have executed all documents necessary to perfect and protect the security
interests in the Collateral created under the Collateral Documents, and upon the
appropriate filing of such documents the Collateral Documents will create in
favor of the Collateral Trustee for the benefit of the Secured Parties a valid
and perfected first priority security interest in the Collateral, subject to the
exceptions set forth therein, securing the payment of the Secured Obligations.
The Loan Parties are the legal and beneficial owners of the Collateral free and
clear of any Lien, except for the Liens created or permitted under the Loan
Documents.
(aa) The Indebtedness incurred by the Borrower under this
Agreement constitutes "Senior Indebtedness" within the meaning of the
Convertible Subordinated Debentures Indenture.
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ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any of the
Advances or any of the other Obligations of any Loan Party under or in respect
of any of the Loan Documents shall remain unpaid, any of the Letters of Credit
shall remain outstanding or any of the Lender Parties shall have any Commitment
hereunder, the Borrower will, at all times:
(a) Compliance with Laws, Maintenance of Governmental
Authorizations, Etc. (i) Comply, and cause each of its Subsidiaries to comply,
in all material respects, with all applicable Requirements of Law and (ii)
except as provided in Section 5.01(d), obtain and maintain in effect all
Governmental Authorizations that are necessary (A) to own or lease and operate
their respective property and assets and to conduct their respective businesses
as now conducted and as proposed to be conducted, except where and to the extent
that the failure to obtain or maintain in effect any such Governmental
Authorization, either individually or in the aggregate, is not reasonably
expected to have a Material Adverse Effect, or (B) for the due execution,
delivery or performance by the Borrower or any of its Subsidiaries of any of the
Loan Documents or for the consummation of any transaction contemplated hereby.
(b) Payment of Taxes, Etc. Pay and discharge, and cause
each of its Subsidiaries to pay and discharge, to the extent due and payable and
before the same shall become delinquent, (i) all taxes, assessments,
reassessments, levies and other governmental charges imposed upon it or upon its
property, assets, income or franchises and (ii) all lawful claims that, if
unpaid, might by law become a Lien upon its property and assets or any part
thereof; provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such tax, assessment,
reassessment, levy, charge or claim the amount, applicability or validity of
which is being contested in good faith and by proper proceedings diligently
conducted and as to which appropriate and adequate reserves are being maintained
in accordance with GAAP, unless and until (i) such contest could subject the
Borrower or any of its Subsidiaries to any criminal penalty or liability or any
of the Agents or any of the Lender Parties to any criminal penalty or liability
or (except for nonmaterial fines for which such Agent or such Lender Party is
fully indemnified under Section 8.04) any civil penalty or liability or (ii) any
Lien resulting therefrom attaches to its property and assets and becomes
enforceable by its creditors.
(c) Maintenance of Insurance. Maintain, and cause each of
its Subsidiaries to maintain, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as are usually
carried by companies engaged in similar businesses and owning similar properties
in the same general areas in which the Borrower or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve
and maintain, and cause each of its Subsidiaries to preserve and maintain, its
existence, legal structure, organization, rights (statutory and pursuant to its
Constitutive Documents), permits, licenses, approvals, privileges and
franchises; provided, however, that the Borrower and its Subsidiaries (i) may
consummate any merger or consolidation otherwise expressly permitted under
Section 5.02(c), (ii) may wind up, liquidate or dissolve any of their respective
inactive Subsidiaries to the extent otherwise expressly permitted under Section
5.02(d)(iv) and (iii) may amend, supplement or otherwise modify their rights
under their respective Constitutive Documents to the extent otherwise expressly
permitted under Section 5.02(m); and provided further, however, that neither the
Borrower nor any of its Subsidiaries shall be required to preserve any permit,
license, approval, privilege or franchise if the board of directors (or persons
performing similar functions) of the Borrower or such Subsidiary shall determine
in good faith that the preservation thereof is no longer desirable in the
conduct of the business of the Borrower or such Subsidiary, as the case may be,
and that the loss thereof is not disadvantageous in any material respect to the
Borrower, such Subsidiary or the Lender Parties or, solely in the case of any
such permit, license or qualification to do business as a foreign corporation,
limited partnership or limited liability company in any jurisdiction, that the
loss
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thereof, either individually or in the aggregate, is not reasonably expected to
have a Material Adverse Effect.
(e) Visitation Rights. At any reasonable time and from
time to time, upon reasonable notice, permit the Administrative Agent or any of
the Lender Parties, or any agents or representatives thereof (so long as such
agents or representatives are or agree to be bound by the provisions of Section
8.09), to examine and make copies of and abstracts from the records and books of
account of, and to visit the properties of, the Borrower and its Subsidiaries
and to discuss the affairs, finances and accounts of the Borrower and/or any of
its Subsidiaries with any of their officers or directors and with their
independent public accountants.
(f) Keeping of Books. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account in which full and
accurate entries shall be made of all of the financial transactions and the
property, assets and businesses of the Borrower and each of its Subsidiaries
(including, without limitation, the establishment and maintenance of adequate
and appropriate reserves) in accordance with all generally accepted accounting
principles in effect from time to time and with all applicable Requirements of
Law.
(g) Maintenance of Properties, Etc. Maintain and
preserve, and cause each of its Subsidiaries to maintain and preserve, all of
its properties that are used or useful in the conduct of its business in good
working order and condition, ordinary wear and tear and casualty and
condemnation excepted.
(h) Compliance with Terms of Leaseholds. Make all
payments and otherwise perform all obligations in respect of all leases of real
property to which the Borrower or any of its Subsidiaries is a party, keep such
leases in full force and effect and not allow such leases to lapse or to be
terminated or any rights to renew such leases to be forfeited or canceled, in
each case except to the extent that, in the reasonable business judgment of the
Borrower or the Subsidiary of the Borrower that is the lessee thereof, it is in
the best interest of the Borrower or such Subsidiary, as the case may be, to
allow or to cause such nonperformance, lapse, termination, forfeiture or
cancellation, and such nonperformance, lapse, termination, forfeiture or
cancellation either individually or in the aggregate, is not reasonably expected
to have a Material Adverse Effect.
(i) Transactions with Affiliates. Conduct, and cause each
of its Subsidiaries to conduct, directly or indirectly, all transactions or
series of related transactions (including, without limitation, the purchase,
sale, lease, transfer or exchange of property or assets of any kind or the
rendering of services of any kind) otherwise permitted under the Loan Documents
with any of their Affiliates on terms that are fair and reasonable and no less
favorable to the Borrower or any of its Subsidiaries than it would obtain in a
comparable arm's-length transaction with a Person not an Affiliate thereof,
other than:
(i) any transaction or series of related
transactions solely between or among the Borrower and one or more of
the Material Subsidiaries, between or among one or more of the Material
Subsidiaries, or between or among one or more of the Immaterial
Subsidiaries, in each case to the extent such transaction or series of
related transactions is otherwise permitted under the terms of the Loan
Documents;
(ii) the grant by the Borrower of options to
purchase Borrower Common Stock from time to time to officers and
directors of the Borrower and its Subsidiaries so long as, in each
case, (A) the grant thereof and the price for the issuance of Borrower
Common Stock upon the exercise thereof shall have been approved in good
faith by the board of directors of the Borrower or a committee thereof,
(B) such option satisfies the requirements for exemption set forth in
Rule 16b-3 of the Exchange Act and (C) neither the grant of such option
nor the issuance and sale of any Borrower Common Stock upon the
exercise thereof shall result in a Change of Control; and
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(iii) the performance by the Borrower from time to
time of its Obligations under the California Transition Plan and the
California Transition Plan Documents in accordance with the respective
terms thereof.
(j) Covenant to Guarantee Obligations and Give Security.
(i) Promptly upon the acquisition by the
Borrower or one of its Domestic Subsidiaries of Equity Interests in any
Domestic Subsidiary that is a Material Subsidiary or, in the event any
Domestic Subsidiary of the Borrower satisfies the standards of a
"Material Subsidiary" within 30 days thereafter, the Borrower will
cause such Domestic Subsidiary to enter into a Guarantee Supplement;
and
(ii) (x) upon the acquisition by the Borrower or
one of its Domestic Subsidiaries of Equity Interests in any Subsidiary
that is a Material Subsidiary, (y) in the event any Domestic Subsidiary
of the Borrower satisfies the standards of a "Material Subsidiary", or
(z) upon the acquisition by any Loan Party of any personal property
with a Fair Market Value in excess of $1,000,000 (and in the case of
equipment or inventory, such equipment or inventory in any one
jurisdiction has a Fair Market Value in excess of $1,000,000),
including any interests in joint ventures or Subsidiaries, or any note
in a principal amount in excess of $1,000,000 or other property with a
Fair Market Value in excess of $1,000,000, which, in the reasonable
judgment of the Administrative Agent, shall not already be subject to a
perfected security interest in favor of the Collateral Trustee for the
benefit of the Secured Parties and which is intended to be subject to a
Lien under the Collateral Documents, then the Borrower shall, in each
case at the Borrower's sole expense and within 30 days after such
event, (I) deliver all such property (provided that, in the case of
Equity Interests in any Foreign Subsidiary, not more than 65% of such
Equity Interests shall be so delivered) to the Collateral Trustee (to
the extent that a security interest therein is perfected by possession)
and duly execute and deliver, and cause each such Domestic Subsidiary
and each direct and indirect parent of such Domestic Subsidiary (if it
has not already done so) to duly execute and deliver, to the Collateral
Trustee, pledges, assignments and other security agreements, as
specified by and in form and substance reasonably satisfactory to the
Administrative Agent, securing payment of all the Secured Obligations
and constituting Liens on all such properties, (II) take, and cause
such Domestic Subsidiary or such parent to take, whatever action
(including, without limitation, the filing of Uniform Commercial Code
financing statements, the giving of notices and the endorsement of
notices on title documents) may be necessary or advisable in the
reasonable opinion of the Administrative Agent to vest in the
Collateral Trustee (or in any representative of the Collateral Trustee
designated by the Collateral Trustee) valid and subsisting Liens on the
properties purported to be subject to the pledges, assignments and
security agreements delivered pursuant to this Section 5.01(j),
enforceable against all third parties in accordance with their terms,
and (III) deliver to the Collateral Trustee, upon the reasonable
request of the Administrative Agent in its sole discretion, a signed
copy of a favorable opinion of counsel for the Borrower as to such
guarantee, pledges, assignments and security agreements.
(k) Further Assurances.
(i) Promptly upon request by any Agent or any
Lender Party through the Administrative Agent, correct, and cause each
of its Subsidiaries promptly to correct, any material defect or error
that may be discovered in any Loan Document or in the execution,
acknowledgment, filing or recordation thereof; and
(ii) Promptly upon request by any Agent or any
Lender Party through the Administrative Agent, do, execute,
acknowledge, deliver, record, re-record, file, re-file, register and
re-register any and all such further acts, pledge agreements,
assignments, financing statements and continuations thereof,
termination statements, notices of assignment, transfers, certificates,
assurances and other instruments as any Agent, or any Lender Party
through the
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Administrative Agent, may reasonably require from time to time in order
to (A) carry out more effectively the purposes of the Loan Documents,
(B) to the fullest extent permitted by applicable law, subject any Loan
Party's or any of its Subsidiaries' personal properties, assets, rights
or interests to the Liens now or hereafter intended to be covered by
any of the Collateral Documents, (C) perfect and maintain the validity,
effectiveness and priority of any of the Collateral Documents and any
of the Liens intended to be created thereunder and (D) assure, convey,
grant, assign, transfer, preserve, protect and confirm more effectively
unto each of the Finance Parties the rights granted or now or hereafter
intended to be granted to them under any Loan Document or under any
other instrument executed in connection with any Loan Document to which
any Loan Party is or is to be a party.
(iii) Use its reasonable best efforts to, and
cause each of the other Loan Parties to, complete as soon as
practicable on or after the Effective Date the information required to
be set forth in Schedule 4 to the Security Agreement.
SECTION 5.02. Negative Covenants. So long as any of the
Advances or any of the other Obligations of any Loan Party under or in respect
of any of the Loan Documents shall remain unpaid, any of the Letters of Credit
shall remain outstanding or any of the Lender Parties shall have any Commitment
hereunder, the Borrower will not, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist,
or permit any of its Subsidiaries to create, incur, assume or suffer to exist,
any Lien on or with respect to any of its property or assets of any character
(including, without limitation, accounts), whether now owned or hereafter
acquired, or sign or file or suffer to exist, or permit any of its Subsidiaries
to sign or file or suffer to exist, under the Uniform Commercial Code or any
similar Requirements of Law of any jurisdiction, a financing statement (or the
equivalent thereof) that names the Borrower or any of its Subsidiaries as
debtor, or sign or suffer to exist, or permit any of its Subsidiaries to sign or
suffer to exist, any security agreement authorizing any secured party thereunder
to file any such financing statement (or the equivalent thereof), or sign or
suffer to exist, or permit any of its Subsidiaries to sign or suffer to exist,
any agreement or arrangement for the sale of any of its property or assets
subject to an understanding or agreement, contingent or otherwise, to repurchase
such property or assets (including sales of accounts receivable with recourse to
the Borrower or any of its Subsidiaries), or assign as collateral, or permit any
of its Subsidiaries to assign as collateral, any accounts or other right to
receive income, except:
(i) Liens created under the Collateral
Documents;
(ii) Permitted Liens;
(iii) Liens existing on the date of this Agreement
and described on Schedule 5.02(a) hereto;
(iv) purchase money Liens upon or in real
property or equipment acquired or held by the Borrower or any of its
Subsidiaries in the ordinary course of business to secure the purchase
price of such real property or equipment or to secure Indebtedness
incurred solely for the purpose of financing the acquisition,
construction or improvement of any such real property or equipment to
be subject to such Liens, or Liens existing on any such real property
or equipment at the time of its acquisition or the completion of its
construction (other than any such Liens created in contemplation of
such acquisition that do not secure the purchase price of such real
property or equipment); provided, however, that no such Lien shall
extend to or cover any property or assets other than the real property
or equipment being so acquired, constructed or improved; and provided
further that (A) the principal amount of Indebtedness secured by any
such Lien shall not exceed 75% of the lesser of (1) the cost (including
all such Indebtedness secured thereby, whether or not assumed) to the
Borrower or the applicable Subsidiary of the real property or equipment
to be subject to any such Lien and (2) the Fair Market Value of such
real property or equipment, determined as of the date of acquisition,
construction or improvement
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thereof, and (B) any Indebtedness secured by Liens shall otherwise be
expressly permitted under Section 5.02(b)(v) and shall not otherwise be
prohibited under the terms of the Loan Documents;
(v) Liens arising in connection with Capitalized
Leases otherwise permitted under Section 5.02(b)(vi) and not otherwise
prohibited under the terms of the Loan Documents; provided that no such
Lien shall extend to or cover any property or assets other than the
property or assets subject to such Capitalized Leases;
(vi) deposits and letters of credit to secure the
performance of leases of property (whether real, personal or mixed) of
the Borrower and its Subsidiaries (excluding Capitalized Leases) in the
ordinary course of business; provided that no such Lien shall extend to
or cover any property or assets other than such deposit or such letter
of credit and the property and assets subject to such lease, as
applicable; and provided further that any such lease is not otherwise
prohibited under the terms of the Loan Documents;
(vii) Liens arising solely from precautionary
filings of financing statements under the Uniform Commercial Code of
the applicable jurisdictions in respect of Operating Leases of the
Borrower or any of its Subsidiaries not otherwise prohibited under the
terms of the Loan Documents;
(viii) Liens on the accounts receivables of
Caremark Inc. and MP Receivables, on the contracts and other property
and assets related thereto and on the proceeds thereof arising solely
in connection with the Caremark Receivables Securitization;
(ix) Liens arising under the California
Transition Plan Documents as in effect on the date hereof;
(x) Other Liens securing Indebtedness in an
aggregate outstanding principal amount not to exceed $15,000,000,
provided that such Liens shall not extend to any of the Collateral; and
(xi) the replacement, extension or renewal of any
Lien permitted by clauses (iii) through (vi) above upon or in the same
property and assets theretofore subject thereto; provided that no such
extension, renewal or replacement shall extend to or cover any property
or assets not theretofore subject to the Lien being extended, renewed
or replaced and shall not secure any additional Indebtedness or other
Obligations; and provided further that any Indebtedness secured by such
Liens shall otherwise be permitted under the terms of the Loan
Documents.
(b) Indebtedness. Create, incur, assume or suffer to
exist, or permit any of its Subsidiaries to create, incur, assume or suffer to
exist, directly or indirectly, any Indebtedness other than:
(i) Indebtedness under the Loan Documents;
(ii) Indebtedness existing on the Effective Date
and described on Schedule 5.02(b) hereto;
(iii) Indebtedness of the Borrower in respect of
interest rate Hedge Agreements entered into from time to time after the
date of this Agreement with counterparties that are Lender Parties at
the time such interest rate Hedge Agreement is entered into; provided
that, in all cases under this clause (iii), all such interest rate
Hedge Agreements shall be nonspeculative in nature (including, without
limitation, with respect to the term and purpose thereof);
(iv) Indebtedness of (A) the Borrower owing to
any of the Material Subsidiaries, (B) any of the Material Subsidiaries
owing to the Borrower or any of the other
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Material Subsidiaries, (C) any of the Immaterial Subsidiaries owing to
the Borrower or any of the Material Subsidiaries to the extent the
proceeds thereof are used solely to pay costs associated with the
discontinued operations of such Immaterial Subsidiary, and (D)
Indebtedness of any of the Immaterial Subsidiaries owing to any of the
other Immaterial Subsidiaries;
(v) Indebtedness incurred after the date of this
Agreement and secured by Liens expressly permitted under Section
5.02(a)(iv) in an aggregate principal amount not to exceed, when
aggregated with the principal amount of all Indebtedness incurred under
clause (vi) of this Section 5.02(b), $50,000,000 at any time
outstanding;
(vi) Capitalized Leases incurred after the date
of this Agreement which, when aggregated with the principal amount of
all Indebtedness incurred under clause (v) of this Section 5.02(b), do
not exceed $50,000,000 at any time outstanding;
(vii) Contingent Obligations of the Borrower
guaranteeing all or any portion of the outstanding Obligations of any
of the Material Subsidiaries; provided that each such Obligation is
otherwise permitted under the terms of the Loan Documents;
(viii) Contingent Obligations of the Borrower
guaranteeing one or more Obligations of any of the Immaterial
Subsidiaries to the extent such Obligations are incurred solely to pay
costs associated with the discontinued operations of such Immaterial
Subsidiary;
(ix) Off Balance Sheet Liabilities in an
aggregate principal amount not to exceed $25,000,000 at any time
outstanding;
(x) Indebtedness incurred under one or more
Permitted Receivables Securitizations;
(xi) unsecured Indebtedness not otherwise
permitted under this Section 5.02(b) in an aggregate amount not to
exceed $75,000,000 at any time outstanding;
(xii) endorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary course of
business;
(xiii) Subordinated Debt incurred by the Borrower
in an aggregate principal amount not in excess of $200,000,000 at any
time outstanding and which provides for no scheduled payment or
mandatory prepayments of principal earlier than six months after the
scheduled maturity of the Term Loan Advances;
(xiv) Indebtedness comprised of reasonable and
customary indemnities given by the Borrower or any of its Subsidiaries,
or guarantees or other similar undertakings by the Borrower entered
into in lieu thereof, in favor of the purchaser of property and assets
of the Borrower and its Subsidiaries being sold, leased transferred or
otherwise disposed of in accordance with Section 5.02(d)(vii) and
covering liabilities incurred by the Borrower or its applicable
Subsidiary in respect of such property and assets prior to the date of
consummation of the sale, lease, transfer or other disposition thereof,
which indemnities, guarantees or undertakings are required under the
terms of the documentation for such sale, lease, transfer or other
disposition;
(xv) Indebtedness comprised of liabilities or
other Obligations assumed or retained by the Borrower or any of its
Subsidiaries from Subsidiaries of the Borrower that are, or all or
substantially all of the property and assets of which are, sold,
leased, transferred or otherwise disposed of pursuant to Section
5.02(d)(vii); provided that such liabilities or other Obligations were
not created or incurred in contemplation of the related sale, lease,
transfer or other disposition; and provided further that the assumption
or retention of such liabilities or other Obligations was agreed to by
management of the Borrower in good faith and in connection with
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determining the Fair Market Value of the related property and assets at
the time of the sale, lease, transfer or other disposition thereof; and
(xvi) Indebtedness extending the maturity of, or
refunding, refinancing or replacing, in whole or in part, any
Indebtedness incurred under clause (ii) of this Section 5.02(b);
provided, however, that (A) the aggregate principal amount of such
extended, refunding, refinancing or replacement Indebtedness shall not
be increased above the principal amount thereof and the premium, if
any, thereon outstanding immediately prior to such extension,
refunding, refinancing or replacement, (B) the direct and contingent
obligors therefor shall not be changed as a result of or in connection
with such extension, refunding, refinancing or replacement, (C) such
extended, refunding, refinancing or replacement Indebtedness shall not
mature prior to the stated maturity date or mandatory redemption date
of the Indebtedness being so extended, refunded, refinanced or
replaced, (D) if the Indebtedness being so extended, refunded,
refinanced or replaced is subordinated in right of payment or otherwise
to the Obligations of the Borrower or any of its Subsidiaries under and
in respect of the Loan Documents, such extended, refunding, refinancing
or replacement Indebtedness shall be subordinated to such Obligations
to at least the same extent, and (E) immediately before and immediately
after giving pro forma effect to any such extension, refunding,
refinancing or replacement, no Default shall have occurred and be
continuing.
(c) Mergers, Etc.
(i) Merge into or consolidate with any Person or
permit any Person to merge into or consolidate with it, or permit any
of its Subsidiaries to do so, except that:
(A) any of the Subsidiaries may merge
into or consolidate with the Borrower; provided that
the Borrower is the surviving corporation;
(B) any of the Subsidiaries of the
Borrower may merge into or consolidate with any of
the Material Subsidiaries; provided that the Person
formed by such merger or consolidation is a Material
Subsidiary;
(C) any of the Immaterial Subsidiaries
may merge into or consolidate with any of the other
Immaterial Subsidiaries;
(D) in connection with any purchase or
other acquisition of Equity Interests in, or property
and assets of, any Person permitted under Section
5.02(e)(vi), the Borrower may permit any other Person
to merge into or consolidate with it (provided that
the Borrower is the surviving entity), and any of the
Subsidiaries of the Borrower may merge into or
consolidate with any other Person or permit any other
Person to merge into or consolidate with it; provided
that (x) if such Subsidiary is a Material Subsidiary,
the Person formed by such merger or consolidation
shall be a Material Subsidiary, (y) if such
Subsidiary is a non-wholly owned Domestic Subsidiary,
the Person formed by such merger or consolidation
shall be a Domestic Subsidiary and (z) if such
Subsidiary is a Foreign Subsidiary, the Person formed
by such merger or consolidation shall be a Subsidiary
of the Borrower; and provided further that the Person
with which such Subsidiary is merging or
consolidating (1) shall be engaged in substantially
the same lines of business as one or more of the
businesses of the Borrower and the Material
Subsidiaries in the ordinary course and (2) shall not
have any contingent liabilities that could reasonably
be expected to be material to the Borrower and its
Subsidiaries, taken as a whole (as determined in good
faith by the board of directors (or persons
performing similar functions) of the Borrower or such
Subsidiary if the board of directors is otherwise
approving such transaction, and in each other case,
by a Senior Financial Officer); and
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(E) in connection with any sale,
transfer or other disposition of all or substantially
all of the Equity Interests in, or the property and
assets of, any Person permitted under Section
5.02(d)(vii), any of the Subsidiaries of the Borrower
may merge into or consolidate with any other Person
or permit any other Person to merge into or
consolidate with it.
(ii) In all cases under this Section 5.02(c), (A)
any such permitted merger or consolidation shall be effected in
compliance with all applicable Requirements of Law, (B) all
Governmental Authorizations, and all consents, approvals and
authorizations of, and notices and filings to or with, and other
actions by, any other Person necessary in connection with such merger
or consolidation shall have been obtained or made, (C) to the extent
applicable, the relevant Loan Parties shall have complied with Section
5.01(j), and (D) immediately before and immediately after giving pro
forma effect to such merger or consolidation, no Default shall have
occurred and be continuing.
(iii) In the case of any merger or consolidation
effected pursuant to clause (D) or (E) of Section 5.02(c)(i),
immediately after giving effect to such merger or consolidation, the
Borrower and its Subsidiaries shall be in pro forma compliance with all
of the covenants set forth in Section 5.04, such compliance to be
determined on the basis of the Required Financial Information most
recently delivered to the Administrative Agent and the Lender Parties
as though such merger or consolidation had been consummated as of the
first day of the fiscal period covered thereby.
(d) Sales, Etc. of Assets. Sell, lease, transfer or
otherwise dispose of, or permit any of its Subsidiaries to sell, lease, transfer
or otherwise dispose of, any property or assets (including, without limitation,
substantially all of the property and assets constituting the business of a
division, branch or other unit of operation and any Equity Interests), or grant
any option or other right to purchase, lease or otherwise acquire any property
or assets, except that:
(i) the Borrower and its Subsidiaries may sell
inventory in the ordinary course of business;
(ii) the Borrower and its Subsidiaries may sell,
lease, transfer or otherwise dispose of property and assets in a
transaction otherwise permitted by Section 5.02(a), 5.02(c), 5.02(e) or
5.02(f) and may sell, transfer or otherwise dispose of Equity Interests
in Team Health;
(iii) (A) the Borrower may sell, lease, transfer
or otherwise dispose of any of its property or assets to any of the
Material Subsidiaries, (B) any of the Material Subsidiaries may sell,
lease, transfer or otherwise dispose of any of its property or assets
to the Borrower or any of the other Material Subsidiaries, (C) any of
the Immaterial Subsidiaries may sell, lease, transfer or otherwise
dispose of any of its property or assets for Fair Market Value to the
Borrower or any of its Subsidiaries, and (D) any of the Immaterial
Subsidiaries may sell, lease, transfer or otherwise dispose of any of
its property and assets to any of the Immaterial Subsidiaries; provided
that immediately before and immediately after giving pro forma effect
to such sale, lease, transfer or other disposition, no Default shall
have occurred and be continuing;
(iv) any Subsidiary of the Borrower that is no
longer actively engaged in any business or activities and does not have
property and assets with an aggregate book value or Fair Market Value
in excess of $1,000,000 may be wound up, liquidated or dissolved so
long as such winding up, liquidation or dissolution is determined in
good faith by management of the Borrower to be in the best interests of
the Borrower and its Subsidiaries;
(v) the Borrower and its Subsidiaries (A) may
sell tangible property and assets that are replaced, or the replacement
of which has been commenced and substantially completed, within 120
days after the date of such sale with tangible property and assets of
equal
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or greater value as determined in good faith by management of the
Borrower) and (B) may sell, lease, transfer or otherwise dispose of any
obsolete, damaged or worn out equipment thereof or any other equipment
that is otherwise no longer useful in the conduct of their businesses;
provided, however, that, in the case of subclause (v)(A) above, if such
tangible property and assets are not replaced, or the replacement
thereof has not been substantially completed within such 120 day
period, then the Net Cash Proceeds of such sale shall be applied on the
last day of such period to prepay the Term Loan Advances outstanding at
such time in accordance with, and to the extent required under, Section
2.06(b);
(vi) the Borrower and its Subsidiaries may lease
or sublease real property to the extent required for their respective
businesses and operations in the ordinary course so long as such lease
or sublease is not otherwise prohibited under the terms of the Loan
Documents;
(vii) the Borrower and its Subsidiaries may sell,
lease, transfer or otherwise dispose of property and assets not
otherwise permitted to be sold, leased, transferred or disposed of
pursuant to this Section 5.02(d) so long as the aggregate book value of
all of the property and assets of the Borrower and its Subsidiaries
sold, leased, transferred or otherwise disposed of pursuant to this
clause (vii) does not exceed $50,000,000; provided that:
(A) the gross proceeds received from
any such sale, lease, transfer or other disposition
shall be at least equal to the Fair Market Value of
the property and assets so sold, leased, transferred
or otherwise disposed of, determined at the time of
such sale, lease, transfer or other disposition; and
(B) at least 80% of the value of the
aggregate consideration received from any such sale,
lease, transfer or other disposition shall be in
cash; provided, that property and assets with an
aggregate book value not more than $10,000,000 may be
sold, leased, transferred or otherwise disposed of in
any period of twelve consecutive months pursuant to
this clause (vii) even in the circumstances where
less than 80% at the consideration received therefor
is in cash.
(viii) the Borrower and its Subsidiaries may
consummate one or more Permitted Sale-Leaseback Transactions;
(ix) the Borrower and its Subsidiaries may
consummate the Caremark Receivables Securitization;
(x) the Borrower and its Subsidiaries may sell,
transfer or otherwise dispose of property and assets to any health care
provider or provider group, or any Person formed thereby, upon the
disassociation of such health care provider or provider group from the
businesses and operations of the Borrower and its Subsidiaries in a
manner that is consistent with the past business practices of the
Borrower and its Subsidiaries and so long as such property and assets
are used solely in the business and operation of such health care
provider or provider group; provided that immediately before and
immediately after giving pro forma effect to any such sale, transfer or
other disposition, no Default shall have occurred and be continuing;
(xi) the Borrower and its Subsidiaries may sell,
transfer or otherwise dispose of all or any portion of their property
and assets, in accordance with the California Transition Plan;
provided, that immediately before and immediately after giving pro
forma effect to any such sale, transfer or other disposition, no
Default shall have occurred and be continuing; and
(xii) so long as no Default has occurred and is
continuing, the Borrower and its Subsidiaries may grant any option or
other right to purchase any property or asset in a transaction that is
otherwise permitted under clause (vii) of this Section 5.02(d).
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(e) Investments in Other Persons. Purchase, acquire, make
or hold, or permit any of its Subsidiaries to purchase, acquire, make or hold,
any Investment in any Person, except:
(i) Investments existing on the date of this
Agreement and described on Schedule 4.01(y) hereto;
(ii) Investments in cash and Cash Equivalents;
(iii) Investments by:
(A) the Borrower in any of the Material
Subsidiaries;
(B) any of the Subsidiaries of the
Borrower in the Borrower or any of
the Material Subsidiaries;
(C) the Borrower or any of the Material
Subsidiaries in one or more
Immaterial Subsidiaries to the
extent the proceeds thereof are
used solely to pay costs associated
with discontinued operations of
such Immaterial Subsidiary;
(D) Caremark Inc. in MP Receivables (1)
constituting capital contributions
of its accounts receivables and
related property and assets to MP
Receivables pursuant to, and in
accordance with the requirements
of, the Caremark Receivables
Securitization Documents or (2)
evidenced by the Subordinated Note
(as defined in Section 3.2(b) of
the Caremark Receivables Purchase
Agreement); and
(E) any of the Immaterial Subsidiaries
in any of the other Immaterial
Subsidiaries;
(iv) Investments by the Borrower and its
Subsidiaries in account debtors received in connection with the
bankruptcy or reorganization, or in settlement of the delinquent
obligations of financially troubled suppliers or customers, in the
ordinary course of business and in accordance with applicable
collection and credit policies established by the Borrower or such
Subsidiary, as the case may be;
(v) (A) promissory notes, contingent payment
obligations and other noncash consideration received as partial payment
of the purchase price of any property or assets sold, leased,
transferred or otherwise disposed of in accordance with Section
5.02(d)(vii) and (B) common Equity Interests in Persons that cease to
constitute Subsidiaries of the Borrower as a result of the sale, lease,
transfer or other disposition of at least 85% of the common Equity
Interests in such Subsidiary pursuant to, and in accordance with the
terms of, Section 5.02(d)(vii) or the redemption and issuance and sale
of at least 85% of the common Equity Interests in such Person other
than the Borrower or any of its Affiliates pursuant to, and in
accordance with the terms of, Section 5.02(f)(iv);
(vi) the purchase or other acquisition of the
Equity Interests in, or all or substantially all of the property and
assets of, any Person or business unit or division that, upon the
consummation thereof, will be, or will be property and/or assets of, a
Material Subsidiary in which at least 80% of every class of Equity
Interests therein (on a fully diluted basis) will be owned legally and
beneficially by the Borrower or any of the other Material Subsidiaries,
or will be merged with or into a Material Subsidiary, with the
surviving entity being a Material Subsidiary; provided that, with
respect to each such purchase or other acquisition made pursuant to
this clause (vi):
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(A) any newly created or acquired
Subsidiary resulting from such purchase or other
acquisition shall comply with the requirements of
Sections 5.01(j) and 5.02(k); and
(B) the lines of business of the Person
to be (or the property and assets of which are to be)
so purchased or otherwise acquired shall be
substantially the same lines of business as one or
more of the businesses of the Borrower and the
Material Subsidiaries in the ordinary course;
(C) the aggregate cash consideration
(excluding all Equity Interests and Subordinated Debt
issued, transferred or incurred to the sellers
thereof, all indemnities, earnouts and other
contingent payment obligations to the Sellers
thereof, but including the aggregate amounts paid or
to be paid under deferred purchase price, noncompete,
consulting and other affiliated agreements with the
sellers thereof and all assumptions of debt,
liabilities and other obligations in connection
therewith) paid by or on behalf the Borrower and its
Subsidiaries for any such purchase or other
acquisition (or series of related purchases or other
acquisitions) shall not exceed $50,000,000, provided,
that the cash proceeds of an issuance of Equity
Interests or incurrence of Subordinated Debt
permitted hereunder made in contemplation of such
acquisition where such cash proceeds are used for
such acquisition within 120 days of such issuance or
incurrence shall not be deemed cash consideration
subject to the limitations of this clause;
(D) the aggregate cash consideration
(excluding all Equity Interests and Subordinated Debt
issued, transferred or incurred to the sellers
thereof, all indemnities, earnouts and other
contingent payment obligations to the Sellers
thereof, but including the aggregate amounts paid or
to be paid under deferred purchase price, noncompete,
consulting and other affiliated agreements with the
sellers thereof and all assumptions of debt,
liabilities and other obligations in connection
therewith) paid by or on behalf the Borrower and its
Subsidiaries for all such purchases and other
acquisitions effected after the date of this
Agreement shall not exceed $200,000,000, provided,
that the cash proceeds of an issuance of Equity
Interests or incurrence of Subordinated Debt
permitted hereunder made in contemplation of such
acquisition where such cash proceeds are used for
such acquisition within 120 days of such issuance or
incurrence shall not be deemed cash consideration
subject to the limitations of this clause; and
(E) (1) immediately before and after
giving pro forma effect to any such purchase or other
acquisition, no Default shall have occurred and be
continuing, (2) immediately after giving effect to
such purchase or other acquisition, the Borrower and
its Subsidiaries shall be in pro forma compliance
with all of the covenants set forth in Section 5.04,
such compliance to be determined on the basis of the
Required Financial Information most recently
delivered to the Administrative Agent and the Lender
Parties as though such purchase or other acquisition
had been consummated as of the first day of the
fiscal period covered thereby, and (3) if the
aggregate cash consideration (as determined above)
paid by or on behalf of the Borrower and its
Subsidiaries for any such purchase or other
acquisition (or series of related purchases or other
acquisitions) shall exceed $30,000,000, the Borrower
shall have delivered to the Administrative Agent, on
behalf of the Lender Parties, at least two Business
Days prior to the date on which any such purchase or
other acquisition is consummated, a certificate of a
Responsible Officer of the Borrower, in form and
substance reasonably satisfactory to the
Administrative Agent, certifying that all of the
applicable requirements set forth in this clause (vi)
will be satisfied on or prior to the date of such
consummation (and including a schedule setting forth
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the computations used by the Borrower in determining
the pro forma compliance with all of the covenants
set forth in Section 5.04 in accordance with the
foregoing provisions of this subclause (vi)(E)); and
(vii) Investments by the Borrower or any of its
Subsidiaries (A) (whether in the form of cash, property or services
contributed, or otherwise) in (I) physician connectivity joint ventures
in an aggregate amount not to exceed $25,000,000 during the term of
this Agreement and (II) other joint ventures in an aggregate amount not
to exceed $25,000,000 during the term of this Agreement and (B) not
otherwise permitted under this Section 5.02(e) in an aggregate amount
not to exceed $25,000,000 during the term of this Agreement, provided
that, in the case of each Investment under this clause (vii), (i)
immediately before and after giving pro forma effect thereto, no
Default shall have occurred and be continuing and (2) immediately after
giving effect thereto, the Borrower and its Subsidiaries shall be in
pro forma compliance with all the covenants set forth in Section 5.04,
such compliance to be determined on the basis of the Required Financial
Information most recently delivered to the Administrative Agent and the
Lender Parties as though such Investment had been made as of the first
day of the fiscal period covered thereby.
(f) Restricted Payments. Declare or pay any dividends on,
purchase, redeem, retire, defease or otherwise acquire for value any of its
Equity Interests, now or hereafter outstanding, return any capital to its
stockholders, partners or members (or the equivalent persons thereof) as such,
make any distribution of property, assets, Equity Interests, obligations or
securities to its stockholders, partners or members (or the equivalent persons
thereof) as such, or permit any of its Material Subsidiaries to do any of the
foregoing, or permit any of its Subsidiaries to purchase, redeem, retire,
defease or otherwise acquire for value any Equity Interests in the Borrower, or
to issue or sell any Equity Interests therein, except that:
(i) the Borrower may declare and make dividends
and other distributions payable solely in additional Borrower Common
Stock;
(ii) any of the Material Subsidiaries of the
Borrower may declare and pay or make dividends and other distributions
in cash or in additional common Equity Interests therein, or issue or
sell additional Equity Interests therein, to the Borrower or any of the
Material Subsidiaries;
(iii) any of the non-wholly owned Material
Subsidiaries of the Borrower may declare and pay or make dividends and
other distributions, and may issue and sell additional common Equity
Interests therein, to its shareholders, partners or members (or the
equivalent persons thereof) generally so long as the Borrower and each
of the Material Subsidiaries that own any of the Equity Interests
therein receive at least their respective proportionate shares of any
such dividend, distribution or issuance of common Equity Interests
(based upon their relative holdings of the Equity Interests therein and
taking into account the relative preferences, if any, of the various
classes of the Equity Interests therein);
(iv) Caremark Trust may declare and pay dividends
in respect of the Convertible Preferred Securities as provided in the
Convertible Securities Trust Agreement; and
(v) provided that no Event of Default has
occurred and is continuing, the Borrower may declare and pay dividends
on, and purchase, redeem, retire, defease or otherwise acquire for
value, any of its Equity, Interests, return any capital to its
stockholders, as such, and make any distribution of property, assets,
Equity Interests, obligations or securities to its stockholders, as
such, provided that the aggregate amount of all such dividends,
purchases, redemptions, retirements, defeasances, returns of capital
and distributions do not exceed $10,000,000 in any year or $50,000,000
during the term of this Agreement, provided, further, that to the
extent the entire $10,000,000 is not used in any one year as provided
herein, then fifty percent of such unused portion thereof can be used
as provided herein in any subsequent year,
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and provided, further, that in all circumstances the Borrower shall not
at any time make any such dividends, purchases, redemptions,
retirements, defeasances, returns of capital or distributions unless
the Leverage Ratio as of the most recently ended Measurement Period
prior thereto is less than or equal to 3.0 to 1.0.
(g) Capital Expenditures. Make, or permit any of its
Subsidiaries to make, any Capital Expenditures that would cause the aggregate
amount of all such Capital Expenditures made by the Borrower and its
Subsidiaries in any Fiscal Year to exceed the amount set forth below opposite
such Fiscal Year, provided that to the extent the entire amount of permitted
Capital Expenditures as set forth below for each Fiscal Year is not used in the
respective Fiscal Year, then fifty percent of such unused portion thereof will
be available for Capital Expenditures in the immediately succeeding Fiscal Year:
FISCAL YEAR
ENDING IN AMOUNT
----------- ------
December 2001 $50,000,000
December 2002 $60,000,000
December 2003 $70,000,000
December 2004 $80,000,000
and thereafter
(h) Prepayments, Etc. of Subordinated Debt.
(i) Prepay, redeem, purchase, defease or
otherwise satisfy prior to the scheduled maturity thereof in any
manner, or make any payment in violation of any subordination terms of,
any Subordinated Debt.
(ii) Amend, modify or change in any manner any of
the terms or conditions of:
(A) the Senior Notes Documents;
(B) the Convertible Securities
Documents; or
(C) the Caremark Receivables
Securitization Documents, except
(1) to the extent necessary to
increase the aggregate net
investment made by financial
institutions in respect of all the
accounts receivable of Caremark,
Inc. and MP Receivables Company or
the interests therein to not more
than at any one time outstanding
(a) $150,000,000 prior to December
31, 2001, (b) $175,000,000 from
January 1, 2002 through and
including December 31, 2002, and
(c) $200,000,000 during any
calendar year thereafter or (2)
otherwise as, either individually
or in the aggregate, is not
reasonably expected to have a
Material Adverse Effect; or
(D) any documents governing or
evidencing Subordinated Debt if the
effect of such amendment,
modification or change is (1) to
impose negative covenants in such
Subordinated Debt that are not less
restrictive than the negative
covenants in this Agreement as in
effect at the time of such
amendment, modification or change,
(2) to impose affirmative covenants
in such Subordinated Debt that are
more burdensome than the
affirmative covenants in this
Agreement as in effect at the time
of such amendment, modification or
change, (3) to provide for a
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cross-default to other Indebtedness
other than default in payment at
final stated maturity (but may
provide for a cross-acceleration to
other Indebtedness of the Borrower)
or to provide for other events of
default that are not customary for
subordinated debt instruments
prevailing at the time such
amendment, modification or change
or (4) the subordination provisions
in such Subordinated Debt.
(iii) Permit any of its Subsidiaries to do any of
the foregoing.
(i) Change in Nature of Business. Make, or permit any of
its Subsidiaries to make, any change in the nature of its business that would
cause the Borrower or such Subsidiary to no longer be primarily engaged in one
or more of the businesses engaged in by the Borrower and its Subsidiaries on the
date of this Agreement (other than solely as a result of the discontinuation of
the physician practice management businesses of the Borrower and its
Subsidiaries, and the sale, lease, transfer or the disposition of the property
and assets of the Borrower and its Subsidiaries comprising part of such
businesses, in accordance with the terms of the Loan Documents).
(j) Amendments to Constitutive Documents. Amend, or
permit any of its Subsidiaries to amend, its Constitutive Documents, except in
the case of the bylaws (or equivalent organizational documents) of the Borrower
or any such Subsidiary where such amendment, either individually or in the
aggregate, is not reasonably expected to have a Material Adverse Effect.
(k) Accounting Changes, Etc. Make or permit, or permit
any of its Subsidiaries to make or permit, any change in (i) its accounting
policies or reporting practices, except (A) as required by generally accepted
accounting principles in effect at the time of such change or by applicable
Requirements of Law or (B) as the Borrower (in consultation with its independent
public accountants) reasonably believes it will be required to adopt under
generally accepted accounting principles within the next succeeding 12 months
and which would not affect any of the covenants set forth in Section 5.04 (or
the computation thereof) or (ii) its Fiscal Year.
(l) Amendments, Etc. to Material Documents.
(i) Cancel or terminate any California
Transition Plan Document or consent to or accept any cancellation or
termination thereof, amend, modify or change in any manner any term or
condition of any California Transition Plan Document or give any
consent, waiver or approval thereunder, waive any default under or any
breach of any term or condition of any California Transition Plan
Document, agree in any manner to any other amendment, modification or
change of any term or condition of any California Transition Plan
Document, or take any other action in connection with any California
Transition Plan Document that, either individually or in the aggregate,
is reasonably expected to have a Material Adverse Effect, or permit any
of its Subsidiaries to do any of the foregoing.
(ii) The Borrower will not cancel or terminate
the Trust Agreement nor consent to or accept any cancellation or
termination thereof, nor amend, modify or change in any manner, or
agree to amend, modify or change in any manner, any term or condition
of the Trust Agreement, nor give any consent, waiver or approval
thereunder nor waive any default or breach of any term or condition of
the Trust Agreement, or take any other action in connection with the
Trust Agreement that in each case, either individually or in the
aggregate, may reasonably be expected to adversely affect the rights or
interest of the Finance Parties.
(m) Partnerships, Etc. Be or become a general partner in
any general or limited partnership or joint venture, or permit any of its
Subsidiaries to do so, unless (i) all of the Equity Interests (including,
without limitation, all ownership or profit interests) in such general or
limited partnership or joint venture are owned by the Borrower and/or one or
more of the Material Subsidiaries or (ii) the sole
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property and assets of the Subsidiary of the Borrower that is or is to be the
general partner in such general or limited partnership or joint venture consist
of its interests in one or more of such partnerships or joint ventures.
(n) Speculative Transactions. Engage, or permit any of
its Subsidiaries to engage, in any transaction involving commodity options or
futures contracts or any other type of Hedge Agreement which is speculative in
nature (including, without limitation, with respect to the term and purpose
thereof).
SECTION 5.03. Reporting Requirements. So long as any of the
Advances or any of the other Obligations of any Loan Party under or in respect
of any of the Loan Documents shall remain unpaid, any of the Letters of Credit
shall remain outstanding or any of the Lender Parties shall have any Commitment
hereunder, the Borrower will furnish to the Administrative Agent and the Lender
Parties:
(a) Default Notices. As soon as possible and in any event
within one Business Day after a Responsible Officer of the Borrower or any of
its Subsidiaries knows or has reason to know of the occurrence of each Default
or any event, development or occurrence that, either individually or in the
aggregate, is reasonably expected to have a Material Adverse Effect continuing
on the date of such statement, a statement of such Responsible Officer or a
Responsible Officer of the Borrower setting forth the details of such Default or
such event, development or occurrence (including, without limitation, the
anticipated effect thereof), the period of time such Default or such event,
development or occurrence has existed and been continuing and the action that
the Borrower has taken and/or proposes to take with respect thereto.
(b) Quarterly Financials. As soon as available and in any
event within 50 days after the end of each of the first three Fiscal Quarters of
each Fiscal Year, a Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such Fiscal Quarter and Consolidated statements of
operations, stockholders' equity and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the previous Fiscal Quarter
and ending with the end of such Fiscal Quarter and for the period commencing at
the end of the previous Fiscal Year and ending with the end of such Fiscal
Quarter, setting forth in comparative form, in the case of each such
Consolidated balance sheet, the corresponding figures as of the last day of the
corresponding period in the immediately preceding Fiscal Year and, in the case
of each such Consolidated statement of operations, stockholders' equity and cash
flows, the corresponding figures for the corresponding period in the immediately
preceding Fiscal Year, all in reasonable detail.
(c) Annual Financials. As soon as available and in any
event within 95 days after the end of each Fiscal Year in the case of each
Fiscal Year after the Fiscal Year ended December 31, 2000, a copy of the annual
audit report for such Fiscal Year for the Borrower and its Subsidiaries,
including therein the Consolidated balance sheets of the Borrower and its
Subsidiaries as of the end of such Fiscal Year and Consolidated statements of
operations, stockholders' equity and cash flows of the Borrower and its
Subsidiaries for such Fiscal Year, accompanied by an unqualified opinion, or an
opinion otherwise reasonably acceptable to the Required Lenders, of ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP or other independent public accountants of recognized standing
reasonably acceptable to the Required Lenders, setting forth in comparative
form, in the case of each such Consolidated balance sheet, the corresponding
figures as of the last day of the immediately preceding Fiscal Year, and, in the
case of each such Consolidated statement of operations, stockholders' equity and
cash flows, the corresponding figures for the corresponding period in the
immediately preceding Fiscal Year, together with (i) a letter from ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP or other independent public accountants of recognized standing
reasonably acceptable to the Required Lenders stating that, in the course of
their regular audit of the Consolidated financial statements of the Borrower and
its Subsidiaries, which audit was conducted by such accountants in accordance
with generally accepted auditing standards, such accountants have not obtained
any knowledge that a Default has occurred and is continuing or if, in the
opinion of such accountants, a Default as it relates to financial matters has
occurred and is continuing, a statement as to the status and nature thereof,
(ii) a schedule in form satisfactory to the Administrative Agent of the
computations used
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by such accountants in determining, as of the end of such Fiscal Year,
compliance with the covenants contained in Sections 5.02(g) and 5.04 (including
with respect to each such Section, where applicable, the calculations of the
maximum or minimum amount, ratio or percentage, as the case may be, permissible
under the terms of such Section, and the calculation of the amount, ratio or
percentage then in existence) and (iii) in the event of any change in the
generally accepted accounting principles used by the Borrower in the preparation
of the audited Consolidated financial statements referred to above in this
Section 5.03(c) from GAAP, the Borrower shall also provide a reasonably detailed
description of such changes and, if and to the extent necessary for the
determination of compliance with Section 5.02(g) or 5.04, a statement of
reconciliation conforming such audited Consolidated financial statements to
GAAP.
(d) Compliance Certificate. Together with each delivery
to the Administrative Agent and Lender Parties of the Consolidated financial
statements of the Borrower and its Subsidiaries referred to in Sections 5.03(b)
and 5.03(c), a certificate of a Senior Financial Officer, in form and substance
reasonably satisfactory to the Administrative Agent:
(i) duly certifying that, subject, in the case
of any such financial statements delivered pursuant to Section 5.03(b),
to normal year-end audit adjustments, (A) the Consolidated financial
statements of the Borrower and its Subsidiaries delivered with such
certificate fairly present the Consolidated financial condition of the
Borrower and its Subsidiaries as of the last day of such Fiscal Quarter
or such Fiscal Year, as the case may be, and the Consolidated results
of operations and cash flows of the Borrower and its Subsidiaries for
the Fiscal Quarter or the Fiscal Year ended on such date, and (B) the
Consolidated financial statements of the Borrower and its Subsidiaries
delivered with such certificate have been prepared in accordance with
GAAP;
(ii) duly certifying that no Default has occurred
and is continuing or, if a Default has occurred and is continuing, a
statement as to the nature thereof, the period of time such Default has
existed and been continuing and the action that the Borrower has taken
and/or proposes to take with respect thereto; and
setting forth a schedule of the computations used by
the Borrower in determining compliance with the covenants contained in
Sections 5.02(g) and 5.04 (including with respect to each such Section,
where applicable, the calculations of the maximum or minimum amount,
ratio or percentage, as the case may be, permissible under the terms of
such Section, and the calculation of the amount, ratio or percentage
then in existence).
(e) Forecasts. As soon as available and in any event
within 60 days after the first day of each Fiscal Year, commencing with the
Fiscal Year ending December 31, 2001, Consolidated forecasts prepared by
management of the Borrower of balance sheets and statements of operations and
cash flows on an annual basis for such Fiscal Year and each of the Fiscal Years
thereafter through the scheduled final Termination Date, in the form of the
forecasts delivered by the Borrower pursuant to Section 3.01(g)(x)(C) or
otherwise in a form reasonably satisfactory to the Administrative Agent and
setting forth in comparative form the corresponding figures for the immediately
preceding Fiscal Year.
(f) Licenses, Etc. Promptly and in any event within five
Business Days after receipt thereof, notice of any actual, pending or threatened
suspension, termination, or revocation of any of the Governmental Authorizations
of the Borrower or any of its Subsidiaries that are necessary to own or lease
and operate their respective property and assets and to conduct their respective
businesses as now conducted and as proposed to be conducted, or any enjoinment,
barring or suspension of the ability of the Borrower or any such Subsidiary to
conduct any of its businesses in the ordinary course, that, either individually
or in the aggregate, is reasonably expected to have a Material Adverse Effect.
(g) Litigation. Promptly and in any event within five
Business Days after the earlier of knowledge of a Responsible Officer thereof or
receipt by the Borrower or any of its Subsidiaries of service of process in
connection therewith, notice of all actions, suits, investigations, litigation,
arbitrations and proceedings against or affecting the Borrower or any of its
Subsidiaries or any of the
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property or assets thereof in any court or before any arbitrator or by or before
any Governmental Authority of any kind (i) that, either individually or in the
aggregate, is reasonably expected to have a Material Adverse Effect or (ii) that
purports to affect the legality, validity, binding effect or enforceability of
any aspect of the Transaction, any of the Loan Documents or the Transaction
Documents or any of the other transactions contemplated thereby; and, promptly
after the occurrence thereof, (A) notice of any material and adverse change in
the status or any material and adverse change in the financial effect on the
Borrower or any of its Subsidiaries of any such action, suit, investigation,
litigation, arbitration or proceeding (and, in each case, upon the reasonable
request of the Administrative Agent, any other information available to the
Borrower or any of its Subsidiaries with respect to any of the foregoing that
would enable the Administrative Agent and the Lender Parties to more fully
evaluate such action, suit, investigation, litigation, arbitration or
proceeding) and (B) copies of any reports or other statements (other than
routine reports and other statements prepared in the ordinary course of business
that are not reasonably expected to result in any material and adverse action)
that the Borrower or any of its Subsidiaries may furnish to or file with any
Governmental Authority, unless the Borrower or such Subsidiary is precluded from
disclosing any such report or statement pursuant to a confidentiality agreement
with the applicable Governmental Authority.
(h) ERISA Events and ERISA Reports; Plan Terminations,
Etc. (i) Promptly and in any event within ten days after any of the Loan Parties
or any of the ERISA Affiliates knows or has reason to know that any ERISA Event
has occurred, a statement of a Responsible Officer of the Borrower describing
such ERISA Event, the period of time such ERISA Event has existed and been
continuing and the action, if any, that the Borrower, such other applicable Loan
Party or such ERISA Affiliate has taken and/or proposes to take with respect
thereto, together with materials or information filed or to be filed with any
Governmental Authority or any trustee for any Plan as a result of such ERISA
Event; (ii) on the date on which any records, documents or other information
must be furnished to the PBGC with respect to any Plan pursuant to Section 4010
of ERISA, a copy of such records, documents and information; (iii) promptly and
in any event within two Business Days after receipt thereof by any of the Loan
Parties or any of the ERISA Affiliates, copies of each notice from the PBGC
stating its intention to terminate any Plan or to have a trustee appointed to
administer any Plan; (iv) promptly and in any event within 30 days after the
filing thereof with the Internal Revenue Service, a copy of Schedule B
(Actuarial Information) to the annual report (form 5500) with respect to each of
the Plans; and (v) promptly and in any event within five Business Days after
receipt thereof by any of the Loan Parties or any of the ERISA Affiliates from
the sponsor of a Multiemployer Plan, copies of each notice concerning (A) the
imposition of Withdrawal Liability by any such Multiemployer Plan, (B) the
reorganization or termination, within the meaning of Title IV of ERISA, of any
such Multiemployer Plan or (C) the amount of liability incurred, or that is
reasonably expected to be incurred, by such Loan Party or any such ERISA
Affiliate in connection with any event described in subclause (v)(A) or (v)(B)
of this Section 5.03(k).
(i) Environmental Conditions. Promptly and in any event
within five Business Days after a Responsible Officer of the Borrower or any of
its Subsidiaries becomes aware of the assertion or occurrence thereof:
(i) notice of any condition or occurrence on or
arising from any property owned or operated by the Borrower or any of
its Subsidiaries that resulted or is alleged by any Governmental
Authority to have resulted in noncompliance in any material respect by
the Borrower or such Subsidiary with any applicable Environmental Law
or Environmental Permit;
(ii) any condition or occurrence on any property
owned or operated by the Borrower or any of its Subsidiaries that is
reasonably expected to cause such property to be subject to any
restrictions on the ownership, occupancy, use or transferability by the
Borrower or such Subsidiary of such property under any Environmental
Law which, either individually or in the aggregate, is reasonably
expected to have a Material Adverse Effect; and
(iii) the taking of any removal or remedial action
in response to the actual or alleged presence of any Hazardous Material
on any property owned or operated by the Borrower
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or any of its Subsidiaries as required by any Environmental Law, any
Environmental Permit or any Governmental Authority.
All such notices shall describe in reasonable detail the nature of the
condition, occurrence, removal or remedial action described therein
and, in the case of each such condition or occurrence, the action that
the Borrower or such Subsidiary has taken and/or proposes to take with
respect thereto.
(j) Insurance. Within 30 days of a request of the
Administrative Agent, a report summarizing the insurance coverage in effect for
the Borrower and each of its Subsidiaries, specifying therein the type, carrier,
amount, deductibles and co-insurance requirements and expiration dates thereof
and containing such additional information as any of the Lender Parties, through
the Administrative Agent, may reasonably request.
(k) Other Information. Such other information respecting
the business, condition (financial or otherwise), operations, liabilities
(actual or contingent), performance, properties or prospects of the Borrower or
any of its Subsidiaries as any of the Lender Parties, through the Administrative
Agent, may from time to time reasonably request.
SECTION 5.04. Financial Covenants. So long as any of the
Advances or any of the other Obligations of any Loan Party under or in respect
of any of the Loan Documents shall remain unpaid, any of the Letters of Credit
shall remain outstanding or any of the Lender Parties shall have any Commitment
hereunder, the Borrower will:
(a) Leverage Ratio. Maintain a Leverage Ratio at all
times during each period set forth below of not more than the amount set forth
opposite such period set forth below:
PERIOD RATIO
------ -----
March 15, 2001 through 4.50:1
March 31, 2002
April 1, 2002 through 4.25:1
December 31, 2002
January 1, 2003 through 4.00:1
December 31, 2003
January 1, 2004 through 3.50:1
December 31, 2004
January 1, 2005 and 3.00:1
thereafter
(b) Fixed Charge Coverage Ratio. Maintain a Fixed Charge
Coverage Ratio as of the last day of each Measurement Period set forth below of
not less than the amount set forth opposite such Measurement Period set forth
below:
MEASUREMENT PERIOD
ENDING IN RATIO
------------------ -----
March 31, 2001 2.00:1
June 30, 2001 2.00:1
September 30, 2001 2.00:1
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MEASUREMENT PERIOD
ENDING IN RATIO
------------------ -----
December 31, 2001 2.00:1
March 31, 2002 2.00:1
June 30, 2002 2.25:1
September 30, 2002 2.25:1
December 31, 2002 2.50:1
March 31, 2003 2.50:1
June 30, 2003 2.50:1
September 30, 2003 2.50:1
December 31, 2003 2.50:1
March 31, 2004 2.75:1
June 30, 2004 2.75:1
September 30, 2004 2.75:1
December 31, 2004 2.75:1
March 31, 2005 and thereafter 3.00:1
(c) Interest Coverage Ratio. Maintain an Interest
Coverage Ratio as of the last day of each Measurement Period set forth below of
not less than the amount set forth opposite such Measurement Period set forth
below:
MEASUREMENT PERIOD
ENDING IN RATIO
------------------ -----
March 31, 2001 2.00:1
June 30, 2001 2.00:1
September 30, 2001 2.00:1
December 31, 2001 2.00:1
March 31, 2002 2.00:1
June 30, 2002 2.25:1
September 30, 2002 2.25:1
December 31, 2002 2.50:1
March 31, 2003 2.50:1
June 30, 2003 2.50:1
September 30, 2003 2.50:1
December 31, 2003 2.50:1
March 31, 2004 2.75:1
June 30, 2004 2.75:1
September 30, 2004 2.75:1
December 31, 2004 2.75:1
March 31, 2005 and thereafter 3.00:1
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("EVENTS OF DEFAULT") shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of or
any interest on any Advance when the same shall become due and payable, or any
of the Loan Parties shall fail to make any other
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payment under or in respect of any of the Loan Documents required to have been
made by it, when the same shall become due and payable, in each case whether by
scheduled maturity or at a date fixed for prepayment or by acceleration, demand
or otherwise; or
(b) any representation or warranty made by any of the
Loan Parties (or any of their respective officers) under or in connection with
any of the Loan Documents (including, without limitation, in any certificate,
report, statement or other writing at any time furnished (or deemed to have been
furnished) to the Administrative Agent or any of the Lender Parties by or on
behalf of any of the Loan Parties) shall prove to have been incorrect in any
material respect on the date as of which it was made or deemed made; or
(c) (i) the Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 2.16, 5.01(b), 5.01(e) or
5.01(i) or Section 5.02, 5.03 or 5.04 or (ii) any of the other Loan Parties
shall fail to perform or observe any term, covenant or agreement contained in
Section 4 or 7 of the Subsidiaries Guarantee on its part to be performed or
observed; or
(d) any of the Loan Parties shall fail to perform or
observe any term, covenant or agreement contained in any of the Loan Documents
on its part to be performed or observed that is not otherwise referred to in
Section 6.01(c) if such failure shall remain unremedied for at least 30
consecutive days after the earlier of the date on which (i) a Responsible
Officer of the Borrower or any of its Subsidiaries first becomes aware of such
failure and (ii) written notice thereof shall have been given to the Borrower by
the Administrative Agent or any of the Lender Parties; or
(e) (i) the Borrower or any of its Subsidiaries shall
fail to pay any principal of, premium or interest on, or any other amount
payable in respect of, one or more items of Indebtedness of the Borrower and its
Subsidiaries (excluding Indebtedness outstanding hereunder) that is outstanding
(or under which one or more Persons have a commitment to extend credit) in an
aggregate principal amount (or, in the case of any Hedge Agreement, having an
Agreement Value) of at least $10,000,000 at the time of such failure, when the
same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreements or
instruments relating to all such Indebtedness; or (ii) any other event shall
occur or condition shall exist under the agreements or instruments relating to
one or more items of Indebtedness of the Borrower and its Subsidiaries
(excluding Indebtedness outstanding hereunder) that is outstanding (or under
which one or more Persons have a commitment to extend credit) in an aggregate
principal amount (or, in the case of any Hedge Agreement, having an Agreement
Value) of at least $10,000,000 at the time of such other event or condition, and
shall continue after the applicable grace period, if any, specified in all such
agreements or instruments, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such Indebtedness
or otherwise to cause, or to permit the holder thereof to cause, such
Indebtedness to mature; or (iii) one or more items of Indebtedness of the
Borrower and its Subsidiaries (excluding Indebtedness outstanding hereunder)
that is outstanding (or under which one or more Persons have a commitment to
extend credit) in an aggregate principal amount (or, in the case of any Hedge
Agreement, having an Agreement Value) of at least $10,000,000 shall be declared
to be due and payable or required to be prepaid or redeemed (other than by a
regularly scheduled or required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Indebtedness
shall be required to be made, in each case prior to the stated maturity thereof;
or
(f) the Borrower or any of its Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general assignment for
the benefit of creditors; or any proceeding shall be instituted by or against
the Borrower or any of its Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, administrator or other similar official for it or for any substantial
part of its property and assets and, in the case of any such proceeding
instituted against it (but
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not instituted by it) that is being diligently contested by it in good faith,
either such proceeding shall remain undismissed or unstayed for a period of at
least 60 consecutive days or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official for, it
or any substantial part of its property and assets) shall occur; or any event or
action analogous to or having a substantially similar effect to any of the
events or actions set forth above in this Section 6.01(f) (other than a solvent
reorganization) shall occur under the Requirements of Law of any jurisdiction
applicable to the Borrower or any of its Subsidiaries; or the Borrower or any of
its Subsidiaries shall take any corporate, partnership, limited liability
company or other similar action to authorize any of the actions set forth above
in this Section 6.01(f); provided that any action or circumstance permitted
under Section 5.01(h) shall not be deemed to result in an Event of Default under
this Section 6.01(f); or
(g) one or more judgments or orders for the payment of
money in excess of $10,000,000 in the aggregate shall be rendered against one or
more of the Borrower and its Subsidiaries and shall remain unsatisfied and
either (i) enforcement proceedings shall have been commenced by any creditor
upon any such judgment or order or (ii) there shall be any period of at least
ten consecutive Business Days during which a stay of enforcement of any such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; provided, however, that any such judgment or order shall not give rise
to an Event of Default under this Section 6.01(g) if and for so long as (A) the
amount of such judgment or order which remains unsatisfied is covered by a valid
and binding policy of insurance between the defendant and the insurer covering
full payment thereof and (B) such insurer has been notified, and has not
disputed the claim made for payment, of the amount of such judgment or order; or
(h) one or more nonmonetary judgments or orders
(including, without limitation, writs or warrants of attachment, garnishment,
execution, distraint or similar process) shall be rendered against the Borrower
or any of its Subsidiaries that, either individually or in the aggregate, is
reasonably expected to have a Material Adverse Effect and there shall be any
period of at least ten consecutive Business Days during which a stay of
enforcement of any such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(j) any provision of any of the Loan Documents after
delivery thereof pursuant to Sections 3.01, 5.01(j) or 5.01(k) shall for any
reason (other than pursuant to the terms thereof) cease to be valid and binding
on or enforceable against any of the Loan Parties intended to be a party to it,
or any such Loan Party shall so state in writing;
(k) any Collateral Document or financing statement after
delivery thereof pursuant to Sections 3.01, 5.01(j) or 5.01(k) shall for any
reason (other than pursuant to the terms thereof) cease to create a valid and
perfected Lien on the Collateral purported to be covered thereby subject only to
Liens permitted thereby; or
(l) any of the following events or conditions shall have
occurred and such event or condition, when aggregated with any and all other
such events or conditions set forth in this subsection (k), has resulted or is
reasonably expected to result in liabilities of the Loan Parties and/or the
ERISA Affiliates in an aggregate amount exceeding $10,000,000 at any time:
(i) any ERISA Event shall have occurred with
respect to a Plan; or
(ii) any of the Loan Parties or any of the ERISA
Affiliates shall have been notified by the sponsor of a Multiemployer
Plan that it has incurred Withdrawal Liability to such Multiemployer
Plan; or
(iii) any of the Loan Parties or any of the ERISA
Affiliates shall have been notified by the sponsor of a Multiemployer
Plan that such Multiemployer Plan is in reorganization, is insolvent or
is being terminated, within the meaning of Title IV of ERISA, and, as a
result of such reorganization, insolvency or termination, the aggregate
annual contributions
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of the Loan Parties and the ERISA Affiliates to all of the
Multiemployer Plans that are in reorganization, are insolvent or being
terminated at such time have been or will be increased over the amounts
contributed to such Multiemployer Plans for the plan years of such
Multiemployer Plans immediately preceding the plan year in which such
reorganization, insolvency or termination occurs; or
(iv) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA and Section 412 of the Internal Revenue
Code), whether or not waived, shall exist with respect to one or more
of the Plans, or any Lien shall exist on the property and assets of any
of the Loan Parties or any of the ERISA Affiliates in favor of the PBGC
or any Plan; or
(m) the Borrower or any of its Subsidiaries shall suspend
or discontinue all or any part of its businesses and operations other than in
the ordinary course of business (determined on the basis of past practices) and
such suspension or discontinuance, either individually or in the aggregate, is
reasonably expected to have a Material Adverse Effect; or
(n) a Change of Control shall occur; or
(o) an "Event of Default" (as defined in the Senior Notes
Indenture) shall have occurred and be continuing under the Senior Notes
Indenture; or
(p) a "Termination Event" (as defined in the Caremark
Receivables Securitization Documents (or any similar event or circumstance under
any instrument, agreement or other document evidencing or otherwise setting
forth the terms and conditions of any other Permitted Receivables
Securitization)) shall have occurred and be continuing under the Caremark
Receivables Securitization Documents (or any such similar instruments,
agreements or other documents);
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments of each of the Lender Parties and the obligation of each
of the Lender Parties to make Advances (other than Letter of Credit Advances by
the Issuing Bank or any of the Revolving Credit Lenders pursuant to Section
2.03(c)(i) and Swing Line Advances by any of the Revolving Credit Lenders
pursuant to Section 2.02(b)(ii)) and of the Issuing Bank to issue Letters of
Credit to be terminated, whereupon the same shall forthwith terminate, and (ii)
shall at the request, or may with the consent, of the Required Lenders, (A) by
notice to the Borrower, declare the Notes, all interest thereon and all other
amounts payable under or in respect of this Agreement and the other Loan
Documents to be forthwith due and payable, whereupon the Notes, all such
interest and all such other amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrower and (B) by notice to each
party required under the terms of any agreement in support of which a Letter of
Credit is issued, request that all of the Obligations under such agreement be
declared to be due and payable; provided, however, that in the event of an
actual or deemed entry of an order for relief with respect to any Loan Party
under the United States Federal Bankruptcy Code or a similar order or action
under any other Requirements of Law covering the protection of creditors' rights
or the relief of debtors applicable to any Loan Party, (1) the Commitments of
each of the Lender Parties and the obligation of each of the Lender Parties to
make Advances (other than Letter of Credit Advances by the Issuing Bank or any
of the Revolving Credit Lenders pursuant to Section 2.03(c)(i) and Swing Line
Advances by any of the Revolving Credit Lenders pursuant to Section 2.02(b)(ii))
and of the Issuing Bank to issue Letters of Credit shall automatically be
terminated and (2) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon
Default. If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, or shall at the request of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, pay
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to the Collateral Trustee in same day funds at the Collateral Trustee's office
designated in such demand, for deposit in the L/C Cash Collateral Account, an
amount equal to the aggregate Available Amount of all Letters of Credit then
outstanding; provided, however, that in the event of an actual or deemed entry
of an order for relief with respect to any Loan Party under the United States
Federal Bankruptcy Code or a similar order or action under any other
Requirements of Law covering the protection of creditors' rights or the relief
of debtors applicable to any Loan Party, the Borrower, without requirement of
demand by the Administrative Agent or any other Person, will forthwith pay to
the Collateral Trustee in same day funds at the Collateral Trustee's office for
deposit in the L/C Cash Collateral Account an amount equal to such aggregate
Available Amount. If at any time the Administrative Agent or, as the case may
be, the Collateral Trustee, determines that any funds held in the L/C Cash
Collateral Account are subject to any right or claim of any Person other than
the Secured Parties or that the total amount of such funds is less than the
aggregate Available Amount of all Letters of Credit, the Borrower will,
forthwith upon demand by the Administrative Agent, pay to the Collateral
Trustee, as additional funds to be deposited and held in the L/C Cash Collateral
Account, an amount equal to the excess of (a) such aggregate Available Amount
over (b) the total amount of funds, if any, then held in the L/C Cash Collateral
Account that the Administrative Agent determines to be free and clear of any
such right and claim. Upon the drawing of any Letter of Credit for which funds
are on deposit in the L/C Cash Collateral Account, such funds shall be applied
to reimburse the Issuing Bank or Revolving Credit Lenders, as applicable, in the
manner provided for in the Security Agreement and to the extent permitted by
applicable law.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action.
(a) Each of the Lender Parties (in its respective
capacities as a Lender, a Swing Line Bank and the Issuing Bank, in each case if
applicable) hereby appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
this Agreement and the other Loan Documents as are delegated to the
Administrative Agent by the terms hereof and thereof, together with such powers
and discretion as are reasonably incidental thereto. As to any matters not
expressly provided for under the Loan Documents (including, without limitation,
enforcement or collection of the Notes), the Administrative Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all of the Lender Parties and all holders of
Notes; provided, however, that the Administrative Agent shall not be required to
take any action (i) that exposes the Administrative Agent to personal liability
or that is contrary to this Agreement or to applicable Requirements of Law or
(ii) as to which the Administrative Agent has not received adequate security or
indemnity (whether pursuant to Section 7.05 or otherwise). If the security or
indemnity furnished to the Administrative Agent for any purpose under or in
respect of the Loan Documents shall, in the good faith opinion of the
Administrative Agent, be insufficient or become impaired, then the
Administrative Agent may require additional security or indemnity and cease, or
not commence, to follow the directions or take the actions indemnified against
until such additional security or indemnity is furnished. The Administrative
Agent agrees to give to each of the Lender Parties prompt notice of each notice
given to it by the Borrower pursuant to the terms of this Agreement.
(b) The Administrative Agent may from time to time in its
discretion appoint any of the Lender Parties or any of the Affiliates of a
Lender Party to act as its co-agent or subagent or attorney-in-fact for purposes
of executing any of the duties and responsibilities of the Administrative Agent
under or in respect of this Agreement or any of the other Loan Documents. In
such capacity, such co-agents, subagents and attorneys-in-fact shall be entitled
to the benefits of all provisions of this Article VII (including, without
limitation, Section 7.05, as though such co-agents or subagents or
attorneys-in-fact were the "Administrative Agent" under the Loan Documents) as
if set forth in full herein with respect
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thereto. The Administrative Agent shall not be responsible for any gross
negligence or willful misconduct of any of the co-agents or subagents or
attorneys-in-fact selected by it with reasonable care.
(c) None of the Syndication Agent, the Documentation
Agent and the Lead Arranger shall have any powers or discretion under this
Agreement or any of the other Loan Documents, and the Borrower, the
Administrative Agent and each of the Lender Parties hereby acknowledge that none
of the Syndication Agent, the Documentation Agent or the Lead Arranger has any
liability under this Agreement or under any of the other Loan Documents.
(d) The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default or Event of Default unless
the Administrative Agent has received written notice from a Lender Party or the
Borrower specifying such Default or Event of Default and stating that such
notice is a "Notice of Default". In the event that the Administrative Agent
receives such a notice of the occurrence of a Default or Event of Default, the
Administrative Agent shall give prompt notice thereof to the Lender Parties. The
Administrative Agent shall (subject to Section 7.02) 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 Administrative Agent
shall have received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interest of the Lender Parties including, without limitation, serving
notice of the occurrence of a Default or Event of Default on the Collateral
Trustee.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with the Loan Documents, except for its or their own gross
negligence or willful misconduct as determined in a final, nonappealable
judgment by a court of competent jurisdiction. Without limiting the generality
of the immediately preceding sentence, the Administrative Agent:
(a) may treat the payee of any Note as the holder thereof
until the Administrative Agent receives and accepts an Assignment and Acceptance
entered into by the Lender that is the payee of such Note, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 8.07;
(b) may consult with legal counsel (including counsel for
any of the Loan Parties), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice or statements of such
counsel, accountants or experts;
(c) makes no representation or warranty to any of the
Secured Parties and shall not be responsible to any of the Secured Parties for
any statements, representations or warranties (whether written or oral) made in
or in connection with the Loan Documents;
(d) shall not have any duty to ascertain or to inquire as
to the performance or observance of any of the terms, covenants or conditions of
any of the Loan Documents on the part of any of the Loan Parties or to inspect
the property and assets (including the books and records) of any of the Loan
Parties;
(e) shall not be responsible to any Person for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any of the Loan Documents or any other instrument or document furnished
pursuant thereto; and
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(f) shall incur no liability under or in respect of any
of the Loan Documents by acting upon any notice, consent, order, certificate or
other instrument, writing or communication (which may be by telephone, telecopy
or E-mail) believed by it to be genuine and signed or sent or made by or on
behalf of the proper party or parties.
SECTION 7.03. BofA, BAS and Affiliates. With respect to its
Commitments, the Advances made by it and the Note or Notes issued to it, BofA
(and any successor acting as the Administrative Agent) in its capacity as a
Lender Party hereunder shall have the same rights and powers under the Loan
Documents as any other Lender Party and may exercise the same as though it were
not acting as the Administrative Agent; and the terms "Lender", "Lenders",
"Lender Party", "Lender Parties", "Finance Party," "Finance Parties," "Secured
Party" or "Secured Parties" shall, unless otherwise expressly indicated, include
BofA in its individual capacity. BofA (and any successor acting as the
Administrative Agent), BAS and their respective Affiliates may (without having
to account therefor to any Lender Party) accept deposits from, lend money to,
make investments in, provide services to, and generally engage in any kind of
lending, trust, or other business with any Loan Party or any of its or their
respective Subsidiaries or Affiliates as if it were not acting as an Agent, and
BofA (and any successor acting as the Administrative Agent), BAS and their
respective affiliates may accept fees and other consideration from any Loan
Party or any of its or their respective Subsidiaries or Affiliates, or any
Person that may do business with or own securities of any Loan Party or any such
Subsidiary or Affiliate, for services in connection with this Agreement or
otherwise without having to account for the same to the Lender Parties.
SECTION 7.04. Lender Credit Decision. Each of the Lender
Parties hereby acknowledges that it has, independently and without reliance upon
any of the Agents or any of the other Lender Parties and based on the financial
statements referred to in Section 4.01 and such other documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each of the Lender Parties also hereby acknowledges that it
will, independently and without reliance upon any of the Agents or any of the
other Lender Parties and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement. Except for notices, reports,
and other documents and information expressly required to be furnished to the
Lender Parties by the Administrative Agent hereunder, the Administrative Agent
shall not have any duty or responsibility to provide any Lender Party with any
credit or other information concerning the affairs, financial condition, or
business of any Loan Party or any of its Subsidiaries or Affiliates that may
come into the possession of the Administrative Agent or any of its Affiliates.
SECTION 7.05. Indemnification.
(a) Each of the Lenders hereby severally agrees to
indemnify the Administrative Agent (to the extent not promptly reimbursed by the
Borrower) from and against such Lender's ratable share (determined as provided
below in this subsection (a)) of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against the Administrative Agent in any way relating to or arising out
of the Loan Documents or any action taken or omitted by the Administrative Agent
under the Loan Documents; provided, however, that none of the Lenders shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Administrative Agent's gross negligence or willful misconduct as
determined in a final, nonappealable judgment by a court of competent
jurisdiction. In the case of any claim, investigation, litigation or proceeding
to which the indemnity in this subsection (a) applies, such indemnity shall be
effective whether or not such claim, investigation, litigation or proceeding is
brought by the Administrative Agent, any of the Lender Parties or a third party.
Without limiting any of the provisions of the immediately preceding sentence,
each of the Lenders hereby agrees to reimburse the Administrative Agent promptly
upon demand for its ratable share of any costs and expenses (including, without
limitation, reasonable fees and expenses of counsel) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration,
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modification, amendment 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, to
the extent that the Administrative Agent is not promptly reimbursed for such
costs and expenses by the Borrower. For purposes of this subsection (a), the
Lenders' respective ratable shares of any amount shall be determined, at any
time, according to the sum of (i) the aggregate principal amount of all Advances
owing to the respective Lenders and outstanding at such time, (ii) the
respective Lender's Pro Rata Shares of the aggregate Available Amount of all
Letters of Credit outstanding at such time, (iii) the aggregate unused portions
of the Term Loan Commitments of the respective Lenders at such time (if any) and
(iv) the aggregate Unused Revolving Credit Commitments of the respective Lenders
at such time; provided that the aggregate principal amount of all Swing Line
Advances owing to the Swing Line Bank and all Letter of Credit Advances owing to
the Issuing Bank shall be considered to be owed to the Revolving Credit Lenders
ratably in accordance with their respective Revolving Credit Commitments. The
failure of any of the Lenders to reimburse the Administrative Agent promptly
upon demand for its ratable share of any amount required to be paid by the
Lenders to the Administrative Agent as provided in this subsection (a) shall not
relieve any of the other Lenders of its obligation hereunder to reimburse the
Administrative Agent for its ratable share of such amount, but none of the
Lenders shall be responsible for the failure of any of the other Lenders to
reimburse the Administrative Agent for such other Lender's ratable share of such
amount.
(b) Each of the Revolving Credit Lenders hereby severally
agrees to indemnify the Issuing Bank (to the extent not promptly reimbursed by
the Borrower) from and against such Revolving Credit Lender's ratable share
(based upon their respective Revolving Credit Commitments) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Issuing Bank in any way
relating to or arising out of the Loan Documents or any action taken or omitted
by the Issuing Bank under the Loan Documents; provided, however, that none of
the Revolving Credit Lenders shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Issuing Bank's gross
negligence or willful misconduct as determined in a final, nonappealable
judgment by a court of competent jurisdiction. In the case of any claim,
investigation, litigation or proceeding to which the indemnity in this
subsection (b) applies, such indemnity shall be effective whether or not such
claim, investigation, litigation or proceeding is brought by the Issuing Bank,
any of the Lender Parties or a third party. Without limiting any of the
provisions of the immediately preceding sentence, each of the Revolving Credit
Lenders hereby agrees to reimburse the Issuing Bank promptly upon demand for its
ratable share (based upon their respective Revolving Credit Commitments) of any
costs and expenses (including, without limitation, fees and expenses of counsel)
incurred by the Issuing Bank in connection with the preparation, execution,
delivery, administration, modification, amendment 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, to the extent that the Issuing Bank is not promptly reimbursed
for such costs and expenses by the Borrower. The failure of any of the Revolving
Credit Lenders to reimburse the Issuing Bank promptly upon demand for its
ratable share of any amount required to be paid by the Revolving Credit Lenders
to the Issuing Bank as provided in this subsection (b) shall not relieve any of
the other Revolving Credit Lenders of its obligation hereunder to reimburse the
Issuing Bank for its ratable share of such amount, but none of the Revolving
Credit Lenders shall be responsible for the failure of any of the other
Revolving Credit Lenders to reimburse the Issuing Bank for such other Revolving
Credit Lender's ratable share of such amount.
(c) Without prejudice to the survival of any other
agreement of any of the Lenders hereunder, the agreement and obligations of each
of the Lenders contained in this Section 7.05 shall survive the payment in full
of all principal, interest and other amounts payable under (and specified in)
this Agreement and the other Loan Documents.
SECTION 7.06. Successor Administrative Agent. The
Administrative Agent may resign as to any or all of the Facilities at any time
by giving written notice thereof to the Lender Parties and the Borrower and may
be removed as to all of the Facilities at any time with or without cause by the
Required
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Lenders. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint a successor Administrative Agent as to such of the
Facilities as to which the Administrative Agent has resigned or been removed;
provided that, so long as no Default shall have occurred and be continuing, the
Borrower shall have the right to consent to any such successor Administrative
Agent, such consent not to be unreasonably withheld and to be deemed to have
been given if the Borrower does not object to the proposed successor
Administrative Agent within five Business Days after receiving notice thereof.
If no successor Administrative Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Administrative Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Administrative Agent, then the
retiring Administrative Agent may, on behalf of the Lenders and the other
Finance Parties, appoint a successor Administrative Agent, which shall be a
commercial bank organized under the laws of the United States of America or of
any state thereof and having a combined capital and surplus of at least
$500,000,000. If within 45 days after written notice is given of the retiring
Administrative Agent's resignation or removal as to any or all of the Facilities
under this Section 7.06 no successor Administrative Agent shall have been
appointed and shall have accepted such appointment, then on such 45th day (a)
the retiring Administrative Agent's resignation or removal shall become
effective as to such of the Facilities as to which the Administrative Agent has
resigned or been removed, (b) the retiring Administrative Agent shall thereupon
be discharged from its duties and obligations as to such Facilities under the
Loan Documents and (c) the Required Lenders shall thereafter perform all duties
and obligations of the retiring Administrative Agent as to such Facilities under
the Loan Documents until such time, if any, as the Required Lenders appoint a
successor Administrative Agent as provided above in this Section 7.06. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent as to all of the Facilities, such successor Administrative
Agent shall succeed to and become vested with all the rights, powers,
discretion, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under the Loan Documents. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent as to less
than all of the Facilities, such successor Administrative Agent shall succeed to
and become vested with all the rights, powers, discretion, privileges and duties
of the retiring Administrative Agent as to such Facilities, other than with
respect to funds transfers and other similar aspects of the administration of
Borrowings under such Facilities, issuances of Letters of Credit
(notwithstanding any resignation as Administrative Agent with respect to the
Letter of Credit Facility) and payments by the Borrower in respect of such
Facilities, and the retiring Administrative Agent shall be discharged from its
duties and obligations under the Loan Documents as to such Facilities, other
than as aforesaid. After any retiring Administrative Agent's resignation or
removal hereunder as Administrative Agent as to all of the Facilities shall
become effective, the provisions of this Article VII shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Administrative
Agent as to any of the Facilities under this Agreement.
SECTION 7.07. Release of Collateral. Upon the payment of all
Notes and all other amounts payable under the Loan Documents, the termination of
all Letters of Credit and the termination of all commitments of the Lender
Parties hereunder, the Lender Parties hereby agree that all Collateral is
released from the security interest granted under the respective Collateral
Documents, and upon the sale, lease, transfer or other disposition of any item
of Collateral of any Loan Party in accordance with the terms of the Loan
Documents, the Lender Parties hereby agree that such item of Collateral is
released from the security interest granted under the respective Collateral
Documents. In connection therewith, the Lender Parties hereby irrevocably
authorize the Administrative Agent from time to time to instruct the Collateral
Trustee to release any such Collateral or to consent to any such release
pursuant to the Trust Agreement, as applicable. The Administrative Agent will,
at the Borrower's expense, execute and deliver to the respective Loan Party such
documents as such Loan Party may reasonably request to evidence the release of
such item of Collateral from the security interest granted under the Collateral
Documents.
SECTION 7.08. Release of Guarantor. Upon the sale of
outstanding shares of capital stock and other equity, ownership and profit
interests in any Guarantor in a transaction which is permitted under Section
5.02(d) where such Guarantor ceases to be a Subsidiary, then upon request by the
Borrower, the Administrative Agent, on behalf of each Lender Party, shall
confirm in writing that the
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liability of such Guarantor under the Subsidiaries Guaranty is released and
discharged effective when such transaction is consummated and all requirements
hereunder in connection therewith are satisfied, including with respect to the
application of the proceeds of such sale. Such confirmation from the
Administrative Agent (a) shall establish conclusively that the liability of such
Guarantor under the Subsidiaries Guarantee is released and discharged and (b)
may be relied on, without further inquiry, by the purchaser in such transaction
and each of its transferees. Each Lender Party hereby irrevocably authorizes the
Administrative Agent to release any Guarantor from time to time to the extent
provided for herein and to execute any document reasonably required in
connection therewith.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement, the Notes, the Trust Agreement or any of the other
Loan Documents (except to the extent otherwise expressly provided for therein),
nor consent to any departure by any of the Loan Parties therefrom, shall in any
event be effective unless the same shall be in writing and signed (or, in the
case of the Collateral Documents, consented to) by the Required Lenders, and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that:
(a) no amendment, waiver or consent shall, unless in
writing and signed by all of the Lenders (other than any of the Lenders that is,
at such time, a Defaulting Lender), do any of the following at any time:
(i) waive any of the conditions specified in
Section 3.01 or, in the case of the Initial Extensions of Credit,
Section 3.02;
(ii) change the number of Lenders or the
percentage of the Commitments or the aggregate outstanding principal
amount of Advances or the aggregate Available Amount of outstanding
Letters of Credit that, in each case, shall be required for the Lender
Parties or any of them to take any action hereunder;
(iii) except to the extent contemplated herein,
release all or substantially all of the Subsidiaries that are a party
to the Subsidiaries Guarantee from their Obligations thereunder;
(iv) release all or substantially all of the
Collateral in any transaction or series of transactions;
(v) amend Section 2.14 or this Section 8.01; or
(vi) permit the Borrower to select an Interest
Period having a duration longer than six months.
(b) no amendment, waiver or consent shall, unless in
writing and signed by the Required Lenders and each of the Lenders (other than
any of the Lenders that is, at such time, a Defaulting Lender) that has a
Commitment under the Term Loan Facility or the Revolving Credit Facility or is
owed any amounts under or in respect thereof, if such Lender is directly and
adversely affected by such amendment, waiver or consent:
(i) increase the Commitments of such Lender or
subject such Lender to any additional Obligations;
(ii) reduce the principal of, or interest on, the
Notes held by such Lender or any fees or other amounts payable
hereunder to such Lender, other than the amount of any interest payable
under Section 2.07(b).
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(iii) postpone any date scheduled for any payment
of principal pursuant to Section 2.04 of, or interest pursuant to
Section 2.07(a) on, the Notes held by such Lender or any fees or other
amounts payable under Section 2.08 to such Lender; or
(iv) change the order of application of any
prepayment set forth in Section 2.06 in any manner that materially
affects such Lender; and
provided further that no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Bank or the Issuing Bank, as the case may be, in
addition to the Lenders required above to take such action, affect the rights or
duties of the Swing Line Bank or the Issuing Bank, respectively, under this
Agreement or any of the other Loan Documents; and provided further that no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement or any of the other Loan Documents. Notwithstanding any of the
foregoing provisions of this Section 8.01, none of the defined terms set forth
in Section 1.01 shall be amended, supplemented or otherwise modified hereafter
in any manner that would change the meaning, purpose or effect of this Section
8.01 or any Section referred to herein unless such amendment, supplement or
modification is agreed to in writing by the number and percentage of Lenders
(and the Issuing Bank, the Swing Line Bank and Administrative Agent, in each
case if applicable) otherwise required to amend such Section under the terms of
this Section 8.01.
SECTION 8.02. Notices, Etc.
(a) All notices and other communications provided for
hereunder shall be in writing and mailed, telecopied or delivered:
(i) if to the Borrower, at its address at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Telecopier No.:
(▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇, with a copy of
each notice relating to the occurrence and continuance (or potential
occurrence) of any Default, to the General Counsel of the Borrower at
the same address (Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇);
(ii) if to any of the Initial Lenders, the Swing
Line Bank or the Initial Issuing Bank, at its Base Rate Lending Office
specified opposite its name on Schedule I hereto;
(iii) if to any of the other Lender Parties, at
its Base Rate Lending Office specified on Schedule I to the Assignment
and Acceptance pursuant to which it became a Lender Party; and
(iv) if to the Administrative Agent, at its
address at Independence Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇),
Attention: Corporate Credit Services; or
(v) as to the Borrower or the Administrative
Agent, at such other address as shall be designated by such party in a
written notice to each of the other parties and, as to each other
party, or such other address as shall be designated by such party in a
written notice to each of the Borrower and the Administrative Agent.
All such notices and communications shall, when mailed or telecopied, be
effective when deposited in the mail or transmitted by telecopier, respectively,
addressed as aforesaid, except that notices and communications to the
Administrative Agent pursuant to Article II, III or VII shall not be effective
until received by the Administrative Agent. Delivery by telecopier of an
executed counterpart of a signature page to any amendment or waiver of any
provision of this Agreement or the Notes or of any Exhibit hereto to be executed
and delivered hereunder shall be effective as delivery of an original executed
counterpart thereof.
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(b) If any notice required under this Agreement is
permitted to be made, and is made, by telephone, actions taken or omitted to be
taken in reliance thereon by the Administrative Agent or any of the Lender
Parties shall be binding upon the Borrower and the other Loan Parties
notwithstanding any inconsistency between the notice provided by telephone and
any subsequent writing in confirmation thereof provided to the Administrative
Agent or such Lender Party; provided that any such action taken or omitted to be
taken by the Administrative Agent or such Lender Party shall have been in good
faith and in accordance with the terms of this Agreement.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any of the Lender Parties or the Administrative Agent to exercise, and no delay
in exercising, any right, power or privilege hereunder or under any Note or any
other Loan Document shall operate as a waiver thereof or consent thereto; nor
shall any single or partial exercise of any such right, power or privilege
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The remedies herein provided are cumulative and not
exclusive of any remedies provided under applicable law.
SECTION 8.04. Indemnification.
(a) The Borrower hereby agrees to pay on demand (i) all
reasonable costs and expenses of the Agents in connection with the preparation,
execution, delivery, administration, modification and amendment of or any
consent or waiver under the Loan Documents and the other documents to be
delivered thereunder (including, without limitation, (A) all due diligence,
collateral review, syndication, transportation, computer, duplication, audit,
appraisal, insurance, consultant, search, filing and recording fees and expenses
and (B) the reasonable fees and expenses of counsel for each Agent with respect
thereto, with respect to advising such Agent as to its rights and
responsibilities, or the perfection, protection or preservation of rights or
interests, under the Loan Documents, with respect to negotiations with any of
the Loan Parties or with other creditors of any of the Loan Parties or any of
their Subsidiaries arising out of any Default or any events or circumstances
that may give rise to a Default and with respect to presenting claims in or
otherwise participating in or monitoring any bankruptcy, insolvency or other
similar proceeding involving creditors' rights generally and any proceeding
ancillary thereto) and (ii) all costs and expenses of the Administrative Agent
and the Lender Parties in connection with the enforcement of the Loan Documents
and the other documents to be delivered thereunder, whether in any action, suit
or litigation, any bankruptcy, insolvency or other similar proceeding affecting
creditors' rights generally (including, without limitation, the reasonable fees
and expenses of counsel for the Administrative Agent and each of the Lender
Parties with respect thereto).
(b) The Borrower hereby agrees to indemnify, defend and
save, and hold harmless each of the Finance Parties and each of their respective
affiliates, officers, directors, trustees, employees, agents and advisors (each
an "INDEMNIFIED PARTY") from and against, and shall pay on demand, any and all
claims, damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and expenses of counsel) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of
or in connection with or by reason of (including, without limitation, in
connection with any investigation, litigation or proceeding or preparation of a
defense in connection therewith) (i) the Transaction (or any aspect thereof),
the Facilities, the actual or proposed use of the proceeds of the Advances or
the Letters of Credit, the Loan Documents or any of the transactions
contemplated thereby, (ii) any acquisition or proposed acquisition by the
Borrower or any of its Subsidiaries or Affiliates of all or any portion of the
Equity Interests in, or all or substantially all the property and assets of, any
other Person or (iii) the actual or alleged presence of Hazardous Materials on
any property the Borrower or any of its Subsidiaries or any Environmental Action
relating in any way to the Borrower or any of its Subsidiaries, except to the
extent such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful misconduct. In the
case of an investigation, litigation or other proceeding to which the indemnity
in this subsection (b) applies, such indemnity shall be effective whether or not
such investigation, litigation or proceeding is brought by any of the Loan
Parties, its directors, shareholders or creditors or an Indemnified Party or any
Person, whether or not any Indemnified Party is otherwise a party thereto and
whether or not the Transaction or any of the other transactions contemplated
hereby is
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consummated. If and to the extent that the indemnity in this subsection (b) is
unenforceable for any reason, the Borrower hereby agrees to make to each
applicable Indemnified Party the maximum contribution to the payment of the
claims, damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and expenses of counsel) for which the indemnity in
this subsection (b) has been determined to be unenforceable that is permitted
under applicable law. The Borrower also agrees not to assert any claim against
any of the Finance Parties or any of their respective affiliates, officers,
directors, employees, agents and advisors, on any theory of liability, for
special, indirect, consequential or punitive damages arising out of or otherwise
relating to the Transaction (or any aspect thereof), the Facilities, the actual
or proposed use of the proceeds of the Advances or the Letters of Credit, the
Loan Documents or any of the transactions contemplated thereby, except to the
extent, in the case of any such Person, that such claim is found in a final,
nonappealable judgment by a court of competent jurisdiction to have resulted
from such Person's gross negligence or willful misconduct.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender Party other than on the last day of the Interest Period for such Advance,
as a result of a payment or Conversion pursuant to Section 2.06, 2.09(b)(i) or
2.10(d), acceleration of the maturity of the Notes pursuant to Section 6.01 or
for any other reason, or by an Eligible Assignee to a Lender Party other than on
the last day of the Interest Period for such Advance upon an assignment of
rights and obligations under this Agreement pursuant to Section 8.07 as a result
of a demand by the Borrower pursuant to Section 8.07(a), or if the Borrower
fails to make any payment or prepayment of an Advance for which a notice of
prepayment has been given or that is otherwise required to be made, whether
pursuant to Section 2.04, 2.06 or 6.01 or otherwise, the Borrower shall, upon
demand by such Lender Party (with a copy of such demand to the Administrative
Agent), pay to the Administrative Agent for the account of such Lender Party any
amounts required to compensate such Lender Party for any additional losses,
costs or expenses that it may reasonably incur as a result of such payment or
Conversion or such failure to pay or prepay, as the case may be, including,
without limitation, any loss (excluding loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender Party to fund or maintain such Advance.
(d) If any of the Loan Parties fails to pay when due any
costs, expenses or other amounts payable by it under or in respect of any of the
Loan Documents (including, without limitation, fees and expenses of counsel and
indemnification payments), such amount may be paid on behalf of such Loan Party
by the Administrative Agent or any of the Lender Parties, in its sole
discretion.
(e) Without prejudice to the survival of any other
agreement of any of the Loan Parties hereunder or under or in respect of any
other Loan Document, the agreements and obligations of the Borrower contained in
Sections 2.10 and 2.12 and this Section 8.04 shall survive the payment in full
of principal, interest and all other amounts payable hereunder and under and in
respect of any of the other Loan Documents.
SECTION 8.05. Right of Set-off. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the request
or the granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each of the Lender Parties and each of their
respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted under applicable law, to set off and otherwise
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
Party or such affiliate to or for the credit or the account of the Borrower
against any and all of the Obligations of the Borrower now or hereafter existing
under this Agreement and the Note or Notes, if any, held by such Lender Party,
irrespective of whether such Lender Party shall have made any demand under this
Agreement or such Note or Notes and although such obligations may be unmatured.
Each of the Lender Parties hereby agrees promptly to notify the Borrower after
any such setoff and application; provided, however, that the failure to give
such notice shall not affect the validity of such setoff and application. The
rights of each of the Lender Parties and their respective Affiliates under this
Section 8.05 are in addition to other rights and
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remedies (including, without limitation, other rights of setoff) that such
Lender Party and its respective Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower and the
Administrative Agent and when the Administrative Agent shall have been notified
by each of the Initial Lenders, the Swing Line Bank and the Initial Issuing Bank
that such Initial Lender, the Swing Line Bank and the Initial Issuing Bank has
executed it and, thereafter, shall be binding upon and inure to the benefit of,
and be enforceable by, the Borrower, each of the Agents and each of the Lender
Parties and their respective successors and assigns, except that the Borrower
shall not have the right to assign its rights hereunder or any interest herein
without the prior written consent of the Lender Parties.
SECTION 8.07. Assignments and Participations.
(a) Each of the Lenders may, and so long as no Default
under Section 6.01(a) or 6.01(f) or Event of Default has occurred and is
continuing, if demanded by the Borrower (following (i) a demand by such Lender
for the payment of additional compensation pursuant to Section 2.10(a), 2.10(b)
or 2.13 or (ii) an assertion by such Lender pursuant to Section 2.10(c) or
2.10(d) that it is impractical or unlawful for such Lender to make Eurodollar
Rate Advances), upon at least five Business Days' notice to such Lender and the
Administrative Agent, each of the Lenders will, assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment or
Commitments, the Advances owing to it and the Note or Notes held by it);
provided, however, that:
(A) each such assignment with respect to any of the
Facilities shall be of a uniform, and not a varying, percentage of all
rights and obligations under and in respect of such Facility;
(B) except in the case of an assignment to a Person that
immediately prior to such assignment was a Lender, an Affiliate of any
Lender or an Approved Fund of any Lender or an assignment of all of a
Lender's rights and obligations under one or more of the Facilities,
the aggregate amount of the Commitments being assigned to such Eligible
Assignee pursuant to each such assignment (determined as of the date of
the Assignment and Acceptance with respect to such assignment) shall in
no event be less than $1,000,000 in respect of an assignment in
relation to the Term Loan Facility, $2,500,000 in respect of an
assignment in relation to any other Facility or such other amount(s) as
the Administrative Agent and the assigning Lender and, so long as no
Default under Section 6.01(a) or 6.01(f) or Event of Default is
continuing, the Borrower shall agree to such assignment (which
agreement, in each relevant case, by the Administrative Agent and the
Borrower shall not be unreasonably withheld or delayed);
(C) each such assignment shall be to an Eligible
Assignee;
(D) each such assignment made as a result of a demand by
the Borrower pursuant to this Section 8.07(a) shall be arranged by the
Borrower with the approval of the Administrative Agent, which approval
shall not be unreasonably withheld or delayed, and shall be either an
assignment of all of the rights and obligations of the assigning Lender
under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or other
such assignments that, in the aggregate, cover all of the rights and
obligations of the assigning Lender under this Agreement;
(E) no Lender shall be obligated to make any such
assignment as a result of a demand by the Borrower pursuant to this
Section 8.07(a) unless and until such Lender shall have received one or
more payments from either the Borrower or one or more Eligible
Assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of all Advances owing to such Lender,
together with accrued interest thereon to the date of payment of such
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principal amount and all other amounts payable to such Lender under
this Agreement and the Notes (including, without limitation, any
amounts owing under Sections 2.10, 2.12 and 8.04);
(F) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording
in the Register, an Assignment and Acceptance, together with any Note
or Notes subject to such assignment;
(G) except in the case of an assignment by any of the
Lenders to an Affiliate or an Approved Fund of such Lender, the Lender
assignor (or, if such assignment is being made pursuant to a demand by
the Borrower therefor under this Section 8.07(a), the Borrower or the
Lender assignee) shall pay to the Administrative Agent a processing and
recordation fee of $3,500; and
(H) no such assignments shall be permitted without the
consent of the Administrative Agent until the Administrative Agent
shall have notified the Lender Parties that syndication of the
Commitments hereunder has been completed.
(b) The Issuing Bank may assign to any other Person all,
but not a portion of, its rights and obligations under the undrawn portion of
its Letter of Credit Commitment at any time; provided, however, that:
(i) each such assignment shall be to an Eligible
Assignee;
(ii) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with
a processing and recordation fee of $3,500; and
(iii) no such assignments shall be permitted
without the consent of the Administrative Agent until the
Administrative Agent shall have notified the Lender Parties that
syndication of the Commitments hereunder has been completed.
The Swing Line Bank may not assign or otherwise transfer to any other person any
of its rights or obligations under its Swing Line Commitment.
(c) Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in such Assignment and
Acceptance, (i) 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, have the rights and obligations of a Lender
or the Issuing Bank hereunder and (ii) the Lender or Issuing Bank assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
(other than its rights under Sections 2.10, 2.12 and 8.04 (and other similar
provisions of the other Loan Documents that are specified under the terms of
such other Loan Documents to survive the payment in full of the Obligations of
the Loan Parties under or in respect of the Loan Documents) to the extent any
claim thereunder relates to an event arising prior to such assignment) and be
released from its obligations (other than its obligations under Section 7.05 to
the extent any claim thereunder relates to an event arising prior to such
assignment) under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the remaining portion of an assigning Lender's or
Issuing Bank's rights and obligations under this Agreement, such Lender or
Issuing Bank shall cease to be a party hereto). If the assignee is not
incorporated under the laws of the United States of America or a state thereof,
it shall deliver to the Borrower and the Administrative Agent certification as
to exemption from deduction or withholding of Taxes in accordance with Section
2.13.
(d) By executing and delivering an Assignment and
Acceptance, each Lender Party assignor thereunder and the assignee thereunder
confirm to and agree with each other and the other parties hereto as follows:
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(i) other than as provided in such Assignment
and Acceptance, such assigning Lender Party makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this
Agreement or any of the other Loan Documents, or the execution,
legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any Lien created or purported to
be created under or in connection with, any Loan Document, or any other
instrument or document furnished pursuant thereto;
(ii) such assigning Lender or Issuing Bank makes
no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or any of the other
Loan Parties or the performance or observance by the Borrower or any of
the other Loan Parties of any of its Obligations under or in respect of
any of the Loan Documents, or any other instrument or document
furnished pursuant thereto;
(iii) such assignee confirms that it has received
a copy of this Agreement, together with copies of the financial
statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance;
(iv) such assignee will, independently and
without reliance upon any of the Agents, such assigning Lender or any
of the other Lender Parties and based on such documents and information
as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement;
(v) such assignee confirms that it is an
Eligible Assignee;
(vi) such assignee appoints and authorizes the
Administrative Agent to take such action as an agent on its behalf and
to exercise such powers and discretion under the Loan Documents as are
delegated to the Administrative Agent by the terms hereof, together
with such powers and discretion as are reasonably incidental thereto;
and
(vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of
this Agreement are required to be performed by it as a Lender Party.
(e) The Administrative Agent, acting for this purpose
(but only for this purpose) as the agent of the Borrower, shall maintain at its
address set forth in Section 8.02 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the names
and addresses of the Lender Parties and the Commitment under each of the
Facilities of, and principal amount of the Advances owing under each of the
Facilities to, each of the Lender Parties 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 Administrative Agent and the Lender
Parties shall treat each Person whose name is recorded in the Register as a
Lender Party hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower, any of the Agents or any of the Lender
Parties at any reasonable time and from time to time during normal business
hours and upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender or Issuing Bank and an assignee, together with
any Note or Notes subject to such assignment, the Administrative Agent shall, if
such Assignment and Acceptance has been completed and is in substantially the
form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. In the case of any assignment by a Lender, within five
Business Days after its receipt of such notice, the Borrower, at its own
expense, shall execute and deliver to the Administrative Agent in exchange for
the surrendered Note or Notes a new Note or Notes from the Borrower payable to
or to the order of such
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Eligible Assignee in an amount equal to the Commitment assumed by it under each
Facility pursuant to such Assignment and Acceptance and, if the assigning Lender
has retained a Commitment under such Facility, a new Note or Notes from the
Borrower payable to or to the order of the assigning Lender in an amount equal
to the Commitment retained by it under such Facility. Each of the new Note or
Notes shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of Exhibit A-1 or Exhibit A-2 hereto, as appropriate.
(g) Each of the Lender parties may sell participations to
one or more Persons (other than any of the Loan Parties or any of their
respective Affiliates) in or to all or a portion of its rights, obligations or
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitment or Commitments, the Advances owing to it and the
Note or Notes, if any, held by it); provided, however, that:
(i) such Lender Party's obligations under this
Agreement (including, without limitation, its Commitments) shall remain
unchanged;
(ii) such Lender Party shall remain solely
responsible to the other parties hereto for the performance of such
obligations;
(iii) such Lender Party shall remain the holder
of any such Note for all purposes of this Agreement;
(iv) the Borrower, the Administrative Agent and
the other Lender Parties shall continue to deal solely and directly
with such Lender Party in connection with such Lender Party's rights
and obligations under and in respect of this Agreement and the other
Loan Documents; and
(v) no participant under any such participation
shall have any right to approve any amendment or waiver of any
provision of any Loan Document, or any consent to any departure by any
Loan Party therefrom, except to the extent that such amendment, waiver
or consent would reduce the principal of, or stated rate of interest
on, the Notes or any fees or other amounts payable hereunder (other
than the amount of any interest payable under Section 2.07(b)), in each
case to the extent subject to such participation, postpone any date
scheduled for any payment of principal pursuant to Section 2.04 of, or
interest pursuant to Section 2.07(a) on, the Notes other than any date
fixed for any payment of fees or other amounts payable under Section
2.08 or any Obligations payable under the Subsidiaries Guaranty, in
each case to the extent subject to such participation, or release all
or substantially all of the Collateral.
(h) Any of the Lender Parties may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 8.07, disclose to the assignee or participant or proposed assignee
or participant, any information relating to the Borrower or any of its
Subsidiaries or to any aspect of the Transaction, furnished to such Lender Party
by or on behalf of the Borrower or any of its Subsidiaries; provided, however,
that, prior to any such disclosure, the assignee or participant or proposed
assignee or participant shall agree to preserve the confidentiality of any
Confidential Information received by it from such Lender Party on substantially
the same terms as those set forth in Section 8.09.
(i) Notwithstanding any other provision set forth in this
Agreement, any Lender Party may at any time create a security interest in all or
any portion of its rights under this Agreement (including, without limitation,
the Advances owing to it and the Note or Notes held by it) in favor of any
Federal Reserve Bank in accordance with Regulation A of the Board of Governors
of the Federal Reserve System and any Operating Circular issued by such Federal
Reserve Bank. No such assignment shall release the assigning Lender from its
obligations hereunder.
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(j) Notwithstanding anything to the contrary contained
herein, any Lender that is a fund that invests in bank loans may create a
security interest in all or any portion of the Advances owing to it and the Note
or Notes held by it to the trustee for holders of obligations owed, or
securities issued, by such fund as security for such obligations or securities,
provided, that unless and until such trustee actually becomes a Lender in
compliance with the other provisions of this Section 8.07, (i) no such pledge
shall release the pledging Lender from any of its obligations under the Loan
Documents and (ii) such trustee shall not be entitled to exercise any of the
rights of a Lender under the Loan Documents even though such trustee may have
acquired ownership rights with respect to the pledged interest through
foreclosure or otherwise.
(k) Notwithstanding anything to the contrary contained
herein, any Lender Party (a "GRANTING LENDER") may grant to a special purpose
funding vehicle identified as such in writing from time to time by the Granting
Lender to the Administrative Agent and the Borrower (an "SPC") the option to
provide all or any part of any Advance that such Granting Lender would otherwise
be obligated to make pursuant to this Agreement, provided that (i) nothing
herein shall constitute a commitment by any SPC to fund any Advance, and (ii) if
an SPC elects not to exercise such option or otherwise fails to make all or any
part of such Advance, the Granting Lender shall be obligated to make such
Advance pursuant to the terms hereof. The making of an Advance by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Advance were made by such Granting Lender. Each party
hereto hereby agrees that (i) no SPC shall be liable for any indemnity or
similar payment obligation under this Agreement for which a Lender Party would
be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.10 and
2.12 (or any other increased costs protection provision) and (iii) the Granting
Bank shall for all purposes, including, without limitation, the approval of any
amendment or waiver of any provision of any Loan Document, remain the Lender
Party of record hereunder. In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior debt of any SPC, it will not
institute against, or join any other Person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding
under the laws of the United States or any State thereof. Notwithstanding
anything to the contrary contained in this Agreement, any SPC may (i) with
notice to, but without prior consent of, the Borrower and the Administrative
Agent and without paying any processing fee therefor, assign all or any portion
of its interest in any Advance to the Granting Lender and (ii) disclose on a
confidential basis any non-public information relating to its funding of
Advances to any rating agency, commercial paper dealer or provider of any surety
or guarantee or credit or liquidity enhancement to such SPC. This subsection (k)
may not be amended without the prior written consent of each Granting Lender,
all or any part of whose Advances are being funded by the SPC at the time of
such amendment.
SECTION 8.08. No Liability of the Issuing Bank. The Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
the Issuing Bank nor any of its officers or directors shall be liable or
responsible for:
(a) the use that may be made of any Letter of Credit or
any acts or omissions of any beneficiary or transferee in connection therewith;
(b) the validity, sufficiency or genuineness of
documents, or of any endorsement thereon, even if such documents should prove to
be in any or all respects invalid, insufficient, fraudulent or forged;
(c) payment by the Issuing Bank against presentation of
documents that do not comply with the terms of a Letter of Credit, including
failure of any documents to bear any reference or adequate reference to the
Letter of Credit; or
▇▇▇
▇▇▇
(▇) any other circumstances whatsoever in making or
failing to make payment under any Letter of Credit;
except that the Borrower shall have a claim against the Issuing Bank, and the
Issuing Bank shall be liable to the Borrower, to the extent of any direct, but
not consequential, damages suffered by the Borrower that the Borrower proves
were caused by (i) the Issuing Bank's willful misconduct or gross negligence as
determined in a final, nonappealable judgment by a court of competent
jurisdiction in determining whether documents presented under any Letter of
Credit comply with the terms of the Letter of Credit or (ii) the Issuing Bank's
willful failure to make lawful payment under a Letter of Credit after the
presentation to it of a draft and certificates strictly complying with the terms
and conditions of the Letter of Credit. In furtherance and not in limitation of
the foregoing, the Issuing Bank may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary.
SECTION 8.09. Confidentiality. Neither any Agent nor any
Lender Party shall disclose any Confidential Information to any Person without
the consent of the Borrower, other than (a) to such Agent's or such Lender
Party's Affiliates and their officers, directors, trustees, employees, agents
and advisors, to other Lender Parties and to actual or prospective Eligible
Assignees and participants, and then in each case only on a confidential basis,
(b) as required by any law, rule or regulation or judicial process, (c) as
requested or required by any state, federal or foreign authority or examiner
(including the National Association of Insurance Commissioners or any similar
organization or quasi-regulatory authority) regulating such Lender Party, (d) to
any rating agency when required by it, provided that, prior to any such
disclosure, such rating agency shall undertake to preserve the confidentiality
of any Confidential Information relating to the Loan Parties received by it from
such Lender Party in accordance with such rating agency's internal procedures
generally applicable to information of the same type, (e) in connection with any
litigation or proceeding to which such Agent or such Lender Party or any of its
Affiliates may be a party, provided that such Agent, Lender Party or Affiliate
will (unless prohibited by law) use its reasonable best efforts to provide the
Borrower with sufficient notice thereof prior to any such disclosure to permit
the Borrower the opportunity to obtain a protective order with respect thereto,
or (f) in connection with the exercise of any remedy under this Agreement or any
other Loan Document.
SECTION 8.10. Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11. Governing Law; Jurisdiction, Etc.
(a) This Agreement and the Notes shall be governed by,
and construed in accordance with, the laws of the State of New York.
(b) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property and assets, to the
nonexclusive jurisdiction of any New York State court or any federal court of
the United States of America sitting in New York City, New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any of the other Loan Documents to which it is a
party, or for recognition or enforcement of any judgment in respect thereof, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the fullest extent permitted
under applicable law, in any such federal court. Each of the parties hereto
hereby irrevocably consents to the service of copies of any summons and
complaint and any other process which may be served in any such action or
proceeding by certified mail, return receipt requested, or by delivering a copy
of such process to such party, at its address specified in Section 8.02, or by
any other method permitted under applicable law. Each of the parties hereto
hereby agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other
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jurisdictions by suit on the judgment or in any other manner provided by
applicable law. Nothing in this Agreement shall affect any right that any of the
parties hereto may otherwise have to bring any action or proceeding relating to
this Agreement or any of the other Loan Documents in the courts of any
jurisdiction.
(c) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any of the other Loan Documents to which it is a party in any New York State or
federal court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
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SECTION 8.12. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
AGENTS AND THE LENDER PARTIES IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE
ADVANCES, THE LETTERS OF CREDIT OR THE ACTIONS OF ANY AGENT OR ANY LENDER PARTY
IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
THE BORROWER
CAREMARK RX, INC.
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
Title: Senior Vice President
& Treasurer
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THE ADMINISTRATIVE AGENT
BANK OF AMERICA, N.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Principal
THE LEAD ARRANGER
BANC OF AMERICA SECURITIES LLC
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
THE SYNDICATION AGENT
JPMORGAN
A division of Chase Securities Inc.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: VP
THE DOCUMENTATION AGENT
FIRST UNION NATIONAL BANK
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
THE INITIAL LENDERS
BANK OF AMERICA, N.A. as a Lender,
the Swing Line Bank and the Issuing Bank
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Principal
BANK OF AMERICA, N.A., as a Term
Loan Facility Lender
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
FIRST UNION NATIONAL BANK
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
SCOTIABANC INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Relationship Manager
THE CHASE MANHATTAN BANK
By /S/ ▇▇▇▇ ▇▇▇ ▇▇▇
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Name: ▇▇▇▇ ▇▇▇ ▇▇▇
Title: Vice President
FLEET NATIONAL BANK
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
CREDIT LYONNAIS
NEW YORK BRANCH
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
BANK ONE, NA
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
UBS AG, STAMFORD BRANCH
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ III
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ III
Title: Executive Director
By /s/ ▇▇▇▇▇▇▇ ▇. Saint
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Name: ▇▇▇▇▇▇▇ ▇. Saint
Title: Associate Director
Banking Products
Services, US