1
EXHIBIT 10.1
CONFORMED COPY
$300,000,000
CREDIT AGREEMENT
dated as of
July 8, 1997
among
UNIVERSAL HEALTH SERVICES, INC.
THE BANKS LISTED HEREIN
and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Agent
-----------------------
X.X. Xxxxxx Securities Inc.,
Arranger
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Accounting Terms and Determinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 1.03. Types of Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments to Lend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.02. Method of Committed Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.03. Money Market Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.04. Notice to Banks; Funding of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.05. Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.06. Maturity of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.07. Interest Rates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.08. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.09. Optional Termination or Reduction of Commitments . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.10. Method of Electing Interest Rates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.11. Scheduled Termination of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.12. Optional Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 2.13. General Provisions as to Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 2.14. Funding Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.15. Computation of Interest and Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.16. Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.17. Regulation D Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 2.18. Takeout of Swingline Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 2.19. Increased Commitments, Additional Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE 3
CONDITIONS
SECTION 3.01. Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 3.02. Borrowings and Issuances of Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . 40
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Existence and Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 4.02. Corporate and Governmental Authorization; No Contravention . . . . . . . . . . . . . . . . . . . 41
SECTION 4.03. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 4.04. Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 4.05. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 4.06. Ownership of Capital Stock of Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 4.07. Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 4.08. Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 4.09. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 4.10. Not an Investment Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 4.11. Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE 5
COVENANTS
SECTION 5.01. Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 5.02. Payment of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 5.03. Maintenance of Property; Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 5.04. Conduct of Business and Maintenance of Existence . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 5.05. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 5.06. Inspection of Property, Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 5.07. Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 5.08. Minimum Consolidated Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 5.09. Fixed Charge Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 5.10. Restricted Payments; Prepayments of Subordinated Debt . . . . . . . . . . . . . . . . . . . . . 49
SECTION 5.11. Consolidations, Mergers, Sales of Assets, Dissolutions, Reorganizations, etc . . . . . . . . . . 50
SECTION 5.12. Subsidiary Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 5.13. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 5.14. Negative Pledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 5.15. Additional Guarantors and Release of Guaranties . . . . . . . . . . . . . . . . . . . . . . . . 52
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ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 6.02. Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 6.03. Cash Cover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE 7
THE AGENT
SECTION 7.01. Appointment and Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 7.02. Agent and Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 7.03. Action by Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 7.04. Consultation with Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 7.05. Liability of Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 7.06. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 7.07. Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 7.08. Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 7.09. Agent's Fee; Arranger Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair . . . . . . . . . . . . . . . . . . . . 58
SECTION 8.02. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 8.03. Increased Cost and Reduced Return . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 8.04. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 8.05. Base Rate Loans Substituted for Affected Fixed Rate Loans . . . . . . . . . . . . . . . . . . . 62
SECTION 8.06. Substitution of Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 9.02. No Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 9.03. Expenses; Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 9.04. Sharing of Set-Offs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 9.05. Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 9.06. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
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SECTION 9.07. Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 9.08. Governing Law; Submission to Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 9.09. Counterparts; Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 9.10. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Pricing Schedule I
Pricing Schedule II
Schedule 1 -- Subsidiaries
Schedule 2 -- Insurance
Exhibit A -- Note
Exhibit B -- Money Market Quote Request
Exhibit C -- Invitation for Money Market Quotes
Exhibit D -- Money Market Quote
Exhibit E-1 -- Opinion of Counsel for the Borrower
Exhibit E-2 -- Opinion of the General Counsel of the Borrower
Exhibit F -- Opinion of Special Counsel for the Agent
Exhibit G -- Assignment and Assumption Agreement
Exhibit H -- Guaranty Agreement
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CREDIT AGREEMENT
AGREEMENT dated as of July 8, 1997 among UNIVERSAL HEALTH SERVICES,
INC., the BANKS listed on the signature pages hereof and XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as Agent.
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein, have
the following meanings:
"ABSOLUTE RATE AUCTION" means a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.03.
"ACCEPTABLE INSURER" means an insurance company (i) having an A.M.
Best rating of "A" or better and being in a financial size category of "X" or
larger (as such category is defined as of the date hereof) or (ii) otherwise
reasonably acceptable to the Required Banks.
"ADDITIONAL BANK" has the meaning set forth in Section 2.19.
"ADJUSTED CD RATE" has the meaning set forth in Section 2.07(b).
"ADMINISTRATIVE QUESTIONNAIRE" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Agent and submitted to
the Agent (with a copy to the Borrower) duly completed by such Bank.
"AGENT" means Xxxxxx Guaranty Trust Company of New York in its
capacity as agent for the Banks under the Loan Documents, and its successors in
such capacity.
"APPLICABLE LENDING OFFICE" means, with respect to any Bank, (i) in
the case of its Domestic Loans, its Domestic Lending Office, (ii) in the case
of its Euro-Dollar Loans, its Euro-Dollar Lending Office, (iii) in the case of
its Money
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Market Loans, its Money Market Lending Office and (iv) in the case of its
Swingline Loans, its Swingline Lending Office.
"ASSESSMENT RATE" has the meaning set forth in Section 2.07(b).
"ASSIGNEE" has the meaning set forth in Section 9.06(c).
"BANK" means each bank listed on the signature pages hereof, each
Additional Bank or Assignee which becomes a Bank pursuant to Section 2.19 or
9.06(c), and their respective successors.
"BASE RATE" means, for any day, a rate per annum equal to the higher
of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
"BASE RATE LOAN" means (i) a Syndicated Loan which bears interest at
the Base Rate pursuant to the applicable Notice of Committed Borrowing or
Notice of Interest Rate Election or the provisions of Article 8 or (ii) an
overdue amount which was a Base Rate Loan immediately before it became overdue.
"BENEFIT ARRANGEMENT" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"BORROWER" means Universal Health Services, Inc., a Delaware
corporation, and its successors.
"BORROWER'S 1996 FORM 10-K" means the Borrower's annual report on Form
10-K for 1996, as filed with the Securities and Exchange Commission pursuant to
the Securities Exchange Act of 1934.
"BORROWER'S LATEST FORM 10-Q" means the Borrower's quarterly report on
Form 10-Q for the quarter ended March 31, 1997, as filed with the Securities
and Exchange Commission pursuant to the Securities Exchange Act of 1934.
"BORROWING" has the meaning set forth in Section 1.03.
"CD BASE RATE" has the meaning set forth in Section 2.07(b).
"CD LOAN" means (i) a Syndicated Loan which bears interest at a CD
Rate pursuant to the applicable Notice of Committed Borrowing or Notice of
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Interest Rate election or (ii) an overdue amount which was a CD Loan
immediately before it became overdue.
"CD MARGIN" means a rate per annum determined in accordance with the
Pricing Schedule.
"CD RATE" means a rate of interest determined pursuant to Section
2.07(b) on the basis of an Adjusted CD Rate.
"CD REFERENCE BANKS" means The Chase Manhattan Bank, Bank of America
National Trust and Savings Association and Xxxxxx Guaranty Trust Company of New
York.
"COMMITMENT" means (i) with respect to each Bank, the amount of such
Bank's Commitment, as such amount is set forth opposite the name of such Bank
on the signature pages hereof, (ii) with respect to any Additional Bank, the
amount of the Commitment assumed by it pursuant to Section 2.19 and (iii) with
respect to any Assignee, the amount of the transferor Bank's Commitment
assigned to it pursuant to Section 9.06(c), in each case as such amount may be
changed from time to time pursuant to Section 2.09, 2.11, 2.19 or 9.06(c);
provided that, if the context so requires, the term "Commitment" means the
obligation of a Bank to extend credit up to such amount to the Borrower
hereunder.
"COMMITTED LOAN" means a Syndicated Loan or a Swingline Loan.
"CONSOLIDATED DEBT" means at any date the Debt of the Borrower and its
Consolidated Subsidiaries, determined on a consolidated basis as of such date;
provided that from December 1 of any year to but not including June 30 of the
following year Consolidated Debt shall not include amounts borrowed to fund the
Voluntary Employment Benefit Association not exceeding the aggregate amount of
employee benefits prepaid by the Borrower and its Consolidated Subsidiaries
through payments to the Voluntary Employment Benefit Association during such
period.
"CONSOLIDATED EBITDA" means, for any period, the sum of (i)
Consolidated Net Income for such period plus (ii) to the extent deducted in the
determination thereof, Consolidated Interest Expense, depreciation and
amortization expense and provision for income taxes plus (or minus) (iii) the
amount of any material nonrecurring items of loss (or gain), adjusted to
eliminate the effect of any such item on the provision for income taxes for
such period.
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"CONSOLIDATED EBITDAR" means, for any period, Consolidated EBITDA for
such period plus, to the extent deducted in determining Consolidated EBITDA for
such period, Consolidated Rental Expense for such period.
"CONSOLIDATED FINANCE LIABILITIES" means, at any date, the sum of (i)
Consolidated Debt at such date plus (ii) eight times Consolidated Rental
Expense for the period of four consecutive fiscal quarters most recently ended
on or prior to such date.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the interest
expense (net of interest income) of the Borrower and its Consolidated
Subsidiaries determined on a consolidated basis for such period.
"CONSOLIDATED NET INCOME" for any period means the consolidated net
income of the Borrower and its Consolidated Subsidiaries determined on a
consolidated basis for such period.
"CONSOLIDATED NET WORTH" means at any date the consolidated
stockholders' equity of the Borrower and its Consolidated Subsidiaries,
determined as of such date.
"CONSOLIDATED NET TANGIBLE ASSETS" means, at any date, the Net
Tangible Assets of the Borrower and its Consolidated Subsidiaries determined on
a consolidated basis as of such date.
"CONSOLIDATED RENTAL EXPENSE" means, for any period, the lease and
rental expense of the Borrower and its Consolidated Subsidiaries under all
leases (other than capital leases), determined on a consolidated basis for such
period.
"CONSOLIDATED SUBSIDIARY" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Borrower
in its consolidated financial statements if such statements were prepared as of
such date.
"DEBT" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee which are
capitalized in accordance with generally accepted accounting principles, (v)
all non-contingent obligations (and, for purposes of Section 5.14 and the
definitions of Material Debt and
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Material Financial Obligations, all contingent obligations) of such Person to
reimburse any bank or other Person in respect of amounts paid under a letter of
credit or similar instrument, (vi) all Debt secured by a Lien on any asset of
such Person, whether or not such Debt is otherwise an obligation of such
Person, and (vii) all Debt of others Guaranteed by such Person.
"DEFAULT" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"DERIVATIVES OBLIGATIONS" of any Person means all obligations of such
Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency
option or any other similar transaction (including any option with respect to
any of the foregoing transactions) or any combination of the foregoing
transactions.
"DOMESTIC BUSINESS DAY" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law to
close.
"DOMESTIC LENDING OFFICE" means, as to each Bank, its office located
at its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Agent; provided that any Bank may so designate
separate Domestic Lending Offices for its Base Rate Loans, on the one hand, and
its CD Loans, on the other hand, in which case all references herein to the
Domestic Lending Office of such Bank shall be deemed to refer to either or both
of such offices, as the context may require.
"DOMESTIC LOANS" means CD Loans or Base Rate Loans or both.
"DOMESTIC RESERVE PERCENTAGE" has the meaning set forth in Section
2.07(b).
"EFFECTIVE DATE" means the date this Agreement becomes effective in
accordance with Section 3.01.
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"ENVIRONMENTAL LAWS" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating
to the environment, the effect of the environment on human health or to
emissions, discharges or releases of pollutants, contaminants, Hazardous
Substances or wastes into the environment including, without limitation,
ambient air, surface water, ground water, or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, Hazardous Substances or
wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA GROUP" means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"EURO-DOLLAR BUSINESS DAY" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"EURO-DOLLAR LENDING OFFICE" means, as to each Bank, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Borrower and the Agent.
"EURO-DOLLAR LOAN" means (i) a Syndicated Loan which bears interest at
a Euro-Dollar Rate pursuant to the applicable Notice of Committed Borrowing or
Notice of Interest Rate Election or (ii) an overdue amount which was a
Euro-Dollar Loan immediately before it became overdue.
"EURO-DOLLAR MARGIN" means a rate per annum determined in accordance
with the Pricing Schedule.
"EURO-DOLLAR REFERENCE BANKS" means the principal London offices of
The Chase Manhattan Bank, Bank of America National Trust and Savings
Association and Xxxxxx Guaranty Trust Company of New York.
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"EURO-DOLLAR RESERVE PERCENTAGE" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or
other assets which includes loans by a non-United States office of any Bank to
the United States residents).
"EVENT OF DEFAULT" has the meaning set forth in Section 6.01.
"EVERGREEN LETTER OF CREDIT" means a Letter of Credit that is
automatically extended unless the Issuing Bank gives notice to the beneficiary
thereof stating that such Letter of Credit will not be extended.
"EXISTING CREDIT AGREEMENT" means the Credit Agreement dated as of
August 2, 1994 as amended as of April 24, 1995 and May 10, 1996 among the
Borrower, the banks parties thereto and Xxxxxx Guaranty Trust Company of New
York, as agent, as amended to the Effective Date.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Xxxxxx Guaranty Trust Company of New
York on such day on such transactions as determined by the Agent.
"FIXED CHARGE COVERAGE RATIO" means, at any date, the ratio of
Consolidated EBITDAR to Fixed Charges for the period of four consecutive fiscal
quarters most recently ended on or prior to such date.
"FIXED CHARGES" means, for any period, the sum of Consolidated
Interest Expense and Consolidated Rental Expense for such period.
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"FIXED RATE BORROWING" means a CD Borrowing or a Euro-Dollar
Borrowing.
"FIXED RATE LOANS" means CD Loans, Euro-Dollar Loans, Swingline Loans
or Money Market Loans (excluding Swingline Loans or Money Market LIBOR Loans
bearing interest at the Base Rate) or any combination of the foregoing.
"GROUPS OF LOANS" means at any time a group of Loans consisting of (i)
all Loans which are Base Rate Loans at such time, (ii) all Euro-Dollar Loans
having the same Interest Period at such time or (iii) all CD Loans having the
same Interest Period at such time, provided that, if a Committed Loan of any
particular Bank is converted to or made as a Base Rate Loan pursuant to Article
8, such Loan shall be included in the same Group or Groups of Loans from time
to time as it would have been if it had not been so converted or made.
"GUARANTEE" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring in
any other manner the obligee of such Debt or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part), provided that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business. The term "GUARANTEE"
used as a verb has a corresponding meaning.
"GUARANTY AGREEMENT" means the Guaranty Agreement, dated as of the
date hereof between the Subsidiary Guarantors and the Agent, such Guaranty
Agreement to be substantially in the form of Exhibit H hereto, and as the same
may from time to time be amended, supplemented or otherwise modified.
"HAZARDOUS SUBSTANCES" means any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives,
by-products and other hydrocarbons, or any substance having any constituent
elements displaying any of the foregoing characteristics.
"INDEMNITEE" has the meaning set forth in Section 9.03(b).
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"INTEREST PERIOD" means: (1) with respect to each Euro-Dollar Loan,
the period commencing on the date of borrowing specified in the applicable
Notice of Borrowing or on the date specified in the applicable Notice of
Interest Rate Election and ending one, two, three or six months thereafter, as
the Borrower may elect in the applicable notice, provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case such Interest
Period shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date;
(2) with respect to each CD Loan, the period commencing on the date
of borrowing specified in the applicable Notice of Borrowing or on the date
specified in the applicable Notice of Interest Rate election and ending 30, 60,
90 or 180 days thereafter, as the Borrower may elect in the applicable Notice
of Borrowing; provided that:
(a) any Interest Period (other than an Interest Period
determined pursuant to clause (b) below) which would otherwise end on
a day which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date;
(3) with respect to each Swingline Loan, the period commencing on the
date of borrowing specified in the applicable Notice of Borrowing and ending
such number of days thereafter (but not more than 14 days) as the Borrower may
elect in such notice; provided that:
(a) any Interest Period (other than an Interest Period
determined pursuant to clause (b) below) which would otherwise end on
a day which
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is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date;
(4) with respect to each Money Market LIBOR Loan, the period commencing
on the date of borrowing specified in the applicable Notice of Borrowing and
ending such whole number of months thereafter as the Borrower may elect in
accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall, subject to clause (c)
below, be extended to the next succeeding Euro-Dollar Business Day
unless such Euro-Dollar Business Day falls in another calendar month,
in which case such Interest Period shall end on the next preceding
Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date; and
(5) with respect to each Money Market Absolute Rate Loan, the period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending such number of days thereafter (but not less than 7 days)
as the Borrower may elect in accordance with Section 2.03; provided that:
(a) any Interest Period (other than an Interest Period
determined pursuant to clause (b) below) which would otherwise end on
a day which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date;
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
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"ISSUING BANK" means NationsBank, N.A. and any other Bank that may
agree to issue letters of credit hereunder, in each case as issuer of a Letter
of Credit hereunder.
"LETTER OF CREDIT" means a letter of credit to be issued hereunder by
the Issuing Bank in accordance with Section 2.16.
"LETTER OF CREDIT LIABILITIES" means, for any Bank and at any time,
such Bank's ratable participation in the sum of (x) the amounts then owing by
the Borrower in respect of amounts drawn under Letters of Credit and (y) the
aggregate amount then available for drawing under all Letters of Credit.
"LEVERAGE RATIO" means, at any date, the ratio of (i) Consolidated
Finance Liabilities at such date to (ii) the sum of such Consolidated Finance
Liabilities plus Consolidated Net Worth at such date.
"LIBOR AUCTION" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the London Interbank Offered Rate pursuant
to Section 2.03.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has the practical effect of creating a security
interest, in respect of such asset. For the purposes of this Agreement, the
Borrower or any Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
"LOAN" means a Committed Loan or a Money Market Loan and "LOANS" means
Committed Loans or Money Market Loans or both.
"LOAN DOCUMENTS" means this Agreement, the Notes and the Guaranty
Agreement.
"LONDON INTERBANK OFFERED RATE" has the meaning set forth in Section
2.07(c).
"MATERIAL DEBT" means Debt (other than the Notes) of the Borrower
and/or one or more of its Subsidiaries, arising in one or more related or
unrelated transactions, in an aggregate principal exceeding $1,000,000.
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"MATERIAL FINANCIAL OBLIGATION" means a principal or face amount of
Debt and/or payment or collateralization obligations in respect of Derivatives
Obligations of the Borrower and/or one or more of its Subsidiaries, arising in
one or more related or unrelated transactions, exceeding in the aggregate
$1,000,000.
"MATERIAL PLAN" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $5,000,000.
"MONEY MARKET ABSOLUTE RATE" has the meaning set forth in Section
2.03(d).
"MONEY MARKET ABSOLUTE RATE LOAN" means a loan to be made by a Bank
pursuant to an Absolute Rate Auction.
"MONEY MARKET LENDING OFFICE" means, as to each Bank, its Domestic
Lending Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the
Borrower and the Agent; provided that any Bank may from time to time by notice
to the Borrower and the Agent designate separate Money Market Lending Offices
for its Money Market LIBOR Loans, on the one hand, and its Money Market
Absolute Rate Loans, on the other hand, in which case all references herein to
the Money Market Lending Office of such Bank will be deemed to refer to either
or both of such offices, as the context may require.
"MONEY MARKET LIBOR LOAN" means a loan to be made by a Bank pursuant
to a LIBOR Auction (including such a loan bearing interest at the Base Rate
pursuant to Section 8.01).
"MONEY MARKET LOAN" means a Money Market LIBOR Loan or a Money Market
Absolute Rate Loan.
"MONEY MARKET MARGIN" has the meaning set forth in Section
2.03(d)(ii)(C).
"MULTIEMPLOYER PLAN" means at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five-year period.
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"NET TANGIBLE ASSETS" means, as to any Person or other business unit,
its gross assets, net of depreciation and other proper reserves, less its
goodwill and other intangible assets.
"NOTES" means promissory notes of the Borrower, substantially in the
form of Exhibit A hereto, evidencing the obligation of the Borrower to repay
the Loans, and "NOTE" means any one of such promissory notes issued hereunder.
"NOTICE OF BORROWING" means a Notice of Committed Borrowing (as
defined in Section 2.03 or a Notice of Money Market Borrowing (as defined in
Section 2.03(f).
"NOTICE OF INTEREST RATE ELECTION" has the meaning set forth in
Section 2.10(b).
"NOTICE OF ISSUANCE" has the meaning set forth in Section 2.16(b).
"PARENT" means, with respect to any Bank, any Person controlling such
Bank.
"PARTICIPANT" has the meaning set forth in Section 9.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERSON" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"PLAN" means at any time an employee pension benefit plan (other than
a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person
which was at such time a member of the ERISA Group for employees of any Person
which was at such time a member of the ERISA Group.
"PRICING SCHEDULE" means (i) Pricing Schedule I attached hereto,
unless and until the Borrower shall have elected, by not less than five
Domestic Business Days' notice to the Banks, that Pricing Schedule II attached
hereto be the Pricing
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Schedule and (ii) on and after the effective date of such notice, Pricing
Schedule II attached hereto. Such election, if made, shall be irrevocable.
"PRIME RATE" means the rate of interest publicly announced by Xxxxxx
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"QUARTERLY DATE" means each March 31, June 30, September 30 and
December 31.
"RECEIVABLES FINANCING" means a financing arrangement among the
Borrower, certain Subsidiaries of the Borrower, including a wholly-owned
special purpose Subsidiary of the Borrower and certain other parties pursuant
to which Subsidiaries of the Borrower will sell substantially all of their
accounts receivable from time to time to the special purpose Subsidiary of the
Borrower which will, in turn, sell or pledge such receivables to certain
investors for an aggregate purchase price outstanding not at any time in excess
of $125,000,000.
"REFERENCE BANKS" means the CD Reference Banks or the Euro-Dollar
Reference Banks, as the context may require, and "REFERENCE BANK" means any one
of such Reference Banks.
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"REQUIRED BANKS" means at any time Banks having at least 66 2/3% of
the aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing at least 66 2/3% of the aggregate unpaid
principal amount of the Loans.
"RESTRICTED PAYMENT" means (i) any dividend or other distribution on
any shares of the Borrower's capital stock (except dividends payable solely in
shares of its common stock) or (ii) any payment on account of the purchase,
redemption, retirement or acquisition of (a) any shares of the Borrower's
capital stock (except shares acquired upon the conversion thereof into shares
of its common stock) or (b) any option, warrant or other right to acquire
shares of the Borrower's capital stock.
"REVOLVING CREDIT PERIOD" means the period from and including the
Effective Date to but excluding the Termination Date.
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"SUBORDINATED DEBT" of any Person means all Debt which (i) by its
terms is not required to be repaid, in whole or in part, before the Termination
Date, (ii) bears interest at rates not greater than such Person shall
reasonably determine to be the prevailing market rate, at the time such
Subordinated Debt is issued, for interest on comparable subordinated debt
issued by comparable issuers, (iii) is subordinated in right of payment to such
Person's indebtedness, obligations and liabilities to the Banks under the Loan
Documents pursuant to payment and subordination provisions satisfactory in form
and substance to the Required Banks and (iv) is issued pursuant to loan
documents having covenants and events of default that are satisfactory in form
and substance to the Required Banks but that in no event are less favorable,
including with respect to rights of acceleration, to the Borrower than the
terms hereof.
"SUBSIDIARY" means, as to any Person, any corporation or other entity
of which securities or other ownership interests having ordinary voting power
to elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by such Person;
unless otherwise specified, "SUBSIDIARY" means a Subsidiary of the Borrower.
The term "SUBSIDIARY" shall include, without limitation, each partnership in
which the Borrower or one of its Subsidiaries is a partner which operates
surgical care centers or other health care facilities, except that none of (i)
any such Person, (ii) UHS Receivables Corporation, a Delaware corporation and
(iii) RCW of Edmond, Inc., an Oklahoma corporation shall be required to become
a Subsidiary Guarantor.
"SUPPLEMENTAL INDENTURE" means the Supplemental Indenture to be
entered into by the Borrower and PNC Bank, National Association, as trustee
amending the Indenture dated as of July 15, 1995, between the Borrower and PNC
Bank, National Association, as trustee.
"SUBSIDIARY GUARANTORS" means the Subsidiaries of the Borrower party
to the Guaranty Agreement.
"SWINGLINE BANK" means Xxxxxx Guaranty Trust Company of New York, and
its successors.
"SWINGLINE LENDING OFFICE" means, as to the Swingline Bank, its office
located at its address set forth in its Administrative Questionnaire (or
identified in its Administrative Questionnaire as its Swingline Lending Office)
or such other office as such Bank may hereafter designate as its Swingline
Lending Office by notice to the Borrower and the Agent.
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"SWINGLINE LOAN" means a loan made by the Swingline Bank pursuant to
Section 2.01(b).
"SWINGLINE TAKEOUT LOAN" means a Base Rate Loan made pursuant to
Section 2.18.
"SYNDICATED LOAN" means a Loan made by a Bank pursuant to Section
2.01(a); provided that, if any such loan or loans (or portions thereof) are
combined or subdivided pursuant to a Notice of Interest Rate Election, the term
"SYNDICATED LOAN" shall refer to the combined principal amount resulting from
such combination or to each of the separate principal amounts resulting from
such subdivision, as the case may be.
"TERMINATION DATE" means July 8, 2002, or, if such day is not a
Euro-Dollar Business Day, the next succeeding Euro-Dollar Business Day unless
such Euro-Dollar Business Day falls in another calendar month, in which case
the Termination Date shall be the next preceding Euro-Dollar Business Day.
"UNFUNDED LIABILITIES" means, with respect to any Plan at any time,
the amount (if any) by which (i) the value of all benefit liabilities under
such Plan, determined on a plan termination basis using the assumptions
prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the
fair market value of all Plan assets allocable to such liabilities under Title
IV of ERISA (excluding any accrued but unpaid contributions), all determined as
of the then most recent valuation date for such Plan, but only to the extent
that such excess represents a potential liability of a member of the ERISA
Group to the PBGC or any other Person under Title IV of ERISA.
"UNITED STATES" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
"UNREFUNDED SWINGLINE LOANS" has the meaning set forth in Section
2.18(b).
"WHOLLY-OWNED CONSOLIDATED SUBSIDIARY" means any Consolidated
Subsidiary all of the shares of capital stock or other ownership interests of
which (except directors' qualifying shares) are at the time directly or
indirectly owned by the Borrower.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
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required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time,
applied on a basis consistent (except for changes concurred in by the
Borrower's independent public accountants) with the most recent audited
consolidated financial statements of the Borrower and its Consolidated
Subsidiaries delivered to the Banks; provided that, if the Borrower notifies
the Agent that the Borrower wishes to amend any covenant in Article V to
eliminate the effect of any change in generally accepted accounting principles
on the operation of such covenant (or if the Agent notifies the Borrower that
the Required Banks wish to amend Article V for such purpose), then the
Borrower's compliance with such covenant shall be determined on the basis of
generally accepted accounting principles in effect immediately before the
relevant change in generally accepted accounting principles became effective,
until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Banks.
SECTION 1.03. Types of Borrowings. The term "BORROWING" denotes the
aggregation of Loans of one or more Banks to be made to a single Borrower
pursuant to Article 2 on the same date, all of which Loans are of the same type
(subject to Article 8) and, except in the case of Base Rate Loans, have the
same initial Interest Period. Borrowings are classified for purposes of this
Agreement either by reference to the pricing of Loans comprising such Borrowing
(e.g., a "FIXED RATE BORROWING" is a Euro-Dollar Borrowing, a CD Borrowing, a
Swingline Borrowing or a Money Market Borrowing (excluding any such Borrowing
consisting of Swingline Loans or Money Market LIBOR Loans bearing interest at
the Base Rate), and a "EURO-DOLLAR BORROWING" is a Borrowing comprised of
Euro-Dollar Loans) or by reference to the provisions of Article 2 under which
participation therein is determined (i.e., a "CONVENTIONAL BORROWING" is a
Borrowing under Section 2.01(a) in which all Banks participate in proportion to
their Commitments, while a "MONEY MARKET BORROWING" is a Borrowing under
Section 2.03 in which the Bank participants are determined on the basis of
their bids in accordance therewith).
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments to Lend. (a) Syndicated Loans. During the
Revolving Credit Period each Bank severally agrees, on the terms and conditions
set forth in this Agreement, to make Loans to the Borrower from time to time in
amounts such that the aggregate unpaid principal amount of Committed Loans by
such Bank, together with its Letter of Credit Liabilities and its participating
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interests in any Unrefunded Swingline Loans, shall at no time exceed the amount
of its Commitment. Each Borrowing under this subsection (other than a
Swingline Takeout Borrowing) shall be in an aggregate principal amount of
$5,000,000 or any larger multiple of $1,000,000 (except that any such Borrowing
may be in the aggregate amount available to the Borrower in accordance with
Section 3.02) and shall be made from the several Banks ratably in proportion to
their respective Commitments. Within the foregoing limits, the Borrower may
borrow under this Section, repay, or to the extent permitted by Section 2.12,
prepay Loans and reborrow at any time during the Revolving Credit Period under
this Section.
(b) Swingline Loans. From time to time prior to the Termination
Date, the Swingline Bank agrees, on the terms and conditions set forth in this
Agreement, to make loans to the Borrower pursuant to this subsection from time
to time in amounts such that (i) the aggregate principal amount of its
Committed Loans at any one time outstanding shall not exceed the amount of its
Commitment and (ii) the aggregate principal amount of Swingline Loans at any
time outstanding shall not exceed $20,000,000. Within the foregoing limits,
the Borrower may borrow under this subsection, repay or, to the extent
permitted by Section 2.12, prepay Loans and reborrow at any time during the
Revolving Credit Period under this subsection; provided that the proceeds of a
Swingline Borrowing may not be used, in whole or in part, to refund any prior
Swingline Borrowing. Each Borrowing under this subsection 2.01(b) shall be in
an aggregate principal amount of $2,000,000 or any larger multiple of $500,000
(except that any such Borrowing may be in the aggregate amount available in
accordance with Section 3.02.
SECTION 2.02. Method of Committed Borrowing. The Borrower shall give
the Agent notice (a "NOTICE OF COMMITTED BORROWING") not later than 11:00 A.M.
(New York City time) on (x) the date of each Base Rate Borrowing or Swingline
Borrowing, (y) the second Domestic Business Day before each CD Borrowing and
(z) the third Euro-Dollar Business Day before each Euro-Dollar Borrowing,
specifying:
(a) the date of such Borrowing, which shall be a Domestic Business
Day in the case of a Domestic Borrowing or a Swingline Borrowing and a
Euro-Dollar Business Day in the case of a Euro-Dollar Borrowing;
(b) the aggregate amount of such Borrowing;
(c) whether the Loans comprising such Borrowing are to be Swingline
Loans;
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(d) in the case of a Syndicated Borrowing, whether the Loans
comprising such Borrowing are to bear interest initially at the Base Rate, a CD
Rate or a Euro-Dollar Rate; and
(e) in the case of a Fixed Rate Borrowing, the duration of the
initial Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
SECTION 2.03. Money Market Borrowings. (a) The Money Market Option.
In addition to Committed Borrowings pursuant to Section 2.01, the Borrower may,
as set forth in this Section, request the Banks to make offers to make Money
Market Loans to the Borrower from time to time during the Revolving Credit
Period. The Banks may, but shall have no obligation to, make such offers and
the Borrower may, but shall have no obligation to, accept any such offers in
the manner set forth in this Section.
(b) Money Market Quote Request. When the Borrower wishes to request
offers to make Money Market Loans under this Section, it shall transmit to the
Agent by telex or facsimile a Money Market Quote Request substantially in the
form of Exhibit B hereto so as to be received not later than 10:30 A.M. (New
York City time) on (x) the fifth Euro-Dollar Business Day before the date of
Borrowing proposed therein, in the case of a LIBOR Auction or (y) the Domestic
Business Day next preceding the date of Borrowing proposed therein, in the case
of an Absolute Rate Auction (or, in either case, such other time or date as the
Borrower and the Agent shall have mutually agreed and shall have notified to
the Banks not later than the date of the Money Market Quote Request for the
first LIBOR Auction or Absolute Rate Auction for which such change is to be
effective) specifying:
(i) the proposed date of Borrowing, which shall be a
Euro-Dollar Business Day in the case of a LIBOR Auction or a Domestic
Business Day in the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall
be $5,000,000 or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of Interest
Period, and
(iv) whether the Money Market Quotes requested are to set
forth a Money Market Margin or a Money Market Absolute Rate.
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The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within five Euro-Dollar Business Days (or such other
number of days as the Borrower and the Agent may agree) of any other Money
Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly after receiving a
Money Market Quote Request, the Agent shall send to the Banks by telex or
facsimile an Invitation for Money Market Quotes substantially in the form of
Exhibit C hereto, which shall constitute an invitation by the Borrower to each
Bank to submit Money Market Quotes offering to make the Money Market Loans to
which such Money Market Quote Request relates in accordance with this Section.
(d) Submission and Contents of Money Market Quotes. (i) Each Bank
may submit a Money Market Quote containing an offer or offers to make Money
Market Loans in response to any Invitation for Money Market Quotes. Each Money
Market Quote must comply with the requirements of this subsection 2.03(d) and
must be submitted to the Agent by telex or facsimile at its address referred to
in Section 9.01 not later than (x) 2:00 P.M. (New York City time) on the fourth
Euro-Dollar Business Day before the proposed date of Borrowing, in the case of
a LIBOR Auction or (y) 9:30 A.M. (New York City time) on the proposed date of
Borrowing, in the case of an Absolute Rate Auction (or, in either case, such
other time or date as the Borrower and the Agent shall have mutually agreed and
shall have notified to the Banks not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate Auction for which
such change is to be effective); provided that Money Market Quotes submitted by
the Agent (or any affiliate of the Agent) in the capacity of a Bank may be
submitted, and may only be submitted, if the Agent or such affiliate notifies
the Borrower of the terms of the offer or offers contained therein not later
than (x) one hour before the deadline for the other Banks, in the case of a
LIBOR Auction or (y) 15 minutes before the deadline for the other Banks, in the
case of an Absolute Rate Auction. Subject to Articles 3 and 8, any Money
Market Quote so made shall not be revocable except with the written consent of
the Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall be substantially in the
form of Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
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(B) the principal amount of the Money Market Loan
for which each such offer is being made, which principal amount
(w) may be greater than or less than the Commitment of the
quoting Bank, (x) must be $5,000,000 or a larger multiple of
$1,000,000, (y) may not exceed the principal amount of Money
Market Loans for which offers were requested and (z) may be
subject to an aggregate limitation as to the principal amount of
Money Market Loans for which offers being made by such quoting
Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin
above or below the applicable London Interbank Offered Rate (the
"MONEY MARKET MARGIN") offered for each such Money Market Loan,
expressed as a percentage (specified to the nearest 1/10,000th of
1%) to be added to or subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the
rate of interest per annum (specified to the nearest 1/10,000th
of 1%) (the "MONEY MARKET ABSOLUTE RATE") offered for each such
Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with
Exhibit D hereto or does not specify all of the information
required by subsection (d)(ii) above;
(B) contains qualifying, conditional or similar
language;
(C) proposes terms other than or in addition to
those set forth in the applicable Invitation for Money Market
Quotes; or
(D) arrives after the time set forth in subsection
(d)(i).
(e) Notice to Borrower. The Agent shall promptly notify the
Borrower of the terms of (i) any Money Market Quote submitted by a Bank that is
in
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accordance with subsection (d) and (ii) any Money Market Quote that amends,
modifies or is otherwise inconsistent with a previous Money Market Quote
submitted by such Bank with respect to the same Money Market Quote Request. Any
such subsequent Money Market Quote shall be disregarded by the Agent unless
such subsequent Money Market Quote is submitted solely to correct a manifest
error in such former Money Market Quote. The Agent's notice to the Borrower
shall specify (A) the aggregate principal amount of Money Market Loans for
which offers have been received for each Interest Period specified in the
related Money Market Quote Request, (B) the respective principal amounts and
Money Market Margins or Money Market Absolute Rates, as the case may be, so
offered and (C) if applicable, limitations on the aggregate principal amount of
Money Market Loans for which offers in any single Money Market Quote may be
accepted.
(f) Acceptance and Notice by Borrower. Not later than 10:30 A.M.
(New York City time) on (x) the third Euro-Dollar Business Day before the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) the proposed
date of Borrowing, in the case of an Absolute Rate Auction (or, in either case,
such other time or date as the Borrower and the Agent shall have mutually
agreed and shall have notified to the Banks not later than the date of the
Money Market Quote Request for the first LIBOR Auction or Absolute Rate Auction
for which such change is to be effective), the Borrower shall notify the Agent
of its acceptance or non-acceptance of the offers so notified to it pursuant to
subsection (e). In the case of acceptance, such notice (a "NOTICE OF MONEY
MARKET BORROWING") shall specify the aggregate principal amount of offers for
each Interest Period that are accepted. The Borrower may accept any Money
Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the related
Money Market Quote Request;
(ii) the principal amount of each Money Market Borrowing
must be $5,000,000 or a larger multiple of $1,000,000;
(iii) acceptance of offers may only be made on the basis of
ascending Money Market Margins or Money Market Absolute Rates, as the
case may be; and
(iv) the Borrower may not accept any offer that is
described in subsection (d)(iii) or that otherwise fails to comply with
the requirements of this Agreement.
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(g) Allocation by Agent. If offers are made by two or more Banks
with the same Money Market Margins or Money Market Absolute Rates, as the case
may be, for a greater aggregate principal amount than the amount in respect of
which such offers are accepted for the related Interest Period, the principal
amount of Money Market Loans in respect of which such offers are accepted shall
be allocated by the Agent among such Banks as nearly as possible (in multiples
of $1,000,000, as the Agent may deem appropriate) in proportion to the
aggregate principal amounts of such offers. Determinations by the Agent of the
amounts of Money Market Loans shall be conclusive in the absence of manifest
error.
Each Borrowing under this Section 2.03 shall be in an aggregate
principal amount of $1,000,000 or any larger multiple of $1,000,000 (except
that any such Borrowing may be in the aggregate amount available in accordance
with Section 3.02.
SECTION 2.04. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the Agent shall promptly
(but in any event on the same day) notify each Bank of the contents thereof and
of such Bank's ratable share (if any) of such Borrowing and such Notice of
Borrowing shall not thereafter be revocable by the Borrower.
(b) Not later than 12:00 Noon (New York City time) on the date of
each Borrowing, each Bank shall make available its ratable share of such
Borrowing, in Federal or other funds immediately available in New York City, to
the Agent at its address referred to in Section 9.01. Unless the Agent
determines that any applicable condition specified in Article III has not been
satisfied, the Agent will make the funds so received from the Banks available
to the Borrower at the Agent's aforesaid address.
(c) Unless the Agent shall have received notice from a Bank prior to
the date of any Borrowing that such Bank will not make available to the Agent
such Bank's share of such Borrowing, the Agent may assume that such Bank has
made such share available to the Agent on the date of such Borrowing in
accordance with subsections (b) of this Section 2.04 and the Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so
made such share available to the Agent, such Bank and the Borrower severally
agree to repay to the Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the Agent, at
(i) in the case of the
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Borrower, a rate per annum equal to the higher of the Federal Funds Rate and
the interest rate applicable thereto pursuant to Section 2.07 and (ii) in the
case of such Bank, the Federal Funds Rate. If such Bank shall repay to the
Agent such corresponding amount, such amount so repaid shall constitute such
Bank's Loan included in such Borrowing for purposes of this Agreement.
SECTION 2.05. Notes. (a) The Loans of each Bank shall be evidenced by
a single Note payable to the order of such Bank for the account of its
Applicable Lending Office in an amount equal to the aggregate unpaid principal
amount of such Bank's Loans.
(b) Each Bank may, by notice to the Borrower and the Agent, request
that its Loans of a particular type be evidenced by a separate Note in an
amount equal to the aggregate unpaid principal amount of such Loans. Each such
Note shall be in substantially the form of Exhibit A hereto with appropriate
modifications to reflect the fact that it evidences solely Loans of the
relevant type. Each reference in this Agreement to the "NOTE" of such Bank
shall be deemed to refer to and include any or all of such Notes, as the
context may require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.01(a),
the Agent shall forward such Note to such Bank. Each Bank shall record the
date, amount, type and maturity of each Loan made by it and the date and amount
of each payment of principal made by the Borrower with respect thereto, and
may, if such Bank so elects in connection with any transfer or enforcement of
its Note, endorse on the schedule forming a part thereof appropriate notations
to evidence the foregoing information with respect to each such Loan then
outstanding; provided that the failure of any Bank to make any such recordation
or endorsement shall not affect the obligations of the Borrower hereunder or
under the Notes. Each Bank is hereby irrevocably authorized by the Borrower so
to endorse its Note and to attach to and make a part of its Note a continuation
of any such schedule as and when required.
SECTION 2.06. Maturity of Loans. (a) Each Syndicated Loan shall
mature, and the principal amount thereof shall be due and payable, together
with accrued interest thereon, on the Termination Date.
(b) Each Swingline Loan included in any Swingline Borrowing and each
Money Market Loan included in any Money Market Borrowing shall mature, and the
principal amount thereof shall be due and payable (together with interest
accrued thereon), on the last day of the Interest Period applicable to such
Borrowing.
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SECTION 2.07. Interest Rates. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the
date such Loan is made until it becomes due, at a rate per annum equal to the
Base Rate for such day. Such interest shall be payable in arrears on each
Quarterly Date and, with respect to the principal amount of any Base Rate Loan
converted to a CD Loan or a Euro-Dollar Loan, on each date a Base Rate Loan is
so converted. Any overdue principal of or overdue interest on any Base Rate
Loan shall bear interest, payable on demand, for each day until paid at a rate
per annum equal to the sum of 2% plus the rate otherwise applicable to Base
Rate Loans for such day.
(b) Each CD Loan shall bear interest on the outstanding principal
amount thereof, for each day during each Interest Period applicable thereto, at
a rate per annum equal to the sum of the CD Margin for such day plus the
Adjusted CD Rate applicable to such Interest Period; provided that if any CD
Loan shall, as a result of clause (2)(b) of the definition of Interest Period,
have an Interest Period of less than 30 days, such CD Loan shall bear interest
during such Interest Period at the rate applicable to Base Rate Loans during
such period. Such interest shall be payable for each Interest Period on the
last day thereof and, if such Interest Period is longer than 90 days, at
intervals of 90 days after the first day thereof. Any overdue principal of or
overdue interest on any CD Loan shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to the sum of 2% plus the higher
of (i) the sum of the CD Margin for such day plus the Adjusted CD Rate
applicable to such Loan at the date such payment was due.
The "ADJUSTED CD RATE" applicable to any Interest Period means a rate
per annum determined pursuant to the following formula:
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
--------------
* The amount in brackets being rounded upward, if necessary, to the
next higher 1/100 of 1%
The "CD BASE RATE" applicable to any Interest Period is the rate of
interest determined by the Agent to be the average (rounded upward, if
necessary,
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to the next higher 1/100 of 1%) of the prevailing rates per annum bid at 10:00
A.M. (New York City time) (or as soon thereafter as practicable) on the first
day of such Interest Period by two or more New York certificate of deposit
dealers of recognized standing for the purchase at face value from each CD
Reference Bank of its certificates of deposit in an amount comparable to the
principal amount of the CD Loan of such CD Reference Bank to which such
Interest Period applies and having a maturity comparable to such Interest
Period.
"DOMESTIC RESERVE PERCENTAGE" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including without limitation any
basic, supplemental or emergency reserves) for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of new non-personal time deposits in dollars in New York City having a
maturity comparable to the related Interest Period and in an amount of $100,000
or more. The Adjusted CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Domestic Reserve Percentage.
"ASSESSMENT RATE" means for any day the annual assessment rate in
effect on such day which is payable by a member of the Bank Insurance Fund
classified as adequately capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within the meaning of 12
C.F.R. Section 327.4(a) (or any successor provision) to the Federal Deposit
Insurance Corporation (or any successor) for such Corporation's (or such
successor's) insuring time deposits at offices of such institution in the
United States. The Adjusted CD Rate shall be adjusted automatically on and as
of the effective date of any change in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during each Interest Period applicable
thereto, at a rate per annum equal to the sum of the Euro-Dollar Margin for
such day plus the London Interbank Offered Rate applicable to such Interest
Period. Such interest shall be payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than three months, at intervals
of three months after the first day thereof.
The "LONDON INTERBANK OFFERED RATE" applicable to any Interest Period
means the average (rounded upward, if necessary, to the next higher 1/16 of 1%)
of the respective rates per annum at which deposits in dollars are offered to
each of the Euro-Dollar Reference Banks in the London interbank market at
approximately 11:00 A.M. (London time) two Euro-Dollar Business Days before the
first day of
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such Interest Period in an amount approximately equal to the principal amount
of the Euro-Dollar Loan of such Euro-Dollar Reference Bank to which such
Interest Period is to apply and for a period of time comparable to such
Interest Period.
(d) Any overdue principal of or interest on any Euro-Dollar Loan
shall bear interest, payable on demand, for each day until paid at a rate per
annum equal to the higher of (i) the sum of 2% plus the Euro-Dollar Margin for
such day plus the London Interbank Offered Rate applicable to such Loan at the
date such payment was due and (ii) the sum of 2% plus the Euro-Dollar Margin
for such day plus the quotient obtained (rounded upward, if necessary, to the
next higher 1/100 of 1%) by dividing (x) the average (rounded upward, if
necessary, to the next higher 1/16 of 1%) of the respective rates per annum at
which one day (or, if such amount due remains unpaid more than three
Euro-Dollar Business Days, then for such other period of time not longer than
three months as the Agent may select) deposits in dollars in an amount
approximately equal to such overdue payment due to each of the Euro-Dollar
Reference Banks are offered to such Euro-Dollar Reference Bank in the London
interbank market for the applicable period determined as provided above by (y)
1.00 minus the Euro-Dollar Reserve Percentage (or, if the circumstances
described in clause (a) or (b) of Section 8.01 shall exist, at a rate per annum
equal to the sum of 2% plus the rate applicable to Base Rate Loans for such
day).
(e) Each Swingline Loan shall bear interest on the outstanding
principal amount thereof, for each day during the Interest Period applicable
thereto, at a rate per annum equal to the Base Rate for such day or such other
rate as may be from time to time determined by mutual agreement between the
Swingline Bank and the Borrower. Interest on each Swingline Loan shall be
payable at the maturity of such Loan. Any overdue principal of or interest on
any Swingline Loan shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 2% plus the Base Rate for such
day.
(f) Subject to Section 8.01, the unpaid principal amount of each
Money Market LIBOR Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the sum of the London Interbank Offered Rate for such Interest Period
(determined in accordance with Section 2.07(c) as if the related Money Market
LIBOR Borrowing were a Euro-Dollar Borrowing) plus (or minus) the Money Market
Margin quoted by the Bank making such Loan. The unpaid principal amount of
each Money Market Absolute Rate Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable thereto, at a rate
per annum equal to the Money Market Absolute Rate quoted by the Bank making
such Loan. Such interest shall be payable for each Interest Period on the last
day thereof and, if such
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Interest Period is longer than three months, at intervals of three months after
the first day thereof. Any overdue principal of or interest on any Money
Market Loan shall bear interest, payable on demand, for each day until paid at
a rate per annum equal to the sum of 2% plus the Base Rate for such day.
(g) The Agent shall determine each interest rate applicable to the
Loans hereunder. The Agent shall give prompt notice to the Borrower and the
participating Banks of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
(h) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Agent as contemplated hereby. If any Reference Bank does not
furnish a timely quotation, the Agent shall determine the relevant interest
rate on the basis of the quotation or quotations furnished by the remaining
Reference Bank or Banks or, if none of such quotations is available on a timely
basis, the provisions of Section 8.01 shall apply.
SECTION 2.08. Fees. (a) The Borrower shall pay to the Agent for the
account of the Banks ratably a facility fee at the Facility Fee Rate
(determined daily in accordance with the Pricing Schedule). Such facility fee
shall accrue (i) from and including the Effective Date to but excluding the
date of termination of the Commitments in their entirety, on the daily
aggregate amount of the Commitments (whether used or unused) and (ii) from and
including such date of termination to but excluding the date the Loans and
Letter of Credit Liabilities shall be repaid in their entirety, on the daily
aggregate outstanding principal amount of the Loans and Letter of Credit
Liabilities.
(b) The Borrower shall pay to the Agent (i) for the account of the
Banks ratably a letter of credit fee accruing daily on the aggregate amount
then available for drawing under all outstanding Letters of Credit at the
Letter of Credit Fee Rate (determined daily in accordance with the Pricing
Schedule) and (ii) for the account of each Issuing Bank a letter of credit
fronting fee accruing daily on the aggregate amount then available for drawing
under all Letters of Credit issued by such Issuing Bank at a rate per annum
mutually agreed from time to time by the Borrower and such Issuing Bank.
(c) Accrued fees under this Section shall be payable quarterly in
arrears on each Quarterly Date and on the date of termination of the
Commitments in their entirety (and, if later, the date the Loans and Letter of
Credit Liabilities shall be repaid in their entirety).
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SECTION 2.09. Optional Termination or Reduction of Commitments.
During the Revolving Credit Period, the Borrower may, upon at least three
Domestic Business Days' notice to the Agent, (i) terminate the Commitments at
any time, if no Loans or Letter of Credit Liabilities are outstanding at such
time or (ii) ratably reduce from time to time by an aggregate amount of
$5,000,000 or a larger multiple of $1,000,000, the aggregate amount of the
Commitments in excess of the aggregate outstanding principal amount of the
Loans and Letter of Credit Liabilities.
SECTION 2.10. Method of Electing Interest Rates. (a) The Loans
included in each Syndicated Borrowing shall bear interest initially at the type
of rate specified by the Borrower in the applicable Notice of Committed
Borrowing. Thereafter, the Borrower may from time to time elect to change or
continue the type of interest rate borne by each Group of Loans (subject in
each case to the provisions of Article 8 and the last sentence of this
subsection (a)), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may
elect to convert such Loans to CD Loans as of any Domestic Business Day
or to Euro-Dollar Loans as of any Euro-Dollar Business Day;
(ii) if such Loans are CD Loans, the Borrower may elect to
convert such Loans to Base Rate Loans or Euro-Dollar Loans or elect to
continue such Loans as CD Loans for an additional Interest Period,
subject to Section 2.14 in the case of any such conversion or
continuation effective on any day other than the last day of the then
current Interest Period applicable to such Loans; and
(iii) if such Loans are Euro-Dollar Loans, the Borrower may
elect to convert such Loans to Base Rate Loans or CD Loans or elect to
continue such Loans as Euro-Dollar Loans for an additional Interest
Period, subject to Section 2.14 in the case of any such conversion or
continuation effective on any day other than the last day of the then
current Interest Period applicable to such Loans.
Each such election shall be made by delivering a notice (a "NOTICE OF INTEREST
RATE ELECTION") to the Agent not later than 11:00 A.M. (New York City time) on
the third Euro-Dollar Business Day before the conversion or continuation
selected in such notice is to be effective (unless the relevant Loans are to be
converted to Domestic Loans of the other type or are CD Rate Loans to be
continued as CD Rate Loans for an additional Interest Period, in which case
such notice shall be delivered to the Agent not later than 11:00 A.M. (New York
City time) on the second Domestic Business Day before such conversion or
continuation is to be
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effective). A Notice of Interest Rate Election may, if it so specifies, apply
to only a portion of the aggregate principal amount of the relevant Group of
Loans, provided that (i) such portion is allocated ratably among the Loans
comprising such Group and (ii) the portion to which such Notice applies, and
the remaining portion to which it does not apply, are each $5,000,000 or any
larger multiple of $1,000,000.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such
notice applies;
(ii) the date on which the conversion or continuation
selected in such notice is to be effective, which shall comply with the
applicable clause of subsection 2.10(a) above;
(iii) if the Loans comprising such Group are to be
converted, the new type of Loans and, if the Loans being converted are
to be Fixed Rate Loans, the duration of the next succeeding Interest
Period applicable thereto; and
(iv) if such Loans are to be continued as CD Loans or
Euro-Dollar Loans for an additional Interest Period, the duration of
such additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of the term "INTEREST PERIOD".
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection 2.10(a) above, the Agent shall promptly notify
each Bank of the contents thereof and such notice shall not thereafter be
revocable by the Borrower. If no Notice of Interest Rate Election is timely
received prior to the end of an Interest Period for any Group of Loans, the
Borrower shall be deemed to have elected that such Group of Loans be converted
to Base Rate Loans as of the last day of such Interest Period.
(d) An election by the Borrower to change or continue the rate of
interest applicable to any Group of Loans pursuant to this Section shall not
constitute a "BORROWING" subject to the provisions of Section 3.02.
SECTION 2.11. Scheduled Termination of Commitments. The Commitments
shall terminate on the Termination Date, and any Loans then
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outstanding (together with accrued interest thereon) shall be due and payable
on such date.
SECTION 2.12. Optional Prepayments. (a) Subject in the case of any
Fixed Rate Loan to Section 2.14, the Borrower may, upon at least one Domestic
Business Day's notice to the Agent, prepay any Group of Domestic Loans, any
Swingline Borrowing (or any Money Market Borrowing bearing interest at the Base
Rate pursuant to Section 8.01, or upon at least three Euro-Dollar Business
Days' notice to the Agent, prepay any Group of Euro-Dollar Loans, in each case
in whole at any time, or from time to time in part in amounts aggregating
$5,000,000 ($1,000,000 in the case of a Swingline Borrowing) or any larger
multiple of $1,000,000, by paying the principal amount to be prepaid together
with accrued interest thereon to the date of prepayment. Each such optional
prepayment shall be applied to prepay ratably the Loans of the several Banks
included in such Borrowing.
(b) Except as provided in subsection 2.12(a) above the Borrower may
not prepay all or any portion of the principal amount of any Money Market Loan
prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to this Section,
the Agent shall promptly notify each Bank of the contents thereof and of such
Bank's ratable share (if any) of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
SECTION 2.13. General Provisions as to Payments. (a) The Borrower
shall make each payment of principal of, and interest on, the Loans and of fees
hereunder, not later than 12:00 Noon (New York City time) on the date when due,
in Federal or other funds immediately available in New York City, to the Agent
at its address referred to in Section 9.01. The Agent will promptly distribute
to each Bank its ratable share of each such payment received by the Agent for
the account of the Banks. Whenever any payment of principal of, or interest on,
the Domestic Loans, Swingline Loans or Letter of Credit Liabilities or of fees
shall be due on a day which is not a Domestic Business Day, the date for
payment thereof shall be extended to the next succeeding Domestic Business Day.
Whenever any payment of principal of, or interest on, the Euro-Dollar Loans
shall be due on a day which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding Euro-Dollar Business
Day unless such Euro-Dollar Business Day falls in another calendar month, in
which case the date for payment thereof shall be the next preceding Euro-Dollar
Business Day. Whenever any payment of principal of, or interest on, the Money
Market Loans shall be due on a day which is not a Euro-Dollar Business Day, the
date for payment thereof shall be extended to the next succeeding Euro-Dollar
Business Day. If the date for any payment of
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principal is extended by operation of law or otherwise, interest thereon shall
be payable for such extended time.
(b) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Banks hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Bank on
such due date an amount equal to the amount then due such Bank. If and to the
extent that the Borrower shall not have so made such payment, each Bank shall
repay to the Agent forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
SECTION 2.14. Funding Losses. If the Borrower makes any payment of
principal with respect to any Fixed Rate Loan or any Fixed Rate Loan is
converted (pursuant to Article 2, 6 or 8 or otherwise) on any day other than
the last day of an Interest Period applicable thereto, or the last day of an
applicable period fixed pursuant to Section 2.07(d), or if the Borrower fails
to borrow, prepay, convert or continue any Fixed Rate Loans after notice has
been given to any Bank in accordance with Section 2.04(a), 2.12(c) or 2.10(c),
the Borrower shall reimburse each Bank within 15 days after demand for any
resulting loss or expense incurred by it (or by an existing or prospective
Participant in the related Loan), including (without limitation) any loss
incurred in obtaining, liquidating or employing deposits from third parties,
but excluding loss of margin for the period after any such payment or
conversion or failure to borrow, prepay, convert or continue, provided that
such Bank shall have delivered to the Borrower and the Agent a certificate as
to the amount of such loss or expense, which certificate shall be conclusive in
the absence of manifest error.
SECTION 2.15. Computation of Interest and Fees. Interest based on
the Prime Rate hereunder shall be computed on the basis of a year of 365 days
(or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.16. Letters of Credit. (a) Subject to the terms and
conditions hereof, the Issuing Bank agrees to issue Letters of Credit hereunder
from time to time before the tenth day before the Termination Date upon the
request of the Borrower; provided that, immediately after each Letter of Credit
is issued (i) the
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aggregate amount of the Letter of Credit Liabilities plus the aggregate
outstanding amount of all Loans shall not exceed the aggregate amount of the
Commitments and (ii) the aggregate Letter of Credit Liabilities shall not
exceed $50,000,000. Upon the date of issuance by the Issuing Bank of a Letter
of Credit, the Issuing Bank shall be deemed, without further action by any
party hereto, to have sold to each Bank, and each Bank shall be deemed, without
further action by any party hereto, to have purchased from the Issuing Bank, a
participation in such Letter of Credit and the related Letter of Credit
Liabilities in the proportion their respective Commitments bear to the
aggregate Commitments.
(b) The Borrower shall give the Issuing Bank notice at least five
Domestic Business Days prior to the requested issuance of a Letter of Credit
specifying the date such Letter of Credit is to be issued, and describing the
terms of such Letter of Credit and the nature of the transactions to be
supported thereby (such notice, including any such notice given in connection
with the extension of a Letter of Credit, a "NOTICE OF ISSUANCE"). Upon receipt
of a Notice of Issuance, the Issuing Bank shall promptly notify the Agent, and
the Agent shall promptly notify each Bank of the contents thereof and of the
amount of such Bank's participation in such Letter of Credit. The issuance by
the Issuing Bank of each Letter of Credit shall, in addition to the conditions
precedent set forth in Article 3, be subject to the conditions precedent that
such Letter of Credit shall be in such form and contain such terms as shall be
satisfactory to the Issuing Bank and that the Borrower shall have executed and
delivered such other instruments and agreements relating to such Letter of
Credit as the Issuing Bank shall have reasonably requested. The Borrower shall
also pay to the Issuing Bank for its own account issuance, drawing, amendment
and extension charges in the amounts and at the times as agreed between the
Borrower and the Issuing Bank. The extension or renewal of any Letter of Credit
shall be deemed to be an issuance of such Letter of Credit, and if any Letter
of Credit contains a provision pursuant to which it is deemed to be extended
unless notice of termination is given by the Issuing Bank, the Issuing Bank
shall timely give such notice of termination unless it has theretofore timely
received a Notice of Issuance and the other conditions to issuance of a Letter
of Credit have also theretofore been met with respect to such extension.
(c) No Letter of Credit shall have a term extending or be so
extendible beyond the fifth Domestic Business Day preceding the Termination
Date. Subject to the preceding sentence, each Letter of Credit issued
hereunder shall expire on or before the first anniversary of the date of such
issuance; provided that the expiry date of any Letter of Credit may be extended
from time to time (i) at the Borrower's request or (ii) in the case of an
Evergreen Letter of Credit, automatically, in each case so long as such
extension is for a period not exceeding one year and is granted (or the last
day on which notice can be given to prevent
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such extension occurs) no earlier than three months before the then existing
expiry date thereof.
(d) Upon receipt from the beneficiary of any Letter of Credit of any
notice of a drawing under such Letter of Credit, the Issuing Bank shall notify
the Agent and the Agent shall promptly notify the Borrower and each other Bank
as to the amount to be paid as a result of such demand or drawing and the
payment date. The Borrower shall be irrevocably and unconditionally obligated
forthwith to reimburse the Issuing Bank for any amounts paid by the Issuing
Bank upon any drawing under any Letter of Credit, without presentment, demand,
protest or other formalities of any kind. All such amounts paid by the Issuing
Bank and remaining unpaid by the Borrower shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the sum of 2% plus
the Base Rate for such day. In addition, each Bank will pay to the Agent, for
the account of the Issuing Bank, immediately upon the Issuing Bank's demand at
any time during the period commencing after such drawing until reimbursement
therefor in full by the Borrower, an amount equal to such Bank's ratable share
of such drawing (in proportion to its participation therein), together with
interest on such amount for each day from the date of the Issuing Bank's demand
for such payment (or, if such demand is made after 12:00 Noon (New York City
time) on such date, from the next succeeding Domestic Business Day) to the date
of payment by such Bank of such amount at a rate of interest per annum equal to
the Federal Funds Rate. The Issuing Bank will pay to each Bank ratably all
amounts received from the Borrower for application in payment of its
reimbursement obligations in respect of any Letter of Credit, but only to the
extent such Bank has made payment to the Issuing Bank in respect of such Letter
of Credit pursuant hereto.
(e) The obligations of the Borrower and each Bank under subsection
2.16(d) above shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement, under all
circumstances whatsoever, including without limitation the following
circumstances:
(i) the use which may be made of the Letter of Credit by,
or any acts or omission of, a beneficiary of a Letter of Credit (or any
Person for whom the beneficiary may be acting);
(ii) the existence of any claim, set-off, defense or other
rights that the Borrower may have at any time against a beneficiary of
a Letter of Credit (or any Person for whom the beneficiary may be
acting), the Banks (including the Issuing Bank) or any other Person,
whether in connection
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with this Agreement or the Letter of Credit or any document related
hereto or thereto or any unrelated transaction;
(iii) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any
respect whatsoever;
(iv) payment under a Letter of Credit to the beneficiary of
such Letter of Credit against presentation to the Issuing Bank of a
draft or certificate that does not comply with the terms of the Letter
of Credit; or
(v) any other act or omission to act or delay of any kind
by any Bank (including the Issuing Bank), the Agent or any other Person
or any other event or circumstance whatsoever that might, but for the
provisions of this subsection (v), constitute a legal or equitable
discharge of the Borrower's or the Bank's obligations hereunder.
(f) The Borrower hereby indemnifies and holds harmless each Bank
(including the Issuing Bank) and the Agent from and against any and all claims,
damages, losses, liabilities, costs or expenses which such Bank or the Agent
may incur (including, without limitation, any claims, damages, losses,
liabilities, costs or expenses which the Issuing Bank may incur by reason of or
in connection with the failure of any other Bank to fulfill or comply with its
obligations to such Issuing Bank hereunder (but nothing herein contained shall
affect any rights the Borrower may have against such defaulting Bank)), and
none of the Banks (including the Issuing Bank) nor the Agent nor any of their
officers or directors or employees or agents shall be liable or responsible, by
reason of or in connection with the execution and delivery or transfer of or
payment or failure to pay under any Letter of Credit, including without
limitation any of the circumstances enumerated in subsection 2.16(d) above, as
well as (i) any error, omission, interruption or delay in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise, (ii)
any loss or delay in the transmission of any document required in order to make
a drawing under a Letter of Credit, and (iii) any consequences arising from
causes beyond the control of the Issuing Bank, including without limitation any
government acts, or any other circumstances whatsoever in making or failing to
make payment under such Letter of Credit; provided that the Borrower shall not
be required to indemnify the Issuing Bank for any claims, damages, losses,
liabilities, costs or expenses, and the Borrower shall have a claim for direct
(but not consequential) damage suffered by it, to the extent found by a court
of competent jurisdiction to have been caused by (x) the willful misconduct or
gross negligence of the Issuing Bank to comply in any material respect with the
UCP in determining whether a request presented under any Letter
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of Credit complied with the terms of such Letter of Credit or (y) the Issuing
Bank's failure to pay under any Letter of Credit after the presentation to it
of a request strictly complying with the terms and conditions of the Letter of
Credit. Nothing in this subsection 2.16(f) is intended to limit the obligations
of the Borrower under any other provision of this Agreement. To the extent the
Borrower does not indemnify the Issuing Bank as required by this subsection,
the Banks agree to do so ratably in accordance with their Commitments.
SECTION 2.17. Regulation D Compensation. Each Bank may require the
Borrower to pay, contemporaneously with each payment of interest on the
Euro-Dollar Loans, additional interest on the related Euro-Dollar Loan of such
Bank at a rate per annum determined by such Bank up to but not exceeding the
excess of (i) (A) the applicable London Interbank Offered Rate divided by (B)
one minus the Euro-Dollar Reserve Percentage over (ii) the applicable London
Interbank Offered Rate. Any Bank wishing to require payment of such additional
interest (x) shall so notify the Borrower and the Agent, in which case such
additional interest on the Euro-Dollar Loans of such Bank shall be payable to
such Bank at the place indicated in such notice with respect to each Interest
Period commencing at least three Euro-Dollar Business Days after such Bank
gives such notice and (y) shall notify the Borrower at least five Euro-Dollar
Business Days before each date on which interest is payable on the Euro-Dollar
Loans of the amount then due it under this Section.
SECTION 2.18. Takeout of Swingline Loans. (a) In the event that any
Swingline Borrowing shall not be repaid in full at or prior to the maturity
thereof, the Agent shall, on behalf of the Borrower (the Borrower hereby
irrevocably directing and authorizing the Agent so to act on its behalf), give
a Notice of Borrowing requesting the Banks, including the Swingline Bank, to
make a Base Rate Borrowing in an amount equal to the unpaid principal amount of
such Swingline Borrowing. Each Bank will make the proceeds of its Base Rate
Loan included in such Borrowing available to the Agent for the account of the
Swingline Bank on such date in accordance with Section 2.04. The proceeds of
such Base Rate Borrowing shall be immediately applied to repay such Swingline
Borrowing.
(b) If, for any reason, a Base Rate Borrowing may not be (as
determined by the Agent in its sole discretion), or is not, made pursuant to
subsection (a) above to refund Swingline Loans as required by said clause,
then, effective on the date such Borrowing would otherwise have been made, each
Bank severally, unconditionally and irrevocably agrees that it shall purchase
an undivided participating interest in such Swingline Loans ("UNREFUNDED
SWINGLINE LOANS") in an amount equal to the amount of the Loan which otherwise
would have been made by such Bank pursuant to subsection (a), which purchase
shall be funded by
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the time such Loan would have been required to be funded pursuant to Section
2.04 by transfer to the Agent, for the account of the Swingline Bank, in
immediately available funds, of the amount of its participation.
(c) Whenever, at any time after the Swingline Bank has received from
any Bank payment in full for such Bank's participating interest in a Swingline
Loan, the Swingline Bank (or the Agent on its behalf) receives any payment on
account thereof, the Swingline Bank (or the Agent, as the case may be) will
promptly distribute to such Bank its participating interest in such payment
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Bank's participating interest was outstanding
and funded); provided, however, that in the event that such payment is
subsequently required to be returned, such Bank will return to the Swingline
Bank (or the Agent, as the case may be) any portion thereof previously
distributed by the Swingline Bank (or the Agent, as the case may be) to it.
(d) Each Bank's obligation to purchase and fund participating
interests pursuant to this Section shall be absolute and unconditional and
shall not be affected by any circumstance, including, without limitation: (i)
any setoff, counterclaim, recoupment, defense or other right which such Bank or
the Borrower may have against the Swingline Bank, or any other Person for any
reason whatsoever; (ii) the occurrence or continuance of a Default or the
failure to satisfy any of the conditions specified in Article 3; (iii) any
adverse change in the condition (financial or otherwise) of the Borrower; (iv)
any breach of this Agreement by the Borrower or any Bank; or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
SECTION 2.19. Increased Commitments, Additional Banks. (a) From
time to time (but no more than two times), the Borrower may, upon at least 15
Domestic Business Days' notice to the Agent (which shall promptly provide a
copy of such notice to the Banks), propose to increase the aggregate amount of
the Commitments by an amount not less than $25,000,000 (the amount of any such
increase, the "INCREASED COMMITMENTS"). Each Bank party to this Agreement at
such time shall have the right (but no obligation), for a period of 15 days
following receipt of such notice, to elect by notice to the Borrower and the
Agent to increase its Commitment by a principal amount which bears the same
ratio to the Increased Commitments as its then Commitment bears to the
aggregate Commitments then existing. Any Bank not responding within 15 days of
receipt of such notice shall be deemed to have declined to increase its
Commitment.
(b) If any Bank party to this Agreement shall not elect to increase
its Commitment pursuant to subsection (a) of this Section, the Borrower may,
within
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10 days of the Banks' response, designate one or more of the existing Banks or
other financial institutions acceptable to the Agent and the Borrower which at
the time agree to (i) in the case of any such lender that is an existing Bank,
increase its Commitment and (ii) in the case of any other such lender (an
"ADDITIONAL BANK"), become a party to this Agreement with a Commitment of not
less than $10,000,000. The sum of the increases in the Commitments of the
existing Banks pursuant to this subsection (b) plus the Commitments of the
Additional Banks shall not in the aggregate exceed the unsubscribed amount of
the Increased Commitments.
(c) Any increase in the Commitments pursuant to this Section 2.19
shall be subject to satisfaction of the following conditions:
(i) before and after giving effect to such increase, all
representations and warranties contained in Article 4 shall be true;
(ii) at the time of such increase, no Default shall have
occurred and be continuing or would result from such increase; and
(iii) after giving effect to such increase, the aggregate
amount of all increases in Commitments made pursuant to this Section
2.19 shall not exceed $100,000,000.
(d) An increase in the aggregate amount of the Commitments pursuant
to this Section 2.19 shall become effective upon the receipt by the Agent of
(i) an agreement in form and substance satisfactory to the Agent signed by the
Borrower, by each Additional Bank and by each other Bank whose Commitment is to
be increased, setting forth the new Commitments of such Banks and setting forth
the agreement of each Additional Bank to become a party to this Agreement and
to be bound by all the terms and provisions hereof, (ii) such evidence of
appropriate corporate authorization on the part of the Borrower with respect to
the Increased Commitments and such opinions of counsel for the Borrower with
respect to the Increased Commitments as the Agent may reasonably request and
(iii) such evidence of the satisfaction of the conditions set forth in
subsection (c) above as the Agent may reasonably request.
(e) Upon any increase in the aggregate amount of the Commitments
pursuant to this Section 2.19, within five Domestic Business Days, in the case
of Base Rate Loans then outstanding, and at the end of the then current
Interest Period with respect thereto, in the case of Committed Fixed Rate Loans
then outstanding, the Borrower shall prepay or repay such Loans in their
entirety and, to the extent the Borrower elects to do so and subject to the
conditions specified in Article 3, the
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Borrower shall reborrow Committed Loans from the Banks in proportion to
their respective Commitments after giving effect to such increase, until such
time as all outstanding Committed Loans are held by the Banks in such
proportion.
ARTICLE 3
CONDITIONS
SECTION 3.01. Effectiveness. This Agreement shall become effective on
the date (the "EFFECTIVE DATE") on which the Agent shall have received each of
the following documents, each dated the Effective Date unless otherwise
indicated:
(a) counterparts hereof signed by each of the parties hereto (or, in
the case of any party as to which an executed counterpart shall not have been
received, receipt by the Agent in form satisfactory to it of telegraphic,
telex, facsimile transmission or other written confirmation from such party of
execution of a counterpart hereof signed by such party);
(b) a duly executed Note for the account of each Bank dated on or
before the Effective Date complying with the provisions of Section 2.05;
(c) counterparts of the Guaranty Agreement, duly executed by each of
the Subsidiaries listed on the signature pages thereof;
(d) an opinion of Fulbright & Xxxxxxxx L.L.P., substantially in the
form of Exhibit E-1 hereto and covering such additional matters relating to the
transactions contemplated hereby as the Required Banks may reasonably request;
(e) an opinion of the General Counsel of the Borrower, substantially
in the form of Exhibit E-2 hereto and covering such additional matters relating
to the transactions contemplated hereby as the Required Banks may reasonably
request;
(f) an opinion of Xxxxx Xxxx & Xxxxxxxx, special counsel for the
Agent, substantially in the form of Exhibit F hereto and covering such
additional matters relating to the transactions contemplated hereby as the
Required Banks may reasonably request;
(g) all documents the Agent may reasonably request relating to the
existence of the Borrower, the corporate authority for and the validity of the
Loan Documents, and any other matters relevant hereto, all in form and
substance satisfactory to the Agent; and
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(h) evidence satisfactory to the Agent of the payment of all
principal of and interest on any loans outstanding under, and all accrued
commitment fees under, the Existing Credit Agreement.
The Agent shall promptly notify the Borrower and the Banks of the Effective
Date, and such notice shall be conclusive and binding on all parties hereto.
The Borrower and the Banks party to the Existing Credit Agreement, comprising
the "REQUIRED BANKS" as defined therein, hereby agree that (i) the commitments
of the banks under the Existing Credit Agreement shall terminate in their
entirety immediately and automatically upon the effectiveness of this
Agreement, without further action by any party to the Existing Credit
Agreement, (ii) all accrued facility fees under the Existing Credit Agreement
shall be due and payable at such time and (iii) subject to Section 2.12 of the
Existing Credit Agreement, the Borrower may prepay any and all loans
outstanding thereunder on the date of effectiveness of this Agreement.
SECTION 3.02. Borrowings and Issuances of Letters of Credit. The
obligation of any Bank to make a Loan on the occasion of any Borrowing and the
obligation of the Issuing Bank to issue (or renew or extend the term of) any
Letter of Credit is subject to the satisfaction of the following conditions;
provided that if such Borrowing is a Swingline Takeout Borrowing, only the
conditions set forth in clauses 3.02(a) and 3.02(b) must be satisfied:
(a) receipt (or deemed receipt) by the Agent of a Notice of
Borrowing as required by Section 2.02 or Section 2.03 or receipt by the Issuing
Bank of a Notice of Issuance as required by Section 2.16(b), as the case may
be;
(b) the fact that, immediately after such Borrowing or issuance of
such Letter of Credit (i) the sum of the aggregate outstanding principal
amount of the Loans and the aggregate amount of Letter of Credit Liabilities
will not exceed the aggregate amount of the Commitments, (ii) the aggregate
outstanding principal amount of Swingline Loans will not exceed $20,000,000 and
(iii) the aggregate amount of Letter of Credit Liabilities will not exceed
$50,000,000;
(c) the fact that, immediately before and after such Borrowing or
issuance of such Letter of Credit, no Default shall have occurred and be
continuing; and
(d) the fact that the representations and warranties of the Borrower
contained in this Agreement shall be true on and as of the date of such
Borrowing or issuance of such Letter of Credit.
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Each Borrowing and issuance of a Letter of Credit hereunder shall be deemed to
be a representation and warranty by the Borrower on the date of such Borrowing
as to the facts specified in clauses 3.02(b), 3.02(c) and 3.02(d) (unless such
Borrowing is a Swingline Takeout Borrowing, in which case the Borrower shall be
deemed to represent and warrant as to the facts specified in clause 3.02(b)).
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Existence and Power. The Borrower and each of its
Subsidiaries is a corporation, partnership, limited liability company or other
entity duly organized, validly existing and, where applicable, in good standing
under the laws of their respective jurisdictions of organization and have all
powers and all material governmental licenses, authorizations, consents and
approvals required to carry on their business as now conducted.
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower of this
Agreement and the Notes and by the Subsidiaries party thereto of the Guaranty
Agreement are within the Borrower's and such Subsidiaries' respective powers,
have been duly authorized by all necessary action, require no action by or in
respect of, or filing with, any governmental body, agency or official and do
not contravene, or constitute a default under, any provision of applicable law
or regulation or of the certificate of incorporation or by-laws of the Borrower
or of such Subsidiaries or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Borrower or any of its Subsidiaries
or result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Borrower and each Note, when executed and delivered in
accordance with this Agreement, will constitute a valid and binding obligation
of the Borrower, in each case enforceable in accordance with its terms. Unless
terminated pursuant to Section 5.15(b), the Guaranty Agreement constitutes a
valid and binding agreement of each Subsidiary that is a party thereto,
enforceable against it in accordance with its terms.
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SECTION 4.04. Financial Information.
(a) The consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of December 31, 1996 and the related consolidated
statements of income, common stockholders' equity and cash flows for the fiscal
year then ended, reported on by Xxxxxx Xxxxxxxx LLP and set forth in the
Borrower's 1996 Form 10-K, a copy of which has been delivered to each of the
Banks, fairly present, in conformity with generally accepted accounting
principles, the consolidated financial position of the Borrower and its
Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such fiscal year.
(b) The unaudited consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of March 31, 1997 and the related unaudited
consolidated statements of income, common stockholders' equity and cash flows
for the three months then ended, set forth in the Borrower's Latest Form 10-Q,
a copy of which has been delivered to each of the Banks, fairly present, in
conformity with generally accepted accounting principles applied on a basis
consistent with the financial statements referred to in subsection 4.04(a), the
consolidated financial position of the Borrower and its Consolidated
Subsidiaries as of such date and their consolidated results of operations and
cash flows for such three-month period (subject to normal year-end
adjustments).
(c) Since March 31, 1997, there has been no material adverse change
in the business, financial position, results of operations or prospects of the
Borrower and its Consolidated Subsidiaries, considered as a whole.
SECTION 4.05. Litigation. There is no action, suit or proceeding
pending against, or to the knowledge of the Borrower threatened against or
affecting, the Borrower or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official in which there is a
reasonable possibility of an adverse decision which could materially adversely
affect the business, consolidated financial position or consolidated results of
operations of the Borrower and its Consolidated Subsidiaries, considered as a
whole, or which in any manner draws into question the validity of any of the
Loan Documents.
SECTION 4.06. Ownership of Capital Stock of Subsidiaries. The
Subsidiaries of the Borrower existing on the date hereof are listed on Schedule
1 hereto. All shares of the capital stock of each Subsidiary of the Borrower
that is a corporation are owned by the Borrower, directly or indirectly through
Subsidiaries, free and clear of all Liens.
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SECTION 4.07. Compliance with ERISA. Each member of the ERISA Group
has fulfilled its obligations under the minimum funding standards of ERISA and
the Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of
the Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement,
which has resulted or could result in the imposition of a Lien or the posting
of a bond or other security under ERISA or the Internal Revenue Code or (iii)
incurred any liability under Title IV of ERISA other than a liability to the
PBGC for premiums under Section 4007 of ERISA.
SECTION 4.08. Environmental Matters. In the ordinary course of its
business, the Borrower reviews when and as appropriate the effect of
Environmental Laws on the business, operations and properties of the Borrower
and its Subsidiaries, in the course of which it identifies and evaluates
associated liabilities and costs (including, without limitation, any capital or
operating expenditures required for clean-up or closure of properties presently
or previously owned, any capital or operating expenditures required to achieve
or maintain compliance with environmental protection standards imposed by law
or as a condition of any license, permit or contract, any related constraints
on operating activities, including any periodic or permanent shutdown of any
facility or reduction in the level of or change in the nature of operations
conducted thereat, any costs or liabilities in connection with off-site
disposal of wastes or Hazardous Substances, and any actual or potential
liabilities to third parties, including employees, and any related costs and
expenses). On the basis of this review, the Borrower has reasonably concluded
that such associated liabilities and costs, including the costs of compliance
with Environmental Laws, are unlikely to have a material adverse effect on the
business, financial condition, results of operations or prospects of the
Borrower and its Consolidated Subsidiaries, considered as a whole.
SECTION 4.09. Taxes. The Borrower and its Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Borrower or any
Subsidiary. The charges, accruals and reserves on the books of the Borrower and
its Subsidiaries in respect of taxes or other governmental charges are, in the
opinion of the Borrower, adequate.
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SECTION 4.10. Not an Investment Company. The Borrower is not an
"INVESTMENT COMPANY" within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 4.11. Full Disclosure. All information heretofore furnished
by the Borrower to the Agent or any Bank for purposes of or in connection with
this Agreement or any transaction contemplated hereby is, and all such
information hereafter furnished by the Borrower to the Agent or any Bank will
be, true and accurate in all material respects on the date as of which such
information is stated or certified. The Borrower has disclosed to the Banks in
writing any and all facts which materially and adversely affect or could
reasonably be expected to materially and adversely affect (to the extent the
Borrower can now reasonably foresee), the business, operations or financial
condition of the Borrower and its Consolidated Subsidiaries, taken as a whole,
or the ability of the Borrower to perform its obligations under this Agreement.
ARTICLE 5
COVENANTS
The Borrower agrees that, so long as any Bank has any Commitment
hereunder or any amount payable under any Note remains unpaid or any Letter of
Credit Liabilities remain outstanding:
SECTION 5.01. Information. The Borrower will deliver to each of the
Banks:
(a) as soon as available and in any event within 90 days after the
end of each fiscal year of the Borrower, a consolidated and consolidating
balance sheet of the Borrower and its Consolidated Subsidiaries as of the end
of such fiscal year and the related consolidated and consolidating statements
of income and common stockholders' equity and consolidated statement of cash
flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on in a manner acceptable to
the Securities and Exchange Commission by Xxxxxx Xxxxxxxx LLP or other
independent public accountants of nationally recognized standing or, in the
case of the consolidating financial statements, certified as to fairness of
presentation, generally accepted accounting principles and consistency by the
Borrower's chief financial officer or chief accounting officer, except that the
consolidating financial statements with respect to the special purpose
Subsidiary referred to in the definition of "RECEIVABLES FINANCING" need not be
so certified as to generally accepted accounting principles;
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(b) as soon as available and in any event within 45 days after the
end of each of the first three quarters of each fiscal year of the Borrower, a
consolidated and consolidating balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such quarter and the related
consolidated and consolidating statements of income and common stockholders'
equity and consolidated statement of cash flows for such quarter and for the
portion of the Borrower's fiscal year ended at the end of such quarter, setting
forth in each case in comparative form the figures for the corresponding
quarter and the corresponding portion of the Borrower's previous fiscal year,
all certified (subject to normal year-end adjustments) as to fairness of
presentation, generally accepted accounting principles and consistency by the
chief financial officer or the chief accounting officer of the Borrower, except
that the consolidating financial statements with respect to the special purpose
Subsidiary referred to in the definition of "RECEIVABLES FINANCING" need not be
so certified as to generally accepted accounting principles;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses 5.01(a) and 5.01(b) above, a certificate of
the chief financial officer or the chief accounting officer of the Borrower
setting forth (i) in reasonable detail the calculations required to establish
whether the Borrower was in compliance with the requirements of Sections 5.07
to 5.12, inclusive, on the date of such financial statements, (ii) the Leverage
Ratio, Fixed Charge Coverage Ratio and Consolidated Net Worth as at the date of
such financial statements and (iii) stating whether any Default exists on the
date of such certificate and, if any Default then exists, setting forth the
details thereof and the action which the Borrower is taking or proposes to take
with respect thereto;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause 5.01(a) above, a statement of the firm of
independent public accountants which reported on such statements (i) whether
anything has come to their attention to cause them to believe that any Default
existed on the date of such statements and (ii) confirming the calculations set
forth in the officer's certificate delivered simultaneously therewith pursuant
to clause 5.01(c) above;
(e) within five days after any officer of the Borrower obtains
knowledge of any Default, if such Default is then continuing, a certificate of
the chief financial officer or the chief accounting officer of the Borrower
setting forth the details thereof and the action which the Borrower is taking
or proposes to take with respect thereto;
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(f) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(g) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) which the Borrower shall have filed with the Securities and
Exchange Commission;
(h) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "REPORTABLE EVENT" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an
intent to terminate, impose liability (other than for premiums under Section
4007 of ERISA) in respect of, or appoint a trustee to administer any Plan, a
copy of such notice; (iv) applies for a waiver of the minimum funding standard
under Section 412 of the Internal Revenue Code, a copy of such application; (v)
gives notice of intent to terminate any Plan under Section 4041(c) of ERISA, a
copy of such notice and other information filed with the PBGC; (vi) gives
notice of withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of
such notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security, a
certificate of the chief financial officer or the chief accounting officer of
the Borrower setting forth details as to such occurrence and action, if any,
which the Borrower or applicable member of the ERISA Group is required or
proposes to take;
(i) (x) no later than the end of each fiscal year an executive
summary report of Xxxxxxx & Xxxxxxx or any other nationally recognized actuary
selected by the Borrower with the consent of the Required Banks (which consent
will not be unreasonably withheld) of the Borrower's estimated cost of
insurance, including self-insurance, for the following fiscal year (provided
that the Borrower will deliver to the Agent the full report at the same time),
and (y) by the end of each fiscal year, a certificate of the chief financial
officer of the Borrower to the effect that, to provide for the insurance cost
allocation, the Borrower has debited its
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income statement for such fiscal year in accordance with the recommendations
set forth in the summary report of Xxxxxxx & Xxxxxxx (or other actuary referred
to above) concerning such fiscal year; and
(j) from time to time such additional information regarding the
financial position or business of the Borrower and its Subsidiaries as the
Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. Payment of Obligations. (a) The Borrower will pay and
discharge, and will cause each Subsidiary to pay and discharge, at or before
maturity, all their respective material obligations and liabilities, including,
without limitation, tax liabilities, except where the same may be contested in
good faith by appropriate proceedings, and will maintain, and will cause each
Subsidiary to maintain, in accordance with generally accepted accounting
principles, appropriate reserves for the accrual of any of the same.
(b) The Borrower will, and will cause each Subsidiary to, comply
with the provisions of each material lease to which it is a party.
(c) The Borrower shall not permit any Subsidiary to agree to any
amendment or modification of any lease which would be adverse to the interests
of such Subsidiary, the Borrower or the Banks.
SECTION 5.03. Maintenance of Property; Insurance. (a) The Borrower
will keep, and will cause each Subsidiary to keep, all property useful and
necessary to its business in good working order and condition, ordinary wear
and tear excepted.
(b) The Borrower will maintain, and will cause each Subsidiary to
maintain (either in the name of the Borrower or in such Subsidiary's own name),
insurance policies against such risks, in at least such amounts and upon such
terms as are set forth in Schedule 2 hereto; provided that the Borrower shall
not be required to maintain insurance specified in the preceding sentence (i)
if an independent insurance broker, insurance agent or other insurance
representative reasonably satisfactory to the Required Banks shall certify to
the Banks that such requirement with respect to such insurance cannot be
complied with in a recognized insurance market by reason of the unavailability
to companies of established repute engaged in the same or a similar business of
insurance with respect to one or more risks so required to be insured against
or the amount of insurance so required to be maintained or (ii) in respect of
any assets sold by the Borrower, for events occurring after the sale of such
assets. The Borrower may replace any insurance company named in Schedule 2
hereto with an Acceptable Insurer, and may decrease the amount of insurance not
constituting self-insurance
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carried with the consent of the Required Banks. The Borrower may self-insure
for professional and general liability claims, including, without limitation,
workers compensation, so long as the Borrower shall maintain, and make
additions to, reserves not less than such amounts as may be necessary so as to
permit the Borrower to make the statement required in the chief financial
officer's certificate pursuant to Section 5.01(i). The Borrower will furnish to
the Banks (i) upon request of any Bank through the Agent from time to time,
full information as to the insurance carried, including the full report
referred to in Section 5.01(i), (ii) within five days of receipt of notice from
any insurer, a copy of any notice of cancellation or material change in
coverage from that existing on the date of this Agreement and (iii) forthwith,
notice of any cancellation or nonrenewal of coverage by the Borrower. The
Borrower will self-insure risks in excess of $25,000,000 per occurrence only
with the consent of the Required Banks.
SECTION 5.04. Conduct of Business and Maintenance of Existence.
Except as permitted by Section 5.11 the Borrower will continue, and will cause
each Subsidiary to continue, to engage in business of the same general type as
now conducted by the Borrower and its Subsidiaries, and will preserve, renew
and keep in full force and effect, and, except as permitted by Section 5.11,
will cause each Subsidiary to preserve, renew and keep in full force and effect
their respective corporate or partnership existence and their respective
rights, privileges and franchises necessary or desirable in the normal conduct
of business.
SECTION 5.05. Compliance with Laws. The Borrower will comply, and
cause each Subsidiary to comply, in all material respects with all applicable
laws, ordinances, rules, regulations, and requirements of governmental
authorities (including, without limitation, Environmental Laws and ERISA and
the rules and regulations thereunder) except where the necessity of compliance
therewith is contested in good faith by appropriate proceedings.
SECTION 5.06. Inspection of Property, Books and Records. The Borrower
will keep, and will cause each Subsidiary to keep, proper books of record and
account in which full, true and correct entries in conformity with generally
accepted accounting principles shall be made of all dealings and transactions
in relation to its business and activities; and will permit, and will cause
each Subsidiary to permit, representatives of any Bank at such Bank's expense
to visit and inspect any of their respective properties, to examine and make
abstracts from any of their respective books and records and to discuss their
respective affairs, finances and accounts with their respective officers,
employees and independent public accountants, all at such reasonable times and
as often as may reasonably be desired.
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SECTION 5.07. Leverage Ratio. The Leverage Ratio will not, at any
time exceed 0.65 to 1.00.
SECTION 5.08. Minimum Consolidated Net Worth. Consolidated Net Worth
will at no time be less than the sum of $382,495,000 plus 50% of Cumulative
Positive Net Income. For purposes of this Section, "CUMULATIVE POSITIVE NET
INCOME" means, as of any date, the sum of Consolidated Net Income for each
fiscal year ending after the Effective Date (or, in the case of the first such
fiscal year, the last three fiscal quarters thereof, treated as a single
period) and on or prior to such date for which such Consolidated Net Income is
a positive amount, disregarding any fiscal year for which Consolidated Net
Income is a negative amount.
SECTION 5.09. Fixed Charge Coverage. The Fixed Charge Coverage Ratio
will not, at the last day of any fiscal quarter ending during any fiscal year
set forth below, be less than the ratio set forth below opposite such year:
Fiscal Year Ending Ratio
------------------ -----
December 31, 1997 3.50 to 1.0
December 31, 1998 3.50 to 1.0
December 31, 1999 3.50 to 1.0
December 31, 2000 4.00 to 1.0
December 31, 2001 4.25 to 1.0
December 31, 2002 4.25 to 1.0
SECTION 5.10. Restricted Payments; Prepayments of Subordinated Debt.
The Borrower will not, and will not permit any of its Subsidiaries to, (i)
declare or make any Restricted Payment or (ii) prepay, purchase, redeem or
otherwise acquire for value (except in compliance with compulsory amortization
or sinking fund requirements (including, without limitation, purchases thereof
made to fulfill sinking fund requirements within 12 months of any sinking fund
payment date) or any other mandatory prepayment provisions and in compliance
with the subordination provisions of such Subordinated Debt), or make any
payment of interest or deposit funds with any paying agent therefor more than
five business days before the time such payment or deposit is due with respect
to, or agree to the modification or amendment of any of the terms of
subordination or payment of, or
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amortization or sinking fund requirements applicable to, any Subordinated Debt;
provided that, so long as no Default has occurred and is continuing, the
Borrower may make Restricted Payments so long as the aggregate amount of
Restricted Payments made pursuant to this proviso after the Effective Date does
not exceed the sum of (i) $50,000,000 plus (ii) 50% of Consolidated Net Income
of the Borrower and its Consolidated Subsidiaries for the period from March 31,
1997 through the end of the Borrower's then most recent fiscal quarter (treated
for this purpose as a single accounting period).
SECTION 5.11. Consolidations, Mergers, Sales of Assets, Dissolutions,
Reorganizations, etc. (a) The Borrower will not, nor will it permit any
Subsidiary to, enter into any transaction of merger or consolidation,
reorganize, liquidate, dissolve or wind up (or suffer any reorganization,
liquidation, dissolution or winding up) or convey, sell, lease or otherwise
dispose of, in one or a series of related transactions, substantially all of
its property, assets or business, except:
(i) the Borrower and its Subsidiaries may sell their
inventory in the ordinary course of business;
(ii) any Subsidiary of the Borrower may be voluntarily
liquidated, dissolved or wound up or merged into or consolidated with,
or may convey all or any part of its property, assets or business to,
the Borrower or any Wholly-Owned Consolidated Subsidiary; provided that
(A) if a Subsidiary of the Borrower is merged into or consolidated with
the Borrower or any Wholly-Owned Consolidated Subsidiary, the Borrower
or such Wholly-Owned Consolidated Subsidiary, as the case may be, shall
be the surviving corporation and (B) no disposition of assets referred
to above in this clause (ii) of this Section shall be permitted if,
immediately after giving effect thereto, a Default shall have occurred
and be continuing; and
(iii) any Subsidiary of the Borrower may sell substantially
all of its accounts receivable to the special purpose Subsidiary
referred to in the definition of "RECEIVABLES FINANCING" pursuant to
the Receivables Financing and such Subsidiary may obtain financing of
up to $125,000,000 by selling or pledging substantially all such
accounts receivable to certain investors.
Notwithstanding the foregoing, (X) the Borrower may permit any Subsidiary to
enter into any transaction of merger or consolidation, reorganize, liquidate,
dissolve or wind up (or suffer any reorganization, liquidation, dissolution or
winding up of such Subsidiary) or convey, sell, lease or otherwise dispose of,
in one or a series of related transactions, substantially all of its property,
assets or
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business, and (Y) the Borrower may trade or exchange (through formation of
joint ventures or otherwise), the assets of any Subsidiary for similar assets,
provided that the aggregate amount of Net Tangible Assets so disposed of
pursuant to clauses (X) and (Y) during the term of this Agreement shall not
exceed 15% of Consolidated Net Tangible Assets, determined as of the last day
of the fiscal quarter most recently ended on or prior to the date of
consummation of the most recent such trade or exchange.
SECTION 5.12. Subsidiary Debt. The Borrower will not, after the date
of this Agreement, permit any of its Subsidiaries to incur, assume or suffer to
exist any Debt except (A) Debt existing on the date hereof, (B) Debt owing to
the Borrower or a Wholly-Owned Consolidated Subsidiary, (C) non-recourse
financing approved in advance in writing by the Required Banks, (D) Debt
secured by Liens permitted pursuant to Section 5.14, (E) Guarantees of letter
of credit reimbursement obligations of the Borrower in an aggregate amount
(contingent and non-contingent) at no time exceeding $30,000,000 and (F) Debt
(other than Debt permitted pursuant to clauses (A), (B), (C), (D) and (E)
hereof) not exceeding in aggregate principal amount at any time outstanding for
all Subsidiaries the greater of (i) $30,000,000 or (ii) 10% of Consolidated
Net Worth.
SECTION 5.13. Use of Proceeds. The proceeds of the Loans made under
this Agreement will be used by the Borrower for its general corporate purposes.
None of such proceeds will be used, directly or indirectly, for the purpose,
whether immediate, incidental or ultimate, of purchasing or carrying any
"MARGIN STOCK" within the meaning of Regulation U.
SECTION 5.14. Negative Pledge. The Borrower will not, and will not
permit any Subsidiary to, create, assume or suffer to exist any Lien on any
asset (including the stock and assets of any Subsidiary) now owned or hereafter
acquired by it, except:
(a) Liens on cash and cash equivalents securing Derivatives
Obligations, provided that the aggregate amount of cash and cash equivalents
subject to such Liens may at no time exceed $5,000,000;
(b) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement, in an aggregate principal amount not
exceeding $36,000,000;
(c) any Lien existing on any asset of any Person at the time such
Person becomes a Subsidiary and not created in contemplation of such event;
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(d) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such asset;
provided that such Lien attaches to such asset concurrently with or within 90
days after the acquisition thereof;
(e) any Lien on any asset of any Person existing at the time such
Person is merged or consolidated with or into the Borrower or a Subsidiary and
not created in contemplation of such event;
(f) any Lien existing on any asset prior to the acquisition thereof
by the Borrower or a Subsidiary and not created in contemplation of such
acquisition;
(g) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses of this Section; provided that such Debt is not increased and is not
secured by any additional assets;
(h) Liens arising in the ordinary course of its business which (i)
do not secure Debt or Derivatives Obligations, (ii) do not secure obligations
exceeding $20,000,000 in aggregate amount and (iii) do not in the aggregate
materially detract from the value of its assets or materially impair the use
thereof in the operation of its business;
(i) Liens arising out of the Receivables Financing; and
(j) Liens not otherwise permitted by the foregoing clauses of this
Section securing Debt in an aggregate principal amount at any time outstanding
not to exceed 5% of Consolidated Net Worth.
SECTION 5.15. Additional Guarantors and Release of Guaranties. (a)
Additional Guarantors. The Borrower represents and warrants that, as of the
date of this Agreement, the Guarantors set forth on the signature pages of the
Guaranty Agreement constitute all Subsidiaries (except as contemplated by the
definition of the term "SUBSIDIARY"). The Borrower agrees, within ten days
after any Person hereafter becomes a Subsidiary, to cause such Person to become
a Guarantor (as defined in the Guaranty Agreement) under the Guaranty
Agreement, and in connection therewith to deliver such opinions of counsel and
other documents relating to such Guarantor and its obligations thereunder as
the Agent may reasonably request.
(b) Release of Guarantees. Upon the effectiveness of the
Supplemental Indenture, each Guarantor's obligations under the Guaranty
Agreement shall be
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discharged; provided that the Agent shall have received a true and correct copy
of the Supplemental Indenture.
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following
events ("EVENTS OF DEFAULT") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of or
interest on any Loan, any fees or any other amount payable hereunder;
(b) the Borrower or any of its Subsidiaries shall fail to observe or
perform any covenant contained in Sections 5.07 to 5.15, inclusive;
(c) the Borrower or any of its Subsidiaries shall fail to observe or
perform any covenant or agreement contained in this Agreement (other than those
covered by clause 6.01(a) or 6.01(b) above) or the Guaranty Agreement for 10
days after notice thereof has been given to the Borrower or such Subsidiary by
the Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made by
the Borrower or any of its Subsidiaries in the Loan Documents or in any
certificate, financial statement or other document delivered pursuant hereto or
thereto shall prove to have been incorrect in any material respect when made
(or deemed made);
(e) the Borrower or any Subsidiary shall fail to make any payment in
respect of any Material Financial Obligations when due or within any applicable
grace period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt or enables (or, with the
giving of notice or lapse of time or both, would enable) the holder of such
Debt or any Person acting on such holder's behalf to accelerate the maturity
thereof;
(g) the Borrower or any of its Subsidiaries shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its
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property, or shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for the
benefit of creditors, or shall fail generally to pay its debts as they become
due, or shall take any corporate action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced
against the Borrower or any of its Subsidiaries seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for
a period of 60 days; or an order for relief shall be entered against the
Borrower or any Subsidiary under the federal bankruptcy laws as now or
hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $1,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to terminate
a Material Plan shall be filed under Title IV of ERISA by any member of the
ERISA Group, any plan administrator or any combination of the foregoing; or the
PBGC shall institute proceedings under Title IV of ERISA to terminate, to
impose liability (other than for premiums under Section 4007 of ERISA) in
respect of, or to cause a trustee to be appointed to administer any Material
Plan; or a condition shall exist by reason of which the PBGC would be entitled
to obtain a decree adjudicating that any Material Plan must be terminated; or
there shall occur a complete or partial withdrawal from, or a default, within
the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more members of the ERISA Group to
incur a current payment obligation in excess of $1,000,000;
(j) a judgment or order for the payment of money in excess of
$1,000,000 shall be rendered against the Borrower or any Subsidiary and such
judgment or order shall continue unsatisfied and unstayed for a period of 10
days; or
(k) any person or group of persons (within the meaning of Section 13
or 14 of the Securities Exchange Act of 1934, as amended) (except a person that
has or a group of persons each of which has as of the date hereof more than 10%
of such voting common stock) shall have acquired beneficial ownership (within
the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission
under said Act) of 25% or more of the outstanding shares of voting common stock
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of the Borrower; or, during any period of 24 consecutive calendar months,
individuals who were either (i) directors of the Borrower on the first day of
such period or (ii) elected to fill vacancies caused by the ordinary course
resignation or retirement of any other director and whose nomination or
election was approved by a vote of at least a majority of directors then still
in office who were directors of the Borrower on the first day of such period,
shall cease to constitute a majority of the board of directors of the Borrower;
then, and in every such event, the Agent shall (i) if requested by the Required
Banks, by notice to the Borrower terminate the Commitments and they shall
thereupon terminate, (ii) if requested by Banks holding at least 66 2/3% of the
aggregate principal amount of the Loans, by notice to the Borrower declare the
Notes (together with accrued interest thereon) to be, and the Notes shall
thereupon become, immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower; provided that in the case of any of the Events of Default specified
in clause 6.01(g) or 6.01(h) above with respect to the Borrower, without any
notice to the Borrower or any other act by the Agent or the Banks, the
Commitments shall thereupon terminate and the Notes (together with accrued
interest thereon) shall become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower.
SECTION 6.02. Notice of Default. The Agent shall give notice to the
Borrower under Section 6.01(c) promptly upon being requested to do so by any
Bank and shall thereupon notify all the Banks thereof.
SECTION 6.03. Cash Cover. The Borrower agrees, in addition to the
provisions of Section 6.01 hereof, that upon the occurrence and during the
continuance of any Event of Default, it shall, if requested by the Agent upon
the instruction of the Banks having at least 66 2/3% in aggregate amount of the
Commitments (or, if the Commitments shall have been terminated, holding at
least 66 2/3% of the Letter of Credit Liabilities), pay to the Agent an amount
in immediately available funds (which funds shall be held as collateral
pursuant to arrangements satisfactory to the Agent) equal to the aggregate
amount available for drawing under all Letters of Credit then outstanding at
such time, provided that, upon the occurrence of any Event of Default specified
in Section 6.01(g) or 6.01(h) with respect to the Borrower, the Borrower shall
pay such amount forthwith without any notice or demand or any other act by the
Agent or the Banks.
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ARTICLE 7
THE AGENT
SECTION 7.01. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf
and to exercise such powers under the Loan Documents as are delegated to the
Agent by the terms thereof, together with all such powers as are reasonably
incidental thereto.
SECTION 7.02. Agent and Affiliates. Xxxxxx Guaranty Trust Company of
New York shall have the same rights and powers under the Loan Documents as any
other Bank and may exercise or refrain from exercising the same as though it
were not the Agent, and Xxxxxx Guaranty Trust Company of New York and its
affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Borrower or any Subsidiary or affiliate of the
Borrower as if it were not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations of the Agent under the
Loan Documents are only those expressly set forth therein. Without limiting the
generality of the foregoing, the Agent shall not be required to take any action
with respect to any Default, except as expressly provided in Article VI.
SECTION 7.04. Consultation with Experts. The Agent may consult with
legal counsel (who may be counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agent. Neither the Agent nor any of its
affiliates nor any of their respective directors, officers, agents or employees
shall be liable for any action taken or not taken by it in connection with the
Loan Documents (i) with the consent or at the request of the Required Banks or
(ii) in the absence of its own gross negligence or willful misconduct. Neither
the Agent nor any of its affiliates nor any of their respective directors,
officers, agents or employees shall be responsible for or have any duty to
ascertain, inquire into or verify (i) any statement, warranty or representation
made in connection with the Loan Documents or any borrowing hereunder; (ii) the
performance or observance of any of the covenants or agreements of the Borrower
or any of its Subsidiaries; (iii) the satisfaction of any condition specified
in Article 3, except receipt of items required to be delivered to the Agent; or
(iv) the validity, effectiveness or genuineness of the Loan Documents or any
other instrument or writing furnished in connection therewith. The Agent shall
not incur any liability by acting in
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reliance upon any notice, consent, certificate, statement, or other writing
(which may be a bank wire, telex, facsimile transmission or similar writing)
believed by it to be genuine or to be signed by the proper party or parties.
Without limiting the generality of the foregoing, the use of the term "agent"
in this Agreement with reference to the Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable law. Instead, such term is used merely as a matter
of market custom and is intended to create or reflect only an administrative
relationship between independent contracting parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in accordance
with its Commitment, indemnify the Agent, its affiliates and their respective
directors, officers, agents and employees (to the extent not reimbursed by the
Borrower) against any cost, expense (including counsel fees and disbursements),
claim, demand, action, loss or liability (except such as result from such
indemnitees' gross negligence or willful misconduct) that such indemnitees may
suffer or incur in connection with the Loan Documents or any action taken or
omitted by such indemnitees thereunder.
SECTION 7.07. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and on the
basis of such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank, and on the basis of such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking any action under the Loan Documents.
SECTION 7.08. Successor Agent. The Agent may resign at any time by
giving notice thereof to the Banks and the Borrower. Upon any such
resignation, the Required Banks shall have the right to appoint a successor
Agent with (so long as no Default shall have occurred and be continuing) the
consent of the Borrower, which consent shall not be unreasonably withheld. If
no successor Agent shall have been so appointed by the Required Banks with the
Borrower's consent, and shall have accepted such appointment, within 60 days
after the retiring Agent gives notice of resignation, then the retiring Agent
may, on behalf of the Banks, appoint a successor Agent, which shall be a
commercial bank organized or licensed under the laws of the United States of
America or of any State thereof and having a combined capital and surplus of at
least $50,000,000. Upon the acceptance of its appointment as Agent hereunder by
a successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation hereunder as Agent,
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the provisions of this Article shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent.
SECTION 7.09. Agent's Fee; Arranger Fee. The Borrower shall pay to
the Agent for its own account and to X.X. Xxxxxx Securities Inc. ("JPMSI"), in
its capacity as arranger, for its own account, fees in the amounts and at the
times previously agreed upon between the Borrower and the Agent and JPMSI,
respectively.
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period for any CD
Loan, Euro-Dollar Loan or Money Market LIBOR Loan:
(a) the Agent is advised by the Reference Banks that deposits in
dollars (in the applicable amounts) are not being offered to the Reference
Banks in the relevant market for such Interest Period, or
(b) in the case of CD Loans or Euro-Dollar Loans, Banks having 50%
or more of the aggregate amount of the Commitments advise the Agent that the
Adjusted CD Rate or the London Interbank Offered Rate, as the case may be, as
determined by the Agent will not adequately and fairly reflect the cost to such
Banks of funding their CD Loans or Euro-Dollar Loans, as the case may be, for
such Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, (i) the obligations of the Banks to
make CD Loans or Euro-Dollar Loans, as the case may be, or to continue or
convert outstanding Loans as or into CD Loans or Euro-Dollar Loans, as the case
may be, shall be suspended and (ii) each outstanding CD Loan or Euro-Dollar
Loan, as the case may be, shall be converted into a Base Rate Loan on the last
day of the then current Interest Period applicable thereto. Unless the Borrower
notifies the Agent at least two Domestic Business Days before the date of any
Fixed Rate Borrowing for which a Notice of Borrowing has previously been given
that it elects not to borrow on such date, (i) if such Fixed Rate Borrowing is
a Syndicated Borrowing, such Borrowing shall instead be made as a Base Rate
Borrowing and (ii) if such Fixed Rate Borrowing is a Money Market LIBOR
Borrowing, then the Money
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Market LIBOR Loans comprising such Borrowing shall bear interest for each day
from and including the first day to but excluding the last day of the Interest
Period applicable thereto at the Base Rate for such day.
SECTION 8.02. Illegality. If, on or after the date of this Agreement,
the adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Bank (or its Euro-Dollar Lending Office) with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency shall make it unlawful or impossible for any
Bank (or its Euro-Dollar Lending Office) to make, maintain or fund any of its
Euro-Dollar Loans and such Bank shall so notify the Agent, the Agent shall
forthwith give notice thereof to the other Banks and the Borrower, whereupon
until such Bank notifies the Borrower and the Agent that the circumstances
giving rise to such suspension no longer exist, the obligation of such Bank to
make Euro-Dollar Loans, or to convert outstanding Loans into Euro-Dollar Loans,
shall be suspended. Before giving any notice to the Agent pursuant to this
Section, such Bank shall designate a different Euro-Dollar Lending Office if
such designation will avoid the need for giving such notice and will not, in
the judgment of such Bank, be otherwise disadvantageous to such Bank. If such
notice is given, each Euro-Dollar Loan of such Bank then outstanding shall be
converted to a Base Rate Loan either (a) on the last day of the then current
Interest Period applicable to such Euro-Dollar Loan if such Bank may lawfully
continue to maintain and fund such Loan to such day or (b) immediately if such
Bank shall determine that it may not lawfully continue to maintain and fund
such Loan to such day.
SECTION 8.03. Increased Cost and Reduced Return. (a) If on or after
(x) the date hereof, in the case of any Committed Loan or Letter of Credit or
any obligation to make Committed Loans or issue or participate in any Letter of
Credit or (y) the date of any related Money Market Quote, in the case of any
Money Market Loan, the adoption of any applicable law, rule or regulation, or
any change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall impose, modify or deem
applicable any reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System, but excluding
(i) with respect to any CD Loan any such requirement included in an applicable
Domestic Reserve Percentage and (ii) with
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respect to any Euro-Dollar Loan any such requirement included in an applicable
Euro-Dollar Reserve Percentage), special deposit, insurance assessment
(excluding, with respect to any CD Loan, any such requirement reflected in an
applicable Assessment Rate) or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any Bank (or its Applicable
Lending Office) or shall impose on any Bank (or its Applicable Lending Office)
or on the United States market for certificates of deposit or the London
interbank market any other condition affecting its Fixed Rate Loans, its Note
or its obligation to make Fixed Rate Loans or its obligations hereunder in
respect of Letters of Credit and the result of any of the foregoing is to
increase the cost to such Bank (or its Applicable Lending Office) of making or
maintaining any Fixed Rate Loan or of issuing or participating in any Letter of
Credit, or to reduce the amount of any sum received or receivable by such Bank
(or its Applicable Lending Office) under this Agreement or under its Note with
respect thereto, by an amount deemed by such Bank to be material, then, within
15 days after demand by such Bank (with a copy to the Agent), the Borrower
shall pay to such Bank such additional amount or amounts as will compensate
such Bank for such increased cost or reduction.
(b) If any Bank shall have determined that, after the date hereof,
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Bank (or its Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, within 15 days
after demand by such Bank (with a copy to the Agent), the Borrower shall pay to
such Bank such additional amount or amounts as will compensate such Bank (or
its Parent) for such reduction.
(c) Each Bank will promptly notify the Borrower and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the judgment
of such Bank, be otherwise disadvantageous to such Bank. A certificate of any
Bank claiming compensation under this Section and setting forth the additional
amount or amounts to be paid to it hereunder shall be conclusive in the absence
of manifest
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error. In determining such amount, such Bank may use any reasonable averaging
and attribution methods.
SECTION 8.04. Taxes. (a) For purposes of this Section 8.04, the
following terms have the following meanings:
"TAXES" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings with respect to any payment by the
Borrower or any Subsidiary pursuant to any Loan Document, and all liabilities
with respect thereto, excluding (i) in the case of each Bank and the Agent,
taxes imposed on its income, net worth or gross receipts and franchise or
similar taxes imposed on it, by a jurisdiction under the laws of which such
Bank or the Agent (as the case may be) is organized or in which its principal
executive office is located or, in the case of each Bank, in which its
Applicable Lending Office is located and (ii) in the case of each Bank, any
United States withholding tax imposed on such payments but only to the extent
that such Bank is subject to United States withholding tax at the time such
Bank first becomes a party to this Agreement.
"OTHER TAXES" means any present or future stamp or documentary taxes
and any other excise or property taxes, or similar charges or levies, which
arise from any payment made pursuant to this Agreement or under any Note or
from the execution or delivery of, or otherwise with respect to, any Loan
Document.
(b) Any and all payments by the Borrower to or for the account of
any Bank or the Agent hereunder or under any Note shall be made without
deduction for any Taxes or Other Taxes; provided that, if the Borrower shall be
required by law to deduct any Taxes or Other Taxes from any such payments, (i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 8.04) such Bank or the 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 such deductions, (iii) the Borrower shall
pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law and (iv) the Borrower shall furnish
to the Agent, at its address referred to in Section 9.01, the original or a
certified copy of a receipt evidencing payment thereof.
(c) The Borrower agrees to indemnify each Bank and the Agent for the
full amount of Taxes or Other Taxes (including, without limitation, any Taxes
or Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 8.04) paid by such Bank or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or
with respect
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thereto. This indemnification shall be paid within 15 days after such Bank or
the Agent (as the case may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
and from time to time thereafter if requested in writing by the Borrower (but
only so long as such Bank remains lawfully able to do so), shall provide the
Borrower with Internal Revenue Service form 1001 or 4224, as appropriate, or
any successor form prescribed by the Internal Revenue Service, certifying that
such Bank is entitled to benefits under an income tax treaty to which the
United States is a party which exempts the Bank from United States withholding
tax or reduces the rate of withholding tax on payments of interest for the
account of such Bank or certifying that the income receivable pursuant to this
Agreement is effectively connected with the conduct of a trade or business in
the United States.
(e) For any period with respect to which a Bank has failed to
provide the Borrower with the appropriate form pursuant to Section 8.04(d)
(unless such failure is due to a change in treaty, law or regulation occurring
subsequent to the date on which such form originally was required to be
provided), such Bank shall not be entitled to indemnification under Section
8.04(b) or 8.04(c) with respect to Taxes imposed by the United States; provided
that if a Bank, which is otherwise exempt from or subject to a reduced rate of
withholding tax, becomes subject to Taxes because of its failure to deliver a
form required hereunder, the Borrower shall take such steps as such Bank shall
reasonably request to assist such Bank to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for
the account of any Bank pursuant to this Section 8.04, then such Bank will
change the jurisdiction of its Applicable Lending Office if, in the judgment of
such Bank, such change (i) will eliminate or reduce any such additional payment
which may thereafter accrue and (ii) is not otherwise disadvantageous to such
Bank.
SECTION 8.05. Base Rate Loans Substituted for Affected Fixed Rate
Loans. If (i) the obligation of any Bank to make, or convert outstanding Loans
to, Euro-Dollar Loans has been suspended pursuant to Section 8.02 or (ii) any
Bank has demanded compensation under Section 8.03 or 8.04 with respect to its
CD Loans or Euro-Dollar Loans and the Borrower shall, by at least five
Euro-Dollar Business Days' prior notice to such Bank through the Agent, have
elected that the provisions of this Section shall apply to such Bank, then,
unless and until such
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Bank notifies the Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer exist:
(a) all Loans which would otherwise be made by such Bank as (or
continued as or converted into) CD Loans or Euro-Dollar Loans, as the case may
be, shall instead be Base Rate Loans (on which interest and principal shall be
payable contemporaneously with the related Fixed Rate Loans of the other
Banks); and
(b) after each of its CD Loans or Euro-Dollar Loans, as the case may
be, has been repaid (or converted to a Base Rate Loan), all payments of
principal which would otherwise be applied to repay such Fixed Rate Loans shall
be applied to repay its Base Rate Loans instead.
If such Bank notifies the Borrower that the circumstances giving rise to such
notice no longer apply, the principal amount of each such Base Rate Loan shall
be converted into a CD Loan or Euro-Dollar Loan, as the case may be, on the
first day of the next succeeding Interest Period applicable to the related CD
Loans or Euro-Dollar Loans of the other Banks.
SECTION 8.06. Substitution of Bank. If (i) the obligation of any Bank
to make Euro-Dollar Loans or to convert or continue outstanding Loans into
Euro-Dollar Loans shall be suspended pursuant to Section 8.02 or (ii) any Bank
shall demand compensation pursuant to Section 8.03 or 8.04, the Borrower shall
have the right, with the assistance of the Agent and the Issuing Banks, to seek
a mutually satisfactory bank or banks (which may be one or more of the Banks)
to purchase the outstanding Loans of such Bank and to assume the Commitment and
Letter of Credit Liabilities of such Bank.
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including bank wire, telex,
facsimile transmission or similar writing) and shall be given to such party:
(x) in the case of the Borrower or the Agent, at its address, facsimile number
or telex number set forth on the signature pages hereof, (y) in the case of any
Bank, at its address, facsimile number or telex number set forth in its
Administrative Questionnaire or (z) in the case of any party, such other
address, facsimile number or telex number as such party may hereafter specify
for the purpose by notice to the Agent and the
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Borrower. Each such notice, request or other communication shall be effective
(i) if given by telex, when such telex is transmitted to the telex number
specified in this Section and the appropriate answerback is received, (ii) if
given by facsimile transmission, when transmitted to the facsimile number
specified in this Section and confirmation of receipt is received, (iii) if
given by mail, 72 hours after such communication is deposited in the mails with
first class postage prepaid, addressed as aforesaid or (iv) if given by any
other means, when delivered at the address specified in this Section; provided
that notices to the Agent or any Issuing Bank under Article 2 or Article 8
shall not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by the Agent or any
Bank in exercising any right, power or privilege under the Loan Documents shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.03. Expenses; Indemnification. (a) The Borrower shall pay
(i) all out-of-pocket expenses of the Agent, including fees and disbursements
of special counsel for the Agent, in connection with the preparation of the
Loan Documents, any waiver or consent thereunder or any amendment thereof or
any Default or alleged Default hereunder and (ii) if an Event of Default
occurs, all out-of-pocket expenses incurred by the Agent and each Bank,
including fees and disbursements of counsel, in connection with such Event of
Default and collection, bankruptcy, insolvency and other enforcement
proceedings resulting therefrom.
(b) The Borrower agrees to indemnify the Agent and each Bank, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "INDEMNITEE") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such Indemnitee in
connection with any investigative, administrative or judicial proceeding
(whether or not such Indemnitee shall be designated a party thereto) brought or
threatened relating to or arising out of this Agreement or any actual or
proposed use of proceeds of Loans hereunder; provided that no Indemnitee shall
have the right to be indemnified hereunder for such Indemnitee's own gross
negligence or willful misconduct as determined by a court of competent
jurisdiction.
SECTION 9.04. Sharing of Set-Offs. Subject to Section 2.18, each Bank
agrees that if it shall, by exercising any right of set-off or counterclaim or
otherwise, receive payment of a proportion of the aggregate amount then due
with
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respect to the Loans and Letter of Credit Liabilities held by it which is
greater than the proportion received by any other Bank in respect of the
aggregate amount then due and interest due with respect to the Loans and Letter
of Credit Liabilities held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in the Loans
and Letter of Credit Liabilities held by the other Banks, and such other
adjustments shall be made, as may be required so that all such payments then
due with respect to the Loans and Letter of Credit Liabilities held by the
Banks shall be shared by the Banks pro rata; provided that nothing in this
Section shall impair the right of any Bank to exercise any right of set-off or
counterclaim it may have and to apply the amount subject to such exercise to
the payment of indebtedness of the Borrower other than its indebtedness under
the Loan Documents. The Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a participation in
the Loans and Letter of Credit Liabilities, whether or not acquired pursuant to
the foregoing arrangements, may exercise rights of set-off or counterclaim and
other rights with respect to such participation as fully as if such holder of a
participation were a direct creditor of the Borrower in the amount of such
participation.
SECTION 9.05. Amendments and Waivers. Any provision of this Agreement
or the Notes may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed by the Borrower and the Required Banks (and, if the
rights or duties of the Agent, the Swingline Bank or any Issuing Bank are
affected thereby, by such Person); provided that no such amendment or waiver
shall, unless signed by all the Banks, (i) increase or decrease the Commitment
of any Bank (except (x) as contemplated by Section 2.19 or (y) for a ratable
decrease in the Commitments of all Banks) or subject any Bank to any additional
obligation, (ii) reduce the principal of or rate of interest on any Loan or the
amount to be reimbursed in respect of any Letter of Credit or any interest
thereon or any fees hereunder, (iii) postpone the date fixed for any payment of
principal of or interest on any Loan or for reimbursement in respect of any
Letter of Credit or interest thereon or any fees hereunder or for termination
of any Commitment, (iv) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes and Letter of Credit
Liabilities, or the number of Banks, which shall be required for the Banks or
any of them to take any action under this Section or any other provision of
this Agreement, (v) change this Section 9.05 or (vi) permit the subordination
of any payment or right of payment due to the Banks under the Loan Documents.
SECTION 9.06. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that the Borrower may not
assign or
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otherwise transfer any of its rights under this Agreement without the prior
written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "PARTICIPANT") participating interests in its Commitment
or any or all of its Loans and Letter of Credit Liabilities. In the event of
any such grant by a Bank of a participating interest to a Participant, whether
or not upon notice to the Borrower and the Agent, such Bank shall remain
responsible for the performance of its obligations hereunder, and the Borrower,
the Issuing Banks and the Agent shall continue to deal solely and directly with
such Bank in connection with such Bank's rights and obligations under the Loan
Documents. Any agreement pursuant to which any Bank may grant such a
participating interest shall provide that such Bank shall retain the sole right
and responsibility to enforce the obligations of the Borrower under the Loan
Documents including, without limitation, the right to approve any amendment,
modification or waiver of any provision thereof; provided that such
participation agreement may provide that such Bank will not agree to any
modification, amendment or waiver of this Agreement described in clause (i),
(ii) or (iii) of Section 9.05 without the consent of the Participant. The
Borrower agrees that each Participant shall, to the extent provided in its
participation agreement, be entitled to the benefits of Article 8 with respect
to its participating interest. An assignment or other transfer which is not
permitted by subsection 9.06(c) or 9.06(d) below shall be given effect for
purposes of this Agreement only to the extent of a participating interest
granted in accordance with this subsection 9.06(b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "ASSIGNEE") all, or a proportionate part (equivalent to
an initial Commitment of not less than $5,000,000) of all, of its rights and
obligations under the Loan Documents, and such Assignee shall assume such
rights and obligations, pursuant to an Assignment and Assumption Agreement in
substantially the form of Exhibit G hereto executed by such Assignee and such
transferor Bank, with (and subject to) the subscribed consent of the Borrower,
the Agent and the Issuing Banks, which consents shall not be unreasonably
withheld; provided that if an Assignee is an affiliate of such transferor Bank
or was a Bank immediately prior to such assignment, no such consent shall be
required. Upon execution and delivery of such instrument and payment by such
Assignee to such transferor Bank of an amount equal to the purchase price
agreed between such transferor Bank and such Assignee, such Assignee shall be a
Bank party to this Agreement and shall have all the rights and obligations of a
Bank with a Commitment as set forth in such instrument of assumption, and the
transferor Bank shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required. Upon the consummation of
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any assignment pursuant to this subsection 9.06(c), the transferor Bank, the
Agent and the Borrower shall make appropriate arrangements so that, if
required, a new Note is issued to the Assignee. In connection with any such
assignment, the transferor Bank shall pay to the Agent an administrative fee
for processing such assignment in the amount of $2,500. If the Assignee is not
incorporated under the laws of the United States of America or a state thereof,
it shall, prior to the first date on which interest or fees are payable
hereunder for its account, deliver to the Borrower and the Agent certification
as to exemption from deduction or withholding of any United States federal
income taxes in accordance with Section 8.04.
(d) Any Bank may at any time assign all or any portion of its rights
under the Loan Documents to a Federal Reserve Bank. No such assignment shall
release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's
rights shall be entitled to receive any greater payment under Section 8.03 or
8.04 than such Bank would have been entitled to receive with respect to the
rights transferred, unless such transfer is made with the Borrower's prior
written consent or by reason of the provisions of Section 8.02, 8.03 or 8.04
requiring such Bank to designate a different Applicable Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
SECTION 9.07. Collateral. Each of the Banks represents to the Agent
and each of the other Banks that it in good faith is not relying upon any
"MARGIN STOCK" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 9.08. Governing Law; Submission to Jurisdiction. This
Agreement and each Note shall be governed by and construed in accordance with
the laws of the State of New York. The Borrower hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court sitting in New York City
for purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. The Borrower irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court has
been brought in an inconvenient forum.
SECTION 9.09. Counterparts; Integration. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the
same
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effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement constitutes the entire agreement and understanding among the
parties hereto and supersedes any and all prior agreements and understandings,
oral or written, relating to the subject matter hereof.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE AGENT,
THE BANKS AND THE ISSUING BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
UNIVERSAL HEALTH SERVICES, INC.
By /s/ Xxxx X. Xxxxxx
---------------------------------
Title: Senior Vice President and
Chief Financial Officer
Universal Corporate Center
000 Xxxxx Xxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000
Facsimile number: (000) 000-0000
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Commitments
-----------
$66,000,000 XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By /s/ Penelope X. X. Xxx
------------------------------------------
Title: Vice President
$43,000,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
successor by merger to BANK OF
AMERICA ILLINOIS
By /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Title: Vice President
$43,000,000 THE CHASE MANHATTAN BANK
By /s/ Xxxx Xxx Xxx
------------------------------------------
Title: Vice President
$43,000,000 NATIONSBANK, N.A.
By /s/ Xxxxx Xxxxxx
------------------------------------------
Title: Vice President
$30,000,000 FIRST UNION NATIONAL BANK
By /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Title: Senior Vice President
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$30,000,000 PNC BANK, N.A.
By /s/ Xxxx Xxxxx
------------------------------------------
Title: Vice President
$15,000,000 CORESTATES BANK, N.A.
By /s/ Xxxx Xxxxxxxxxxxx
------------------------------------------
Title: Commercial Officer
$15,000,000 FLEET NATIONAL BANK
By /s/ Xxxxxx Xxxxxxxxxxxxx
------------------------------------------
Title: Senior Vice President
$15,000,000 MELLON BANK, N.A.
By /s/ Xxxxx Xxxxx
------------------------------------------
Title: Vice President
--------------------
Total Commitments
$300,000,000
====================
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XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as Agent
By /s/ Penelope X. X. Xxx
---------------------------------
Title: Vice President
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Loan Department
Telex number: 177615 MGT
Facsimile number: (000) 000-0000
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PRICING SCHEDULE I
(RATIO BASED PRICING)
The "EURO-DOLLAR MARGIN", "CD MARGIN", "FACILITY FEE RATE" and "LC FEE
RATE" for any day are the respective percentages set forth below in the
applicable row under the column corresponding to the Status that exists on such
day:
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxxxx Xxxxx X Xxxxx XX Xxxxx XXX Level IV
==============================================================================
Euro-Dollar Margin 0.250% 0.350% 0.425% 0.500%
------------------------------------------------------------------------------
CD Margin 0.375% 0.475% 0.550% 0.625%
------------------------------------------------------------------------------
Facility Fee Rate 0.125% 0.150% 0.200% 0.375%
------------------------------------------------------------------------------
LC Fee Rate 0.250% 0.350% 0.425% 0.500%
==============================================================================
For purposes of this Schedule, the following terms have the following
meanings:
"LEVEL I STATUS" exists at any date if, at such date, the Applicable
Leverage Ratio is less than 0.45.
"LEVEL II STATUS" exists at any date if, at such date, (i) the
Applicable Leverage Ratio is less than 0.55 and (ii) Level I Status does not
exist.
"LEVEL III STATUS" exists at any date if, at such date, (i) the
Applicable Leverage Ratio is less than 0.65 and (ii) neither Level I Status nor
Level II Status exists.
"LEVEL IV STATUS" exists at any date if, at such date, no other Status
exists.
"APPLICABLE LEVERAGE RATIO" means, for each day during any Quarter,
the Leverage Ratio as at the last day of the second preceding Quarter (e.g. the
Applicable Leverage Ratio for each day during the Quarter ending on March 31,
1997 shall be the Leverage Ratio as at September 30, 1996).
"QUARTER" means each period of three consecutive calendar months
consisting of (i) January, February and March; (ii) April, May and June; (iii)
July, August and September and (iv) October, November and December.
"STATUS" refers to the determination of which of Level I Status, Level
II Status, Level III Status or Level IV Status exists at any date.
79
PRICING SCHEDULE II
(RATINGS BASED PRICING)
The "EURO-DOLLAR MARGIN", "CD MARGIN", "FACILITY FEE RATE" and "LC FEE
RATE" for any day are the respective percentages set forth below in the
applicable row under the column corresponding to the status that exists on such
day:
==================================================================================================
Status Level I Level II Level III Level IV Level V
==================================================================================================
Euro-Dollar Margin 0.2150% 0.2875% 0.3500% 0.4250% 0.5000%
--------------------------------------------------------------------------------------------------
CD Margin 0.3400% 0.4125% 0.4750% 0.5500% 0.6250%
--------------------------------------------------------------------------------------------------
Facility Fee Rate 0.1100% 0.1375% 0.1500% 0.2000% 0.3750%
--------------------------------------------------------------------------------------------------
LC Fee Rate 0.2150% 0.2875% 0.3500% 0.4250% 0.5000%
==================================================================================================
For purposes of this Schedule, the following terms have the following
meanings:
"LEVEL I STATUS" exists at any date if, at such date, the Borrower is
rated (i) "BBB" or higher by S&P and no lower than Baa3 by Moody's or (ii)
"Baa2" or higher by Moody's and no lower than BBB- by S&P.
"LEVEL II STATUS" exists at any date if, at such date, the Borrower is
rated "BBB-" or higher by S&P and "Baa3" or higher by Moody's.
"LEVEL III STATUS" exists at any date if, at such date, (i) (x) the
Borrower is rated "BBB-" or higher by S&P and no lower than "Ba1" by Moody's,
or (y) the Borrower is rated Baa3 or higher by Moody's and no lower than BB+ by
S&P and (ii) neither Level I Status or Level II Status exists.
"LEVEL IV STATUS" exists at any date if, at such date, the Borrower is
rated "BB+" by S&P and "Ba1" by Moody's.
"LEVEL V STATUS" exists at any date if, at such date, no other Status
exists.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"STATUS" refers to the determination of which of Level I Status, Level
II Status, Level III Status, Level IV Status or Level V Status exists at any
date.
80
The credit ratings to be utilized for purposes of this Schedule are
those assigned to the senior unsecured long-term debt securities of the
Borrower without third-party credit enhancement, and any rating assigned to any
other debt security of the Borrower shall be disregarded. The ratings in effect
for any day are those in effect at the close of business on such day.
2
81
SCHEDULE 1
Subsidiaries
82
SCHEDULE 2
Insurance
83
EXHIBIT A
NOTE
New York, New York
_______________, 1997
For value received, Universal Health Services, Inc., a Delaware
corporation (the "BORROWER"), promises to pay to the order of _____________
(the "BANK"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Loan made by the Bank to the Borrower pursuant to the
Credit Agreement referred to below on the last day of the Interest Period
relating to such Loan. The Borrower promises to pay interest on the unpaid
principal amount of each such Loan on the dates and at the rate or rates
provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or other
immediately available funds at the office of Xxxxxx Guaranty Trust Company of
New York, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
All Loans made by the Bank, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Bank and, if the Bank so elects in connection with any transfer or enforcement
hereof, appropriate notations to evidence the foregoing information with
respect to each such Loan then outstanding may be endorsed by the Bank on the
schedule attached hereto, or on a continuation of such schedule attached to and
made a part hereof; provided that the failure of the Bank to make any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement
dated as of July 8, 1997 among the Borrower, the banks listed on the signature
pages thereof and Xxxxxx Guaranty Trust Company of New York, as Agent (as the
same may be amended from time to time, the "CREDIT AGREEMENT"). Terms defined
in the Credit Agreement are used herein with the same meanings. Reference is
made to the Credit Agreement for provisions for the prepayment hereof and the
acceleration of the maturity hereof.
UNIVERSAL HEALTH SERVICES, INC.
By
------------------------------------------
Title:
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Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
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Amount of Principal Maturity Notation
Date Loan Type of Loan Repaid Date Made By
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EXHIBIT B - Money Market Quote Request
FORM OF MONEY MARKET QUOTE REQUEST
[Date]
To: Xxxxxx Guaranty Trust Company of New York
(the "Agent")
From: Universal Health Services, Inc. (the "Borrower")
Re: Credit Agreement (as the same may be amended from time to time, the
"Credit Agreement") dated as of July 8, 1997 among the Borrower, the
Banks party thereto and the Agent
We hereby give notice pursuant to Section ? of the Credit Agreement
that we request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of Borrowing:
------------------
Principal Amount* Interest Period**
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Terms used herein have the meanings assigned to them in the Credit Agreement.
UNIVERSAL HEALTH SERVICES, INC.
By
-----------------------------
Name:
Title:
-----------------------
* Amount must be $5,000,000 or a larger multiple of $1,000,000.
** Not less than one month (LIBOR Auction) or not less than 7 days
(Absolute Rate Auction), subject to the provisions of the definition of
Interest Period.
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EXHIBIT C - Invitation for Money Market Quotes
FORM OF INVITATION FOR MONEY MARKET QUOTES
To: [Name of Bank]
Re: Invitation for Money Market Quotes to Universal Health Services, Inc.
(the "Borrower")
Pursuant to Section ? of the Credit Agreement dated as of June 11,
1997 among the Borrower, the Banks party thereto and the undersigned, as Agent,
we are pleased on behalf of the Borrower to invite you to submit Money Market
Quotes to the Borrower for the following proposed Money Market Borrowing(s):
Date of Borrowing:
------------------
Principal Amount Interest Period
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Please respond to this invitation by no later than [2:00 P.M.] [9:30 A.M.] (New
York City time) on [date].
Terms used herein have the meanings assigned to them in the Credit Agreement.
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as Agent
By
-------------------------------
Authorized Officer
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EXHIBIT D - Money Market Quote
FORM OF MONEY MARKET QUOTE
To: Xxxxxx Guaranty Trust Company of New York, as Agent
Re: Money Market Quote to Universal Health Services, Inc. (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, ____, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank:
--------------------------------
2. Person to contact at Quoting Bank:
-----------------------------
3. Date of Borrowing: *
--------------------
4. We hereby offer to make Money Market Loan(s) in the
following principal amounts, for the following Interest
Periods and at the following rates:
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
--------- --------- -------------------------------------
[Provided, that the aggregate principal amount of Money Market Loans
for which the above offers may be accepted shall not exceed
$____________.]**
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit Agreement
dated as of June 11, 1997 among Universal Health Services, Inc., the Banks
party thereto and yourselves, as Agent,
----------------------
*As specified in the related Invitation.
**Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate limitation if the sum of the individual
offers exceeds the amount the Bank is willing to lend. Each bid must be made
for $5,000,000 or a larger multiple of $1,000,000..
***Not less than one month or not less than 7 days, as specified in the
related Invitation. No more than five bids are permitted for each Interest
Period.
****Margin over or under the London Interbank Offered Rate determined for the
applicable Interest Period. Specify percentage (to the nearest 1/10,000th of
1%) and specify whether PLUS or MINUS .
*****Specify rate of interest per annum (to the nearest 1/10,000th of 1%).
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88
irrevocably obligate(s) us to make the Money Market Loan(s) for which any
offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated: By:
----------------- -------------------------
Authorized Officer
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EXHIBIT E-1
[Opinion of Fulbright & Xxxxxxxx L.L.P.,
Counsel for the Borrower]
To the Banks Referred to Below
c/x Xxxxxx Guaranty Trust Company
of New York, as Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: CREDIT AGREEMENT DATED AS OF JULY 8, 1997, AMONG UNIVERSAL
HEALTH SERVICES, INC., THE BANKS NAMED THEREIN (THE "BANKS")
AND XXXXXX GUARANTY TRUST COMPANY OF NEW YORK (THE "AGENT"),
AS AGENT FOR SUCH BANKS
Ladies and Gentlemen:
We have acted as counsel to Universal Health Services, Inc., a
Delaware corporation (the "COMPANY"), and its existing corporate Subsidiaries,
in connection with (a) the Credit Agreement referred to above (the "CREDIT
AGREEMENT"), which provides for the extension of loans to the Company by the
Banks in an aggregate principal amount not exceeding $300,000,000 at any one
time outstanding, and (b) the Guaranty Agreement dated as of July 8, 1997 among
the Subsidiaries of the Company named therein and the Agent (the "GUARANTY
AGREEMENT"). All terms defined in the Credit Agreement are used herein with
their defined meanings unless the context otherwise requires.
In connection with our acting as counsel to the Company and its
existing corporate Subsidiaries, we have examined such certificates of officers
of the Company and its Subsidiaries and originals or copies certified to our
satisfaction of such corporate documents and resolutions of the Company and its
Subsidiaries and other corporate records as we have deemed relevant and
necessary as the basis for our opinion hereinafter set forth. We have relied
upon (i) such certificates of officers of the Company and its Subsidiaries with
respect to the accuracy of factual matters contained therein and (ii) certain
certificates of public officials.
On the basis of the foregoing, we are of the opinion that:
E1-1
90
1. Each of the Company and its existing corporate Subsidiaries is
a corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and is duly qualified as a
foreign corporation and in good standing in each other jurisdiction in which
the conduct of its business or the ownership of its property requires such
qualification.
2. Each of the Company and its existing Subsidiaries has all
corporate powers required to own its properties and conduct its business as now
conducted. The Company has the corporate power and authority to execute,
deliver and perform the Credit Agreement and the Notes and to borrow under the
Credit Agreement. The Company has taken all necessary corporate action to
authorize the borrowings under the Credit Agreement and to authorize the
execution, delivery and performance of the Credit Agreement and the Notes. Each
of the Credit Agreement and the Notes has been duly executed and delivered by
the Company and constitutes a valid and binding agreement or obligation of the
Company, as the case may be, enforceable against the Company in accordance with
its terms. No consent of any other Person (including stockholders of the
Company) and no license, approval or authorization of, exemption by, or
registration or declaration with, any governmental body is required in
connection with the execution, delivery or performance by the Company, or the
validity or enforceability against the Company of the Credit Agreement and the
Notes.
3. The execution, delivery and performance by the Company of the
Credit Agreement and the Notes and by the Subsidiaries that are party thereto
of the Guaranty Agreement will not violate any provision of any existing law or
regulation or the Restated Certificate of Incorporation, as amended, or By-Laws
of the Company or the charter or by-laws of any such Subsidiary or, to the best
of our knowledge after due inquiry, of any judgment, order, decree or award of
any court, arbitrator or governmental body, any mortgage, indenture, security
agreement, contract, undertaking or other agreement to which the Company or any
Subsidiary is a party or that is or may be binding upon any of them or any of
their respective properties or assets and of which we have knowledge and will
not result in the imposition or creation of any Lien on any thereof pursuant to
the provisions of any such mortgage, indenture, security agreement, contract,
undertaking or other agreement to which the Company or any Subsidiary is a
party or that is or may be binding upon any of them or any of their respective
properties or assets and of which we have knowledge.
4. Each Subsidiary that is a party to the Guaranty Agreement has
taken all necessary corporate action to authorize the execution and delivery of
the Guaranty Agreement and the Guaranty Agreement has been duly executed and
delivered by each such Subsidiary. The Guaranty Agreement is a valid and
binding agreement of each Subsidiary party thereto enforceable against each
such Subsidiary in accordance with its terms.
5. No consent of any other Person and no license, approval or
authorization of, exemption by, or registration or declaration with, any
governmental body is required in
E1-2
91
connection with the execution, delivery, performance, validity or
enforceability of the Guaranty Agreement.
6. To the best of our knowledge after due inquiry, except as set
forth on Exhibit A hereto, and as described in the Company's Annual Report on
Form 10-K for the year ended December 31, 1996, which has previously been
delivered to the Banks, there are no actions, suits or proceedings pending or
threatened against or affecting the Company or any Subsidiary or any of their
respective properties in any court or before any arbitrator of any kind or
before or by any governmental body, except actions, suits or proceedings of the
character normally incident to the kind of business conducted by the Company
and its Subsidiaries that (a) would not materially impair the right or ability
of the Company or any Subsidiary to carry on its business substantially as now
conducted and (b) would not have a material adverse effect on the consolidated
financial condition of the Company and its Subsidiaries, and there are no
actions, suits or proceedings pending or threatened that relate to or which in
any manner draw into question the validity of any of the transactions
contemplated by the Credit Agreement or the Guaranty Agreement.
7. Neither the Company nor any of its Subsidiaries is an
"INVESTMENT COMPANY" or an "AFFILIATED PERSON" thereof, within the meaning of
the Investment Company Act of 1940, as amended, and the rules and regulations
thereunder.
The opinions set forth above are subject to the following
qualifications:
(a) The enforceability of (i) the Company's obligations under
the Credit Agreement and the Notes and (ii) each of the Subsidiaries
obligations under the Guaranty Agreement is subject to the effect of
any applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally;
(b) We express no opinion as to the availability of the
equitable remedy of specific performance (other than with respect to
obligations for the payment of money) or injunctive relief;
(c) With respect to permits, licenses, approvals and
governmental authorizations required for the Company and the
Subsidiaries to own their respective properties and conduct their
respective businesses, we have relied solely upon certificates of
officers of the Company and the Subsidiaries;
(d) With respect to the organization, existence, qualification
and good standing of the Company's Subsidiaries, and the matters set
forth in Item 6, we have, with your permission relied solely upon
certificates of officers of the Company and such Subsidiaries and the
opinion of Xxxxx X. Xxxxxxx, General Counsel of the Company;
E1-3
92
(e) Nothing herein shall constitute an opinion as to the laws
of any jurisdiction other than the laws of the State of New York, the
General Corporation Law of the State of Delaware and the Federal laws
of the United States; and
(f) We express no opinion as to the applicability (and, if
applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy
Code or any comparable provision of state law or other state
fraudulent conveyance laws to the questions addressed in paragraph 4
or the conclusions expressed with respect thereto.
Very truly yours,
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93
EXHIBIT E-2
[Opinion of General Counsel of the Borrower]
[Effective Date]
To the Banks Referred to Below Fulbright & Xxxxxxxx L.L.P.
c/x Xxxxxx Guaranty Trust Company 000 Xxxxx Xxxxxx
xx Xxx Xxxx, as Agent Xxx Xxxx, XX 00000
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: CREDIT AGREEMENT DATED AS OF JULY 8, 1997, AMONG UNIVERSAL
HEALTH SERVICES, INC., THE BANKS NAMED THEREIN (THE "BANKS")
AND XXXXXX GUARANTY TRUST COMPANY OF NEW YORK (THE "AGENT"),
AS AGENT FOR SUCH BANKS
Ladies and Gentlemen:
I am General Counsel to Universal Health Services, Inc., a Delaware
corporation (the "COMPANY"), and its existing corporate Subsidiaries, and I am
rendering this opinion in connection with (a) the Credit Agreement referred to
above (the "CREDIT AGREEMENT"), which provides for the extension of loans to
the Company by the Banks in an aggregate principal amount not exceeding
$300,000,000 at any one time outstanding, and (b) the Guaranty Agreement dated
as of July 8, 1997 among the Subsidiaries of the Company named therein and the
Agent (the "GUARANTY AGREEMENT"). All terms defined in the Credit Agreement are
used herein with their defined meanings unless the context otherwise requires.
In connection with this opinion I have examined such certificates of
officers of the Company and its Subsidiaries and originals or copies certified
to my satisfaction of such corporate documents and resolutions of the Company
and its Subsidiaries and other corporate records as I have deemed relevant and
necessary as the basis for my opinion hereinafter set forth. I have relied upon
(i) such certificates of officers of the Company and its Subsidiaries with
respect to the accuracy of factual matters contained therein with respect to
the operations and properties of the Company and its Subsidiaries and (ii)
certain certificates of public officials.
On the basis of the foregoing, I am of the opinion that:
E2-1
94
1. Each of the Company and its existing corporate Subsidiaries is
a corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and is duly qualified as a
foreign corporation and in good standing in each other jurisdiction in which
the conduct of its business or the ownership of its property requires such
qualification.
2. Each of the Company and its existing Subsidiaries has all
corporate powers required to own its properties and conduct its business as now
conducted. The Company has the corporate power and authority to execute,
deliver and perform the Credit Agreement and the Notes and to borrow under the
Credit Agreement. The Company has taken all necessary corporate action to
authorize the borrowings under the Credit Agreement and to authorize the
execution, delivery and performance of the Credit Agreement and the Notes.
3. The execution, delivery and performance by the Company of the
Credit Agreement and the Notes and by the Subsidiaries that are party thereto
of the Guaranty Agreement will not violate any provision of any existing law or
regulation or the Restated Certificate of Incorporation, as amended, or By-Laws
of the Company or the charter or by-laws of any such Subsidiary or, to the best
of my knowledge after due inquiry, of any judgment, order, decree or award of
any court, arbitrator or governmental body, any mortgage, indenture, security
agreement, contract, undertaking or other agreement to which the Company or any
Subsidiary is a party or that is or may be binding upon any of them or any of
their respective properties or assets and of which I have knowledge and will
not result in the imposition or creation of any Lien on any thereof pursuant to
the provisions of any such mortgage, indenture, security agreement, contract,
undertaking or other agreement to which the Company or any Subsidiary is a
party or that is or may be binding upon any of them or any of their respective
properties or assets and of which I have knowledge.
4. Each Subsidiary that is a party to the Guaranty Agreement has
taken all necessary corporate action to authorize the execution and delivery of
the Guaranty Agreement and the Guaranty Agreement has been duly executed and
delivered by each such Subsidiary. The Guaranty Agreement is a valid and
binding agreement of each Subsidiary party thereto enforceable against each
such Subsidiary in accordance with its terms.
5. No consent of any other Person and no license, approval or
authorization of, exemption by, or registration or declaration with, any
governmental body is required in connection with the execution, delivery,
performance, validity or enforceability of the Guaranty Agreement.
6. To the best of my knowledge after due inquiry, except as
described in the Company's Annual Report on Form 10-K for the year ended
December 31, 1996, which has previously been delivered to the Banks, there are
no actions, suits or proceedings pending or threatened against or affecting the
Company or any Subsidiary or any of their
E2-2
95
respective properties in any court or before any arbitrator of any kind or
before or by any governmental body, except actions, suits or proceedings of the
character normally incident to the kind of business conducted by the Company
and its Subsidiaries that (a) would not materially impair the right or ability
of the Company or any Subsidiary to carry on its business substantially as now
conducted and (b) would not have a material adverse effect on the consolidated
financial condition of the Company and its Subsidiaries, and there are no
actions, suits or proceedings pending or threatened that relate to or which in
any manner draw into question the validity of any of the transactions
contemplated by the Credit Agreement or the Guaranty Agreement.
The opinions set forth above are subject to the following qualifications:
(a) The enforceability of (i) the Company's obligations under
the Credit Agreement and the Notes and (ii) each of the Subsidiaries
obligations under the Guaranty Agreement are subject to the effect of
any applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally;
(b) I express no opinion as to the availability of the
equitable remedy of specific performance (other than with respect to
obligations for the payment of money) or injunctive relief; and
(c) I am qualified to practice law in the Commonwealth of
Pennsylvania and nothing herein shall constitute an opinion as to the
laws of any jurisdiction other than the laws of the Commonwealth of
Pennsylvania and the federal law of the United States of America.
Very truly yours,
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96
EXHIBIT F
OPINION OF
XXXXX XXXX & XXXXXXXX, SPECIAL COUNSEL
FOR THE AGENT
To the Banks and the Agent
Referred to Below
c/x Xxxxxx Guaranty Trust Company
of New York, as Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We have participated in the preparation of the Credit Agreement (the
"CREDIT AGREEMENT") dated as of July 8, 1997 among Universal Health Services,
Inc., a Delaware corporation (the "BORROWER"), the banks listed on the
signature pages thereof (the "BANKS") and Xxxxxx Guaranty Trust Company of New
York, as Agent (the "AGENT"), and have acted as special counsel for the Agent
for the purpose of rendering this opinion pursuant to Section 3.01(f) of the
Credit Agreement. Terms defined in the Credit Agreement are used herein as
therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. The execution, delivery and performance by the Borrower of the
Credit Agreement and the Notes are within the Borrower's corporate powers and
have been duly authorized by all necessary corporate action.
2. The Credit Agreement constitutes a valid and binding agreement of
the Borrower and each Note constitutes a valid and binding obligation of the
Borrower, in each case enforceable in accordance with its terms, except as the
same may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and by general principles of equity.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York, the federal laws of
the United States of
F-1
97
America and the General Corporation Law of the State of Delaware. In giving the
foregoing opinion, we express no opinion as to the effect (if any) of any law
of any jurisdiction (except the State of New York) in which any Bank is located
which limits the rate of interest that such Bank may charge or collect.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by any other person without our prior written consent.
Very truly yours,
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98
EXHIBIT G
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among [ASSIGNOR] (the
"ASSIGNOR"), [ASSIGNEE] (the "ASSIGNEE"), UNIVERSAL HEALTH SERVICES, INC. (the
"BORROWER"), XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "AGENT")
and [ISSUING BANK(S)], as Issuing Bank(s).
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the "AGREEMENT")
relates to the Credit Agreement dated as of July 8, 1997 among the Borrower,
the Assignor and the other Banks party thereto, as Banks, and the Agent (the
"CREDIT AGREEMENT");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans to the Borrower and participate in Letters of Credit
in an aggregate principal amount at any time outstanding not to exceed
$___,000,000;
WHEREAS, Syndicated Loans made to the Borrower by the Assignor under
the Credit Agreement in the aggregate principal amount of $__________ are
outstanding at the date hereof;
WHEREAS, Letters of Credit with a total amount available for drawing
thereunder of $__________ are outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement and the other Loan Documents
in respect of a portion of its Commitment thereunder in an amount equal to
$__________ (the "ASSIGNED AMOUNT"), together with a corresponding portion of
its outstanding Conventional Loans and Letter of Credit Liabilities, and the
Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement and the
other Loan
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Documents to the extent of the Assigned Amount, and the Assignee hereby accepts
such assignment from the Assignor and assumes all of the obligations of the
Assignor under the Credit Agreement to the extent of the Assigned Amount,
including the purchase from the Assignor of the corresponding portion of the
principal amount of the Syndicated Loans made by, and Letter of Credit
Liabilities of, the Assignor outstanding at the date hereof. Upon the execution
and delivery hereof by the Assignor, the Assignee, the Borrower and the Agent
and the payment of the amounts specified in Section 3 required to be paid on
the date hereof (i) the Assignee shall, as of the date hereof, succeed to the
rights and be obligated to perform the obligations of a Bank under the Credit
Agreement with a Commitment in an amount equal to the Assigned Amount, and (ii)
the Commitment of the Assignor shall, as of the date hereof, be reduced by a
like amount and the Assignor released from its obligations under the Credit
Agreement to the extent such obligations have been assumed by the Assignee. The
assignment provided for herein shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them.* It is
understood that facility and Letter of Credit fees accrued to the date hereof
in respect of the Assigned Amount are for the account of the Assignor and such
fees accruing from and including the date hereof are for the account of the
Assignee. Each of the Assignor and the Assignee hereby agrees that if it
receives any amount under the Credit Agreement which is for the account of the
other party hereto, it shall receive the same for the account of such other
party to the extent of such other party's interest therein and shall promptly
pay the same to such other party.
SECTION 4. Consent of the Borrower and the Agent. This Agreement is
conditioned upon the consent of the Borrower, the Issuing Banks and the Agent
pursuant to Section 10.06(c) of the Credit Agreement. The execution of this
Agreement by the Borrower, the Issuing Banks and the Agent is evidence of this
consent. Pursuant to Section 10.06(c) the Borrower agrees to execute and
deliver a Note payable to the order of the Assignee to evidence the assignment
and assumption provided for herein.
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition or statements of the
Borrower or any of its Subsidiaries, or the validity and enforceability of the
obligations of the Borrower or any of its Subsidiaries in respect of any Loan
Document. The Assignee acknowledges that it has,
-----------------
*Amount should combine principal together with accrued interest
and breakage compensation, if any, to be paid by the Assignee, net of any
portion of any upfront fee to be paid by the Assignor to the Assignee. It may
be preferable in an appropriate case to specify these amounts generically or by
formula rather than as a fixed sum.
G-2
100
independently and without reliance on the Assignor, and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and will continue to be responsible for
making its own independent appraisal of the business, affairs and financial
condition of the Borrower and its Subsidiaries.
SECTION 6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By
------------------------------
Title:
[ASSIGNEE]
By
------------------------------
Title:
UNIVERSAL HEALTH SERVICES, INC.
By
------------------------------
Title:
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK
By
------------------------------
Title:
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[ISSUING BANK
By
------------------------------
Title:]
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EXHIBIT H
GUARANTY AGREEMENT
AGREEMENT dated as of July 8, 1997 among each of the Guarantors listed
on the signature pages hereof under the caption "GUARANTORS" and each Person
that shall, at any time after the date hereof, become a Guarantor hereunder
(individually a "GUARANTOR" and collectively the "GUARANTORS") and Xxxxxx
Guaranty Trust Company of New York, as Agent.
W I T N E S S E T H :
WHEREAS, Universal Health Services, Inc., a Delaware corporation (the
"BORROWER"), of which each of the Guarantors is a Subsidiary, has entered into
a Credit Agreement (as the same may be amended from time to time, the "CREDIT
AGREEMENT") dated as of July 8, 1997 with the banks listed on the signature
pages thereof (the "BANKS") and Xxxxxx Guaranty Trust Company of New York, as
Agent, pursuant to which the Borrower is entitled, subject to certain
conditions, to borrow up to $300,000,000 which amount may be increased under
certain conditions to $400,000,000;
WHEREAS, the Credit Agreement provides, among other things, that one
condition to its effectiveness is the execution and delivery by the Borrower's
Subsidiaries of this Agreement; and
WHEREAS, in conjunction with the transactions contemplated by the
Credit Agreement and in consideration of the financial and other support that
the Borrower has provided, and such financial and other support as the Borrower
may in the future provide, to the Guarantors, and in order to induce the Banks
and the Agent to enter into the Credit Agreement and to make Loans thereunder,
the Guarantors are willing to guarantee the obligations of the Borrower under
the Credit Agreement and the Notes.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Terms defined in the Credit Agreement and
not otherwise defined herein are used herein as therein defined. In addition
the following term, as used herein, has the following meaning:
"OBLIGATIONS" means (i) all obligations of the Borrower in respect of
principal of and interest on the Loans and the Letter of Credit Liabilities and
(ii) all renewals or extensions of the foregoing, in each case whether now
outstanding or hereafter arising; provided that the foregoing shall not
constitute Obligations for purposes hereof to the extent the principal amount
thereof outstanding at the time enforcement hereof is sought exceeds
$225,000,000. The Obligations shall include, without limitation, any interest,
costs, fees and expenses which accrue on or with respect to any of the
foregoing, whether before or after the commencement of any case, proceeding or
other action relating to the bankruptcy, insolvency or reorganization by the
Borrower, and whether or not allowed or allowable as a claim in any such
proceeding, any such interest, costs, fees and expenses that would have accrued
thereon or with respect thereto but for the commencement of such case,
proceeding or other action.
ARTICLE II
The Guarantee
SECTION 2.01. The Guarantee. Subject to Section 2.03, the Guarantors
hereby unconditionally, irrevocably and jointly and severally guarantee to the
Banks and the Agent, and to each of them, the due and punctual payment of all
Obligations as and when the same shall become due and payable, whether at
maturity, by declaration or otherwise, according to the terms thereof. In case
of failure by the Borrower punctually to pay any Obligation, the Guarantors,
subject to Section 2.03, hereby unconditionally agree to cause such payment to
be made punctually as and when the same shall become due and payable, whether
at maturity or by declaration or otherwise, and as if such payment were made by
the Borrower.
SECTION 2.02. Guarantees Unconditional. The obligations of the
Guarantors under this Article II shall be unconditional and absolute and,
without limiting the generality of the foregoing, shall not be released,
discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Borrower under the Credit
Agreement or the Notes by operation of law or otherwise;
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(b) any modification or amendment of or supplement to the
Credit Agreement;
(c) any modification, amendment, waiver, release,
non-perfection or invalidity of any direct or indirect security, or of
any guarantee or other liability of any third party, for any
obligation of the Borrower under the Credit Agreement or the Notes;
(d) any change in the corporate existence, structure or
ownership of the Borrower or its Subsidiaries, or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting the
Borrower or its Subsidiaries or their assets or any resulting release
or discharge of any obligation of the Borrower contained in the Credit
Agreement or the Notes;
(e) the existence of any claim, set-off or other rights which
the Guarantors may have at any time against the Borrower, the Agent or
any Bank or any other Person, whether or not arising in connection
with any of the Credit Agreement or the Notes; provided that nothing
herein shall prevent the assertion of any such claim by separate suit
or compulsory counterclaim;
(f) any invalidity or unenforceability relating to or against
the Borrower for any reason of any of the Credit Agreement, or any
provision of applicable law or regulation purporting to prohibit the
payment by the Borrower of the principal of or interest on any Note or
any other amount payable by the Borrower under the Credit Related
Agreement or the Notes; or
(g) any other act or omission to act or delay of any kind by
the Borrower, the Agent, any Bank or any other Person or any other
circumstance whatsoever that might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of or defense to
the obligations of the Guarantors under this Article II.
SECTION 2.03. Limit of Liability. Each Guarantor shall be liable
under this Agreement only for amounts aggregating up to the largest amount that
would not render its obligations hereunder subject to avoidance under Section
548 of the United States Bankruptcy Code or any comparable provisions of any
applicable state law.
SECTION 2.04. Discharge; Reinstatement in Certain Circumstances. The
Guarantors' obligations under this Article II shall remain in full force and
effect until either (i) the condition specified in Section 5.15(b) of the
Credit Agreement has been met or (ii) the Commitments are terminated and all
principal of and interest on the Notes and all other amounts payable by the
Borrower under the Credit Agreement shall have been paid in full. If at any
time any payment of the principal of or interest on any Note or any other
amount payable by the Borrower under the Credit Agreement is rescinded or must
be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, the Guarantors' obligations under
this Article II with respect
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to such payment shall be reinstated at such time as though such payment had
become due but had not been made at such time.
SECTION 2.05. Waiver of Notice. The Guarantors irrevocably waive
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against the Borrower or any other Person.
SECTION 2.06. Waiver of Subrogation. The Guarantors irrevocably
waive any and all rights to which they may be entitled, by operation of law or
otherwise, upon making any payment hereunder to be subrogated to the rights of
the payee against the Borrower with respect to such payment or otherwise to be
reimbursed, indemnified or exonerated by the Borrower in respect thereof.
SECTION 2.07. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by the Borrower under the Credit Agreement is
stayed upon the insolvency, bankruptcy or reorganization of the Borrower, all
such amounts otherwise subject to acceleration under the terms of the Credit
Agreement shall nonetheless be payable by the Guarantors hereunder forthwith on
demand by the Agent made at the request of the Required Banks.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. Notices. Unless otherwise specified herein, all
notices, requests and other communications to any party hereunder shall be in
writing (including bank wire, telex, facsimile transmission or similar writing)
and shall be given to such party at its address or telex or facsimile number
set forth on the signature pages hereof or such other address or telex or
facsimile number as such party may hereafter specify for the purpose by notice
to the to the other party hereto. Each such notice, request or other
communication shall be effective (i) if given by telex, when such telex is
transmitted to the telex number specified in or pursuant to this Section 4.01
and the appropriate answerback is received, (ii) if given by facsimile
transmission, when such facsimile is transmitted to the facsimile transmission
number specified in or pursuant to this Section 4.01 and telephonic
confirmation of receipt thereof is received, (iii) if given by mail, 72 hours
after such communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid or (iv) if given by any other means, when
delivered at the address specified in this Section 4.01.
SECTION 3.02. No Waiver. No failure or delay by Agent in exercising
any right, power or privilege under this Agreement or any other Loan Document
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further
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exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein and therein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 3.03. Amendments and Waivers. Any provision of this
Agreement may be amended or waived if, and only if, such amendment or waiver is
in writing and is signed by the Guarantors and the Agent with the prior written
consent of the Required Banks under the Credit Agreement.
SECTION 3.04. Governing Law; Submission to Jurisdiction; Waiver of a
Jury Trial. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAW OF THE STATE OF NEW YORK.
EACH GUARANTOR HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY
NEW YORK STATE COURT SITTING IN NEW YORK CITY FOR PURPOSES OF ALL LEGAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. EACH GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY
CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. EACH GUARANTOR AND THE AGENT HEREBY IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 3.05. Successors and Assigns. This Agreement is for the
benefit of the Agent and the Banks and their respective successors and assigns
and in the event of an assignment of the Loans, the Notes or other amounts
payable under the Credit Agreement, the rights hereunder, to the extent
applicable to the indebtedness so assigned, shall be transferred with such
indebtedness. All the provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
SECTION 3.06. Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original, and
all of which taken together shall constitute a single instrument, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when the Agent shall have received a
counterpart hereof signed by the each Guarantor listed on the signature page
hereof and when the Credit Agreement shall become effective in accordance with
its terms. Thereafter, upon execution and delivery of
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a counterpart of this Agreement on behalf on any other Guarantor, this
Agreement shall become effective with respect to such Guarantor as of the date
of such delivery.
SECTION 3.07. Severability. If any provision of this Guaranty
Agreement is prohibited, unenforceable or not authorized, or to the extent that
any portion of the Obligations hereunder may be voidable or subject to
avoidance, in any jurisdiction, such provision or the Obligation shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability, non-authorization or portion so subject without invalidating
or limiting the remaining provisions hereof or remaining portion of the
Obligations or affecting the validity, enforceability or legality of such
provision or such portion of the Obligations in any other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the date first
above written.
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as Agent
By
----------------------------------
Name:
Title:
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Loan Department
Telex number: 177615 MGT
Facsimile number: (000) 000-0000
GUARANTORS
AIKEN REGIONAL MEDICAL CENTERS, INC.
THE XXXXXX, INC.
XXXXXX XXXXX SERVICES, INC.
ASC OF CANTON, INC.
ASC OF CLARKSTON, INC.
ASC OF CORONA, INC.
ASC OF LAS VEGAS, INC.
ASC OF LITTLETON, INC.
ASC OF MIDWEST CITY, INC.
ASC OF NEW ALBANY, INC.
ASC OF PALM SPRINGS, INC.
ASC OF PONCA CITY, INC.
ASC OF SPRINGFIELD, INC.
ASC OF ST. XXXXXX
THE BRIDGEWAY, INC.
CHILDREN'S HOSPITAL OF McALLEN, INC.
COMPREHENSIVE OCCUPATIONAL AND
CLINICAL HEALTH, INC.
DEL AMO HOSPITAL, INC.
FOREST VIEW PSYCHIATRIC HOSPITAL, INC.
XXXX OAKS HOSPITAL, INC.
HEALTH CARE FINANCE & CONSTRUCTION
CORP.
HRI CLINICS, INC.
HRI HOSPITAL, INC.
INTERNAL MEDICINE ASSOCIATES OF
DOCTORS' HOSPITAL, INC.
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LA AMISTAD RESIDENTIAL TREATMENT
CENTER, INC.
McALLEN MEDICAL CENTER, INC.
MERIDELL ACHIEVEMENT CENTER, INC.
MERION BUILDING MANAGEMENT, INC.
NORTHWEST TEXAS HEALTHCARE SYSTEM,
INC.
PUEBLO MEDICAL CENTER, INC.
RELATIONAL THERAPY CLINIC, INC.
RIVER CREST HOSPITAL, INC.
RIVER OAKS, INC.
RIVER PARISHES INTERNAL MEDICINE, INC.
SPARKS FAMILY HOSPITAL, INC.
TONOPAH HEALTH SERVICES, INC.
TURNING POINT CARE CENTER, INC.
TWO RIVERS PSYCHIATRIC HOSPITAL, INC.
UHS HOLDING COMPANY, INC.
UHS INTERNATIONAL, LIMITED
UHS LAS VEGAS PROPERTIES, INC.
UHS OF AUBURN, INC.
UHS OF BELMONT, INC.
UHS OF BETHESDA, INC.
UHS OF COLUMBIA, INC.
UHS OF De La RONDE, INC.
UHS OF DELAWARE, INC.
UHS OF D.C., INC.
UHS OF FAYETVILLE, INC.
UHS OF FLORIDA, INC.
UHS OF XXXXXX, INC.
UHS OF ILLINOIS, INC.
UHS OF MAITLAND, INC.
UHS OF MANATEE, INC.
UHS OF NEW ORLEANS, INC.
UHS OF NEW YORK, INC.
UHS OF ODESSA, INC.
UHS OF PENNSYLVANIA, INC.
UHS OF PLANTATION, INC.
UHS OF RECOVERY FOUNDATION, INC.
UHS OF RIVER PARISHES, INC.
UHS OF RIVERTON, INC.
UHS OF SHREVEPORT, INC.
UHS OF SPRINGFIELD, INC.
UHS OF TIMBERLAWN, INC.
UHS OF VERMONT, INC.
UHS OF WALTHAM, INC.
UHSR CORPORATION
UNIVERSAL HEALTH NETWORK, INC.
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UNIVERSAL HEALTH PENNSYLVANIA
PROPERTIES, INC.
UNIVERSAL HEALTH RECOVERY CENTERS,
INC.
UNIVERSAL HEALTH SERVICES OF CEDAR
HILL, INC.
UNIVERSAL HEALTH SERVICES OF
CONCORD, INC.
UNIVERSAL HEALTH SERVICES OF INLAND
VALLEY, INC.
UNIVERSAL HEALTH SERVICES OF
NEVADA, INC.
UNIVERSAL HMO, INC.
UNIVERSAL TREATMENT CENTERS, INC.
VICTORIA REGIONAL MEDICAL CENTER,
INC.
WELLINGTON PHYSICIAN ALLIANCES, INC.
WELLINGTON REGIONAL MEDICAL CENTER
INCORPORATED
By
--------------------------------------
Name:
Title:
c/o Universal Health Services, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000
Facsimile number: (000) 000-0000
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