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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): July 1, 1997
HealthCare COMPARE Corp.
(Exact name of registrant as specified in its charter)
Delaware 0-15846 36-3307583
(State or other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
3200 Highland Avenue, Downers Grove, IL 60515
(Address of principal executive offices) (Zip Code)
(630) 241-7900
(Registrant's telephone number including area code)
Not Applicable
(Former name or former address, if changed since last report)
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Item 2. Acquisition or Disposition of Assets
On July 1, 1997, HealthCare COMPARE Corp. (the "Company") completed the
acquisition of all of the outstanding shares of capital stock of First Health
Strategies, Inc. ("Strategies") and First Health Services Corporation
("Services") from First Financial Management Corporation and First Data
Corporation (collectively, the "Sellers") for a purchase price of $202 million
in cash. The acquisition was effected pursuant to the terms of a Stock
Purchase Agreement, dated as of May 22, 1997, among the Company and the
Sellers, which resulted from arms'-length negotiations between the Company and
the Sellers.
Simultaneously with the closing of the acquisition, the Company entered into a
credit agreement underwritten by LaSalle National Bank as a lender and as
administrative agent and First Chicago Capital Markets, Inc. as syndication
agent, which provides for borrowings of $200 million under a revolving credit
facility. The Company expects to expand this credit facility up to $350
million through a syndication of additional banks by the middle of August, 1997.
On July 1, 1997, the Company borrowed $200 million to fund the acquisition of
Strategies and Services; the unused portion of the credit facility can be drawn
from time to time for working capital and general corporate purposes.
Strategies, based in Salt Lake City, Utah, and Services, based in Richmond,
Virginia, provide independent health care administration services such as
claims administration and associated health care management services to the
self-insured corporate and government markets. Prior to the acquisition, a
subsidiary of Strategies marketed to its customers certain services provided by
the Company.
Item 7. Financial Statements and Exhibits
(a) Financial Statements of Businesses Acquired
It is impracticable to provide the required financial statements for the
acquired businesses at the time of the filing of this Current Report on Form
8-K. Such financial statements will be filed under cover of a Form 8-K/A as
soon as practicable, but in any event not later than September 16, 1997.
(b) Pro-forma Financial Information
It is impracticable to provide the pro forma financial information for the
affects of the acquired businesses at the time of the filing of this Current
Report on Form 8-K. Such financial information will be filed under cover of a
Form 8-K/A as soon as practicable, but in any event not later than September
16, 1997.
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(c) Exhibits
Exhibit 2: Stock Purchase Agreement, dated as of May 22, 1997 among the
Company and the Sellers.
Exhibit 10: Credit Agreement, dated as of July 1, 1997, among the Company,
LaSalle National Bank, First Chicago Capital Markets, Inc. and the Lenders.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
HealthCare COMPARE Corp. (Registrant)
July 14, 1997 By: /s/ Joseph E. Whitters
Vice President, Finance and
Chief Financial Officer
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EXHIBIT 2
EXECUTION COPY
===============================================================================
STOCK PURCHASE AGREEMENT
AMONG
HEALTHCARE COMPARE CORP.,
FIRST FINANCIAL MANAGEMENT
CORPORATION
AND
FIRST DATA CORPORATION
Dated as of May 22, 1997
===============================================================================
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
Section 1.1. Definitions ............................................. -1-
ARTICLE II
PURCHASE AND SALE
Section 2.1. Purchase and Sale of the Shares ......................... -8-
ARTICLE III
PURCHASE PRICE
Section 3.1. Purchase Price .......................................... -9-
Section 3.2. Adjustment to Purchase Price ............................ -9-
ARTICLE IV
CLOSING
Section 4.1. Closing Date ............................................ -10-
Section 4.2. Payment on the Closing Date ............................. -10-
Section 4.3. Buyer's Additional Closing Date Deliveries .............. -11-
Section 4.4. Sellers' Closing Date Deliveries ........................ -11-
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Section 5.1. Organization of the Sellers ............................. -13-
Section 5.2. Organization; Capital Structure of the Companies;
Power and Authority ..................................... -13-
Section 5.3. Subsidiaries and Investments ............................ -14-
Section 5.4. Authority of the Sellers; Conflicts ..................... -14-
Section 5.5. Financial Statements; Reports ........................... -15-
Section 5.6. Operations Since Cut Off Date ........................... -16-
Section 5.7. Taxes ................................................... -17-
Section 5.8. Company Permits ......................................... -18-
Section 5.9. Real Property ........................................... -18-
Section 5.10. Personal Property Leases ................................ -18-
Section 5.11. Intellectual Property ................................... -18-
Section 5.12. Title to Property ....................................... -19-
Section 5.13. No Violation, Litigation or Regulatory Action ........... -20-
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Section 5.14. Contracts ............................................... -20-
Section 5.15. Status of Contracts ..................................... -21-
Section 5.16. No Brokers .............................................. -21-
Section 5.17. ERISA ................................................... -22-
Section 5.18. Insider Interests ....................................... -23-
Section 5.19. Environmental Compliance ................................ -24-
Section 5.20. Employee Relations and Agreements ....................... -24-
Section 5.21. Certain Agreements ...................................... -25-
Section 5.22. Liabilities ............................................. -25-
Section 5.23. Software Development .................................... -25-
Section 5.24. Third-Party Funds ....................................... -26-
Section 5.25. Insurance Matters ....................................... -26-
Section 5.26. Certain Business Practices and Regulations .............. -26-
Section 5.27. Insurance ............................................... -26-
Section 5.28. Fiduciary Status ........................................ -27-
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER
Section 6.1. Organization of Buyer ................................... -27-
Section 6.2. Authority of Buyer; Conflicts ........................... -27-
Section 6.3. No Violation, Litigation or Regulatory Action ........... -28-
Section 6.4. No Brokers .............................................. -28-
Section 6.5. Financial Ability ....................................... -28-
Section 6.6. Investment Intent ....................................... -29-
ARTICLE VII
ACTION PRIOR TO THE CLOSING DATE
Section 7.1. Access to Information ................................... -29-
Section 7.2. Notifications ........................................... -29-
Section 7.3. Consents of Third Parties; Governmental Approvals ....... -30-
Section 7.4. Operations Prior to the Closing Date .................... -30-
Section 7.5. Special Distribution; Transfer .......................... -32-
Section 7.6. Antitrust Law Compliance ................................ -32-
ARTICLE VII
ADDITIONAL AGREEMENTS
Section 8.1. Use of Names ............................................ -32-
Section 8.2. Tax Matters ............................................. -32-
Section 8.3. Employee Matters ........................................ -37-
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Section 8.4. Insurance: Risk of Loss ................................. -39-
Section 8.5. Exclusivity ............................................. -39-
Section 8.6. Employee Matters ........................................ -40-
Section 8.7. Certain Contribution .................................... -40-
Section 8.8. Memorialization of PPO Access Arrangement ............... -40-
ARTICLE IX
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
Section 9.1. No Misrepresentation or Breach of Covenants and
Warranties .............................................. -41-
Section 9.2. No Restraint ............................................ -41-
Section 9.3. Necessary Approvals ..................................... -41-
Section 9.4. Other Agreements ........................................ -41-
Section 9.5. Opinion of Counsel ...................................... -42-
ARTICLE X
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLERS
Section 10.1. No Misrepresentation or Breach of Covenants and
Warranties .............................................. -42-
Section 10.2. No Restraint ............................................ -42-
Section 10.3. Necessary Approvals ..................................... -43-
Section 10.4. Opinion of Counsel ...................................... -43-
ARTICLE XI
INDEMNIFICATION
Section 11.1. Indemnification by the Sellers .......................... -43-
Section 11.2. Indemnification by Buyer ................................ -44-
Section 11.3. Notice of Claims ........................................ -45-
Section 11.4. Third Person Claims ..................................... -46-
Section 11.5. Limitations ............................................. -47-
ARTICLE XII
TERMINATION
Section 12.1. Termination ............................................. -48-
Section 12.2. Notice of Termination ................................... -48-
Section 12.3. Effect of Termination ................................... -48-
Section 12.4. Employees ............................................... -48-
Section 12.5. Expenses ................................................ -49-
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ARTICLE XIII
GENERAL PROVISIONS
Section 13.1. Survival of Representations and Warranties ............. -49-
Section 13.2. Confidential Nature of Information ..................... -49-
Section 13.3. No Public Announcement ................................. -49-
Section 13.4. Notices ................................................ -49-
Section 13.5. Successors and Assigns ................................. -50-
Section 13.6. Access to Records after Closing ........................ -51-
Section 13.7. Entire Agreement; Amendments ........................... -51-
Section 13.8. Interpretation ......................................... -51-
Section 13.9. Waivers ................................................ -52-
Section 13.10. Expenses ............................................... -52-
Section 13.11. Partial Invalidity ..................................... -52-
Section 13.12. Execution in Counterparts .............................. -52-
Section 13.13. Further Assurances ..................................... -53-
Section 13.14. Governing Law .......................................... -53-
Section 13.15. Disclaimer of Warranties ............................... -53-
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List of Schedules and Exhibits
Schedule
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3.2 Exceptions to GAAP
5.2 1997 Forecast
5.3 Subsidiaries and Investments
5.4 Consents; No Conflicts
5.5 Financial Statements
5.6 Operations Since Cut-Off Date
5.7 Taxes
5.8 Governmental Permits
5.9 Real Property
5.10 Personal Property Leases
5.11(a) List of Intellectual Property
5.11(b) Software Licenses
S.11(c) Right, Title and Interest in Intellectual Property
5.1l(d) Registrations of Intellectual Property
5.1l(e) Infringement of Intellectual Property
5.l1(f) Challenge to Intellectual Property Rights
5.13 Violation, Litigation or Regulatory Action of the Companies
5.14 Contracts
5.15 Status of Contracts
5.17(a) Welfare Plans and Pension Plans
5.17(c) ERISA -- Accumulated Funding Deficiencies
5.17(d) Prohibited Transaction
5.17(h) Other Employee Benefits
5.18 Insider Interests
5.20 Employee Agreements
5.22 Liabilities
6.3 Violation, Litigation or Regulatory Action of Buyer
7.4 Operations Prior to Closing Date
8.3(c) Certain Plans
8.6 Employee Matters
Exhibits
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9.4(A) First Image Agreement
9.4(B) Strategies Agreement
9.5 Opinion of Counsel to the Sellers
10.4 Opinion of Counsel to Buyer
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of May 22, 1997, among First
Financial Management Corporation, a Georgia corporation ("FFMC"), First Data
Corporation, a Delaware corporation ("FDC" and, together with FFMC, the
"Sellers"), and HealthCare COMPARE Corp., a Delaware corporation (the "Buyer").
WITNESSETH:
WHEREAS, FDC is the owner of all the outstanding shares of capital
stock of FFMC;
WHEREAS, FFMC is the owner of all the outstanding shares of capital
stock of FIRST HEALTH Strategies, Inc., a Delaware corporation ("Strategies" or
a "Company"), and FIRST HEALTH Services Corporation, a Virginia corporation
("Services" or a "Company" and, together with Strategies, the "Companies");
WHEREAS, the Companies provide a portfolio of health plan management
services to a customer base which includes private corporations and public
agencies;
WHEREAS, FFMC desires to sell to Buyer, and Buyer desires to purchase
from FFMC, all of the capital stock of the Companies, all on the terms and
subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, it is hereby agreed among FDC, FFMC and Buyer
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. In this Agreement, the following terms have
the meanings specified or referred to in this Section 1.1 and shall be equally
applicable to both the singular and plural forms. Any agreement referred to
below shall mean such agreement as amended, supplemented and modified from time
to time to the extent permitted by the applicable provisions thereof and by this
Agreement.
"Act II" means the claims processing, tracking and reporting system
referred to in Section 5.23(b).
"Act 3" means the claims processing system, tracking and reporting
system described in Section 5.23(a).
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"AFFECTED EMPLOYEES" has the meaning specified in Section 8.3(b).
"AFFILIATE" means, with respect to any Person, any other Person which
directly or indirectly controls, is controlled by or is under common control
with such Person.
"BUSINESS" means, collectively, the Strategies Business and the
Services Business.
"BUYER" has the meaning specified in the first paragraph of this
Agreement.
"BUYER ANCILLARY AGREEMENTS" means all agreements, instruments and
documents being or to be executed and delivered by Buyer under this Agreement or
in connection herewith.
"BUYER GROUP MEMBER" means Buyer and its Affiliates, their respective
successors and assigns and directors, officers, employees, agents, attorneys and
consultants of the foregoing.
"CLAIM NOTICE" has the meaning specified in Section 11.3(a).
"CLOSING" means the closing of the transfer of the Shares from FFMC to
Buyer in exchange for the Purchase Price.
"CLOSING BALANCE SHEET" has the meaning specified in Section
3.2(b)(i).
"CLOSING DATE" has the meaning specified in Section 4.1.
"CLOSING NET WORKING CAPITAL" means the combined Net Working Capital
of Strategies, Services and their Subsidiaries as of the close of business on
the business day immediately preceding the Closing Date, as determined in
accordance with Section 3.2.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMPANY" OR "COMPANIES" has the meaning specified in the first
recital of this Agreement.
"COMPANY PERMITS" has the meaning specified in Section 5.8.
"CONFIDENTIALITY AGREEMENT" means the Confidentiality Agreement dated
April 16, 1997 between Buyer and FDC.
"COPYRIGHTS" means United States and foreign registered copyrights,
and pending applications to register the same.
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"COURT ORDER" means any judgment, decision, order, award or decree of
any foreign, federal, state, local or other court or tribunal and any award in
any arbitration proceeding.
"CUT-OFF DATE" means March 31, 1997.
"CUT-OFF DATE BALANCE SHEET" means the combined balance sheet referred
to in the definition of Cut-Off Date Financial Statements.
"CUT-OFF DATE FINANCIAL STATEMENTS" means, collectively, the unaudited
consolidating balance sheet as of the Cut-Off Date for the Business, and the
unaudited consolidating statements of income and cash flow for the three months
then ended for the Business.
"DISPUTE NOTICE" has the meaning specified in Section 3.2(b)(ii).
"ENCUMBRANCE" means any lien, option, claim, charge, security
interest, mortgage, pledge, easement, conditional sale or other title retention
agreement, defect in title or other restrictions of a similar kind.
"ENTRUSTED FUNDS" has the meaning specified in Section 5.24.
"ENVIRONMENTAL CLAIMS" means all written notices of violation, liens,
claims, demands, suits, or causes of action for any damage, including, without
limitation, personal injury, property damage (including, without limitation, any
depreciation or diminution of property values), lost use of property or
consequential damages, arising from the Companies' or any Subsidiary's violation
of Environmental Laws.
"ENVIRONMENTAL CONDITIONS" means the state of the environment,
including natural resources (e.g., flora and fauna), soil, surface water, ground
water, any present or potential drinking water supply, subsurface strata or
ambient air, relating to or arising out of the use, handling, storage,
treatment, recycling, generation, transportation, release, spilling, leaking,
pumping, pouring, emptying, discharging, injecting, escaping, leaching,
disposal, dumping or threatened release of Hazardous Substances by the Companies
and the Subsidiaries or by their agents, representatives or employees when
acting in such capacity on behalf of the Companies or the Subsidiaries.
"ENVIRONMENTAL LAWS" means all applicable federal, state, district,
local and foreign laws, all rules or regulations promulgated thereunder, and all
orders, consent orders, judgments, notices, permits or demand letters issued,
promulgated or entered pursuant thereto to which either of the Companies or any
Subsidiary is subject, relating to pollution or protection of the environment
(including, without limitation, ambient air, surface water, ground water, land
surface or subsurface strata), including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"), the Toxic
Substances Control Act
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("TSCA"), the Hazardous Materials Transportation Act, the Resource Conservation
and Recovery Act ("RCRA"), the Clean Water Act, the Safe Drinking Water Act,
the Clean Air Act, the Atomic Energy Act of 1954, the Occupational Safety and
Health Act ("OSHA"), the Hazardous Substance Account Act, California Health and
Safety Code Section 25300, et seq., and the Porter-Cologne Water Quality
Control Act, California Water Code Section 13000 et seq., each as amended as of
the date hereof.
"ENVIRONMENTAL REPORTS" means any and all written reports produced by
third parties or employees or consultants of the Companies or the Subsidiaries
in the possession of the Companies or the Subsidiaries of (a) any Environmental
Conditions in, on or about the Properties or (b) the Companies' or the
Subsidiaries' compliance with Environmental Laws.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA AFFILIATE" means any entity which is (or at any relevant time
was) a member of a "controlled group of corporations" with, under "common
control" with, or a member of an "affiliated service group" with, either Seller
as set forth in Section 414(b), (c), (m) or (o) of the Code.
"EXCLUDED TAXES" has the meaning specified in Section 8.2(a)(i).
"EXPENSES" means any and all reasonable expenses incurred in
connection with investigating, defending or asserting any claim, action, suit or
proceeding incident to any matter indemnified against hereunder (including,
without limitation, court filing fees, court costs, arbitration fees or costs,
witness fees and reasonable fees and disbursements of legal counsel,
investigators, expert witnesses, accountants and other professionals).
"FDC" has the meaning specified in the first paragraph of this
Agreement.
"FFMC" has the meaning specified in the first paragraph of this
Agreement.
"GAAP" means United States generally accepted accounting principles,
consistently applied, in effect at the date of the financial statement to which
it refers or, in the case of the Closing Balance Sheet, in effect at March 31,
1997.
"GOVERNMENTAL BODY" means any foreign, federal, state or local court,
tribunal, agency, department, commission, office, official or other governmental
authority.
"HAZARDOUS SUBSTANCES" means all pollutants, contaminants, chemicals,
wastes, and any other carcinogenic, ignitable, corrosive, reactive, toxic or
otherwise hazardous substances or materials (whether solids, liquids or gases)
subject to regulation, control or remediation under Environmental Laws. By way
of example only, the term Hazardous Substances includes
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petroleum, urea formaldehyde, flammable, explosive and radioactive materials,
PCBs, pesticides, herbicides, asbestos, sludge, slag, acids, metals, solvents
and waste waters.
"HEALTH BENEFIT LAWS" means all Laws related to the licensing,
certification, qualification or authority to transact business relating to the
provision of and/or payment for health benefits, including, but not limited to
ERISA, COBRA and laws relating to the regulation of health maintenance
organizations, workers compensation, managed care organizations, insurance,
preferred provider organizations, point-of-service plans, certificates of need,
third party administrators, utilization review, coordination of benefits,
hospital reimbursement, Medicare and Medicaid participation, fraud and abuse and
patient referrals.
"HSR ACT" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
"INDEMNIFIED PARTY" has the meaning specified in Section 11.3(a).
"INDEMNITOR" has the meaning specified in Section 11.3(a).
"INDEPENDENT ACCOUNTANTS" means the San Francisco, California office
of Arthur Andersen LLP.
"INSURANCE POLICIES" has the meaning specified in Section 5.27.
"INTELLECTUAL PROPERTY" means Copyrights, Patent Rights and
Trademarks.
"KNOWLEDGE OF BUYER" means, as to a particular matter, the actual
knowledge of any one or more of the following officers of Buyer: the Chief
Executive Officer, the Chief Financial Officer, any Executive Vice President and
the General Counsel.
"KNOWLEDGE OF THE SELLERS" means, as to a particular matter, the
actual knowledge of any one or more of the following persons: David P. Bailis,
James Council, Teresa DiMarco, George W. Dreisbach III, Henry C. Duques, Tim
Foley, Jim Gooding, Pate McCartney, Mark Huntley, Randolph L.M. Hutto, Paul
Kral, Jean LaFavo, Robert J. Levenson, Mark Mathias, David R. Money, Maurice
Nielson, Dave Norton, Bryan Peterson, Marc Probst, Jerry Quinn, Joe Richardson,
Frank Weltz, Mark Young and Matthew Young.
"LAW" means any federal, state, local or foreign law, statute,
ordinance, rule, regulation, order, judgment or decree.
"LOSSES" means any and all losses, costs, obligations, liabilities,
settlement payments, awards, judgments, fines, penalties, damages, expenses,
deficiencies or other charges.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the
assets, net worth, liabilities, business, results of operations or financial
condition of the Companies and the
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Subsidiaries taken as a whole, other than changes (a) relating to generally
applicable economic conditions or the Companies' and the Subsidiaries' industry
in general, (b) resulting from the announcement by the Sellers of their
intention to sell the Companies and the Subsidiaries or (c) resulting from the
execution of this Agreement or the consummation of the transactions contemplated
hereby.
"NET WORKING CAPITAL" means the excess of "Current Assets" minus
"Current Liabilities", with Current Assets consisting of those categories
reflected as such on the Cut-Off Date Balance Sheet (including, without
limitation, cash and cash equivalents, short term investments, accounts
receivable, prepaid expenses and inventory (but excluding the proceeds from any
sale or other disposition or conversion of assets after the date of this
Agreement other than in the ordinary course of business)), and with Current
Liabilities consisting of those categories reflected as such on the Cut-Off Date
Balance Sheet (including, without limitation, trade payables, accrued
compensation, payroll tax liabilities and accrued expenses).
"PATENT RIGHTS" means United States and foreign patents, patent
applications, continuations, continuations-in-part, divisions or reissues.
"PBGC" means the Pension Benefit Guaranty Corporation.
"PENSION PLAN" means any pension plan, as defined in Section 3(2) of
ERISA, without regard to Sections 4(b)(4) or 4(b)(5) thereof (other than a
multiemployer plan as deemed in Section 3(37) or 4001(a)(3) of ERISA) (A) which
any Seller or any ERISA Affiliate maintains, administers, contributes to or is
required to contribute to, or, within the five years prior to the Closing Date,
maintained, administered, contributed to or was required to contribute to, or
under which any Seller or any ERISA Affiliate may incur any liability and (B)
which covers any employee or former employee of any Seller or any ERISA
Affiliate (with respect to their relationship with such entities).
"PERMITTED ENCUMBRANCES" means (a) liens for Taxes and other
governmental charges and assessments which are not yet due and payable, (b)
liens of landlords and liens of carriers, warehousemen, mechanics and
materialmen and other like liens arising in the ordinary course of business for
sums not yet due and payable and (c) other liens or imperfections on property
which are not material in amount or do not materially detract from the value of
or materially impair the existing use of the property affected by such lien or
imperfection.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or Governmental Body.
"PROPERTIES" has the meaning specified in Section 5.9.
"PURCHASE PRICE" has the meaning specified in Section 3.1.
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"REQUIREMENTS OF LAW" means any foreign, federal, state and local
laws, statutes, regulations, rules, codes or ordinances enacted, adopted, issued
or promulgated by any Governmental Body and official pronouncements related
thereto.
"SELLER ANCILLARY AGREEMENTS" means all agreements, instruments and
documents being or to be executed and delivered by Sellers or either of them
under this Agreement or in connection herewith.
"SELLER GROUP MEMBER" means FDC, FFMC and their respective Affiliates,
their respective successors and assigns, and the directors, officers, employees,
agents, attorneys and consultants of the foregoing.
"SELLER TAX GROUP" means the "affiliated group" (as defined in Section
1504(a) of the Code without regard to the limitations contained in Section 1504
(b) of the Code) that includes FDC and FFMC.
"SELLERS" has the meaning specified in the first paragraph of this
Agreement.
"SERVICES" has the meaning specified in the first recital of this
Agreement.
"SERVICES BUSINESS" means the provision of value-added automation,
administration, payment and health-care management services for the managed
health-care delivery system (including the public sector).
"SERVICES SUBSIDIARIES" means Midwest Benefits Corporation, a Michigan
corporation, and First Mental Health, Inc., a Tennessee corporation.
"SHARES" has the meaning specified in Section 2.1.
"SOFTWARE" means computer software programs and software systems,
including, without limitation, all databases, compilations, tool sets,
compilers, higher level "proprietary" languages, related documentation and
materials, whether in source code, object code or human readable form.
"STRADDLE PERIOD" means any taxable year or period beginning before
and ending after the Closing Date.
"STRATEGIES" has the meaning specified in the first recital to this
Agreement.
"STRATEGIES BUSINESS" means the provision of claims administration and
value-added services, including third-party and outsourced claims
administration, utilization management, PPO networks, prescription benefit
management and stop-loss insurance brokerage.
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"STRATEGIES SUBSIDIARIES" means FIRST HEALTH Realty, Inc., a Utah
corporation, FIRST HEALTH Strategies (TPA), Inc., a Delaware corporation, U.S.
Administrators, Inc., a California corporation, FIRST HEALTH of Canada Inc., a
corporation organized under the laws of Ontario, FIRST HEALTH Strategies of
Utah, Inc., a Utah corporation, FIRST HEALTH Insurance Agency, Inc., a
Massachusetts corporation, FIRST HEALTH Review, Inc., a Utah corporation, FIRST
HEALTH Strategies of Ohio, Inc., an Ohio corporation, FIRST HEALTH Strategies of
Texas, Inc., a Texas corporation, FIRST HEALTH Strategies of New Mexico, Inc., a
New Mexico corporation, FIRST HEALTH Strategies of Pennsylvania, Inc., a
Pennsylvania corporation, and PRIMExtra, Inc., a Delaware corporation.
"SUBSIDIARIES" means, collectively, the Strategies Subsidiaries and
the Services Subsidiaries.
"TAX" (and, with correlative meaning, "Taxes") means any federal,
state, local or foreign income, gross receipts, property, sales, use, license,
excise, franchise, employment, payroll, withholding, alternative or add-on
minimum, ad valorem, transfer or excise tax, or any other tax, custom, duty,
governmental fee or other like assessment or charge of any kind whatsoever,
together with any interest or penalty, imposed by any Governmental Body.
"TAX PACKAGE" has the meaning specified in Section 8.2(b)(iii).
"TAX RETURN" means any return, report or similar statement required to
be filed with respect to any Tax (including any attached schedules), including,
without limitation, any information return, claim for refund, amended return or
declaration of estimated Tax.
"TRADEMARKS" means registered United States, state and foreign
trademarks, service marks and trade names, and pending applications to register
the foregoing.
"WELFARE PLAN" means any welfare plan, as defined in Section 3(1) of
ERISA, without regard to Sections 4(b)(4) or 4(b)(5) thereof, which (A) any
Seller or any Subsidiary maintains, administers, contributes to or is required
to contribute to, or under which any Seller or any Subsidiary may incur any
liability and (B) covers any employee or former employee of any Seller or any
Subsidiary (with respect to their relationship with such entities).
ARTICLE II
PURCHASE AND SALE
SECTION 2.1. PURCHASE AND SALE OF THE SHARES. Upon the terms and
subject to the conditions of this Agreement, on the Closing Date, FFMC shall
sell, transfer, assign, convey and deliver to Buyer, free and clear of all
Encumbrances, and Buyer shall purchase and accept from FFMC, all of the issued
and outstanding shares of capital stock of each of the Companies (collectively,
the "Shares").
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ARTICLE III
PURCHASE PRICE
SECTION 3.1. PURCHASE PRICE. The purchase price for the Shares of
Strategies shall be equal to $122 million in cash, and the purchase price for
the Shares of Services shall be equal to $80 million in cash (the aggregate
purchase price for the Shares of Strategies and Services, the "Purchase Price").
Such amounts shall be paid by Buyer pursuant to Section 4.2 hereof.
SECTION 3.2. ADJUSTMENT TO PURCHASE PRICE.
(a) Adjustment Amount. The Purchase Price shall be adjusted upwards or
downwards in an amount equal to the difference between the Closing Net Working
Capital and the Cut-Off Date Net Working Capital. For the purposes of this
Agreement, the Cut-Off Date Net Working Capital is deemed to be $33,553,000 and
is based upon the Cut-Off Date Balance Sheet.
(b) Adjustment Procedure.
(i) Within sixty (60) calendar days after the Closing Date, the
Sellers shall cause Ernst & Young LLP, on their behalf, to prepare and
deliver to Buyer an unaudited combined balance sheet of the Companies and
the Subsidiaries, dated as of the close of business on the business day
immediately preceding the Closing Date (the "Closing Balance Sheet"),
prepared in accordance with GAAP (except as provided in Schedule 3.2) and
otherwise on a basis consistent with the Cut-Off Date Balance Sheet, which
shall include a calculation of the Closing Net Working Capital. If the
Closing Net Working Capital is less than the Cut-Off Date Net Working
Capital, FFMC will promptly pay such deficiency to Buyer by wire transfer
to one or more accounts designated by Buyer. If the Closing Net Working
Capital exceeds the Cut-Off Date Net Working Capital, Buyer on behalf of
the Companies will promptly pay such excess to FFMC by wire transfer to one
or more bank accounts designated by FFMC, in which case neither the Buyer
nor any of the Companies and Subsidiaries shall have any responsibility
with respect to the distribution of such payment upon the completion of
such wire transfer.
(ii) If Buyer wishes to dispute the calculation of the Closing Net
Working Capital, Buyer shall deliver to the Sellers, within twenty (20)
calendar days of receipt thereof, a notice specifying in reasonable detail
those items or amounts as to which Buyer disagrees, the reason for such
disagreement and the resulting adjustments proposed by Buyer (the "Dispute
Notice").
(c) Expert Determination. If a Dispute Notice is delivered pursuant to
Section 3.2(b)(ii), the parties shall use their best efforts to reach agreement
on the disputed items
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or amounts in order to determine the Closing Net Working Capital and, to the
extent there is any undisputed amount due from or to Buyer or FFMC, as
appropriate, pursuant to Section 3.2(a), payment therefor shall be immediately
made in immediately available funds. If the Buyer and the Sellers cannot reach
agreement within ten (10) business days from the date of delivery of the Dispute
Notice, the disputed items and amounts will be submitted to the Independent
Accountants for determination of the Closing Net Working Capital in accordance
with this Section 3.2(c). The Independent Accountants shall deliver to the
Sellers and Buyer, as promptly as practicable, a written report setting forth
their determination of the Closing Net Working Capital, which determination
shall be final, conclusive and binding upon the parties, and shall not be
subject to appeal to any court or tribunal. Each party will bear its own
expenses in connection with the Closing Balance Sheet, the Dispute Notice, if
any, and the submission to the Independent Accountants, except that the
Independent Accountants' fees and expenses will be allocated fifty percent
to Buyer and fifty percent to the Sellers.
(d) Final Payment. Within five (5) business days of the determination
of Closing Net Working Capital pursuant to this Section 3.2, any payment due
from or to Buyer or FFMC, as appropriate (and taking into account any earlier
payment of an undisputed amount), shall be made in immediately available funds.
(e) Access. The Sellers, Ernst & Young LLP, the Independent
Accountants and their respective representatives will have reasonable access to
the books, records and accounts of the Companies and the Subsidiaries for any
purposes related to their preparation or review, as the case may be, of the
Closing Balance Sheet and the determination of the Closing Net Working Capital.
(f) Allocation. Payments made pursuant to this Section 3.2 shall be
added or subtracted from the amount paid for the Shares of the Company or
Companies to which the working capital adjustment is attributable.
ARTICLE IV
CLOSING
SECTION 4.1. CLOSING DATE. The Closing shall be consummated on July 1,
1997, unless the conditions set forth in Articles IX and X have not been
satisfied or waived, in which case the Closing shall be consummated no later
than the fifth day after such satisfaction or waiver, at the offices of Sidley &
Austin, Chicago, Illinois, or at such other time and place as shall be agreed
upon by Buyer and FFMC. The time and date on which the Closing is actually held
is referred to herein as the "Closing Date."
SECTION 4.2. PAYMENT ON THE CLOSING DATE. Subject to fulfillment or
waiver (where permissible) of the conditions set forth in Article IX, at the
Closing Buyer shall pay FFMC
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an amount equal to the Purchase Price by wire transfer of immediately available
funds to the bank account or accounts specified by FFMC.
SECTION 4.3. BUYER'S ADDITIONAL CLOSING DATE DELIVERIES. Subject to
fulfillment or waiver (where permissible) of the conditions set forth in Article
IX, at the Closing Buyer shall deliver to FFMC all of the following:
(a) Copies of Buyer's Certificate of Incorporation certified as of a
recent date by the Secretary of State of the State of Delaware;
(b) Certificate of good standing of Buyer issued as of a recent date
by the Secretary of State of the State of Delaware;
(c) Certificate of the secretary or an assistant secretary of Buyer,
dated the Closing Date, in form and substance reasonably satisfactory to
FFMC, as to (i) the lack of amendments to the Certificate of Incorporation
of Buyer since the date of the certificate specified in clause (a) above;
(ii) the By-laws of Buyer; (iii) the resolutions of the Board of Directors
of Buyer authorizing the execution and performance of this Agreement, any
Buyer Ancillary Agreements and the transactions contemplated hereby and
thereby; and (iv) incumbency and signatures of the officers of Buyer
executing this Agreement and any Buyer Ancillary Agreement; and
(d) The other certificates and opinions contemplated by Article X.
SECTION 4.4. SELLERS' CLOSING DATE DELIVERIES. Subject to fulfillment
or waiver (where permissible) of the conditions set forth in Article X, at the
Closing the Sellers shall deliver to Buyer all of the following:
(a) Copies of the Restated Certificate of Incorporation of FDC
certified as of a recent date by the Secretary of State of the State of
Delaware;
(b) Copies of the Articles of Incorporation of FFMC certified as of a
recent date by the Secretary of State of the State of Georgia;
(c) Certificates of good standing of FDC and FFMC issued as of a
recent date by the Secretary of State of the State of Delaware and the
Secretary of State of the State of Georgia, respectively;
(d) Certificate of the secretary or an assistant secretary of FDC,
dated the Closing Date, in form and substance reasonably satisfactory to
Buyer, as to (i) the lack of amendments to the Restated Certificate of
Incorporation of FDC since the date of the certificate specified in clause
(a) above; (ii) the By-laws of FDC; (iii) the resolutions of the Board of
Directors of FDC authorizing the execution and
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performance of this Agreement, any Seller Ancillary Agreement to which FDC is a
party and the transactions contemplated hereby and thereby; and (iv) incumbency
and signatures of the officers of FDC executing this Agreement and any Seller
Ancillary Agreement to which FDC is a party;
(e) Certificate of the secretary or an assistant secretary of FFMC,
dated the Closing Date, in form and substance reasonably satisfactory to Buyer,
as to (i) the lack of amendments to the Articles of Incorporation of FFMC since
the date of the certificate specified in clause (b) above; (ii) the By-laws of
FFMC: (iii) the resolutions of the Board of Directors of FFMC authorizing the
execution and performance of this Agreement, any Seller Ancillary Agreement to
which FFMC is a party and the transactions contemplated hereby and thereby; and
(iv) incumbency and signatures of the officers of FFMC executing this Agreement
and any Seller Ancillary Agreement to which FFMC is a party;
(f) Copies of the Articles or Certificate of Incorporation of
Strategies and of the Strategies Subsidiaries, each certified as of a recent
date by the Secretary of State of such entity's respective state of
incorporation;
(g) Copies of the Articles or Certificate of Incorporation of Services
and the Services Subsidiaries, each certified as of a recent date by the
Secretary of State of such entity's state of incorporation or, in the case of
Services, the State Corporation Commission of the Commonwealth of Virginia;
(h) Certificates of good standing of each of the Companies and the
Subsidiaries issued as of a recent date by the Secretary of State of the State
of such entity's state of incorporation or, in the case of Services, the State
Corporation Commission of the Commonwealth of Virginia;
(i) Certificate of the secretary or an assistant secretary of each
Company, dated the Closing Date, in form and substance reasonably satisfactory
to Buyer, as to (i) the lack of amendments to the Certificate of Incorporation
or Articles of Incorporation of such Company or Subsidiary since the date of the
respective certificates specified in clauses (f) and (g) above; (ii) the By-laws
of such Company or Subsidiary; and (iii) any resolutions of the Board of
Directors of such Company or Subsidiary relating to the transactions
contemplated by this Agreement;
(j) The certificates representing all of the Shares, duly endorsed to
Buyer or accompanied by duly executed and witnessed stock powers;
(k) The other certificates and opinions contemplated by Article IX;
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(l) The written resignations of the directors of each of the Companies
and Subsidiaries; and
(m) All third party consents listed on Schedule 5.4 and/or referred to
in Section 9.3.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
As an inducement to Buyer to enter into this Agreement and to
consummate the transactions contemplated hereby, the Sellers jointly and
severally represent and warrant to Buyer and agree as follows:
SECTION 5.1. ORGANIZATION OF THE SELLERS. FDC is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. FFMC is a corporation duly organized, validly existing and in good
standing under the laws of the State of Georgia.
SECTION 5.2. ORGANIZATION; CAPITAL STRUCTURE OF THE COMPANIES; POWER
AND AUTHORITY. (a) Each Company and Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or formation. Each Company and Subsidiary is duly qualified to
transact business and is in good standing in each jurisdiction where the
character of its properties owned or held under lease or the nature of its
activities makes such qualifications necessary, except where the failure to be
so qualified or in good standing would not have a Material Adverse Effect. Each
Company and Subsidiary has the corporate power and corporate authority to own or
lease and operate its assets and to carry on the Strategies Business or the
Services Business, as the case may be, in the manner that it was conducted
immediately prior to the date of this Agreement and as proposed to be conducted
pursuant to the Companies' 1997 forecast attached as Schedule 5.2.
(b) The authorized capital stock of Strategies consists of 400,000
shares of Common Stock, par value $1.00 per share, of which 500 shares are
issued and outstanding. Except for this Agreement, there are no agreements,
arrangements, options, warrants, calls, rights or commitments of any kind or
character relating to the issuance, sale, purchase or redemption of any shares
of capital stock of Strategies. All of the outstanding shares of capital stock
of Strategies are duly authorized, validly issued, fully paid, nonassessable,
free of preemptive rights and are owned by FFMC free from all Encumbrances.
(c) The authorized capital stock of Services consists of 200,000
shares of Common Stock, par value $10.00 per share, of which 200,000 shares are
issued and outstanding. Except for this Agreement, there are no agreements,
arrangements, options, warrants, calls, rights or commitments of any character
relating to the issuance, sale, purchase or redemption of any
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shares of capital stock of Services. All of the outstanding shares of capital
stock of Services are duly authorized, validly issued, fully paid,
nonassessable, free of preemptive rights and are owned by FFMC free from all
Encumbrances.
SECTION 5.3. SUBSIDIARIES AND INVESTMENTS. The Companies have no
direct or indirect subsidiaries other than the Strategies Subsidiaries and the
Services Subsidiaries (except for VIPS, Inc., which will be distributed in
accordance with Section 7.5). Except for ownership of capital stock of the
Subsidiaries or as set forth on Schedule 5.3, the Companies do not, directly or
indirectly, own, of record or beneficially, any outstanding equity interests in
any corporation, partnership, joint venture or other entity. Except as set forth
on Schedule 5.3, the Companies own, directly or indirectly, all the outstanding
capital stock of each of the Subsidiaries, free and clear of all Encumbrances.
All such capital stock is duly authorized, validly issued and outstanding, fully
paid and nonassessable, and free of preemptive rights. None of the Subsidiaries
has any obligation, contingent or otherwise, to issue or sell any shares of its
capital stock or any securities or obligations convertible into or exchangeable
for, or giving any Person any right to acquire from such Subsidiary, any shares
of its capital stock, and no such securities or obligations are outstanding.
Notwithstanding the foregoing, it is understood that Psych Review Associates of
Tennessee, Inc., a Tennessee corporation, which has no operations and has been
administratively dissolved, shall not be deemed a Subsidiary for purposes of
this Agreement.
SECTION 5.4. AUTHORITY OF THE SELLERS; CONFLICTS. (a) Each of the
Sellers has the corporate power and corporate authority to execute, deliver and
perform this Agreement and each of the Seller Ancillary Agreements to which it
is a party. The execution, delivery and performance of this Agreement and the
Seller Ancillary Agreements by the Sellers have been duly authorized and
approved by each Seller's board of directors and do not require any further
authorization or consent of the Sellers or their respective stockholders. This
Agreement has been duly authorized, executed and delivered by the Sellers and
(assuming the valid authorization, execution and delivery of this Agreement by
Buyer) is the legal, valid and binding obligation of the Sellers enforceable in
accordance with its terms, and each of the Seller Ancillary Agreements has been
duly authorized by FDC or FFMC, as the case may be, and upon execution and
delivery by FDC or FFMC, as the case may be, will be (assuming the valid
authorization, execution and delivery by Buyer, where Buyer is a party, or the
other party or parties thereto) a legal, valid and binding obligation of FDC or
FFMC, as the case may be, enforceable in accordance with its terms, in each case
subject to bankruptcy, insolvency, reorganization, moratorium and similar laws
of general application relating to or affecting creditors' rights and to general
equity principles.
(b) Schedule 5.4 sets forth a list of (i) all material consents,
approvals, authorizations, permits, filings, and notifications of, with and to
any Governmental Body required to be made, obtained or filed by any of the
Companies or the Subsidiaries under (A) any Health Benefit Law or (B) any other
Law applicable to the Companies or the Subsidiaries (except in connection, or in
compliance, with the provisions of the HSR Act), and (ii) all material consents
and approvals of any other third party required as a result of the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby.
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(c) Except as set forth in Schedule 5.4, neither the execution and
delivery of this Agreement or any of the Seller Ancillary Agreements nor the
consummation of any of the transactions contemplated hereby or thereby nor
compliance with or fulfillment of the terms, conditions and provisions hereof or
thereof will, individually or in the aggregate:
(i) conflict with or violate the Certificate of Incorporation or
by-laws or equivalent organizational documents of any of the Companies or
the Subsidiaries;
(ii) result in any violation or breach of or constitute a default
(with or without notice or lapse of time, or both) under, give to others a
right of termination, cancellation or acceleration of any obligation under,
or result in the loss of a material benefit under or in the creation of any
lien, security interest, charge or encumbrance upon any of the properties
or assets of either Company or any Subsidiary under, any provision of (x)
any indenture, mortgage, loan agreement, note or other agreement or
instrument for borrowed money, any guarantee of any agreement or instrument
for borrowed money or any lease, contractual license or other agreement or
instrument to which either Company or any Subsidiary is a party or by which
either Company or any Subsidiary is bound or to which any of the
properties, assets or operations of either Company or any Subsidiary is
subject, or (y) any Requirement of Law or Court Order applicable to the
Sellers or to either Company or any Subsidiary or to any properties or
assets of the Companies or the Subsidiaries, other than, in the case of
clause (x) or (y), any such violations, defaults, rights, losses, liens,
security interests, charges or encumbrances that, individually or in the
aggregate, would not have a Material Adverse Effect and would not prevent
the consummation of any of the transactions contemplated hereby; or
(iii) require the filing, declaration or registration with, or
authorization, consent, approval or act of, any Governmental Body by or
with respect to the Sellers, either Company or any Subsidiary, except for
(A) in connection, or in compliance, with the provisions of the HSR Act,
(B) the consents, approvals, authorizations, filings, notices or permits
described on Schedule 5.4 and (C) such approvals, consents, authorizations,
declarations, filings or registrations the failure of which to be obtained
or made, individually or in the aggregate, would not have a Material
Adverse Effect and would not prevent the consummation of any of the
transactions contemplated hereby.
SECTION 5.5. FINANCIAL STATEMENTS; REPORTS. (a) Schedule 5.5 contains
(i) the unaudited consolidating balance sheets as of December 31, 1996 and 1995
and the unaudited consolidating statements of income and cash flow for the years
ended December 31, 1996 and 1995 for the Business and (ii) the Cut-Off Date
Financial Statements. All of the balance sheets and statements of income and
cash flow included in Schedule 5.5 have been (x) prepared in accordance with the
relevant entities' normal accounting procedures and further in conformity with
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GAAP (except as provided in Schedule 3.2 and Schedule 5.22) consistently applied
throughout the periods covered thereby (except that none of the financial
statements set forth in Schedule 5.5 contain footnotes and the Cut-Off Date
Financial Statements are subject to normal year-end adjustments) and (y) present
fairly in accordance with GAAP (except as provided in Schedule 3.2 and Schedule
5.22) the financial position and results of operations of such entities as of
their respective dates and for the respective periods covered thereby.
(b) None of the Companies or Subsidiaries owns any interest in, or has
any liability or obligation (including any contingent liability) with respect
to, any options, puts, calls, swaps, exchange contracts or other derivatives or
any other similar arrangements or obligations.
SECTION 5.6. OPERATIONS SINCE CUT OFF DATE. Except as set forth in
Schedule 5.6, since the Cut-Off Date through the date hereof:
(a) The Companies and the Subsidiaries have conducted the Business
only in the ordinary course;
(b) None of the Companies or Subsidiaries has sustained any loss or
interference with their business or properties from fire, flood, windstorm,
accident or other calamity (whether or not covered by insurance) that has
resulted, individually or in the aggregate, in a Material Adverse Effect;
(c) There has been no change in the consolidated indebtedness of
Strategies and the Strategies Subsidiaries or Services and the Services
Subsidiaries, and no dividend or distribution of any kind has been
declared, paid or made by the Companies;
(d) There have been no events which, individually or in the aggregate,
have resulted in or caused a Material Adverse Effect;
(e) Except as provided in Schedule 3.2 and Schedule 5.22, the Cut-Off
Date Financial Statements reflect the principal accounting policies
followed by the Companies and the Subsidiaries, and since the Cut-Off Date,
there has been no change in such policies, except as required by changes in
GAAP;
(f) None of the Companies or Subsidiaries increased the compensation
of any employee, other than changes made in accordance with normal
compensation practices and consistent with past practices; nor has either
Company or any Subsidiary made any loan or advance to, or entered into any
non-arm's length transaction with, any officer, director, stockholder or
Affiliate of the Companies or the Subsidiaries (except for ordinary
travel and business expense payments made in the ordinary course);
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(g) None of the Companies or Subsidiaries has incurred or entered into
any agreement or commitment to incur any indebtedness for borrowed money;
and none of the Companies and Subsidiaries has made or entered into any
agreement or commitment to make any capital expenditures in excess of
$100,000;
(h) None of the Companies or Subsidiaries has relinquished any
material contract or contract right, except in the ordinary course;
(i) None of the Companies or Subsidiaries has sold, assigned,
transferred or bulk reinsured any of its assets (tangible or intangible),
except in the ordinary course; and
(j) None of the Companies or Subsidiaries has entered into any
commitment (contingent or otherwise) to do any of the foregoing.
SECTION 5.7. TAXES. (a) FDC, FFMC, the Companies and the Subsidiaries
are members of an "affiliated group" within the meaning of Section 1504(a) of
the Code, and FDC is the "common parent" of such affiliated group. Except as set
forth on Schedule 5.7, each of the Companies and the Subsidiaries (or FDC or
FFMC, on their behalf) has (i) timely filed with the appropriate federal, state,
local and other taxing authorities all material Tax Returns and reports required
to be filed by or on behalf of the Companies or the Subsidiaries and (ii) timely
paid in full all Taxes shown to be due on such Tax Returns with respect to the
Companies and the Subsidiaries.
(b) Schedule 5.7 sets forth for each Company and Subsidiary and for
the Seller Tax Group with respect to items relating to a Company or Subsidiary
(i) each taxable year or other taxable period for which an audit or other
examination (including any related administrative or judicial proceedings) of
Taxes by the appropriate taxing authorities of any nation, state or locality is
currently in progress as of the date of this Agreement (or scheduled as of the
date of this Agreement to be conducted) together with the names of the
respective taxing authorities conducting (or scheduled to conduct) such audits
or examinations and a description of the Tax Returns and periods which are the
subject matter of such audits or examinations; (ii) the most recent taxable year
or other taxable period for which an audit or other examination relating to
federal income Taxes has been finally completed and the disposition of such
audit or examination; (iii) with respect to each Tax, as applicable, the tax
years or other taxable periods which are not or will not be subject to the
normally applicable statute of limitations by reason of the existence of written
waivers of such statutes of limitations; (iv) the amount of any proposed
adjustments (and the principal reason therefor) with respect to any returns or
any liability for Taxes which have been proposed or assessed by any taxing
authority to the extent still pending; and (v) a list of all written notices of
proposed adjustments received from any taxing authority relating to any issue
which has not been finally determined and could affect any of the Companies'
or the Subsidiaries' liability for Taxes.
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(c) Except as set forth on Schedule 5.7: (i) there are no tax sharing,
allocation or similar agreements in effect under which any of the Companies or
the Subsidiaries is liable or could be liable for any Taxes or other claims of
any party by reason of filing Tax Returns on a combined, consolidated or unitary
basis with such party; and (ii) none of the assets of any of the Companies or
the Subsidiaries is property that is required to be treated as being owned by
any other person pursuant to the so-called safe harbor lease provisions of
former Section 168(f)(8) of the Code, directly or indirectly secures any debt
the interest on which is tax exempt under Section 103(a) of the Code, or is
"tax-exempt use property" within the meaning of Section 168(h) of the Code.
(d) Notwithstanding anything to the contrary in this Agreement,
nothing in this Section 5.7 shall cause the Sellers to be liable to any Buyer
Group Member or any Company or Subsidiary for any Taxes for which the Sellers
are not expressly liable pursuant to Section 8.2 (relating to Tax matters).
SECTION 5.8. COMPANY PERMITS. Except as set forth in Schedule 5.8,
each Company and Subsidiary is and immediately after the Closing will be in
possession of all franchises, grants, authorizations, licenses (including but
not limited to claims or third-party administration licenses, utilization review
certificates or licenses and insurance agency licenses), permits, easements,
variances, exemptions, consents, certificates, approvals and orders necessary
for it to own, lease and operate its respective properties or to carry on its
business as it is now being conducted (the "Company Permits"), and no suspension
or cancellation of any of the Company Permits is pending or, to the Knowledge of
Sellers, threatened. None of the Companies or the Subsidiaries is in violation
of (a) its charter, by-laws or other organizational documents, (b) any
applicable Requirement of Law or (c) any Court Order or order, decree or
judgment of any Governmental Body having jurisdiction over any Company or any
Subsidiary except, in the case of clause (b), for any violations that,
individually or in the aggregate, would not have a Material Adverse Effect.
SECTION 5.9. REAL PROPERTY. Neither Company nor any of the
Subsidiaries owns any real property or holds any option to acquire any real
property. Schedule 5.9 sets forth a list of each lease or similar agreement
under which either Company or any of the Subsidiaries is lessee of, or holds or
operates, any real property owned by any third Person (the "Properties").
SECTION 5.10. PERSONAL PROPERTY LEASES. Schedule 5.10 contains as of
the date of this Agreement a list of each lease or other agreement or right
under which either the Company or any of the Subsidiaries is lessee of, or holds
or operates, any machinery, equipment, vehicle or other tangible personal
property owned by a third Person, except those which are terminable by the
Companies or the Subsidiaries without penalty on 60 days' or less notice or
which provide for annual rental payments of less than $25,000.
SECTION 5.11. INTELLECTUAL PROPERTY. (a) Schedule 5.11(a) contains a
list of all Copyrights, Patent Rights and Trademarks owned by the Companies or
any Subsidiary which are material to the conduct of the Strategies Business or
the Services Business.
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(b) Schedule 5.11(6) contains a list of all Software owned by the
Companies or the Subsidiaries which is material to the conduct of the Strategies
Business or the Services Business.
(c) Except as disclosed in Schedule 5.11(c), the Companies and the
Subsidiaries: (i) own the entire right, title and interest in and to the
Intellectual Property and Software listed in Schedules 5.ll(a) and 5.11(b)
hereof, free and clear of any Encumbrance; and (ii) have the right and license
to use the Intellectual Property and Software listed in Schedules 5.11(a) and
5.11(b) and any other Software material to the conduct of the Strategies
Business or the Services Business.
(d) Except as disclosed in Schedule 5.11(d), (i) all registrations
for Intellectual Property identified in Schedule 5.11(a) are valid and in
force, and all applications to register any unregistered Intellectual Property
so identified are pending and in good standing, and, to the Knowledge of the
Sellers, all without challenge of any kind; (ii) the Intellectual Property owned
by the Companies and the Subsidiaries is valid and enforceable; and (iii) the
Companies and the Subsidiaries have the right to bring actions for infringement
or unauthorized use of the Intellectual Property and Software owned by the
Companies and the Subsidiaries. To the Knowledge of the Sellers, no third party
has infringed the Intellectual Property owned by the Companies and any of the
Subsidiaries.
(e) Except as disclosed in Schedule 5.11(e), to the Knowledge of the
Sellers, (i) no infringement by the Companies or the Subsidiaries of any
Intellectual Property of any other Person has occurred within the past five
years or results in any way from the operations of the Business, (ii) no claim
of any infringement of any Intellectual Property of any other Person has been
made or asserted within the past five years in respect of the operations,
activities, products, software, equipment, machinery or processes of the
Strategies Business or the Services Business, and (iii) the Sellers, the
Companies and the Subsidiaries have not within the past five years had written
notice of a claim against the Companies or the Subsidiaries that the operations,
activities, products, software, equipment, machinery or processes of the
Strategies Business or the Services Business infringe any Intellectual Property
of any other Person.
(f) Except as disclosed in Schedule 5.11(f), no proceedings are
pending or, to the Knowledge of the Sellers, threatened against either Company
or any Subsidiary which challenge the validity or ownership of any Copyright,
Patent Right, or Trademark described in Schedule 5.11(a).
SECTION 5.12. TITLE TO PROPERTY. Except for assets disposed of in the
ordinary course of business, the Companies and the Subsidiaries have good and
marketable title to each item of equipment and other tangible personal property
reflected on the Cut-Off Date Balance Sheet and all after-acquired tangible
personal property, free and clear of all Encumbrances, except for Permitted
Encumbrances. All such equipment and other tangible personal property is, in the
aggregate, in good operating condition (ordinary wear and tear excepted),
subject to maintenance, repair or replacement in the ordinary course of business
and consistent with past practice. The
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Companies and the Subsidiaries own, lease or have the right to use all tangible
personal property that is reasonably necessary to conduct the Strategies
Business and the Services Business.
SECTION 5.13. NO VIOLATION, LITIGATION OR REGULATORY ACTION. Except as
set forth in Schedule 5.13:
(i) the Companies and the Subsidiaries have complied in all material
respects with all applicable Requirements of Law and Court Orders;
(ii) there are no outstanding orders, judgments, injunctions, awards
or decrees of any Governmental Body against or involving either Company or
any Subsidiary, or against or involving any of the present or former
directors, officers, employees, consultants, agents or stockholders of
either Company or any Subsidiary, as such, or any of its or their
properties, assets or business that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect; and
(iii) there are no actions, suits (including class action suits) or
claims, labor disputes or other litigation or legal, administrative, or
arbitrative proceedings or investigations pending or, to the Knowledge of
Sellers, threatened against or involving either Company or any Subsidiary
or any of their present or former directors, officers, employees,
consultants, agents or stockholders, as such, or any of its or their
properties, assets or business that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect or, as of
the date hereof, which relate to the transactions contemplated by this
Agreement.
SECTION 5.14. CONTRACTS. Except as set forth in Schedule 5.14 or any
other Schedule hereto, as of the date of this Agreement, neither Company nor any
Subsidiary is a party to or bound by any written or binding oral contract
described below:
(i) any contract for the future purchase or sale of real property;
(ii) any contract for the purchase by either Company or any Subsidiary
of services, supplies, components or equipment which the Sellers reasonably
anticipate will involve the annual payment of more than $500,000 after the
date hereof;
(iii) any contract for the sale by either Company or any Subsidiary of
any services or products which the Sellers reasonably anticipate will
involve the annual payment of more than $500,000 after the date hereof;
(iv) any contract for the purchase, licensing or development of
computer software or hardware involving the annual payment of more than
$500,000 after the date hereof;
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(v) any consignment, distributor, dealer, manufacturers
representative, sales agency, advertising representative or advertising or
public relations contract which the Sellers reasonably anticipate will
involve the annual payment of more than $100,000 after the date hereof;
(vi) any agreement for the lease of personal property to or from any
Person not made in the ordinary course of business;
(vii) any agreement concerning a partnership or joint venture;
(viii) any agreement under which either Company or any Subsidiary has
created, incurred, assumed or guaranteed any indebtedness for borrowed
money, or any capitalized lease obligation, or under which either Company
or any Subsidiary has imposed a security interest on any of its assets,
tangible or intangible;
(ix) any agreement containing restraints on competition;
(x) any agreement with any of the Sellers or their affiliates; or
(xi) any agreement under which it has advanced or loaned any amount to
any of its directors, officers and employees outside the ordinary course of
business.
SECTION 5.15. STATUS OF CONTRACTS. (a) Except as set forth in Schedule
5.15, each of the leases, contracts, licenses and other agreements listed in
Schedules 5.9, 5 10, and 5.14 (collectively, the "Business Agreements") is in
full force and effect and (except as set forth in Schedule 5.15 and except for
those agreements which by their terms will expire prior to the Closing Date or
are otherwise terminated prior to the Closing Date in accordance with the
provisions thereof) will continue to be in full force and effect immediately
following the consummation of the transactions contemplated hereby. Neither
Company nor any of the Subsidiaries that is a party to any of the Business
Agreements or, to the Knowledge of the Sellers, any other party to any of the
Business Agreements, is in material breach or default of such agreements, and no
event has occurred which with notice or lapse of time would constitute a
material breach or default by either Company or any Subsidiary, or to the
Knowledge of Sellers, permit termination, modification or acceleration by any
other party under the agreements.
(b) Except as set forth in Schedule 5.15, since the Cut-Off Date and
prior to the date hereof, no customer of the Business with more than 1,000
covered employees has canceled or otherwise terminated its relationship with
Strategies, Services or any Subsidiary.
SECTION 5.16. NO BROKERS. Neither FDC, FFMC nor any Person acting on
their behalf has paid or become obligated to pay any fee or commission to any
broker, finder or
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intermediary for or on account of the transactions contemplated by this
Agreement except such obligations that are solely the responsibility of Sellers.
SECTION 5.17. ERISA. (a) Each Welfare Plan and Pension Plan maintained
in connection with the Business or in which at least one employee of either
Company or any of the Subsidiaries participates is listed on Schedule 5.17(a),
and FDC has made available to Buyer either a true and correct copy of each such
plan or a summary plan description used in connection with such plan.
(b) With respect to each Welfare Plan and Pension Plan: (i) each such
plan has been maintained and operated in substantial compliance with the
applicable requirements of the Code and ERISA and the regulations issued
thereunder; (ii) no material litigation or asserted or, to the Knowledge of the
Sellers, threatened material claims exist with respect to any such plan other
than claims for benefits in the normal course of business; (iii) no filing has
been made by any Seller or any ERISA Affiliate with the PBGC, and no proceeding
has been commenced by the PBGC, to terminate any Pension Plan; and (iv) no
condition exists and no event has occurred that could constitute grounds for the
termination of any Pension Plan by the PBGC.
(c) Except as set forth on Schedule 5.17(c), no "accumulated funding
deficiency" (for which an excise tax is due or would be due in the absence of a
waiver) as defined in Section 412 of the Code or as defined in Section 302(a)(2)
of ERISA, whichever may apply, has been incurred with respect to any Pension
Plan with respect to any plan year, whether or not waived. No Seller or ERISA
Affiliate: (i) has failed to pay when due any "required installment", within the
meaning of Section 412(m) of the Code and Section 302(e) of ERISA, whichever may
apply, with respect to any Pension Plan; (ii) is subject to any lien imposed
under Section 412(n) of the Code or Section 302(f) of ERISA, whichever may
apply, with respect to any Pension Plan; (iii) has any liability for unpaid
contributions with respect to any Pension Plan; (iv) is required to provide
security to a Pension Plan under Section 401(a)(29) of the Code; (v) has engaged
in, or is a successor or parent corporation to an entity that has engaged in, a
transaction described in Section 4069 of ERISA; or (vi) has ceased operations at
a facility so as to become subject to the provisions of Section 4062(e) of
ERISA, withdrawn as a substantial employer so as to become subject to the
provisions of Section 4063 of ERISA, or ceased making contributions on or before
the Closing Date to any Pension Plan subject to Section 4064(a) of ERISA to
which any Seller or any ERISA Affiliate made contributions during the six years
prior to the Closing Date.
(d) Except as set forth on Schedule 5.17(d), none of the Companies or
any Subsidiary nor any plan fiduciary of any Welfare Plan or Pension Plan which
covers or has covered employees or former employees of the Companies or any
Subsidiary has engaged in any transaction in material violation of Sections 404
or 406 of ERISA or any "prohibited transaction", as defined in Section
4975(c)(1) of the Code, for which no exemption exists under Section 408 of ERISA
or Section 4975(c)(2) or (d) of the Code, or has otherwise materially
violated the provisions of Part 4 of Title I, Subtitle B of ERISA. No Seller
has knowingly participated in a violation of Part 4 of Title I, Subtitle B of
ERISA by any plan fiduciary of any Welfare Plan or Pension Plan or has been
assessed any civil penalty under Section 502(l) of ERISA.
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(e) None of the Companies or any Subsidiary has contributed to or been
obligated to contribute to a "multiemployer plan" as defined in Section 3(37) or
4001(a)(3) of ERISA. None of the Companies or any Subsidiary has any present or
future obligation to make any payment to or with respect to any present or
former employee of any Seller or ERISA Affiliate pursuant to any retiree medical
benefit plan, or other retiree Welfare Plan, and no condition exists which would
prevent Sellers from amending or terminating any such benefit plan or Welfare
Plan. Except as provided by law, the employment of all persons presently
employed or retained by the Companies or any Subsidiary is terminable at will.
No event has occurred in connection with which any Company or Subsidiary,
directly or indirectly, could be subject to any material liability (i) under any
statute, regulation or governmental order relating to any Pension Plan or
Welfare Plan or (ii) pursuant to any obligation of any Company or Subsidiary to
indemnify any person against liability incurred under any Requirements of Law or
Court Orders as they relate to such plans.
(f) There is no contract, agreement, plan or arrangement covering any
employee or former employee of any Company or any Subsidiary that, individually
or collectively, provides for the payment of any amount not being assumed by the
Sellers (i) that is not deductible under Section 162(a)(1) or 404 of the Code or
(ii) that is an "excess parachute payment" pursuant to Section 280G of the Code.
(g) No Seller or ERISA Affiliate has any announced plan or legally
binding commitment to create any additional Pension Plan, Welfare Plan or other
benefit arrangement which is intended to cover employees or former employees of
any Company or any Subsidiary or to amend or modify any existing such plan or
arrangement which covers or has covered employees or former employees of any
Company or Subsidiary.
(h) Any other material employee benefits arrangement which covers any
employee or former employee of any Company or any Subsidiary or relating to the
Business as to which either Company or any of the Subsidiaries has or may have
in the future any liability (other than regular wages or salary and other than
Welfare Plans), including, without limitation, any bonus, incentive or annual
profit sharing programs, any fringe benefits described in Section 132 of the
Code, any education assistance plans under Section 127 of the Code and any
dependent care assistance plans under Section 129 of the Code is listed in
Schedule 5.17(h), and written plan documents or written summaries of all such
arrangements that are in writing have been made available to Buyer by FDC.
SECTION 5.18. INSIDER INTERESTS. Except as set forth on Schedule 5.18,
neither any Seller, their Affiliates nor any current or former officer, director
or employee of any thereof has any agreement with either Company or any
Subsidiary or any interest in any property, real or personal, tangible or
intangible (including, without limitation, Intellectual Property), used in or
pertaining to the Strategies Business or the Services Business.
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SECTION 5.19. ENVIRONMENTAL COMPLIANCE. (a) To the Knowledge of the
Sellers, the Companies and the Subsidiaries currently and have in the past
complied in all material respects with all Environmental Laws.
(b) There are no existing Environmental Claims against the Companies
or the Subsidiaries, nor have they received any written notification of any
allegation of any actual, or potential responsibility for, or any inquiry or
investigation regarding, any disposal, release or threatened release at any of
the Properties of any Hazardous Substance.
(c) To the Knowledge of Sellers (after inquiry of facilities managers
of the Companies at Salt Lake City, Utah and Richmond, Virginia): (i) no
underground tank or other underground storage receptacle for Hazardous
Substances is currently located on the Properties; (ii) there have been no
releases (i.e., any past or present releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
disposing, or dumping) of Hazardous Substances in quantities exceeding the
reportable quantities as defined under federal or state law by the Companies or
the Subsidiaries on, upon or into the Properties other than those authorized by
Environmental Laws; and (iii) there have been no releases in quantities
exceeding the reportable quantities as defined under federal or state law on,
upon, or into any real property in the vicinity of any of the Properties other
than those authorized by Environmental Laws which, through soil or ground water
contamination, may have come to be located on the Properties.
(d) There are no consent decrees, consent orders, judgments, judicial
or administrative orders, agreements with (other than permits) or liens by, any
Governmental Body or quasi-governmental entity relating to any Environmental Law
which regulate, obligate or bind the Companies or the Subsidiaries.
(e) True and correct copies of the Environmental Reports pertaining to
any of the Properties or facilities previously owned or leased by the Companies
or any Subsidiary have been made available to Buyer.
SECTION 5.20. EMPLOYEE RELATIONS AND AGREEMENTS. (a) Schedule 5.20
contains a true and complete listing of all employees of each Company and
Subsidiary as of a recent date, their annual salary and date of hire. Since the
Cut-Off Date, except as disclosed on Schedule 5.20 or as has occurred in the
ordinary course of business and consistent as to timing and amount with past
practices, neither Company nor any Subsidiary has: (i) increased the
compensation payable or to become payable to or for the benefit of any of its
employees, (ii) provided any of its employees with increased security or tenure
of employment, (iii) increased the amount payable to any of its employees upon
the termination of such persons' employment, or (iv) increased, augmented or
improved benefits granted to or for the benefit of its employees under any
bonus, profit sharing, pension, retirement, deferred compensation, insurance or
other direct or indirect benefit plan or arrangement.
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(b) None of the Sellers, the Companies or the Subsidiaries is a party
to any labor contract, collective bargaining agreement or employment agreement
covering any employees of the Companies or the Subsidiaries.
(c) No union or similar organization represents employees of the
Companies or the Subsidiaries and, to the Knowledge of the Sellers, no such
organization is attempting to organize such employees.
SECTION 5.21. CERTAIN AGREEMENTS. (i) No director, officer or
employee of either Company or any Subsidiary is a party to any agreement that
entitles him or her to compensation or other consideration (including "stay
put" bonuses, severance compensation, incentive bonuses or other similar
amounts) upon or in connection with the acquisition by any Person of control of
either Company or any Subsidiary, and (ii) none of the Companies or
Subsidiaries is a party to any oral or written agreement or plan, including any
employment agreement, severance agreement, stock option plan, stock
appreciation rights plan, restricted stock plan, stock purchase plan or other
agreement, plan or arrangement, any of the benefits of which will be increased,
created or the vesting of the benefits of which will be accelerated, by the
occurrence of any of the transactions contemplated by this Agreement or the
value of any of the benefits of which will be calculated on the basis of any of
the transactions contemplated by this Agreement, other than, in the case of
clause (i) or (ii) above, agreements and plans as to which the Sellers will
assume sole responsibility therefor (including any indemnification in respect
of any "excess parachute payment" pursuant to Section 280G of the Code).
SECTION 5.22. LIABILITIES. Except as set forth in Schedule 5.22 or
reflected in the Cut-Off Date Balance Sheet, none of the Companies or
Subsidiaries has any material liabilities that would be required to be included
on a balance sheet prepared in accordance with GAAP other than liabilities
arising thereafter in the ordinary course of business and which would not have a
Material Adverse Effect. The Companies and the Subsidiaries have not guaranteed
third-party indebtedness.
SECTION 5.23. SOFTWARE DEVELOPMENT.
(a) Act 3 is an automated system for the administration of health care
claims that utilizes state-of-the-market computer technology, electronic imaging
and claims receipt, and on-line plan documents. Strategies has the sole right to
commercially exploit Act 3, it being understood that Act 3 includes third-party
Software that Strategies has the right to use.
(b) Act II is the primary claims administration system currently
utilized by Strategies. Strategies has the sole right to commercially exploit
Act II, it being understood that Act II includes third-party Software that
Strategies has the right to use.
(c) None of the Companies and Subsidiaries is a party to or otherwise
obligated under any agreement to purchase, or commitment to enter into any
agreement to purchase, any computer software, hardware or services related
thereto, whether with respect to Act II, Act 3 or
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any other system, (i) with Unisys Corporation which involves more than $100,000
in the aggregate or (ii) with respect to any agreement with any other Person,
which cannot be terminated without penalty on 90 days' or less notice.
SECTION 5.24. THIRD-PARTY FUNDS. Each of (a) Strategies and the
Strategies Subsidiaries, (b) Services and the Services Subsidiaries and (c) the
Sellers and their affiliates with respect to the Business, has in all material
respects accurately accounted for all monies entrusted to it by third parties
and all monies over which it has or has had signature authority or other control
for the benefit of others in the operation of the Business and its third-party
health claims administration (collectively, "Entrusted Funds"); all Entrusted
Funds have been applied to the reimbursement or direct payment of covered
benefits of employees or eligible members of client employers or to services
fees in accordance in all material respects with the instruments governing such
benefit plans or the written instructions of the plan administrator or employer;
all material reports and other filings with respect to the payment of Entrusted
Funds have been made by each of the Companies and the Subsidiaries and the
Sellers and their affiliates if required to be so filed and each of the
Companies and the Subsidiaries and the Sellers and their affiliates is in
material compliance with all federal and state laws and regulations pertaining
to the holding and administration of Entrusted Funds. Each of the Companies' and
the Subsidiaries' and the Sellers' and their affiliates' trust or other accounts
in which Entrusted Funds are held and administered are fully reconcilable in all
material respects.
SECTION 5.25. INSURANCE MATTERS. None of the agreements with stop loss
insurers used by either Company or any Subsidiary contain provisions limiting
the stop loss insurer with respect to which the Companies or any Subsidiary may
conduct business.
SECTION 5.26. CERTAIN BUSINESS PRACTICES AND REGULATIONS. None of the
Companies or the Subsidiaries, nor any of their respective executive officers,
directors or managerial employees has, directly or indirectly, (a) made or
agreed to make any contribution, payment or gift to any customer, supplier,
governmental official, employee or agent where either the contribution, payment
or gift or the purpose therefor was illegal under any Law, (b) established or
maintained any unrecorded fund or asset of the Companies for any improper
purpose or made any false entries on its books and records for any reason, or
(c) made or agreed to make any contribution, or reimbursed any political gift or
contribution made by any other person, to any candidate for federal, state or
local public office in violation of any Law, except, in the case of clause (a),
(b) or (c), for any activities that, individually or in the aggregate, would not
have a Material Adverse Effect.
SECTION 5.27. INSURANCE. A listing of all policies and binders of
insurance for professional liability, directors and officers liability, fidelity
bonds and a listing of all material policies and binders of insurance for
property and casualty, fire, liability, worker's compensation and other
customary matters held by or on behalf of each of the Companies or the
Subsidiaries ("Insurance Policies") has been made available to Buyer. The
Insurance Policies are in full force and effect in all material respects. To the
Knowledge of the Sellers, (i) neither Company nor any Subsidiary has failed to
give any notice since January 1, 1996 of any material claim under an
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Insurance Policy in a timely fashion and (ii) no coverage for claims since
January 1, 1996 has been denied. None of the Companies or Subsidiaries has any
obligation to pay any premium on any insurance policy owned by any individual
or entity rendering professional health care services as an employee of or
contractor to the Companies or the Subsidiaries (except for any welfare plans
offered generally to employees).
SECTION 5.28. FIDUCIARY STATUS. To the Knowledge of the Sellers, none
of the Companies nor any Subsidiary is a fiduciary (whether pursuant to Section
3(2) of ERISA or otherwise with respect to any employee benefit plan as defined
under Section 3(3) of ERISA other than the Pension Plans and Welfare Plans
disclosed on Schedule 5.17(a)).
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER
As an inducement to the Sellers to enter into this Agreement and to
consummate the transactions contemplated hereby, Buyer hereby represents and
warrants to the Sellers and agrees as follows:
SECTION 6.1. ORGANIZATION OF BUYER. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Buyer has the corporate power and corporate authority to own or lease
and operate its assets and to carry on its businesses in the manner that they
were conducted immediately prior to the date of this Agreement.
SECTION 6.2. AUTHORITY OF BUYER; CONFLICTS. (a) Buyer has the
corporate power and corporate authority to execute, deliver and perform this
Agreement and each of the Buyer Ancillary Agreements. The execution, delivery
and performance of this Agreement and the Buyer Ancillary Agreements by Buyer
have been duly authorized and approved by Buyer's board of directors and do not
require any further authorization or consent of Buyer or its stockholders. This
Agreement has been duly authorized, executed and delivered by Buyer and
(assuming the valid authorization, execution and delivery of this Agreement by
the Sellers) is the legal, valid and binding agreement of Buyer enforceable in
accordance with its terms, and each of the Buyer Ancillary Agreements has been
duly authorized by Buyer and upon execution and delivery by Buyer will be
(assuming the valid authorization, execution and delivery by the Sellers, where
a Seller is a party, or the other party or parties thereto) a legal, valid and
binding obligation of Buyer enforceable in accordance with its terms, in each
case subject to bankruptcy, insolvency, reorganization, moratorium and similar
laws of general application relating to or affecting creditors' rights and to
general equity principles.
(b) Neither the execution and delivery of this Agreement or any of the
Buyer Ancillary Agreements nor the consummation of any of the transactions
contemplated hereby or
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thereby nor compliance with or fulfillment of the terms, conditions and
provisions hereof or thereof will:
(i) conflict with, result in a breach of the terms, conditions or
provisions of, or constitute a default, an event of default or an event
creating rights of acceleration, termination or cancellation or a loss of
rights under (A) the Certificate of Incorporation or By-laws of Buyer, (B)
any note, instrument, mortgage, lease, franchise or financial obligation to
which Buyer is a party or any of its properties is subject or by which
Buyer is bound, (C) any Court Order to which Buyer is a party or by which
it is bound or (D) any Requirements of Law affecting Buyer, other than, in
the case of clause (B), any such conflicts, breaches, defaults or rights
that, individually or in the aggregate, would not materially impair the
ability of Buyer to perform its obligations hereunder or prevent the
consummation of any of the transactions contemplated hereby, or
(ii) require the approval, consent, authorization or act of, or the
making by Buyer of any declaration, filing or registration with, any
Person, except for (A) as disclosed on the Schedules hereto pertaining to
the Sellers or the Companies and Subsidiaries, (B) in connection, or in
compliance, with the provisions of the HSR Act, and (C) such approvals,
consents, authorizations, declarations, filings or registrations the
failure of which to be obtained or made would not materially impair the
ability of Buyer to perform its obligations hereunder or prevent the
consummation of any of the transactions contemplated hereby.
SECTION 6.3. NO VIOLATION, LITIGATION OR REGULATORY ACTION. Except as
set forth in Schedule 6.3:
(i) there are no lawsuits, claims, suits, proceedings or
investigations pending or, to the Knowledge of Buyer, threatened against
the Buyer or its subsidiaries that, individually or in the aggregate, could
reasonably be expected to materially impair the ability of Buyer to perform
its obligations hereunder or prevent the consummation of any of the
transactions contemplated hereby; and
(ii) as of the date hereof, there is no action, suit or proceeding
pending or, to the Knowledge of Buyer, threatened that relates to the
transactions contemplated by this Agreement or any of the Buyer Ancillary
Agreements.
SECTION 6.4. NO BROKERS. Neither Buyer nor any Person acting on its
behalf has paid or become obligated to pay any fee or commission to any broker,
finder or intermediary for or on account of the transactions contemplated by
this Agreement except such obligations that are solely the responsibility of
Buyer.
SECTION 6.5. FINANCIAL ABILITY. Buyer has the financial ability to
consummate the transactions contemplated by this Agreement.
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SECTION 6.6. INVESTMENT INTENT. Buyer is acquiring the Shares as an
investment for its own account and not with a view to the distribution thereof.
Buyer shall not sell, transfer, assign, pledge or hypothecate any of the Shares
in the absence of registration under, or pursuant to an applicable exemption
from, federal and applicable state securities laws.
ARTICLE VII
ACTION PRIOR TO THE CLOSING DATE
The respective parties hereto covenant and agree to take the following
actions between the date hereof and the Closing Date:
SECTION 7.1. ACCESS TO INFORMATION. The Sellers shall afford to the
officers, employees and authorized representatives of Buyer (including, without
limitation, independent public accountants and attorneys) reasonable access
during normal business hours, upon reasonable advance notice, to the offices,
properties, management and other employees and to the business and financial
records (including computer files, retrieval programs and similar documentation)
of each of the Companies and the Subsidiaries to the extent Buyer shall
reasonably deem such access to be necessary or desirable. In addition, the
Sellers shall afford to the officers, employees and authorized representatives
of Buyer reasonable access during normal business hours, upon reasonable advance
notice and with the participation of the Sellers or their representatives, to
customers, brokers, vendors and other Persons having a business relationship
with either Company or any Subsidiary. The Sellers shall also furnish to Buyer
or its authorized representatives such additional information concerning them as
shall be reasonably requested; provided, however, that the Sellers shall not be
required to violate any obligation of confidentiality to which either of them or
any of the Companies is subject in discharging their obligations pursuant to
this Section 7.1. Buyer agrees that such investigation shall be conducted in
such a manner as not to interfere unreasonably with the operations of the
Companies, FDC or FFMC. If in the course of any investigation pursuant to this
Section 7.1, Buyer's officers, employees or authorized representatives discover
any breach of any representation or warranty contained in this Agreement, or any
circumstance or condition that upon Closing would constitute such a breach,
Buyer covenants that it will promptly so inform the Sellers.
SECTION 7.2. NOTIFICATIONS. Each of Buyer and the Sellers shall
promptly notify the other of any action, suit or proceeding that shall be
instituted or threatened against such party to restrain, prohibit or otherwise
challenge the legality of any transaction contemplated by this Agreement. Each
party hereto shall promptly notify the other of any lawsuit, claim, proceeding
or investigation that may be threatened, brought, asserted or commenced against
any of the Companies, the Subsidiaries, the Sellers or Buyer, as the case may
be, that would have been listed in Schedule 5.13 or Schedule 6.3, as the case
may be, if such lawsuit, claim, proceeding or investigation had arisen prior to
the date hereof.
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SECTION 7.3. CONSENTS OF THIRD PARTIES; GOVERNMENTAL APPROVALS. (a)
The Sellers and Buyer will use their reasonable best efforts to secure, before
the Closing Date, the consent, approval or waiver, in form and substance
reasonably satisfactory to the other party, required to be obtained from any
party, including, without limitation, parties referenced in Schedule 5.4 and
Governmental Bodies, to consummate the transactions contemplated by this
Agreement (without conditions adverse to the Sellers, Buyer, the Companies or
the Subsidiaries); provided, however, that such action shall not include any
requirement of Buyer or the Sellers or any of their Affiliates (including the
Companies and the Subsidiaries) to expend money, commence or participate in any
litigation or offer or grant any accommodation (financial or otherwise) to any
third party.
(b) Subject to the terms and conditions of this Agreement, each party
shall use its reasonable best efforts to cause the Closing to occur as soon as
possible after June 30, 1997.
SECTION 7.4. OPERATIONS PRIOR TO THE CLOSING DATE. (a) Each of the
Sellers shall use its reasonable best efforts to cause the Companies and the
Subsidiaries to operate and carry on the Strategies Business and the Services
Business in the ordinary course and substantially as operated immediately prior
to the date of this Agreement. Consistent with the foregoing, the Sellers shall
cause each of the Companies and the Subsidiaries to use its reasonable best
efforts consistent with good business practice to preserve its work force as
presently constituted, and the goodwill of the suppliers, contractors,
licensors, employees, customers, distributors and others having business
relations with the Companies and the Subsidiaries.
(b) Notwithstanding Section 7.4(a), except as set forth on Schedule
7.4, as expressly provided in this Agreement or except with the express written
approval of Buyer, the Sellers shall cause the Companies and the Subsidiaries
not to:
(i) make any material change in Strategies Business, the Services
Business or the operations of such Businesses, except such changes as may
be required to comply with any applicable Requirements of Law;
(ii) make any capital expenditures or enter into any contracts or
commitments therefor that, in the aggregate, involve payment in excess of
$500,000;
(iii) enter into any contract for the purchase of real property, enter
into any lease of real property, exercise any option to extend a lease
listed in Schedule 5.9 or enter into any lease for tangible personal
property which provides for annual rental payments of $25,000 or more;
(iv) create, incur or assume, or agree to create, incur or assume, any
indebtedness for borrowed money (other than money borrowed or advances from
any of its Affiliates in the ordinary course of the Business);
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(v) make, or agree to make, any distribution (whether by dividend,
redemption or otherwise) of assets (other than cash) to FDC, FFMC or any of
their Affiliates;
(vi) (x) change any profit-sharing, bonus, incentive, deferred
compensation, insurance, pension, retirement, medical, hospital,
disability, welfare or other employee benefit plan with respect to its
employees, other than as required by any such plan or Requirements of Law
or (y) make any loan or advance to or enter into any non-arm's length
transaction with any officer, director, stockholder or Affiliate of the
Companies or the Subsidiaries (except for ordinary travel and business
expense payments made in the ordinary course);
(vii) increase the compensation of any employee, other than changes
made in accordance with normal compensation practices and consistent with
past compensation practices;
(viii) make any change in the accounting policies applied in the
preparation of the Cut-Off Date Financial Statements;
(ix) make any change in the charter or by-laws of either Company or
any Subsidiary;
(x) relinquish any material contract or contract right, except in the
ordinary course, or compromise any account receivable that was reflected in
the Cut-Off Date Balance Sheet;
(xi) sell, assign, transfer or bulk reinsure any of its assets
(tangible or intangible), except in the ordinary course;
(xii) enter into any contract which, if entered into prior to the date
hereof, would have been required to be set forth in Schedule 5.14 pursuant
to clauses (i), (ii) and (iv) through (xi) of Section 5.14;
(xiii) take any action which would cause a failure of the conditions
contained in Article IX; or
(xiv) enter into any commitment (contingent or otherwise) to do any of
the foregoing.
Buyer's right to consent to or withhold consent to any of the above-described
actions of the Companies and of the Subsidiaries does not create any duty of
Buyer to the Companies or the Subsidiaries, and Buyer shall have no liability to
any Company, Subsidiary or Seller Group Member in connection with any action
(including the failure or refusal to consent to any proposed action) taken by
Buyer under this Section 7.4(b).
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(c) The Sellers agree promptly to notify Buyer upon receiving any
notice that any customer with more than 1,000 covered employees is canceling,
terminating or electing not to renew its relationship with the Companies or the
Subsidiaries.
SECTION 7.5. SPECIAL DISTRIBUTION; TRANSFER. It is understood and
agreed that, on or prior to the Closing, Services will distribute all of the
capital stock of VIPS, Inc., a Maryland corporation, to FFMC. It is understood
and agreed that on or prior to the Closing, the Sellers shall take such actions
as may be necessary to cause PRIMExtra, Inc. to become a Subsidiary.
SECTION 7.6. ANTITRUST LAW COMPLIANCE. As promptly as practicable
after the date hereof, Buyer and the Sellers shall file with the Federal Trade
Commission and the Antitrust Division of the Department of Justice the
notifications and other information required to be filed under the HSR Act, or
any rules and regulations promulgated thereunder, with respect to the
transactions contemplated hereby. Each party warrants that all such filings by
it will be, as of the date filed, true and accurate in all material respects and
in material compliance with the requirements of the HSR Act and any such rules
and regulations. Buyer and the Sellers will make available to the other such
information as each of them may reasonably request relative to its business,
assets and property as may be required of each of them to file any additional
information requested by such agencies under the HSR Act and any such rules and
regulations.
ARTICLE VIII
ADDITIONAL AGREEMENTS
SECTION 8.1. USE OF NAMES. The Sellers are not conveying ownership
rights or granting Buyer or the Companies a license to use any of the tradenames
or trademarks of FDC or any Affiliate (other than the Companies and
Subsidiaries) of FDC (other than the Trademarks identified on Schedule 5.11
(a)) and, after the Closing, Buyer shall not permit the Companies or any
Affiliate of the Companies to use in any manner the names or marks of FDC or any
Affiliate (other than the Companies and Subsidiaries) of FDC or any word that is
similar in sound or appearance to such names or marks. In the event Buyer or any
Affiliate of Buyer violates any of its obligations under this Section 8.1, FDC
and its Affiliates may proceed against it in law or in equity for such damages
or other relief as a court may deem appropriate.
SECTION 8.2. TAX MATTERS. (a) Liability for Taxes. (i) The Sellers
shall be liable for and shall pay, and pursuant to the terms of Article XI shall
indemnify and hold harmless each Buyer Group Member including, without
limitation, each Company and Subsidiary, against, (x) all Taxes of the Companies
and the Subsidiaries attributable to taxable years or periods ending on or prior
to the Closing Date and, with respect to any Straddle Period, the portion of
such Straddle Period ending on and including the Closing Date, including,
without limitation, all Tax liabilities triggered by the consummation of the
transactions contemplated herein under the intercompany transaction or excess
loss account provisions of the Federal consolidated return regulations (or
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comparable provisions of state or local law or regulation) and (y) all Taxes
imposed on any Company or Subsidiary under Reg. Section 1.1502-6 of the Federal
consolidated return regulations (or comparable provisions of state or local law
or regulation) solely as a result of such Company or Subsidiary having been a
member prior to the Closing Date of Seller Tax Group or of another group of
corporations (other than a group consisting solely of one or more Companies or
Subsidiaries) filing Tax Returns on a consolidated, combined or unitary basis;
provided, however, that the Sellers shall not be liable for or pay and shall not
indemnify any Buyer Group Member or any Company or Subsidiary for, (A) any Taxes
up to the amount of Taxes that are reflected in Closing Net Working Capital, (B)
any Taxes that result from any actual or deemed election under Section 338 of
the Code or any similar provisions of state or foreign law relating to the
purchase of the Shares, or that result from Buyer, any Affiliate of Buyer, the
Companies or any of the Subsidiaries engaging in any activity or transaction
that would cause the transactions contemplated by this Agreement to be treated
as a purchase or sale of assets of any Company or any of the Subsidiaries for
federal, state or local Tax purposes, and (C) any Taxes imposed on the Companies
or any Subsidiary (other than by application of the provisions of law or
regulation referred to previously in this Section 8.2(a)) as a result of
transactions occurring on the Closing Date that are properly allocable (based
on, among other relevant factors, factors set forth in Treas. Reg. Section
1.1502-76(b)(1)(ii)(B)) to periods after the Closing Date (Taxes described in
this proviso, hereinafter "Excluded Taxes"). The Sellers shall be entitled to
any refund of (or credit for) Taxes allocable to any taxable year or period that
ends on or before the Closing Date and, with respect to any Straddle Period, the
portion of such Straddle Period ending on and including the Closing Date.
(ii) Buyer shall be liable for and shall pay, and pursuant to the
terms of Article XI shall indemnify and hold harmless each Seller Group Member
against, (A) all Taxes of the Companies and the Subsidiaries attributable to
taxable years or periods beginning after the Closing Date and, with respect to
any Straddle Period, the portion of such Straddle Period beginning immediately
after the Closing Date and (B) Excluded Taxes. Buyer shall be entitled to any
refund of (or credit for) Taxes allocable to any taxable year or period that
begins after the Closing Date and, with respect to any Straddle Period, the
portion of such Straddle Period beginning after the Closing Date. In no event
shall Buyer or any Affiliate carry back, or cause or permit any Company or
Subsidiary to carry back, any losses from any period after the Closing Date to
any period prior to the Closing Date.
(iii) For purposes of paragraphs (a)(i) and (a)(ii), whenever it is
necessary to determine the liability for Taxes of a Company or a Subsidiary for
a portion of any Straddle Period, the Taxes for the portion of the Straddle
Period ending on and including, and the portion of the Straddle Period beginning
after, the Closing Date shall be determined by assuming that the Straddle Period
consisted of two taxable periods, one which ended at the close of the Closing
Date and the other which began at the beginning of the day immediately following
the Closing Date, and items of income, gain, deduction, loss or credit of an
affected Company or Subsidiary for the Straddle Period shall be allocated
between such taxable periods on a "closing of the books basis" by assuming that
the books of the Companies and the Subsidiaries were closed at the close of the
Closing Date; provided, however, that (I) transactions occurring on the Closing
Date that are
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properly allocable (based on the application of the principles of clause (C) of
Section 8.2(a)(i)), to the portion of the Closing Date after the Closing shall
be allocated to the taxable period that is deemed to begin at the beginning of
the day immediately following the Closing Date, and (II) exemptions, allowances
or deductions that are calculated on an annual basis, such as the deduction for
depreciation, shall be apportioned between such taxable periods on a daily
basis. Notwithstanding the foregoing provisions of this paragraph (a)(iii), if
the transactions contemplated by this Agreement result in the reassessment of
the value of any property owned by the Companies or any Subsidiary for property
Tax purposes, or the imposition of any property Taxes at a rate which is
different than the rate that would have been imposed if such transactions had
not occurred, then (y) the portion of such property Taxes for the portion of the
Straddle Period ending on and including the Closing Date shall be determined on
a daily basis, using the assessed value and Tax rate that would have applied had
such transactions not occurred, and (z) the portion of such property Taxes for
the portion of such Straddle Period beginning after the Closing Date shall be
the total property Taxes for the Straddle Period minus the amount described in
clause (y) of this sentence.
(iv) If, as a result of any action, suit, investigation, audit, claim,
assessment or amended Tax Return, there is any change after the Closing Date in
an item of income, gain, loss, deduction or credit that results in an increase
in a Tax liability for which the Sellers would otherwise be liable pursuant to
paragraph (a)(i), and such change results in an actual decrease in the Tax
liability of the Companies, the Subsidiaries, Buyer, or any Affiliate or
successor thereof for any taxable year or period beginning after the Closing
Date or for the portion of any Straddle Period beginning after the Closing Date
(determined on a "with and without" basis), the Sellers shall not be liable
pursuant to paragraph (a)(i) with respect to such increase to the extent of such
decrease (and, to the extent such increase in Tax liability is paid to a taxing
authority by the Sellers or any Affiliate thereof, Buyer shall pay the Sellers
an amount equal to such decrease as an indemnification payment determined in
accordance with Article XI). Buyer shall cause the relevant Company or
Subsidiary (or, if applicable, Buyer or an Affiliate or successor of any
Company, Subsidiary or Buyer) to claim a deduction for federal, state and
local income tax purposes with respect to any option to purchase FDC stock
that is held by an employee or former employee of such Company or Subsidiary
and that is exercised after the Closing Date, and Buyer shall pay to the
Sellers as an indemnification payment determined in accordance with Article XI
the aggregate reduction in Taxes of the Companies, the Subsidiaries, Buyer or
any Affiliate or successor of any Company, Subsidiary or Buyer for any taxable
year or period beginning after the Closing Date or for the portion of any
Straddle Period beginning after the Closing Date to the extent such reduction
in Taxes results from such exercise.
(v) Notwithstanding anything herein to the contrary, Buyer, on one
hand, and the Sellers, on the other hand, shall each be liable for and shall
pay, and pursuant to the terms of Article IX shall indemnify each other against,
one-half of any real property transfer or gains tax, stamp tax, stock transfer
tax, or other similar tax imposed on the sale of the Shares pursuant to this
Agreement, together with any penalties or interest with respect to such taxes.
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(b) Tax Returns. (i) The Sellers shall file or cause to be filed when
due all (x) income and franchise Tax Returns that are required to be filed by or
with respect to the Companies or the Subsidiaries for taxable years or periods
ending on or before the Closing Date and (y) Tax Returns (other than income and
franchise Tax Returns) that are required to be filed by or with respect to the
Companies or the Subsidiaries on or before the Closing Date and, in each case,
shall remit or cause to be remitted any Taxes due in respect of such Tax
Returns. Buyer shall file or cause to be filed when due all other Tax Returns
that are required to be filed by or with respect to the Companies or the
Subsidiaries and shall remit or cause to be remitted any Taxes due in respect of
such Tax Returns. The Sellers or Buyer shall reimburse the other party for the
Taxes for which the Sellers or Buyer is liable pursuant to paragraph (a) of this
Section 8.2 but which are payable with Tax Returns to be filed by the other
party pursuant to the previous sentence upon the written request of the party
entitled to reimbursement, setting forth in detail the computation of the
amount owed by the Sellers or Buyer, as the case may be, but in no event
earlier than 10 days prior to the due date for the filing of such Tax Returns.
(ii) None of Buyer or any Affiliate of Buyer shall (or shall cause or
permit the Companies or any of the Subsidiaries to) amend, refile or otherwise
modify (or grant an extension of any statute of limitation with respect to) any
Tax Return relating in whole or in part to the Companies or any of the
Subsidiaries (x) with respect to any taxable year or period ending on or before
the Closing Date without the prior written consent of the Sellers, which consent
may be withheld in the sole discretion of the Sellers or (y) with respect to any
Straddle Period without the prior written consent of the Sellers, which consent
shall not be unreasonably withheld.
(iii) With respect to the taxable year of the Company and the
Subsidiaries ending December 31, 1996 and the period in 1997 on and prior to the
Closing Date, Buyer shall promptly cause the Companies and the Subsidiaries to
prepare and provide to FFMC a package of tax information materials, including,
without limitation, schedules and work papers (the "Tax Package"), required by
the Sellers to enable the Sellers to prepare and file all Tax Returns required
to be prepared and filed by them pursuant to paragraph (b)(i). The Tax Package
shall be completed in accordance with past practice including past practice as
to providing such information, and as to the method of computation of separate
taxable income or other relevant measure of income of the Companies and the
Subsidiaries. Buyer shall cause the Tax Package to be delivered to FFMC within
120 days after the Closing Date or, in connection with the preparation of
certain state Tax Returns having a due date prior to 120 days from the Closing
Date, at such earlier time specified by FFMC (but in no event shall such earlier
time be sooner than 45 days after the Closing Date).
(c) Contest Provisions. Buyer shall promptly notify the Sellers in
writing upon receipt by any Buyer Group Member, any Company or any Subsidiary of
notice of any pending or threatened federal, state, local or foreign Tax audits,
examinations or assessments which may affect any Tax liability for which the
Sellers are liable pursuant to paragraph (a) of this Section 8.2, provided that
failure to comply with this provision shall not affect Buyer's right to
indemnification hereunder except to the extent such failure impairs the Sellers'
ability to contest any such Tax liabilities.
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The Sellers shall have the sole right to represent the Companies' or
the Subsidiaries' interests in any Tax audit or administrative or court
proceeding relating to taxable periods ending on or before the Closing Date, and
to employ counsel of their choice at their expense. The Sellers shall have the
sole right to settle, either administratively or after the commencement of
litigation, any proceeding relating to Taxes of the Companies or Subsidiaries
for any taxable period ending on or before the Closing Date. In the case of any
Straddle Period, the Sellers shall be entitled to participate at their expense
in any Tax audit or administrative or court proceeding relating (in whole or in
part) to Taxes attributable to the portion of such Straddle Period ending on and
including the Closing Date and, with the written consent of Buyer, and at the
Sellers' sole expense, may assume the entire control of such audit or
proceeding. None of the Buyer Group Members, any Company or any Subsidiary may
agree to settle any Tax claim which may be the subject of indemnification by the
Sellers under paragraph (a) of this Section 8.2 without the prior written
consent of the Sellers, which consent may be withheld in the sole discretion of
the Sellers.
(d) Assistance and Cooperation. After the Closing Date, each of the
Sellers and Buyer shall (and shall cause their respective Affiliates to):
(i) assist the other party in preparing any Tax Returns which such
other party is responsible for preparing and filing in accordance with
paragraph (b) of this Section 8.2;
(ii) cooperate fully in preparing for any audits of, or disputes with
taxing authorities regarding, any Tax Returns of the Companies or the
Subsidiaries;
(iii) make available to the other and to any taxing authority as
reasonably requested all information, records, and documents relating to
Taxes of the Companies or the Subsidiaries;
(iv) provide timely notice to the other in writing of any pending or
threatened Tax audits or assessments of the Companies or the Subsidiaries
for taxable periods for which the other may have a liability under this
Section 8.2;
(v) furnish the other with copies of all correspondence received from
any taxing authority in connection with any Tax audit or information
request with respect to any such taxable period;
(vi) timely sign and deliver such certificates or forms as may be
necessary or appropriate to establish an exemption from (or otherwise
reduce), or file Tax Returns or other reports with respect to, Taxes
described in paragraph (a)(v) of this Section 8.2 (relating to sales,
transfer end similar Taxes); and
(vii) timely provide to the other powers of attorney or similar
authorizations necessary to carry out the purposes of this Section 8.2.
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(e) Tax Allocation Agreements. After the Closing, no Company or
Subsidiary will have any liability to FDC (or any Affiliate of FDC that is not a
Company or Subsidairy) under any tax sharing, allocation or other agreement or
under any other arrangement (other than this Agreement) allocating Tax
liabilities with respect to Tax Returns filed by such Company or Subsidiary on a
consolidated, combined, or unitary basis with FDC (or any Affiliate of FDC that
is not a Company or Subsidiary).
SECTION 8.3. EMPLOYEE MATTERS. (a) Except as otherwise expressly
provided in this Section 8.3, in no event shall any employee of the Companies or
any of the Subsidiaries be entitled to accrue any benefits under the Pension and
Welfare Plans of FDC or FFMC after the Closing.
(b) From and after the Closing Date, Buyer shall, or shall cause the
Companies or the Subsidiaries to, provide employees of the Companies and the
Subsidiaries on the Closing Date (the "Affected Employees") benefits that are
substantially comparable in the aggregate to benefits provided to similarly
situated employees of Buyer, in accordance with the terms of applicable plans,
programs, arrangements or policies of Buyer and in accordance with this Section
8.3; provided, however, that except as expressly set forth in this Section 8.3
no provision of this Agreement shall prevent the Buyer from amending or
terminating any such plan, program, arrangement or policy. Buyer shall recognize
service of Affected Employees with the Companies, the Sellers and the
Subsidiaries prior to the Closing Date to the extent such service was recognized
under comparable plans of the Sellers.
(c) Except as set forth on Schedule 8.3(c), from and after the Closing
Date, none of Buyer, the Companies or the Subsidiaries shall have any liability
under any Pension Plan or Welfare Plan, or with respect to liabilities arising
prior to the Closing Date, any other employee benefit plan, program or
arrangement (whether insured or self-funded) of the Sellers or any ERISA
Affiliate, and the Sellers shall assume full responsibility therefor; provided,
however, that Buyer shall remit to the Sellers all amounts due or payable by the
Companies or the Subsidiaries or attributable to contributions made by their
employees with respect to any such Pension Plans or Welfare Plans or other
employee benefit plans, programs or arrangements retained by the Sellers, that
are attributable to the period prior to the Closing Date and received by the
Buyer or any of the Companies or Subsidiaries, but which, as of the Closing
Date, had not been collected and remitted to the Sellers; and provided, further,
that the Sellers shall remit to Buyer any contributions made by Companies or
Subsidiaries or employees of the Companies or the Subsidiaries to the Sellers
with respect to a (i) Pension or Welfare Plan or (ii) any other employee benefit
plan, program or arrangement (whether insured or self-insured) that is retained
by the Companies or the Subsidiaries, which have not previously been paid or
remitted to participants or the plan in question.
(d) The Companies and the Subsidiaries shall recognize all accrued but
unused vacation as of the Closing Date to the extent reflected on the Closing
Balance Sheet, and Buyer will cause the Companies and the Subsidiaries to
provide such paid vacation.
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(e) The Companies and the Subsidiaries shall terminate their
participation in all plans listed on Schedule 5.17(a) as of the Closing Date.
The Sellers shall retain and discharge the responsibility for payment of all
covered medical and dental claims or expenses incurred by any Affected Employee
under such plans prior to the Closing Date, and Buyer shall not assume nor shall
the Companies or any of the Subsidiaries be responsible for any liability with
respect to such claims. Buyer shall remit to the Sellers all Affected Employee
premiums due for medical and dental benefit coverage attributable to the period
prior to the Closing Date and received by Buyer or any of the Companies or
Subsidiaries, but which, as of the Closing Date, had not been collected and
remitted to the Sellers. Any preexisting condition clause in any of the health
coverage (including medical, dental and disability coverage) included in Buyer's
benefits programs shall be waived for the Affected Employees.
(f) Buyer shall be responsible for providing any employee of the
Companies or a Subsidiary whose "qualifying event," within the meaning of
Section 4980b(f) of the Code, occurs on or after the Closing Date (and such
employees' "qualified beneficiaries" within the meaning of Section 4980b(f) of
the Code) with the continuation of group health coverage required by Section
4980b(f) of the Code to the extent required by law, and Buyer shall be
responsible for providing such coverage to the extent required by law.
(g) For a period ending no earlier than the 180th day following the
Closing Date, Buyer agrees to provide, or cause the Companies and the
Subsidiaries to provide, notice of termination or pay in lieu thereof and
severance pay, if applicable, to Affected Employees that is no less favorable
than under the current practices of Buyer as in effect as of the date hereof.
Buyer and the Companies shall assume all liability for severance pay and similar
obligations payable to (i) any Affected Employee who is terminated by Buyer and
the Companies after the Closing Date and (ii) to any former employee of the
Companies or any Subsidiary terminated prior to the Closing Date but, in the
case of clause (ii), only to the extent reflected on the Closing Balance Sheet.
(h) After the Closing Date, Buyer, the Companies and the Subsidiaries
shall have the liability and obligation for, and neither the Sellers nor any of
their Affiliates shall have any liability or obligation for, short-term
disability benefits, long-term disability benefits, sick pay or salary
continuation (and any medical dental and health benefits or claims incurred
after the Closing Date) for those Affected Employees who are entitled to such
benefits for periods beginning on or after the Closing Date.
(i) Buyer shall be responsible for all its liabilities or obligations
under the Worker Adjustment and Retraining Notification Act resulting from the
Closing or from Buyer's actions following the Closing. The Sellers shall be
responsible for all of their liabilities or obligations under the Worker
Adjustment and Retraining Notification Act resulting from the Sellers' actions
prior to the Closing.
(j) As soon as practicable after the Closing Date, the Sellers shall
cause the First Data Corporation Incentive Savings Plan ("Transferor Plan")
account balances as of the date
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of such transfer (including participant loans) of Company and Subsidiary
employees to be transferred to the trust of a tax qualified defined contribution
plan specified by Buyer ("Transferee Plan") to receive the account balances
("Transfer"). The Transfer will be done in accordance with the requirements of
Code Section 414(1) and Buyer and the Sellers agree to cooperate with each other
in satisfying that requirement. Prior to the Transfer the Sellers must provide
Buyer with a copy of a favorable Internal Revenue Service determination letter
("Determination Letter") on the tax qualified status of the Plan and represent
that, to the Knowledge of the Sellers, no event has occurred which would
adversely affect the tax qualification of the Transferor Plan since the date of
the Determination Letter. Prior to the Transfer Buyer must provide the Sellers
with a favorable Determination Letter with respect to the Transferor Plan or an
opinion of counsel reasonably satisfactory to the Sellers stating the Transferor
Plan is a tax qualified plan, satisfies the requirements of Code Section 401(a)
and has a tax exempt trust under Code Section 501(a), and Buyer must represent
that, to the Knowledge of Buyer, no event has occurred which would adversely
affect the tax qualification of the Transferee Plan since the date of the
Determination Letter. Each party shall indemnify the other for breach of the
representations described in this Section 8.3(j).
(k) The Sellers shall be responsible for and shall make all payments
under each agreement and plan described in Section 5.21.
SECTION 8.4. INSURANCE: RISK OF LOSS. The Sellers will cause the
Companies and the Subsidiaries to keep insurance policies currently maintained
by the Companies or the Subsidiaries covering their respective businesses,
assets and current or former employees, as the case may be, or suitable
replacements therefor, in full force and effect through the close of business on
the Closing Date, and, except as otherwise provided herein, Buyer shall become
solely responsible for all insurance coverage and related risk of loss based on
events occurring after the Closing Date with respect to the Companies, the
Subsidiaries and their respective businesses, assets and current or former
employees. To the extent that after the Closing any party hereto requires any
information regarding claim data, payroll or other information in order to make
filing with insurance carriers or self insurance regulators from another party
hereto, the other party will promptly supply such information.
SECTION 8.5 EXCLUSIVITY. The Sellers will not, and will cause the
Companies, the Subsidiaries and their Affiliates, directors, officers,
employees, representatives and agents (including, without limitation, Morgan
Stanley & Co. Incorporated) not to directly or indirectly, solicit or accept or
in any way facilitate any proposals or offers, or initiate or enter into
discussions or transactions with, or encourage, or provide any information to
any Person (other than Buyer) concerning any sale of all or any portion of the
Shares of either Company or all or a portion of the stock of any Subsidiary, any
merger of a Company or a Subsidiary or a sale of securities or a sale or other
disposition of any assets (however affected) of a Company or any Subsidiary
other than in the ordinary course of business. The Sellers represent and warrant
that none of the Sellers, Companies and Subsidiaries is party to or bound by any
agreement with respect to any such transaction other than the transaction
contemplated by this Agreement. If any
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Person makes any proposal or other inquiry or contact with respect to the
foregoing, the Sellers shall immediately notify the Buyer of the identity of
such Person and the terms of its proposal.
SECTION 8.6. EMPLOYEE MATTERS. From and after the Closing Date, the
Sellers shall assume responsibility for and make any payments in settlement or
satisfaction of the matters set forth in Schedule 8.6. In connection therewith,
the Sellers shall defend against, negotiate, settle and otherwise deal with such
matters. Buyer agrees to cause the Companies and any Subsidiary to cooperate and
assist the Sellers with all reasonable requests (including, without limitation,
making employees available for interviews, depositions and trials) and to afford
the Sellers access to any records, reports or other documents reasonably
requested by the Sellers.
SECTION 8.7. CERTAIN CONTRIBUTION. The out-of-pocket payments made
after the Closing Date by the Companies (after exhaustion of all applicable
insurance), if any, as settlement of any claims ("Claims") for Washington, D.C.
Medicaid overpayments made prior to the Closing and which are the subject of the
Report by the District of Columbia Office of Inspector General dated January 15,
1997 shall be borne between Buyer and the Companies, on the one hand, and the
Sellers, on the other hand, as follows: the first $5,000,000, 50% by Buyer and
the Companies and 50% by the Sellers; the next $3,000,000, 100% by the Sellers;
the next $3,000,000, 100% by Buyer and the Companies; and the balance, 100% by
the Sellers. The Sellers shall have no other obligation, and Buyer shall be
entitled to no other remedy, with respect to any Claims or such overpayments,
and no representation or warranty of the Sellers in this Agreement shall under
any circumstances be deemed breached by any Claims or such overpayments. It is
understood and agreed that (i) any amount paid by the Sellers pursuant to this
Section 8.7 shall not be deemed to satisfy any portion of the $2,500,000
deductible set forth in Section 11.1(a), (ii) any out-of-pocket payments borne
by Buyer or the Companies pursuant to this Section 8.7 (adjusted for Tax
benefits as provided in Schedule 11.3(b) shall be deemed to be Losses and
Expenses incurred by Buyer Group Members for purposes of the $2,500,000
deductible set forth in Section 11.1(a) and (iii) any amount paid by the
Sellers pursuant to this Section 8.7 shall be applied toward the limitation
described as "30% of the Purchase Price (as adjusted pursuant to Section 3.2)"
in Section 11.1(a). Buyer and the Companies shall not settle any Claim without
the consent of the Sellers, such consent not to be unreasonably withheld.
Subject to the foregoing, Buyer and the Companies shall be solely responsible
for defending against, settling or otherwise dealing with any Claim; provided,
however, that Buyer and the Companies shall promptly advise the Sellers of the
institution of any Claims or any material developments with respect to Claims or
the defense against, settlement of or other dealing with respect to Claims and
Buyer and the Companies shall provide the Sellers with such further information
as the Sellers may reasonably request (including, without limitation,
transcripts, pleadings and motions) relating to the foregoing.
SECTION 8.8. MEMORIALIZATION OF PPO ACCESS ARRANGEMENT. FDC and Buyer
agree to negotiate in good faith a memorialization of their existing PPO access
arrangements.
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ARTICLE IX
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
The obligations of Buyer under this Agreement shall, at the option of
Buyer (to the extent permissible under applicable law), be subject to the
satisfaction, on or prior to the Closing Date, of the following conditions:
SECTION 9.1. NO MISREPRESENTATION OR BREACH OF COVENANTS AND
WARRANTIES. There shall have been no material breach by the Sellers in the
performance of any of their covenants and agreements herein which shall not have
been remedied or cured; each of the representations and warranties of the
Sellers contained in this Agreement which is not qualified as to materiality
shall be true and correct in all material respects on the Closing Date as though
made on the Closing Date and the representations and warranties of the Sellers
contained in this Agreement which are qualified as to materiality shall be true
and correct on the Closing Date as though made on the Closing Date (except, in
each case, to the extent that the representations and warranties expressly
relate to an earlier date), except, in each case, for changes therein
specifically permitted by this Agreement or resulting from any transaction
expressly consented to in writing by Buyer or any transaction permitted by
Section 7.4; and there shall have been delivered to Buyer a certificate to such
effect, dated the Closing Date, signed on behalf of FDC by a duly authorized
officer of FDC. There shall have been no event or events which, individually or
in the aggregate, have caused a Material Adverse Effect.
SECTION 9.2. NO RESTRAINT. The waiting period under the HSR Act shall
have expired or been terminated; and no injunction or restraining order shall
have been issued by any court of competent jurisdiction or Governmental Body and
be in effect and there shall not be pending any litigation commenced by a
Governmental Body which, in either case, would (a) prevent the consummation of
any material transaction contemplated by this Agreement, (b) cause any material
transaction contemplated by this Agreement to be rescinded following
consummation, or (c) materially and adversely affect the right of the Companies
and the Subsidiaries to own their assets and to operate their respective
businesses as presently conducted by the Companies and the Subsidiaries.
SECTION 9.3. NECESSARY APPROVALS. The Sellers and the Companies shall
have obtained all permits, consents, approvals, authorizations or other orders
from or made such filings with any third parties (without conditions materially
adverse to the Buyer, a Company or a Subsidiary) specified in Schedule 5.4 or
which are otherwise necessary to prevent a Material Adverse Effect.
Section 9.4. OTHER AGREEMENTS. Strategies shall have entered into an
agreement with First Image Company substantially in the form of Exhibit 9.4(A)
hereto, and FDC shall have entered into an agreement with Strategies
substantially in the form of Exhibit 9.4(B) hereto.
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SECTION 9.5. OPINION OF COUNSEL. The Sellers shall have delivered to
Buyers an opinion or opinions of counsel to the Sellers dated as of the Closing
Date, substantially in the form of Exhibit 9.5 hereto.
Notwithstanding the failure of any one or more of the foregoing
conditions, Buyer may proceed with the Closing without satisfaction, in whole or
in part, of any one or more of such conditions and without written waiver. To
the extent that on or before the tenth day prior to the Closing the Sellers
deliver to Buyer a written notice, prepared in good faith, specifying in
reasonable detail the failure of any of such conditions or the breach by the
Sellers of any of the representations or warranties of the Sellers herein and
the estimated dollar amount of Losses incurred or to be incurred in connection
therewith, and nevertheless Buyer proceeds with the Closing, Buyer shall be
deemed to have waived for all purposes any rights or remedies it may have
against the Sellers by reason of the failure of any such conditions or the
breach of any such representations or warranties to the extent described in such
notice.
ARTICLE X
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLERS
The obligations of the Sellers under this Agreement shall, at the
option of the Sellers (to the extent permissible under applicable law), be
subject to the satisfaction, on or prior to the Closing Date, of the following
conditions:
SECTION 10.1. NO MISREPRESENTATION OR BREACH OF COVENANTS AND
WARRANTIES. There shall have been no material breach by Buyer in the performance
of any of its covenants and agreements herein which shall not have been remedied
or cured; each of the representations and warranties of Buyer contained in this
Agreement which is not qualified as to materiality shall be true and correct in
all material respects on the Closing Date as though made on the Closing Date and
the representations and warranties of Buyer contained in this Agreement which
are qualified as to materiality shall be true and correct on the Closing Date as
though made on the Closing Date, except, in each case, for changes therein
specifically permitted by this Agreement or resulting from any transaction
expressly consented to in writing by the Sellers or any transaction contemplated
by this Agreement; and there shall have been delivered to the Sellers a
certificate to such effect, dated the Closing Date, signed on behalf of Buyer by
a duly authorized officer of Buyer.
SECTION 10.2. NO RESTRAINT. The waiting period under the HSR shall
have expired or been terminated; and no injunction or restraining order shall
have been issued by any court of competent jurisdiction or Governmental Body and
be in effect and there shall not be pending any litigation commenced by a
Governmental Body which, in either case, would (a) prevent consummation of any
material transaction contemplated by this Agreement, (b) cause any material
transaction contemplated by this Agreement to be rescinded following
consummation, (c) materially and adversely affect the right of the Companies and
the Subsidiaries to own their
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assets and to operate their respective businesses as presently conducted by the
Companies and the Subsidiaries.
SECTION 10.3. NECESSARY APPROVALS. The Sellers and the Companies shall
have obtained all permits, consents, approvals, authorizations or other orders
from or made such filings with any third parties (without conditions materially
adverse to the Buyer, a Company or a Subsidiary) specified in Schedule 5.4 or
which are otherwise necessary to prevent a Material Adverse Effect; provided,
however, that with respect to any third-party consent (other than a consent from
a Governmental Body), this condition shall be deemed to be satisfied if Buyer
elects to indemnify and hold harmless each Seller Group Member against any
Losses and Expenses incurred by any Seller Group Member resulting from the
failure to obtain such consent.
SECTION 10.4. OPINION OF COUNSEL. The Buyer shall have delivered to
Sellers an opinion or opinions of counsel to Buyer, dated as of the Closing
Date, substantially in the form of Exhibit 10.4 hereto.
Notwithstanding the failure of any one or more of the foregoing
conditions, the Sellers may proceed with the Closing without satisfaction, in
whole or in part, of any one or more of such conditions and without written
waiver. To the extent that at on or before the tenth day prior to the Closing
Buyer delivers to the Sellers a written notice, prepared in good faith,
specifying in reasonable detail the failure of any of such conditions or the
breach by Buyer of any of the representations or warranties of Buyer herein and
the estimated dollar amount of Losses incurred or to be incurred in connection
therewith, and nevertheless the Sellers proceed with the Closing, the Sellers
shall be deemed to have waived for all purposes any rights or remedies it may
have against Buyer by reason of the failure of any such conditions or the breach
of any such representations or warranties to the extent described in such
notice.
ARTICLE XI
INDEMNIFICATION
SECTION 11.1. INDEMNIFICATION BY THE SELLERS. (a) From and after the
Closing, the Sellers jointly and severally agree to indemnify and hold harmless
each Buyer Group Member, including each Company and Subsidiary, from and against
any and all Losses and Expenses incurred by such Buyer Group Member in
connection with or arising from (i) any breach or inaccuracy of any
representation or warranty of the Sellers contained or referred to in this
Agreement or any certificate delivered by or on behalf of the Sellers pursuant
hereto or (ii) any breach by the Sellers of, or failure by the Sellers to
perform, any of their covenants or obligations contained in this Agreement;
provided, however, that the Sellers shall be required to indemnify and hold
harmless under this Section ll.l(a) with respect to Losses and Expenses incurred
by Buyer Group Members only to the extent that the aggregate amount of such
Losses and Expenses exceeds $2,500,000; and provided, further, that the
aggregate amount required to be paid by the Sellers pursuant to this Section
11.1(a) shall not exceed 30% of the Purchase Price (as adjusted
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pursuant to Section 3.2). The provisos in the preceding sentence shall not
apply in respect of Sections 3.2, 5.4(a), 8.2, 8.3, 8.6 and 13.10 of this
Agreement.
(b) The indemnification provided for in Section 11.1(a) shall
terminate eighteen months after the Closing Date (and no claims shall be made by
any Buyer Group Member under Section ll.l(a) thereafter), except that the
indemnification by the Sellers shall continue as to:
(i) the covenants of the Sellers set forth in Section 13.6, which
shall survive for the period of time set forth therein;
(ii) the representations and warranties of the Sellers set forth in
Sections 5.2, 5.4(a), 5.7, 5.17, 5.19, 5.28 and 13.10 and the covenants of
the Sellers set forth in Sections 8.2, 8.3, 8.6 and 8.7, which shall
survive until the expiration of the relevant statutory period of
limitations applicable to the underlying claim, giving effect to any
waiver, mitigation or extension thereof; and
(iii) any Losses or Expenses of which any Buyer Group Member has
notified the Sellers in accordance with the requirements of Section 11.3 on
or prior to the date such indemnification would otherwise terminate in
accordance with this Section 11.1, as to which the obligation of the
Sellers shall continue until the liability of the Sellers shall have been
determined pursuant to this Article XI, and the Sellers shall have
reimbursed all Buyer Group Members for the full amount of such Losses and
Expenses in accordance with this Article XI.
SECTION 11.2. INDEMNIFICATION BY BUYER. (a) From and after the
Closing, Buyer agrees to indemnify and hold harmless each Seller Group Member
from and against any and all Losses and Expenses incurred by such Seller Group
Member in connection with or arising from (i) any breach or inaccuracy of any
representation or warranty of Buyer contained or referred to in this Agreement
or in any certificate delivered by or on behalf of Buyer pursuant hereto, (ii)
any breach by Buyer of, or failure by Buyer to perform, any of its covenants and
obligations contained in this Agreement or (iii) the operations of the Companies
and the Subsidiaries following the Closing Date.
(b) The indemnification provided for in Section 11.2(a) shall
terminate eighteen months after the Closing Date (and no claims shall be made by
any Seller Group Member under Section 11.2(a) thereafter), except that the
indemnification by Buyer shall continue as to:
(i) the covenants of Buyer set forth in Section 13.6 which shall
survive for the period of time set forth therein;
(ii) the covenants of Buyer set forth in Section 8.2, which shall
survive until the expiration of the relevant statutory period of
limitations applicable to the underlying claim, giving effect to any
waiver, mitigation or extension thereof;
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(iii) the matter set forth in Section 11.2(a)(iii) which shall survive
indefinitely; and
(iv) any Losses or Expenses of which any Seller Group Member has
notified Buyer in accordance with the requirements of Section 11.3 on or
prior to the date such indemnification would otherwise terminate in
accordance with this Section 11.2, as to which the obligation of Buyer
shall continue until the liability of Buyer shall have been determined
pursuant to this Article XI, and Buyer shall have reimbursed all Seller
Group Members for the full amount of such Losses and Expenses in accordance
with this Article XI.
SECTION 11.3. NOTICE OF CLAIMS. (a) Any Buyer Group Member or Seller
Group Member (the "Indemnified Party") seeking indemnification hereunder shall
give promptly to the party or parties obligated to provide indemnification to
such Indemnified Party (the "Indemnitor") a notice (a "Claim Notice") describing
in reasonable detail the facts giving rise to the claim for indemnification
hereunder and shall include in such Claim Notice (if then known) the amount or
the method of computation of the amount of such claim, and a reference to the
provision of this Agreement or any other agreement, document or instrument
executed hereunder or in connection herewith upon which such claim is based;
provided, however, that a Claim Notice in respect of any action at law or suit
in equity by or against a third Person as to which indemnification will be
sought shall be given promptly after the action or suit is commenced; provided,
further, that failure to comply with any prompt notice requirement in this
clause (a) shall not affect such Indemnified Party's right to indemnification
hereunder except to the extent such failure impairs the Indemnitor.
(b) In calculating any Loss or Expense there shall be deducted any
insurance recovery in respect thereof (and no right of subrogation shall accrue
hereunder to any insurer). Any indemnity payment hereunder with respect to any
Loss or Expense shall be calculated on an "After-Tax Basis," which shall mean an
amount which is sufficient to compensate the indemnified party for the event
giving rise to such Loss or Expense (the "Indemnified Event"), determined after
taking into account (1) all increases in federal, state, local or other Taxes
(including estimated Taxes) payable by the indemnified party as a result of the
receipt of the indemnity payment (as a result of the indemnity payment being
included in income, resulting in a reduction of tax basis, or otherwise);
provided, however, that Buyer and the Sellers agree to report each payment made
in respect of a Loss or Expense as an adjustment to the Purchase Price for
federal income Tax purposes, (2) all increases in federal, state, local and
other Taxes (including estimated Taxes) payable by the indemnified party for all
affected taxable years as a result of the Indemnified Event, and (3) all
reductions in federal, state, local and foreign Taxes (including estimated
Taxes) payable by the indemnified party as a result of the Indemnified Event.
All calculations shall be made using reasonable assumptions agreed upon by Buyer
and the Sellers.
(c) After the giving of any Claim Notice pursuant hereto, the amount
of indemnification to which an Indemnified Party shall be entitled under this
Article XI shall be determined: (i) by the written agreement between the
Indemnified Party and the Indemnitor; (ii)
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by a final judgment or decree of any court of competent jurisdiction; or (iii)
by any other means to which the Indemnified Party and the Indemnitor shall
agree. The judgment or decree of a court shall be deemed final when the time for
appeal, if any, shall have expired and no appeal shall have been taken or when
all appeals taken shall have been finally determined. The Indemnified Party
shall have the burden of proof in establishing the amount of Losses and Expenses
suffered by it.
SECTION 11.4. THIRD PERSON CLAIMS. (a) In order for a party to be
entitled to any indemnification provided for under this Agreement in respect of,
arising out of or involving a claim or demand made by any third Person against
the Indemnified Party, such Indemnified Party must notify the Indemnitor in
writing, and in reasonable detail, of the third Person claim within 10 days
after receipt by such Indemnified Party of written notice of the third Person
claim. Thereafter, the Indemnified Party shall deliver to the Indemnitor, within
five business days after the Indemnified Party's receipt thereof, copies of all
notices and documents (including court papers) received by the Indemnitor
relating to the third Person claim. Notwithstanding the foregoing, should a
party be physically served with a complaint with regard to a third Person claim,
the Indemnified Party must notify the Indemnitor with a copy of the complaint
within five business days after receipt thereof and shall deliver to the
Indemnitor within seven business days after the receipt of such complaint copies
of notices and documents (including court papers) received by the Indemnified
Party relating to the third Person claim. Notwithstanding the foregoing, it is
understood and agreed that any failure by the Indemnified Party to comply with
any time limit or requirement with respect to notice set forth in this Section
11.4(a) or in Section 11.4(b) shall not affect such Indemnified Party's right to
indemnification hereunder, except to the extent such failure impairs the
Indemnitor.
(b) In the event any legal proceeding shall be threatened or
instituted or any claim or demand shall be asserted by any Person, other than
the Indemnified Party, in respect of which payment may be sought by one party
hereto from the other party under the provisions of this Article XI, the
Indemnified Party shall promptly cause written notice of the assertion of any
such claim of which it has knowledge which is covered by this indemnity to be
forwarded to the Indemnitor. Any notice of a claim by reason of any of the
representations, warranties or covenants contained in this Agreement shall
contain a reference to the provision of this Agreement or any other agreement,
document or instrument executed hereunder or in connection herewith upon which
such claim is based, the facts giving rise to an alleged basis for the claim and
the amount of the liability asserted against the Indemnitor by reason of the
claim. In the event of the initiation of any legal proceeding against the
Indemnified Party by a third Person, the Indemnitor shall have the sole and
absolute right after the receipt of notice, at its option and at its own
expense, to be represented by counsel of its choice and to control, defend
against, negotiate, settle or otherwise deal with any proceeding, claim, or
demand which relates to any loss, liability or damage indemnified against
hereunder; provided, however, that the Indemnified Party may participate in any
such proceeding with counsel of its choice and at its expense. The parties
hereto agree to cooperate fully with each other in connection with the defense,
negotiation or settlement of any such legal proceeding, claim or demand. To the
extent the Indemnitor elects not to defend such proceeding, claim or demand, and
the Indemnified Party defends against or otherwise deals with any such
proceeding, claim or demand, the Indemnified Party may retain counsel, at the
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expense of the Indemnitor, and control the defense of such proceeding. Neither
the Indemnitor nor the Indemnified Party may settle any such proceeding, claim
or demand which settlement obligates the other party to pay money, to perform
obligations or to admit liability without the consent of the other party, such
consent not to be unreasonably withheld. Without the consent of the Indemnitor,
no Indemnified Party may settle any such proceeding, claim or demand if such
settlement involves the provision by the Indemnified Party of future services or
the relinquishment by the Indemnified Party of any right or claim. After any
final judgment or award shall have been rendered by a court, arbitration board
or administrative agency of competent jurisdiction and the time in which to
appeal therefrom has expired, or a settlement shall have been consummated, or
the Indemnified Party and the Indemnitor shall arrive at a mutually binding
agreement with respect to each separate matter alleged to be indemnified by the
Indemnitor hereunder, the Indemnified Party shall forward to the Indemnitor
notice of any sums due and owing by it with respect to such matter and the
Indemnitor shall pay all of the sums so owning to the Indemnified Party by wire
transfer, certified or bank cashier's check within 30 days after the date of
such notice.
(c) To the extent of any inconsistency between this Section 11.4 and
Section 8.2(c) (relating to tax contests), the provisions of Section 8.2(c)
shall control.
SECTION 11.5. LIMITATIONS. (a) In any case where an Indemnified Party
recovers from third Persons any amount in respect of a matter with respect to
which an Indemnitor has made an indemnity payment to it pursuant to this Article
XI, such Indemnified Party shall promptly pay over to the Indemnitor the amount
so recovered (after deducting therefrom the full amount of the expenses incurred
by it in procuring such recovery), but not in excess of the sum of (i) any
amount previously so paid by the Indemnitor to or on behalf of the Indemnified
Party in respect of such matter and (ii) any amount expended by the Indemnitor
in pursuing or defending any claim arising out of such matter.
(b) No party shall have any liability for any inaccuracy in or breach
of any representation or warranty by such party if the other party or any of its
officers, employees, counsel or other representatives had actual knowledge on or
before the tenth day prior to the Closing Date of the facts as a result of which
such representation or warranty was inaccurate or breached.
(c) Except for willful, knowing or intentional fraud, remedies that
cannot be waived as a matter of law and injunctive and provisional relief, if
the Closing occurs, this Article XI shall be the exclusive remedy for breaches
of this Agreement (including any covenant, obligation, representation or
warranty contained in this Agreement or in any certificate delivered pursuant to
this Agreement) or otherwise in respect of the sale of the Shares contemplated
hereby.
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ARTICLE XII
TERMINATION
SECTION 12.1. TERMINATION. Anything contained in this Agreement to the
contrary notwithstanding, this Agreement may be terminated at any time prior to
the Closing Date:
(a) by the mutual consent of Buyer and FFMC;
(b) by Buyer in the event of any material breach by the Sellers of any
of the Sellers' agreements, representations or warranties contained herein
and the failure of the Sellers to cure such breach within 10 days after
receipt of notice from Buyer requesting such breach to be cured;
(c) by FFMC in the event of any material breach by Buyer of any of
Buyer's agreements, representations or warranties contained herein and the
failure of Buyer to cure such breach within 10 days after receipt of notice
from FFMC requesting such breach to be cured;
(d) by Buyer or FFMC if any court of competent jurisdiction in the
United States or other United States Governmental Body shall have issued a
final and non-appealable order, decree or ruling permanently restraining,
enjoining or otherwise prohibiting the consummation of the transactions
contemplated hereby; or
(e) by Buyer or FFMC if the Closing shall not have occurred on or
before August 31, 1997 (or such later date as may be agreed in writing to
by Buyer and FFMC).
SECTION 12.2. NOTICE OF TERMINATION. Any party desiring to terminate
this Agreement pursuant to Section 12.1 shall give written notice of such
termination to the other party to this Agreement.
SECTION 12.3. EFFECT OF TERMINATION. In the event that this Agreement
shall be terminated pursuant to this Article XII, all further obligations of the
parties under this Agreement (other than Sections 12.4, 12.5, 13.2 and 13.10)
shall be terminated without further liability of any party to the other,
provided that nothing herein shall relieve any party from liability for its
willful breach of this Agreement.
SECTION 12.4. EMPLOYEES. If this Agreement is terminated, Buyer agrees
that paragraph 7 of the Confidentiality Agreement shall survive for the period
set forth therein.
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SECTION 12.5. EXPENSES. If this Agreement is terminated pursuant to
Section 12.1(b), the Sellers shall promptly (and in any event within 5 days
after such termination) reimburse Buyer and its Affiliates for all Expenses
incurred by them or on their behalf in connection with the consummation of the
transactions contemplated by this Agreement. If this Agreement is terminated
pursuant to Section 12.1(c), Buyer shall promptly (and in any event within 5
days after such termination) reimburse the Sellers and their Affiliates for all
Expenses incurred by them or on their behalf in connection with the consummation
of the transactions contemplated by this Agreement. The parties acknowledge and
agree that this Section 12.5 shall not constitute liquidated damages and shall
not impair their rights at law or equity.
ARTICLE XIII
GENERAL PROVISIONS
SECTION 13.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties contained in this Agreement shall survive the
consummation of the transactions contemplated by this Agreement through the
period during which claims for indemnification may be made pursuant to Article
XI (at which time all representations and warranties shall terminate).
SECTION 13.2. CONFIDENTIAL NATURE OF INFORMATION. Each party hereto
agrees that all documents, materials and other information which it shall have
obtained regarding the other party during the course of the negotiations leading
to the consummation of the transactions contemplated hereby (whether obtained
before or after the date of this Agreement), the investigation provided for
herein and the preparation of this Agreement and other related documents shall
be held in confidence pursuant to the Confidentiality Agreement.
SECTION 13.3. NO PUBLIC ANNOUNCEMENT. Neither Buyer nor the Sellers
shall, without the approval of the other, make any press release or other public
announcement concerning the transactions contemplated by this Agreement, except
as and to the extent that any such party shall be so obligated by law, in which
case the other party shall be advised and the parties shall use their best
efforts to cause a mutually agreeable release or announcement to be issued;
provided, however, that the foregoing shall not preclude communications or
disclosures necessary to implement the provisions of this Agreement or to comply
with the accounting and SEC disclosure obligations or the rules of any stock
exchange.
SECTION 13.4. NOTICES. All notices or other communications required or
permitted hereunder shall be in writing and shall be deemed given or delivered
when delivered personally or when sent by facsimile transmission, registered or
certified mail or by private courier addressed as follows:
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If to Buyer, to:
HealthCare COMPARE Corp.
3200 Highland Avenue
Downers Grove, Illinois 60515
Attention: Joseph E. Whitters,
CFO
with a copy to:
HealthCare COMPARE Corp.
3200 Highland Avenue
Downers Grove, Illinois 60515
Attention: Susan T. Smith,
General Counsel
If to FDC or FFMC, to:
First Data Corporation
401 Hackensack Avenue
Hackensack, NJ 07601
Attention: Robert J. Levenson,
Executive Vice President
with a copy to:
First Data Corporation
5660 New Northside Drive
Atlanta, Georgia 30328
Attention: David P. Bailis,
General Counsel
or to such other address as such party may indicate by a notice delivered to
the other party hereto.
SECTION 13.5. SUCCESSORS AND ASSIGNS. (a) The rights of either party
under this Agreement shall not be assignable by such party hereto prior to the
Closing without the written consent of the other party.
(b) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their successors and permitted assigns. Nothing in this
Agreement, expressed or implied, is intended or shall be construed to confer
upon any Person other than the parties and successors and assigns permitted by
this Section 13.5 any right, remedy or claim under or by reason of this
Agreement.
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SECTION 13.6 ACCESS TO RECORDS AFTER CLOSING. (a) For a period of
six years after the Closing Date, the Sellers and their representatives shall
have reasonable access to all of the books and records of the Companies and the
Subsidiaries to the extent that such access may reasonably be required by the
Sellers in connection with matters relating to or affected by the operations of
the Companies and the Subsidiaries prior to the Closing Date. Such access shall
be afforded by Buyer upon receipt of reasonable advance notice and during normal
business hours. The Sellers shall be solely responsible for any costs or
expenses incurred by it pursuant to this Section 13.6(a). If Buyer, the
Companies or the Subsidiaries shall desire to dispose of any of such books and
records prior to the expiration of such six-year period, Buyer shall, prior to
such disposition, give the Sellers a reasonable opportunity, at the Sellers'
expense, to segregate and remove such books and records as the Sellers may
select.
(b) For a period of six years after the Closing Date, Buyer and its
representatives shall have reasonable access to all of the books and records
relating to the Companies and the Subsidiaries which the Sellers or any of their
Affiliates may retain after the Closing Date. Such access shall be afforded by
the Sellers and their Affiliates upon receipt of reasonable advance notice and
during normal business hours. Buyer shall be solely responsible for any costs
and expenses incurred by it pursuant to this Section 13.6(b). If the Sellers or
any of their Affiliates shall desire to dispose of any of such books and records
prior to the expiration of such six-year period, the Sellers shall, prior to
such disposition, give Buyer a reasonable opportunity, at Buyer's expense, to
segregate and remove such books and records as Buyer may select.
SECTION 13.7. ENTIRE AGREEMENT; AMENDMENTS. This Agreement, the
Buyer Ancillary Agreements, the Seller Ancillary Agreements, the Exhibits and
Schedules referred to herein and the documents delivered pursuant hereto and the
Confidentiality Agreement contain the entire understanding of the parties hereto
with regard to the subject matter contained herein or therein, and supersede all
other prior agreements, understandings or letters of intent between or among any
of the parties hereto. This Agreement shall not be amended, modified or
supplemented except by a written instrument signed by an authorized
representative of each of the parties hereto.
SECTION 13.8. INTERPRETATION. Articles, titles and headings to
sections herein are inserted for convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement. The Schedules and Exhibits referred to herein shall be construed with
and as an integral part of this Agreement to the same extent as if they were set
forth verbatim herein. Neither the specification of any dollar amount in any
representation or warranty contained in this Agreement nor the inclusion of any
specific item in any Schedule hereto is intended to imply that such amount, or
higher or lower amounts, or the item so included or other items, are or are not
material, and no party shall use the fact of the setting forth of any such
amount or the conclusion of any such item in any dispute or controversy between
the parties as to whether any obligation, item or matter not described herein or
included in any Schedule is or is not material for purposes of this Agreement.
Unless this Agreement specifically provides otherwise, neither the specification
of any item or matter in any representation or warranty
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<PAGE> 58
contained in this Agreement nor the inclusion of any specific item in any
Schedule hereto is intended to imply that such item or matter, or other items or
matters, are or are not in the ordinary course of business, and no party shall
use the fact of the setting forth or the inclusion of any such item or matter in
any dispute or controversy between the parties as to whether any obligation,
item or matter not described herein or included in any Schedule is or is not in
the ordinary course of business for purposes of this Agreement.
SECTION 13.9. WAIVERS. Any term or provision of this Agreement may be
waived, or the time for its performance may be extended, by the party or parties
entitled to the benefit thereof. Any such waiver shall be validly and
sufficiently authorized for the purposes of this Agreement if, as to any party,
it is authorized in writing by an authorized representative of such party. The
failure of any party hereto to enforce at any time any provision of this
Agreement shall not be construed to be a waiver of such provision, nor in any
way to affect the validity of this Agreement or any part hereof or the right of
any party thereafter to enforce each and every such provision. No waiver of any
breach of this Agreement shall be held to constitute a waiver of any other or
subsequent breach.
SECTION 13.10. EXPENSES. Subject to Section 12.5, each party hereto
will pay all costs and expenses incident to its negotiation and preparation of
this Agreement and to its performance and compliance with all agreements and
conditions contained herein on its part to be performed or complied with,
including the fees, expenses and disbursements of its investment bankers,
counsel and independent public accountants. For purposes of this Section 13.10,
all of the aforementioned costs and expenses of the Companies and the
Subsidiaries (including but not limited to, all costs associated with obtaining
permits, consents, approvals, authorizations or other orders or filings with any
third party, including any Governmental Body, necessary in connection with the
execution and performance of this Agreement and the transactions contemplated
hereby) shall be deemed to be costs and expenses of the Sellers. The filing fee
required in connection with the HSR filing shall be allocated fifty percent to
the Sellers and fifty percent to the Buyer.
SECTION 13.11. PARTIAL INVALIDITY. Wherever possible, each provision
hereof shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such provision shall be ineffective to the extent, but only to the
extent, of such invalidity, illegality or unenforceability without invalidating
the remainder of such invalid, illegal or unenforceable provision or provisions
or any other provisions hereof, unless such a construction would be
unreasonable.
SECTION 13.12. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in one or more counterparts, each of which shall be considered an
original instrument, but all of which shall be considered one and the same
agreement, and shall become binding when one or more counterparts have been
signed by each of the parties hereto and delivered to the Sellers and Buyer.
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<PAGE> 59
SECTION 13.13. FURTHER ASSURANCES. On and after the Closing Date each
party hereto shall take such other actions and execute such other documents and
instruments of conveyance and transfer as may be reasonably requested by the
other party hereto from time to time to effectuate or confirm the transfer of
the Shares to Buyer in accordance with the terms of this Agreement.
SECTION 13.14. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws (as opposed to the conflicts of
law provisions) of the State of New York.
SECTION 13.15. DISCLAIMER OF WARRANTIES. The Sellers make no
representations or warranties with respect to any projections, forecasts or
forward-looking information provided to Buyer. There is no assurance that any
projected or forecasted results will be achieved. EXCEPT AS TO THOSE MATTERS
EXPRESSLY COVERED BY THE REPRESENTATIONS AND WARRANTIES IN THIS AGREEMENT, THE
SCHEDULES HERETO AND THE CERTIFICATE DELIVERED BY THE SELLERS PURSUANT TO
SECTION 4.4, FFMC IS SELLING THE SHARES (AND THE BUSINESS AND ASSETS OF THE
COMPANIES REPRESENTED THEREBY) ON AN "AS IS, WHERE IS" BASIS AND THE SELLERS
DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS AND GUARANTIES WHETHER EXPRESS
OR IMPLIED. THE SELLERS MAKE NO REPRESENTATION OR WARRANTY AS TO MERCHANTABILITY
OR FITNESS FOR ANY PARTICULAR PURPOSE AND NO IMPLIED WARRANTIES WHATSOEVER.
Buyer acknowledges that neither the Sellers nor any of their representatives nor
any other Person has made any representation or warranty, express or implied, as
to the accuracy or completeness of any memoranda, charts or summaries heretofore
made available by the Sellers or their representatives to Buyer or any other
information which is not included in this Agreement or the Schedules hereto, and
neither the Sellers nor any of their representatives nor any other Person will
have or be subject to any liability to Buyer, any Affiliate of Buyer or any
other Person resulting from the distribution of any such information to, or use
of any such information by, Buyer, any Affiliate of Buyer or any of their
agents, consultants, accountants, counsel or other representatives.
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<PAGE> 60
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the day and year first above written.
HEALTHCARE COMPARE CORP.
By: Jospeph E. Whitters
---------------------------
Name: Joseph E. Whitters
Title: CFO
FIRST FINANCIAL MANAGEMENT
CORPORATION
By: Randolph L.M. Hutto
-----------------------------
Name: Randolph L.M. Hutto
Title: Vice President
FIRST DATA CORPORATION
By: David P. Bailis
----------------------------
Name: David P. Bailis
Title: Executive Vice President
-54-
<PAGE> 1
EXHIBIT 10
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
CREDIT AGREEMENT
DATED AS OF JULY 1, 1997
---
BY AND AMONG
HEALTHCARE COMPARE CORP.,
AS BORROWER
LASALLE NATIONAL BANK
AS ADMINISTRATIVE AGENT AND LENDER,
FIRST CHICAGO CAPITAL MARKETS, INC.
AS SYNDICATION AGENT
AND
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
AS LENDERS
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE 1
<S> <C> <C>
DEFINITIONS
SECTION 1.1 Defined Terms....................................................... -1-
SECTION 1.2 Other Interpretive Provisions....................................... -15-
SECTION 1.3 Accounting Principles............................................... -16-
ARTICLE 2
THE CREDITS
SECTION 2.1 Amounts and Terms of Revolving Loan Commitments..................... -16-
SECTION 2.2 Note................................................................ -17-
SECTION 2.3 Revolving Loan Accounts............................................. -17-
SECTION 2.4 Procedure for Revolving Credit Borrowing............................ -17-
SECTION 2.5 Conversion and Continuation Elections............................... -18-
SECTION 2.6 Optional Prepayments................................................ -20-
SECTION 2.7 Final Payment; Optional Reduction of Revolving Loan Commitment ..... -20-
SECTION 2 8 Interest............................................................ -20-
SECTION 2.9 Fees................................................................ -21-
SECTION 2.10 Computation of Fees and Interest.................................... -21-
SECTION 2.11 Payments by the Borrower............................................ -22-
SECTION 2.12 Payments by the Lenders to the Administrative Agent................. -23-
SECTION 2.13 Sharing of Payments, Etc............................................ -23-
ARTICLE 3
TAXES, YIELD PROTECTION AND ILLEGALITY
SECTION 3.1 Taxes............................................................... -24-
SECTION 3.2 Illegality ......................................................... -27-
SECTION 3.3 Increased Costs and Reduction of Return ............................ -28-
SECTION 3.4 Funding Losses...................................................... -28-
SECTION 3.5 Inability to Determine Rates........................................ -29-
SECTION 3.6 Reserves on LIBOR Rate Revolving Loans.............................. -29-
SECTION 3.7 Certificates of Lenders ............................................ -30-
SECTION 3.8 Replacement of Lenders.............................................. -30-
SECTION 3.9 Survival............................................................ -30-
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
ARTICLE 4
<S> <C> <C>
CONDITIONS PRECEDENT
SECTION 4.1 Conditions of Initial Revolving Loans ............................. -30-
SECTION 4.2 Conditions to All Borrowings and Letters of Credit................. -32-
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
SECTION 5.1 Corporate Existence and Power ..................................... -33-
SECTION 5.2 Corporate Authorization; No Contravention........................... -33-
SECTION 5.3 Governmental Authorization.......................................... -33-
SECTION 5.4 Binding Effect ..................................................... -33-
SECTION 5.5 Litigation ......................................................... -34-
SECTION 5.6 No Default ......................................................... -34-
SECTION 5.7 ERISA Compliance ................................................... -34-
SECTION 5.8 Use of Proceeds; Margin Regulations ................................ -34-
SECTION 5.9 Title to Properties ................................................ -35-
SECTION 5.10 Taxes .............................................................. -35-
SECTION 5.11 Financial Condition ................................................ -35-
SECTION 5.12 Environmental Matters .............................................. -35-
SECTION 5.13 Regulated Entities ................................................. -36-
SECTION 5.14 No Burdensome Restrictions.......................................... -36-
SECTION 5.15 Solvency............................................................ -36-
SECTION 5.16 Labor Relations..................................................... -36-
SECTION 5.17 Copyrights, Patents, Trademarks and Licenses, etc................... -36-
SECTION 5.18 Subsidiaries........................................................ -37-
SECTION 5.19 Brokers' Fees; Transaction Fees..................................... -37-
SECTION 5.20 Insurance........................................................... -37-
SECTION S.21 Compliance with Law................................................. -37-
ARTICLE 6
AFFIRMATIVE COVENANTS
SECTION 6.1 Financial Statements................................................ -38-
SECTION 6.2 Certificates; Other Information..................................... -39-
SECTION 6.3 Notices............................................................. -40-
SECTION 6.4 Preservation of Corporate Existence, Etc. .......................... -41-
SECTION 6.5 Maintenance of Property............................................. -42-
SECTION 6.6 Insurance........................................................... -42-
SECTION 6.7 Payment of Obligations.............................................. -42-
SECTION 6.8 Compliance with Laws................................................ -42-
SECTTON 6.9 Inspection of Property and Books and Records........................ -42-
SECTION 6.10 Use of Proceeds..................................................... -43-
</TABLE>
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<PAGE> 4
<TABLE>
<S> <C> <C>
SECTION 6.11 Solvency............................................................ -43-
SECTION 6.12 Further Assurances.................................................. -43-
ARTICLE 7
NEGATIVE COVENANTS
SECTION 7.1 Limitation on Liens................................................. -43-
SECTION 7.2 Disposition of Assets............................................... -45-
SECTION 7.3 Consolidations and Mergers.......................................... -46-
SECTION 7.4 Loans and Investments............................................... -46-
SECTION 7.5 Limitation on Indebtedness.......................................... -47-
SECTION 7.6 Transactions with Affiliates........................................ -48-
SECTION 7.7 Use of Proceeds..................................................... -48-
SECTION 7.8 Amendments to Acquisition Documents................................. -48-
SECTION 7.9 Compliance with ERISA ........................................... -48-
SECTION 7.10 Lease Obligations .................................................. -49-
SECTION 7.11 Restricted Payments ................................................ -49-
SECTION 7.12 Fixed Charge Coverage Ratio ........................................ -50-
SECTION 7.13 Consolidated Net Worth.............................................. -50-
SECTION 7.14 Leverage Ratio...................................................... -50-
SECTION 7.15 Change in Business ................................................. -50-
SECTION 7.17 Accounting Changes ................................................. -51-
SECTION 7.18 Hostile Acquisitions ............................................... -51-
ARTICLE 8
EVENTS OF DEFAULT
SECTION 8.1 Event of Default ................................................... -51-
SECTION 8.2 Remedies............................................................ -53-
SECTION 8.3 Rights Not Exclusive................................................ -54-
ARTICLE 9
THE AGENTS
SECTION 9.1 Appointment and Authorization....................................... -54-
SECTION 9.2 Delegation of Duties ............................................... -54-
SECTION 9.3 Liability of Agents ................................................ -54-
SECTION 9.4 Reliance by Agents.................................................. -55-
SECTION 9.5 Notice of Default .................................................. -55-
SECTION 9.6 Credit Decision .................................................... -55-
SECTION 9.7 Indemnification..................................................... -56-
SECTION 9.8 Administrative Agent in Individual Capacity......................... -57-
SECTION 9.9 Successor Administrative Agent ..................................... -57-
</TABLE>
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<PAGE> 5
<TABLE>
<CAPTION>
ARTICLE 10
<S> <C> <C>
MISCELLANEOUS
SECTION 10.1 Amendments and Waivers............................................. -57-
SECTION 10.2 Notices............................................................ -58-
SECTION 10.3 No Waiver; Cumulative Remedies..................................... -59-
SECTION 10.4 Costs and Expenses ................................................ -59-
SECTION 10.5 Indemnity ......................................................... -60-
SECTION 10.6 Marshalling; Payments Set Aside.................................... -60-
SECTION 10.7 Successors and Assigns............................................. -61-
SECTION 10.8 Assignments, Participations, etc. ................................. -61-
SECTION 10.9 Confidentiality ................................................... -63-
SECTION 10.10 Set-off ........................................................... -64-
SECTION 10.11 Notification of Addresses, Lending Offices, Etc. .................. -64-
SECTION 10.12 Counterparts ...................................................... -64-
SECTION 10.13 Severability ...................................................... -64-
SECTION 10.14 Captions .......................................................... -64-
SECTION 10.15 Independence of Provisions ........................................ -64-
SECTION 10.16 Interpretation .................................................... -65-
SECTION 10.17 No Third Parties Benefited ........................................ -65-
SECTION 10.18 Governing Law and Jurisdiction .................................... -65-
SECTION 10.19 WAIVER OF JURY TRIAL .............................................. -65-
SECTION 10.20 Entire Agreement .................................................. -66-
</TABLE>
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<PAGE> 6
SCHEDULES
Schedule I Revolving Loan Commitments
Schedule 5.5 Litigation
Schedule 5.7 ERISA
Schedule 5.11 Liabilities
Schedule 5.12 Environmental Matters
Schedule 5.13 Regulated Entities
Schedule 5.17 Intellectual Property
Schedule 5.18 Subsidiaries and Equity Investments
Schedule 7.1 Liens
Schedule 7.5 Indebtedness
Schedule 7.10 Operating Leases
EXHIBITS
Exhibit A Notice of Borrowing
Exhibit B Notice of Continuation/Conversion
Exhibit C Revolving Note
Exhibit D Opinion of Counsel
Exhibit E Officer's Certificate
Exhibit F Assignment and Acceptance
-v-
<PAGE> 7
CREDIT AGREEMENT
This CREDIT AGREEMENT (this "Agreement") is entered into as of July ___,
1997, by and among HealthCare COMPARE Corp., a Delaware corporation (the
"Borrower"), the several financial institutions from time to time party to this
Agreement (collectively, the "Lenders" and individually each a "Lender"),
LaSalle National Bank, as a Lender and as administrative agent for the Lenders
(the "Administrative Agent") and First Chicago Capital Markets, Inc., as
syndication agent for the Lenders (the "Syndication Agent").
WITNESSETH:
WHEREAS, the Borrower has requested, and the Lenders have agreed to
make available to the Borrower, a revolving credit facility upon and subject to
the terms and conditions set forth in this Agreement;
WHEREAS, the Borrower intends to use the proceeds of this revolving
credit facility to fund a certain acquisition and for working capital and other
general corporate purposes as described more fully herein;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Defined Terms. The following terms shall have the following
meanings for purposes of this Agreement:
"Acquisition" means any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the acquisition
of all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of fifty percent (50%)
of the capital stock, partnership interests or equity of any Person or otherwise
causing any Person to become a Subsidiary of the Borrower, or (c) a merger or
consolidation or any other combination with another Person (other than a Person
that is a Subsidiary of the Borrower) as long as the Borrower or the Borrower's
Subsidiary is the surviving entity.
"Acquisition Documents" means the Stock Purchase Agreement by and among
HealthCare COMPARE Corp., First Financial Management Corporation and First Data
Corporation dated as of May 22, 1997 and all related documents, agreements,
exhibits and schedules.
"Acquisition Transactions" means the transactions consummated pursuant
to the Acquisition Documents.
<PAGE> 8
"Administrative Agent" means LaSalle in its capacity as agent for the
Lenders hereunder, and any successor agent.
"Administrative Agent's Payment Office" means the address for payments
set forth on the signature page hereto in relation to the Administrative Agent
or such other address as the Administrative Agent may from time to time specify
in accordance with Section 10.2.
"Affiliate" means, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, by contract or otherwise. Without
limitation, any director, executive officer or beneficial owner of five percent
(5%) or more of the equity of a Person shall for the purposes of this
Agreement, be deemed to control the other Person. Notwithstanding the
foregoing, no Lender nor the Administrative Agent shall be deemed an
"Affiliate" of the Borrower or of any Subsidiary of the Borrower.
"Agency Fee" has the meaning ascribed to such term in Section l.9(a)
hereof.
"Agent-Related Person" means either of the Agents, any successor agent
arising under Section 9.9, together with their respective Affiliates, and the
officers, directors, employees, agents and attorneys-in-fact of such Persons
and Affiliates.
"Agents" means collectively, the Administrative Agent and the
Syndication Agent.
"Aggregate Revolving Loan Commitment" means the combined Revolving Loan
Commitments of the Lenders as set forth on Schedule I attached hereto, the
aggregate of which shall not exceed $350,000,000.
"Applicable Margin" means with respect to LIBOR Rate Revolving Loans,
Base Rate Revolving Loans, and Facility Fees, respectively, the applicable
LIBOR margin, Base Rate margin, or Facility Fee margin in effect from time to
time determined using either the Borrower's Senior Long-term Debt Rating then
in effect or the Borrower's Debt to EBITDA Ratio, at the Borrower's option from
time to time, pursuant to the appropriate column under the following table:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------
Senior Long-term Debt Applicable
Rating Debt to Applicable Applicable Base Facility Fee
- --------------------- EBITDA Ratio LIBOR Margin Rate Margin Margin
S&P Moody's
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
>A- >A3 <.50 15.0 bps 0 7.5 bps
BBB+ Baa1 .50-1.00 18.5 bps 0 9.0 bps
BBB Baa2 1.01-1.50 21.5 bps 0 11.0 bps
BBB- Baa3 1.51-2.00 25.0 bps 0 12.5 bps
BB+ Ba1 >2.00 27.5 bps 0 15.0 bps
- ---------------------------------------------------------------------------------------------
</TABLE>
-2-
<PAGE> 9
The Applicable Margin shall be adjusted from time to time upon delivery to the
Administrative Agent of (i) the quarterly financial statements required to be
delivered pursuant to Section 6.1 hereof accompanied by a written calculation
of the Debt to EBITDA Ratio certified by a Responsible Officer as of the end of
the fiscal quarter for which such financial statements are delivered or (ii) a
statement of the Borrower's Senior Long-term Debt Rating by S&P and Moody's if
any, certified by a Responsible Officer. If the Senior Long-term Debt Ratings
by S&P and Moody's differ, for the purpose of calculating the Applicable
Margin, the Borrower's Senior Long-term Debt Rating shall be deemed to be one
level higher than the lower rating given by S&P and Moody's. If such
calculation or statement indicates that the Applicable Margin shall increase or
decrease, then one (1) Business Day after the date of delivery of such
financial statements and written calculation or statement the Applicable Margin
shall be adjusted in accordance therewith; provided, however, that if Borrower
shall fail to deliver any such financial statements for any such fiscal quarter
by the date required pursuant to Section 6.1, then, effective as of the
Business Day on which such financial statements were to have been delivered,
and continuing through the date which is one (1) Business Day after the date
(if ever) when such financial statements and such written calculation are
finally delivered, the Applicable Margin shall be conclusively presumed to
equal the highest Applicable Margin specified in the pricing table set forth
above.
"Assignee" has the meaning ascribed to such term in Section 10.8(a)
hereof.
"Assignment and Acceptance" has the meaning ascribed to such term in
Section 10.8(a)(ii) hereof.
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel, the reasonable
allocated cost of internal legal services (to the extent and at the rate
customarily charged to other customers) and all reasonable disbursements of
internal counsel.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. Section 101, et seq.), as amended and in effect from time to time and the
rules issued from time to time thereunder.
"Base Rate" means, for any date, the greater of (i) the Federal Funds
Rate in effect on such date plus 0.5% per annum, and (ii) the rate of interest
publicly announced from time to time by the Administrative Agent as its Prime
Rate.
"Base Rate Revolving Loan" means a Borrowing hereunder which bears
interest at the Base Rate.
"Borrowing" has the meaning ascribed to such term in Section 2.1 hereof.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks in Chicago, Illinois are authorized or required by law
to close and, if the applicable Business Day relates to any LIBOR Rate Revolving
Loan, a day on which dealings are carried on in the London interbank market.
-3-
<PAGE> 10
"Capital Adequacy Regulation" means any guideline, request or directive
of any central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case, regarding
capital adequacy of any Lender or of any corporation controlling a Lender.
"Capital Lease" means any leasing or similar arrangement which, in
accordance with GAAP,is classified as a capital lease.
"Capital Lease Obligations" means all monetary obligations of the
Borrower or any of its Subsidiaries under any Capital Leases.
"Cash Equivalents" means: (a) securities issued or fully guaranteed or
insured by the United States Government or any agency thereof having maturities
of not more than six (6) months from the date of acquisition; (b) certificates
of deposit, time deposits, demand deposits, repurchase agreements, reverse
repurchase agreements, or bankers' acceptances, having in each case a tenor of
not more than six (6) months, issued by any Lender, or by any U.S. commercial
bank or any branch or agency of a non-U.S. bank licensed to conduct business in
the U.S. having combined capital and surplus of not less than $500,000,000; (c)
commercial paper of an issuer rated, at the time of purchase, at least A-1 by
Standard & Poor's Corporation or P-1 by Moody's Investors Service Inc. and in
either case having a tenor of not more than six (6) months.
"CERCLA" has the meaning specified in the definition of "Environmental
Laws."
"Change of Control" means such time as (i) the Borrower otherwise
becomes aware that, a "person" or "group" (within the meaning of Sections 13(d)
and 14(d)(2) ofthe Exchange Act) has become, directly or indirectly, the
"beneficial owner," by way of merger, consolidation or otherwise, of 30% or more
of the voting power of the voting stock of the Borrower on a fully-diluted basis
after giving effect to the conversion and exercise of all outstanding warrants,
options and other securities of the Borrower (whether or not such securities are
then currently convertible or exercisable), or (ii) during any period of two
consecutive calendar years, individuals who at the beginning of such period
constituted the board of directors of the Borrower (together with any new
directors whose election by the board of directors of the Borrower or whose
nomination for election by the shareholders of the Borrower was approved by a
vote of a majority of the directors then still in office who either were
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the board of directors of the Borrower then in office.
"Closing Date" means the date on which all conditions precedent set
forth in Section 4.1 are satisfied or waived by all Lenders.
"Code" means the Internal Revenue Code of 1986, and regulations
promulgated thereunder.
"Commitment Fee" has the meaning ascribed to such term in Section 2.9(a)
hereof.
-4-
<PAGE> 11
"Commitment Percentage" means, as to any Lender, the percentage
equivalent of such Lender's Revolving Loan Commitment divided by the Aggregate
Revolving Loan Commitment.
"Confidential Information" has the meaning ascribed to such term in
Section 10.9 hereof.
"Consolidated Net Income (Loss)" means, for any period, the net income
(or loss) of Borrower and its Subsidiaries on a consolidated basis for such
period, determined in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, gross
consolidated interest expense for the period (including all commissions,
discounts, fees and other charges in connection with standby letters of credit
and similar instruments) for the Borrower and its Subsidiaries, plus the portion
of the upfront costs and expenses for Rate Contracts (to the extent not included
in gross interest expense) fairly allocated to such Rate Contracts as expenses
for such period, all as determined in accordance with GAAP.
"Continuation Date" means any date on which the Borrower continues a
LIBOR Rate Revolving Loan at the end of the period applicable to an existing
LIBOR Rate Revolving Loan.
"Contractual Obligations" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its property is bound.
"Controlled Group" means the Borrower and all Persons (whether or not
incorporated) under common control or treated as a single employer with the
Borrower pursuant to Section 414(b), (c), (m) or (o) of the Code.
"Conversion Date" means any date on which the Borrower converts a Base
Rate Revolving Loan to a LIBOR Rate Revolving Loan or a LIBOR Rate Revolving
Loan to a Base Rate Revolving Loan.
"Default" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise remedied
during such time) constitute an Event of Default.
"Debt to EBITDA Ratio" means, as of any date of determination, the ratio
of consolidated Funded Indebtedness of Borrower as of such date to EBITDA for
the most recently completed four fiscal quarters.
"Disposition" has the meaning subscribed to such term in Section 7.2
"Dollars", "dollars" and "$" each mean lawful money of the United States
of America.
"EBITDA" means, for any period, for the Borrower and its Subsidiaries on
a consolidated basis, determined in accordance with GAAP, income before income
taxes (as reported on the
-5-
<PAGE> 12
Borrower's financial statements) plus interest expenses, depreciation and
amortization and minus interest income for such Period. Prior to the first
anniversary of the consummation of an Acquisition, the historical financial
results of the acquired Person or assets for the relevant period will be
included for purposes of calculating EBITDA (but without any adjustment to such
historical results for cost savings or other synergies).
"Eligible Assignee" means any of: (a) a commercial bank or other
financial institution organized under the laws of the United States, or any
state thereof, and having a combined capital and surplus of at least
$100,000,000; (b) a commercial bank or other financial institution organized
under the laws of any country which is a member of the Organization for Economic
Cooperation and Development, or a political subdivision of any such country, and
having a combined capital and surplus of at least $100,000,000, provided that
such bank or financial institution is acting through a branch or agency located
in the United States; (c) a Person that is primarily engaged in the business of
commercial lending and that is (A) a Subsidiary of a Lender, (B) a Subsidiary of
a Person of which a Lender is another Subsidiary, or (C) a Person of which a
Lender is a Subsidiary or (d) an insurance company or mutual fund organized
under the laws of the United States or any State thereof and having total net
worth in excess of $100,000,000.
"Environmental Claims" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or injury
to the environment or threat to public health, personal injury (including
sickness, disease or death), property damage, natural resources damage, or
otherwise alleging liability or responsibility for damages (punitive or
otherwise), cleanup, removal, remedial or response costs, restitution, civil or
criminal penalties, injunctive relief, or other type of relief, resulting from
or based upon the presence, placement, discharge, emission or release (including
intentional and unintentional, negligent and non-negligent, sudden or
non-sudden, accidental or non-accidental, placement, spills, leaks, discharges,
emissions or releases) of any Hazardous Material at, in, or from Property,
whether or not owned by the Borrower.
"Environmental Laws" means all federal, state or local laws, statutes,
common law duties, rules, regulations, ordinances and codes, together with all
administrative orders, licenses, authorizations and permits of, and agreements
with, any Governmental Authorities, in each case relating to environmental,
health, safety and land use matters; including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), the Clean Air Act, the Federal Water Pollution Control Act of 1972,
the Solid Waste Disposal Act, the Federal Resource Conservation and Recovery
Act, the Toxic Substances Control Act, the Emergency Planning and Community
Right-to-Know Act.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b), 414(c) or 414(m) of the Code.
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"ERISA Event" means (a) a Reportable Event with respect to a Qualified
Plan or a Multiemployer Plan; (b) a withdrawal by the Borrower or any ERISA
Affiliate from a Qualified Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA); (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan; (d) the filing of a notice of intent to
terminate, the treatment of a plan amendment as a termination under Section 4041
or 4041A of ERISA or the commencement of proceedings by the PBGC to terminate a
Qualified Plan or Multiemployer Plan subject to Title IV of ERISA; (e) a failure
by the Borrower or any member of the Controlled Group to make required
contributions to a Qualified Plan or Multiemployer Plan; (f) an event or
condition which might reasonably be expected to constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Qualified Plan or Multiemployer Plan; (g) the imposition of any
liability under Title IV of ERISA, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate; (h) an application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code with respect to any
Plan; (i) a non-exempt prohibited transaction occurs with respect to any Plan
for which the Borrower or any Subsidiary of the Borrower may be directly or
indirectly liable; or (j) a violation of the applicable requirements of Section
404 or 405 of ERISA or the exclusive benefit rule under Section 401(a) of the
Code by any fiduciary or disqualified person with respect to any Plan for which
the Borrower or any member of the Controlled Group may be directly or indirectly
liable.
"Exchange Act" means the Securities and Exchange Act of 1934, and
regulations promulgated thereunder.
"Event of Default" has the meaning ascribed to such term in Section 8.1
hereof.
"Facility Fee" has the meaning ascribed to such term in Section 2.9(b)
hereof.
"Federal Funds Rate" means, for any day, the rate per annum set forth in
the weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Board (including any such
successor, "H.15(519)") for such day opposite the caption "Federal Funds
(Effective)". If on any relevant day such rate is not yet published in
H.15(519), the rate for such day will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotations for U.S.
Government Securities, or any successor publication, published by the Federal
Reserve Bank of New York (including any such successor, the "Composite 3:30 p.m.
Quotation") for such day under the caption "Federal Funds Effective Rate". If on
any relevant day the appropriate rate for such previous day is not yet published
in either H.15(519) or the Composite 3:30 p.m. Quotations, the rate for such day
will be the arithmetic mean (rounded to the nearest 1/16th) as determined by the
Administrative Agent of the rates for the last transaction in overnight Federal
funds arranged prior to 9:00 a.m. (New York time) on that day by each of three
leading brokers of Federal funds transactions in New York City selected by the
Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System, or any entity succeeding to any of its principal functions.
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"First Chicago" means First Chicago Capital Markets, Inc., a Delaware
corporation.
"Fixed Charges" means, for any period and without duplication, the sum
of (i) Consolidated Interest Expense and fees paid on, and amortization of debt
discount in respect of, all Funded Indebtedness, plus (ii) Operating Lease
rental payments made during such period, plus (iii) the aggregate principal
amount of all current maturities of long term Funded Indebtedness (including the
principal portion of rentals under Capital Leases) paid by the Borrower and its
Subsidiaries during such period (excluding payments of principal of the
Revolving Loans and payments of principal not required under the Revolving Loan
Documents).
"Fixed Charge Coverage Ratio" means, at any date, the ratio of (i)
EBITDA plus Operating Lease rental payments for the period of the most recently
completed four consecutive fiscal quarters, to (ii) Fixed Charges for such
period.
"Form 1001" has the meaning ascribed to such term in Section 3.1(f)
hereof.
"Form 4224" has the meaning ascribed to such term in Section 3.1(f)
hereof.
"Funded Indebtedness" means with respect to any Person, at the time of
computation thereof, all of the following (without duplication): (a) obligations
of such Person in respect of money borrowed; (b) obligations of such Person
(other than trade debt incurred in the ordinary course of business), whether or
not for money borrowed (i) represented by notes payable, or drafts accepted, in
each case representing extensions of credit, (ii) evidenced by bonds,
debentures, notes or similar instruments, or (iii) constituting purchase money
indebtedness, conditional sales contracts, title retention debt instruments or
other similar instruments, upon which interest charges are customarily paid or
that are issued or assumed as full or partial payment for property; (c)
Capitalized Lease Obligations of such Person; (d) all reimbursement obligations
of such Person under any letters of credit or acceptances (whether or not the
same have been presented for payment); and (e) all Funded Indebtedness of other
Persons which (i) such Person has Guaranteed or (ii) are secured by a Lien on
any property of such Person, and which, in each case of (a) through (e), is or
would be reported under GAAP accounting rules in such Person's financial
statement.
"GAAP" means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the accounting
profession), which are applicable to the circumstances as of the date of
determination.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
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"Guaranty Obligation" means, as applied to any Person, any direct or
indirect liability of that Person with respect to any Indebtedness (the "primary
obligations") of another Person (the "primary obligor"), including any
obligation of the Person, whether or not contingent:
(a) to purchase, repurchase or otherwise acquire such primary
obligations or any property constituting direct or indirect security
therefor; or
(b) to advance or provide funds (i) for the payment or discharge
of any such primary obligation, or (ii) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net
worth or solvency or any balance sheet item, level of income or
financial condition of the primary obligor; or
(c) to purchase property, securities or services primarily for
the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary
obligation; or
(d) otherwise to assure or hold harmless the holder of any such
primary obligation against loss in respect thereof;
in each case, including arrangements wherein the rights and remedies of the
holder of the primary obligation are limited to repossession or sale of certain
property of such Person.
"Hazardous Materials" means all those substances which are regulated by
any Environmental Law.
"Healthcare Regulations" means all Requirements of Law applicable to
providers of life, health care or disability insurance or the provision of
health care services or such insurance or the management of health care
services.
"Immaterial Subsidiary" means a Subsidiary with assets of $15,000,000 or
less and which has net income for the previous four fiscal quarters of
$5,000,000 or less as of any date of determination.
"Indebtedness" of any Person means, without duplication: (a) all indebtedness
for borrowed money; (b) all obligations issued, undertaken or assumed as the
deferred purchase price of property or services (other than trade payables
entered into in the Ordinary Course of Business); (c) all reimbursement
obligations with respect to Surety Instruments; (d) all obligations evidenced
by notes, bonds, debentures or similar instruments, including obligations so
evidenced incurred in connection with the acquisition of property, assets or
businesses; (e) all indebtedness created or arising under any conditional sale
or other title retention agreement, or incurred as financing, in either case
with respect to Property acquired by the Person (even though the rights and
remedies of the seller or bank under such agreement in the event of default are
limited to repossession or sale of such property); (f) all Capital Lease
Obligations; (g) all obligations with respect to Rate Contracts; (h) all
indebtedness referred to in clauses (a) through (g) above secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in Property (including accounts
and contracts rights) owned by
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<PAGE> 16
such Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness; provided, however, if recourse to such Person is
specifically limited in writing to the security with respect thereto, the
amount of such indebtedness shall be the lesser of the amount of such
indebtedness and the value of the assets of such Person which secure such
indebtedness; and (i) all Guaranty Obligations in respect of indebtedness or
obligations of others of the kinds referred to in clauses (a) through (g)
above.
"Indemnified Person" has the meaning ascribed to such term in Section
10.5 hereof.
"Indemnified Liabilities" has the meaning ascribed to such term in
Section 10.5 hereof.
"Insolvency Proceeding" means (a) any case, action or proceeding before
any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshalling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any substantial portion of
its creditors; in each case (a) and (b) undertaken under U.S. Federal, State or
foreign law, including the Bankruptcy Code.
"Insurance Subsidiary" means any Subsidiary directly subject to
regulation by a state insurance commission, commissioner, or similar authority
or Person.
"Interest Payment Date" means, (i) with respect to any LIBOR Rate
Revolving Loan, the earlier of the last day of each Interest Period applicable
to such LIBOR Rate Revolving Loan or the date that is three months after the
date of the applicable LIBOR Rate Revolving Loan Borrowing and each three-month
anniversary thereafter, and (ii) with respect to Base Rate Revolving Loans, the
last Business Day of the months of September, December, March and June. If any
Interest Payment Date falls on a day which is not a Business Day, payment shall
be made on the next succeeding Business Day.
"Interest Period" means, with respect to any LIBOR Rate Revolving Loan,
the period commencing on the Business Day the Revolving Loan is disbursed or
continued or on the Conversion Date on which the Revolving Loan is converted to
the LIBOR Rate Revolving Loan and ending on the date one, two, three or six
months thereafter (or, if available from all Lenders, nine or twelve months
thereafter), as selected by the Borrower in its Notice of Borrowing or Notice of
Conversion/Continuation; provided that:
(a) if any Interest Period pertaining to a LIBOR Rate Revolving
Loan would otherwise end on a day which is not a Business Day, that
Interest Period shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry such Interest
Period into another calendar month, in which event such Interest Period
shall end on the immediately preceding Business Day; and
(b) any Interest Period pertaining to a LIBOR Rate Revolving
Loan that begins on the last 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)
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<PAGE> 17
shall end on the last Business Day of the calendar month at the end of
such Interest Period.
"Joint Venture" means a partnership, joint venture or other similar
legal arrangement (whether created pursuant to contract or conducted through a
separate legal entity) now or hereafter formed by the Borrower or any of its
Subsidiaries with another Person in order to conduct a common venture or
enterprise with such Person.
"LaSalle" means LaSalle National Bank, a national banking association.
"Lender" has the meaning ascribed to such term in the Preamble hereof.
"Lending Office" means, with respect to any Lender, the office or
offices of the Lender specified as its "Lending Office" opposite its name on the
applicable signature page hereto, or such other office or offices of the Lender
as it may from time to time notify the Borrower and the Administrative Agent.
"Leverage Ratio" means, as of any date of determination thereof, the
ratio of consolidated Funded Indebtedness of the Borrower as of such date to
EBITDA for the twelve fiscal months then ended.
"LIBOR Rate" means, for each applicable Interest Period, the London
Interbank Offered Rate per annum for deposits of Dollars quoted by the
Administrative Agent that appears on Telerate Page 3750 as of 11:00 A.M.
(London, England time) two (2) Business Days prior to the first day in such
Interest Period for an amount comparable to the amount of the applicable
Revolving Loan and the maturity comparable to such Interest Period. If no such
offered rate exists, such rate will be the rate of interest per annum, as
determined by the Administrative Agent (rounded upwards, if necessary, to the
nearest 1/16 of 1%) at which deposits of Dollars in immediately available funds
are offered at 11:00 A.M. (London, England time) two (2) Business Days prior to
the first day in such Interest Period by major financial institutions reasonably
satisfactory to the Administrative Agent in the London interbank market for a
period comparable to such Interest Period and for an amount equal or comparable
to the principal amount of the Revolving Loans outstanding on such date of
determination. If no such deposits are offered by such institutions, such rate
will be the rate in effect for the prior Interest Period.
"LIBOR Rate Revolving Loan" means a Borrowing hereunder which bears
interest at the LIBOR Rate.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, charge or deposit arrangement, encumbrance, lien (statutory or
other) or preference, priority or other security interest or preferential
arrangement of any kind or nature whatsoever (including those created by,
arising under or evidenced by any conditional sale or other title retention
agreement, the interest of a lessor under a Capital Lease obligation, any
financing lease having substantially the same economic effect as any of the
foregoing, or the filing of any financing statement naming the owner of the
asset to which such lien relates as debtor, under the UCC or any comparable
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<PAGE> 18
law) and any contingent or other agreement to provide any of the foregoing, but
not including the interest of a lessor under an Operating Lease.
"Majority Lenders" means at any time Lenders then holding at least 51%
of the then aggregate unpaid principal amount of the Revolving Loans, or, if no
such principal amount is then outstanding, Lenders then having in excess of 51%
the Revolving Loan Commitments.
"Margin Stock" means "margin stock" as such term is defined in
Regulation G, T, U or X of the Federal Reserve Board.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, or condition
(financial or otherwise) of the Borrower or the Borrower and its Subsidiaries
taken as a whole; (b) a material impairment of the ability of the Borrower to
perform any material obligation under any Revolving Loan Document and avoid any
Event of Default; or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability of any Revolving Loan Document.
"Maximum Revolving Loan Balance" has the meaning ascribed to such term
in Section 2.1 hereof.
"Multiemployer Plan" means a "multiemployer plan" (within the meaning of
Section 4001(a)(3) of ERISA) and to which any member of the Controlled Group
makes, is making, or is obligated to make contributions or, during the preceding
three calendar years, has made, or been obligated to make, contributions.
"Net Worth" means shareholders' equity of the Borrower as determined in
accordance with GAAP, plus (i) the lesser of (a) the amount of the total
consideration paid by the Borrower to acquire the Borrower's stock subsequent to
the Closing Date and held by the Borrower as treasury stock under GAAP
accounting, or (b) $150,000,000, plus (ii) any charges incurred subsequent to
the Closing Date related to Acquisitions to the extent such charges are written
off against goodwill, provided such charges shall not exceed the aggregate
amount of $175,000,000.
"Note" has the meaning ascribed to such term in Section 2.2(a) hereof.
"Notice of Borrowing" means a notice given by the Borrower to the
Administrative Agent pursuant to Section 2.4, in substantially the form of
Exhibit A hereto.
"Notice of Conversion/Continuation" means a notice given by the Borrower
to the Administrative Agent pursuant to Section 2.5, in substantially the form
of Exhibit B hereto.
"Notice of Lien" means any "notice of lien" or similar document filed or
recorded with any court, registry, recorder's office, central filing office or
other Governmental Authority for the purpose of evidencing, creating, perfecting
or preserving the priority of a Lien securing obligations owing to a
Governmental Authority.
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"Obligations" means all Revolving Loans, and other Indebtedness,
advances, debts, liabilities, obligations, covenants and duties owing by the
Borrower to any Lender, the Agents, or any other Person required to be
indemnified, that arises under any Revolving Loan Document, whether or not for
the payment of money, whether arising by reason of an extension of credit,
Revolving Loan, guaranty, indemnification or in any other manner, whether direct
or indirect (including those acquired by assignment), absolute or contingent,
due or to become due, now existing or hereafter arising and however acquired.
"Officer's Certificate" has the meaning ascribed to such term in Section
6.2(b) hereof.
"Operating Lease" means, as applied to any Person, any lease of Property
which is not a Capital Lease.
"Ordinary Course of Business" means, in respect of any transaction
involving the Borrower or any Subsidiary of the Borrower, the ordinary course of
such Person's business, as conducted by any such Person in accordance with
industry practice for companies similarly situated and undertaken by such Person
in good faith and not for purposes of evading any covenant or restriction in any
Revolving Loan Document.
"Originating Lender" has the meaning ascribed to such term in Section
10.8(d) hereof.
"Other Taxes" has the meaning ascribed to such term in Section 3.1(b)
hereof.
"Participant" has the meaning ascribed to such term in Section 10.8(d)
hereof.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any of its principal functions under ERISA.
"Permitted Liens" has the meaning ascribed to such term in Section
7.1 hereof.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in Section 3(3) of
ERISA) which the Borrower or any member of the Controlled Group sponsors or
maintains or to which the Borrower or any member of the Controlled Group makes,
is making or is obligated to make contributions.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, and whether tangible or intangible.
"Qualified Plan" means a pension plan (as defined in Section 3(2) of
ERISA) intended to be tax-qualified under Section 401(a) of the Code and which
any member of the Controlled Group sponsors, maintains, or to which it makes, is
making or is obligated to make contributions, or in the case of a multiple
employer plan (as described in Section 4064(a) of ERISA) has made
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<PAGE> 20
contributions at any time during the immediately preceding period covering at
least five (5) plan years, but excluding any Multiemployer Plan.
"Rate Contracts" means swap agreements (as such term is defined in
Section 101 of the Bankruptcy Code) and any other agreements or arrangements
designed to provide protection against fluctuations in interest or currency
exchange rates.
"Reportable Event" means, as to any Plan, (a) any of the events set
forth in Section 4043(b) of ERISA or the regulations thereunder, other than any
such event for which the 30-day notice requirement under ERISA has been waived
in regulations issued by the PBGC, (b) a withdrawal from a Plan described in
Section 4063 of ERISA, or (c) a cessation of operations described in Section
4062(e) of ERISA.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its property or to which the Person or any of its property is subject.
"Responsible Officer" means the chief executive officer, the president,
the chief financial officer or any executive vice president of the Borrower, or
any other officer having substantially the same authority and responsibility;
or, with respect to compliance with financial covenants, the chief financial
officer or the treasurer of the Borrower, or any other officer having
substantially the same authority and responsibility.
"Revolving Loan" has the meaning ascribed to such term in Section 2.1
hereof.
"Revolving Loan Commitment" has the meaning ascribed to such term in
Section 2.1 hereof.
"Revolving Loan Documents" means this Agreement and the Note.
"Solvent" means, as to any Person at any time, that (a) the fair value
of the Property of such Person is greater than the amount of such Person's
liabilities (including disputed, contingent and unliquidated liabilities) as
such value is established and liabilities evaluated for purposes of Section
101(31) of the Bankruptcy Code and, in the alternative, for purposes of the
Uniform Fraudulent Transfer Act; (b) the present fair saleable value of the
Property of such Person is not less than the amount that will be required to pay
the probable liability of such Person on its debts as they become absolute and
matured; (c) such Person is able to realize upon its Property and pay its debts
and other liabilities (including disputed, contingent and unliquidated
liabilities) as they mature in the normal course of business; (d) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and liabilities
mature; and (e) such Person is not engaged in business or a transaction, and is
not about to engage in business or a transaction, for which such Person's
property would constitute unreasonably small capital.
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<PAGE> 21
"Subsidiary" of a Person means any corporation, association, partnership,
joint venture or other business entity of which more than fifty percent (50%)
of the voting stock or other equity interests (in the case of Persons other
than corporations), is owned or controlled directly or indirectly by the
Person, or one or more of the Subsidiaries of the Person, or a combination
thereof.
"Surety Instruments" means all letters of credit (including standby and
commercial), banker's acceptances, bank guaranties, shipside bonds, surety
bonds and similar instruments.
"Taxes" has the meaning ascribed to such term in Section 3.1 (a) hereof.
"Termination Date" means the earlier to occur of: (a) the five year
anniversary of the Closing Date; and (b) the date on which the Aggregate
Revolving Loan Commitment shall terminate in accordance with the provisions of
this Agreement.
"UCC" means the Uniform Commercial Code as in effect in the State of
Illinois.
"Unfunded Pension Liabilities" means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Plan's assets, determined in accordance with the assumptions used by the Plan's
actuaries for funding the Plan pursuant to section 412 for the applicable plan
year.
"United States" and "U.S." each means the United States of America.
"Wholly-Owned Subsidiary" means any corporation in which (other than
directors' or other similar qualifying shares required by law) 100% of the
capital stock of each class having ordinary voting power, and 100% of the
capital stock of every other class, in each case, at the time as of which any
determination is being made, is owned, beneficially and of record, by the
Borrower, or by one or more of the other Wholly-Owned Subsidiaries, or both.
SECTION 1.2 Other Interpretive Provisions.
(a) Defined Terms. Unless otherwise specified herein or therein,
all terms defined in this Agreement shall have the defined meanings when used
in any certificate or other document made or delivered pursuant hereto. The
meaning of defined terms shall be equally applicable to the singular and plural
forms of the defined terms. Terms (including uncapitalized terms) not otherwise
defined herein and that are defined in the UCC shall have the meanings therein
described.
(b) The Agreement. The words "hereof", "herein", "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement; and
subsection, section, schedule and exhibit references are to this Agreement
unless otherwise specified.
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<PAGE> 22
(c) Certain Common Terms. The term "documents" includes any and all
instruments, documents, agreements, certificates, indentures, notices and other
writings, however evidenced. The term "including" is not limiting and means
"including without limitation."
(d) Performance: Time. Whenever any performance obligation
hereunder (other than a payment obligation) shall be stated to be due or
required to be satisfied on a day other than a Business Day, such performance
shall be made or satisfied on the next succeeding Business Day. In the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including"; the words "to" and "until" each
mean "to but excluding", and the word "through" means "to and including." If
any provision of this Agreement refers to any action taken or to be taken by
any Person, or which such Person is prohibited from taking, such provision
shall be interpreted to encompass any and all means, direct or indirect, of
taking, or not taking, such action.
(e) Contracts. Unless otherwise expressly provided herein,
references to agreements and other contractual instruments, including this
Agreement and the other Revolving Loan Documents, shall be deemed to include
all subsequent amendments, thereto, restatements thereof and other
modifications and supplements thereto which are in effect from time to time,
but only to the extent such amendments and other modifications are not
prohibited by the terms of any Revolving Loan Document.
(f) Laws. References to any statute or regulation are to be
construed as including all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting the statute or regulation.
SECTION 1.3 Accounting Principles. (a) Unless the context otherwise
clearly requires, all accounting terms not expressly defined herein shall be
construed, and all financial computations required under this Agreement shall
be made, in accordance with GAAP, consistently applied; provided, however, that
if any changes in GAAP are hereafter required or permitted and are adopted by
the Borrower and such changes result in a material change in the method of
calculation of any of the financial covenants or restrictions contained in
Article 7 or in the related definitions or terms used herein, the parties
hereto agree to enter into negotiations in good faith in order to amend such
provisions so as to reflect equitably such changes with the desired result that
the criteria for evaluating the Borrower's financial condition shall be the
same after such changes as if such changes had not been made.
(a) References herein to "fiscal year", "fiscal quarter" and "fiscal
month" refer to such fiscal periods of the Borrower.
ARTICLE 2
THE CREDITS
SECTION 2.1 Amounts and Terms of Revolving Loan Commitments. Each Lender
severally and not jointly agrees, on the terms and conditions hereinafter set
forth, to make
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<PAGE> 23
Revolving Loans to the Borrower (the "Revolving Loans") from time to time on any
Business Day during the period from the Closing Date to the Termination Date,
in an aggregate amount not to exceed at any time outstanding the amount set
forth opposite the Lender's name in Schedule I under the heading "Revolving
Loan Commitment" (such amount as the same may be reduced from time to time
pursuant to subsection 2.7(b) hereof or as a result of one or more assignments
pursuant to Section 10.8, the Lender's "Revolving Loan Commitment"); provided,
however, that, after giving effect to any borrowing of Revolving Loans (each, a
"Borrowing"), the aggregate principal amount of all outstanding Revolving Loans
shall not exceed the Maximum Revolving Loan Balance. Within the limits of each
Lender's Revolving Loan Commitment, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.1, prepay
pursuant to Section 2.6 and reborrow pursuant to this Section 2.1. The "Maximum
Revolving Loan Balance" will be the aggregate of all Revolving Loan Commitments
then in effect. If at any time the Revolving Loans exceed the Maximum Revolving
Loan Balance, the Revolving Loans must be repaid immediately in an amount
sufficient to eliminate any excess.
SECTION 2.2 Note.
(a) The Revolving Loans made by the Lenders shall be evidenced by a
single Revolving Note (the "Note") payable to the order of the Administrative
Agent for the benefit of the Lenders in substantially the form of Exhibit C
hereto, in an amount equal to the aggregate Revolving Loan Commitments of all
Lenders.
(b) The Administrative Agent may, from time to time, and is
irrevocably authorized by the Borrower to, endorse on the schedules annexed to
the Note the amount of each Revolving Loan made thereunder, the applicable
interest rates, all payments of principal and interest thereon and the
principal balance thereof from time to time outstanding; provided, however,
that the failure to make, or an error in making, a notation thereon with
respect to any Revolving Loan shall not limit or otherwise affect the
obligations of the Borrower hereunder or under the Note.
SECTION 2.3 Revolving Loan Accounts. The Administrative Agent on behalf of
the Lenders, shall record on its books and records the amount of each Revolving
Loan made, the interest rate applicable, all payments of principal and interest
thereon and the principal balance thereof from time to time outstanding, and
the record thereof shall, absent manifest error be conclusive evidence of the
amount of the Revolving Loans made by the Lenders to the Borrower and the
interest and payments thereon. Any failure so to record or any error in doing
so shall not, however, limit or otherwise affect the obligation of the Borrower
hereunder (and under the Note) to pay any amount owing with respect to the
Revolving Loans.
SECTION 2.4 Procedure for Revolving Credit Borrowing.
(a) Each Borrowing shall be made upon the Borrower's irrevocable
written notice or telephonic notice confirmed promptly in writing delivered to
the Administrative Agent in the form of a Notice of Borrowing, which notice
must be received by the Administrative Agent prior to 10:00 a.m. (Chicago time)
(x) on the requested Borrowing date in the case of each Base Rate Revolving
Loan and (y) on the day which is three (3) Business Days prior to the requested
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Borrowing date in the case of each LIBOR Rate Revolving Loan. Such Notice of
Borrowing shall specify:
(i) the amount of the Borrowing (which, in the case of both
LIBOR Rate Revolving Loans and Base Rate Revolving Loans, shall be in
an aggregate minimum principal amount of $5,000,000 or any multiple of
$1,000,000 in excess thereof);
(ii) the requested Borrowing date, which shall be a Business
Day;
(iii) whether the Borrowing is to be comprised of LIBOR Rate
Revolving Loans or Base Rate Revolving Loans;
(iv) if the Borrowing is to be LIBOR Rate Revolving Loans, the
Interest Period applicable to such Revolving Loans; provided that until
the earlier of (x) the date the Maximum Revolving Loan Balance has been
increased to $350,000,000, or (y) ninety (90) days after the Closing
Date, such Interest Period shall not exceed thirty-nine days;
provided, however, that with respect to the Borrowing to be made on the Closing
Date, the Notice of Borrowing shall be delivered to the Administrative Agent
not later than 2:00 p.m. (Chicago time) one Business Day before the Closing
Date and such Borrowing will consist of Base Rate Revolving Loans only.
(b) Upon receipt of the Notice of Borrowing, the Administrative
Agent will promptly notify each Lender thereof and of the amount of such
Lender's Commitment Percentage of the Borrowing.
(c) After giving effect to any Borrowing, there shall not be more
than ten (10) different Interest Periods in effect.
SECTION 2.5 Conversion and Continuation Elections.
(a) Subject to the provisions of this Agreement, the Borrower may
upon irrevocable written notice or telephonic notice confirmed promptly
in writing to the Administrative Agent in accordance with subsection 2.5(b)
below:
(i) elect to convert on any Business Day, any Base Rate
Revolving Loans (or any part thereof in an amount not less than
$5,000,000, or that is in an integral multiple of $1,000,000 in excess
thereof) into LIBOR Rate Revolving Loans or;
(ii) elect to convert on the last day of the applicable
Interest Period any LIBOR Rate Revolving Loans having Interest Periods
maturing on such day (or any part thereof in an amount not less than
$5,000,000, or that is in an integral multiple of $1,000,000 in excess
thereof) into Base Rate Revolving Loans; or
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(iii) elect to renew on the last day of the applicable Interest
Period any LIBOR Rate Revolving Loans having Interest Periods maturing
on such day (or any part thereof in an amount not less than $5,000,000,
or that is in an integral multiple of $1,000,000 in excess thereof);
provided, that if the aggregate amount of LIBOR Rate Revolving Loans in
respect of any Borrowing shall have been reduced, by payment,
prepayment, or conversion of part thereof to be less than $5,000,000,
such LIBOR Rate Revolving Loans shall automatically convert into Base
Rate Revolving Loans, and on and after such date the right of the
Borrower to continue such Revolving Loans as, and convert such
Revolving Loans into, LIBOR Rate Revolving Loans, as the case may be,
shall terminate.
(b) The Borrower shall deliver a Notice of Conversion/Continuation
to be received by the Administrative Agent not later than 10:00 a.m. (Chicago
time) at least three (3) Business Days in advance of the requested Conversion
Date or Continuation Date, if the Revolving Loans are to be converted into or
continued as LIBOR Rate Revolving Loans and on the requested Conversion Date,
if the Revolving Loans are to be converted into Base Rate Revolving Loans,
specifying:
(i) the proposed Conversion Date or Continuation Date;
(ii) the aggregate amount of Revolving Loans to be converted or
renewed;
(iii) the nature of the proposed conversion or continuation;
and
(iv) the duration of the requested Interest Period with respect
to any Revolving Loans to be converted or continued as LIBOR Rate
Revolving Loans.
(c) If upon the expiration of any Interest Period applicable to
LIBOR Rate Revolving Loans, the Borrower has failed to select timely a new
Interest Period to be applicable to such LIBOR Rate Revolving Loans, as the
case may be, or if any Default or Event of Default shall then exist, the
Borrower shall be deemed to have elected to convert such LIBOR Rate Revolving
Loans into Base Rate Revolving Loans effective as of the expiration date of
such current Interest Period.
(d) Upon receipt of a Notice of Conversion/Continuation, the
Administrative Agent will promptly notify each Lender thereof, or, if no timely
notice is provided by the Borrower, the Administrative Agent will promptly
notify each Lender of the details of any automatic conversion. All conversions
and continuations shall be made pro rata according to the respective
outstanding principal amounts of the Revolving Loans with respect to which the
notice was given held by each Lender.
(e) During the existence of a Default or Event of Default, the
Borrower may not elect to have any Revolving Loan converted into or continued
as a LIBOR Rate Revolving Loan.
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(f) Notwithstanding any other provision contained in this Agreement,
after giving effect to any conversion or continuation of any Revolving Loans,
there shall not be more than ten (10) different Interest Periods in effect.
SECTION 2.6 Optional Prepayments. Subject to Section 3.4, the Borrower
may, at any time or from time to time, upon at least three (3) Business Days'
notice to the Administrative Agent for LIBOR Rate Revolving Loans and one (1)
Business Days' notice to the Administrative Agent for Base Rate Revolving
Loans, ratably among the Lenders prepay Revolving Loans in whole or in part, in
amounts of $5,000,000 or any multiple of $1,000,000 in excess thereof. Such
notice of prepayment shall specify the date and amount of such prepayment and
whether such prepayment is of Base Rate Revolving Loans or LIBOR Rate Revolving
Loans, or any combination thereof. Such notice shall not thereafter be
revocable by the Borrower and the Administrative Agent will promptly notify
each Lender thereof and of such Lender's Revolving Loan Commitment Percentage
of such prepayment. If such notice is given by the Borrower, the Borrower shall
make such prepayment and the payment amount specified in such notice shall be
due and payable on the date specified therein, together with any amounts
required pursuant to Section 3.4 and, for LIBOR Rate Revolving Loans, accrued
interest to each such date on the amount prepaid.
SECTION 2.7 Final Payment: Optional Reduction of Revolving Loan
Commitment.
(a) Final Payment. The Borrower shall repay to the Lenders in full
on the Termination Date the aggregate principal amount of the Revolving Loans
outstanding on such date together with all other amounts owing (including all
accrued interest, whether billed or unbilled) by the Borrower to the Lenders
hereunder.
(b) Optional Revolving Loan Commitment Reduction. The Borrower may,
at its option, by providing five (5) Business Days' irrevocable written notice
or telephonic notice promptly confirmed in writing, to the Administrative Agent,
permanently reduce the amount of the Revolving Loan Commitments in the minimum
amount of $5,000,000, or any multiple of $1,000,000 in excess thereof, to any
amount equal to or greater than the aggregate principal amount of all
outstanding Revolving Loans. The Administrative Agent will promptly notify each
Lender of such notice and of each Lender's reduced Revolving Loan Commitment
(which shall be reduced pro rata among all Lenders based on the Lenders'
respective Commitment Percentage).
SECTION 2.8 Interest.
(a) Subject to subsection 3.4, each Revolving Loan shall bear
interest on the outstanding principal amount thereof from the date when made at
a rate per annum equal to the LIBOR or the Base Rate, as the case may be, plus
the Applicable Margin, as the same may be adjusted pursuant to the provisions of
the definition of Applicable Margin.
(b) Interest on each Revolving Loan shall be paid in arrears on each
Interest Payment Date. Interest shall also be paid on the date of any payment
or prepayment of Revolving Loans in full at the Termination Date pursuant to
Section 2.7(a) or simultaneously with a
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reduction of the Revolving Loan Commitments to zero pursuant to Section 2.7(b),
and, during the existence of any Event of Default, interest shall be payable on
demand of the Administrative Agent.
(c) While any Event of Default exists and is continuing or after
maturity of the Revolving Loans (whether by acceleration or otherwise), unless
the Majority Lenders shall otherwise then agree, the Borrower shall pay interest
(after as well as before entry of judgment thereon to the extent permitted by
law) on the principal amount of all Obligations due and unpaid, at a rate per
annum which is determined by adding two percent (2%) per annum to the
Applicable Margin then in effect for such Revolving Loans and, in the case of
Obligations not subject to an Applicable Margin, at a rate per annum equal to
the Base Rate plus two percent (2%); provided, however, that, on and after the
expiration of any Interest Period applicable to any LIBOR Rate Revolving Loan
outstanding on the date of occurrence of such Event of Default or maturity, the
principal amount of such Revolving Loan shall, during the continuation of such
Event of Default or after acceleration, bear interest at a rate per annum equal
to the Base Rate plus two percent (2%)
(d) Anything herein to the contrary notwithstanding, the obligations
of the Borrower hereunder shall be subject to the limitation that payments of
interest shall not be required, for any period for which interest is computed
hereunder, to the extent (but only to the extent) that contracting for or
receiving such payment by the respective Lender would be contrary to the
provisions of any law applicable to such Lender limiting the highest rate of
interest which may be lawfully contracted for, charged or received by such
Lender, and in such event the Borrower shall pay such Lender interest at the
highest rate permitted by applicable law.
SECTION 2.9 Fees.
(a) Commitment and Agency Fees. Pursuant to the terms of a letter
agreement between the Borrower and the Administrative Agent dated June 11,
1997, the Borrower shall pay to the Administrative Agent (i) on the Closing
Date, a commitment fee (the "Commitment Fee"), and (ii) on the dates set forth
in the letter agreement, agency fees (the "Agency Fees").
(b) Facility Fee. The Borrower shall pay to the Administrative Agent
for the account of each Lender a facility fee ("Facility Fee") on the average
daily portion of such Lender's Revolving Loan Commitment calculated on the
basis of a 360-day year and the actual days multiplied by the Applicable
Margin. Facility Fees shall accrue from the Closing Date to the Termination
Date and shall be due and payable quarterly in arrears on the last Business Day
of each September, December, March and June, commencing on September 30, 1997
except that the final payment shall be made on the Termination Date. The
Facility Fees provided in this subsection 2.9(b) shall accrue at all times
after the Closing Date, including at any time during which one or more
conditions in Article 4 hereof are not met.
SECTION 2.10 Computation of Fees and Interest.
(a) Interest payable under this Agreement shall be calculated on the
basis of actual days elapsed in a 360-day year for LIBOR Rate Revolving Loans
and in a 365-day year for
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Base Rate Revolving Loans. Interest and fees shall accrue during each period
during which interest or such fees are computed from the first day thereof to
the last day thereof
(b) The Administrative Agent will, with reasonable promptness,
notify the Borrower and the Lenders of each determination of a LIBOR Rate;
provided that any failure to do so shall not relieve the Borrower of any
liability hereunder or provide the basis for any claim against the
Administrative Agent. Any change in the interest rate on a Revolving Loan
resulting from a change in the Applicable Margin shall become effective as of
the opening of business on the day on which such change in the Applicable
Margin becomes effective. The Administrative Agent will with reasonable
promptness notify the Borrower and the Lenders of the effective date and the
amount of each such change, provided that any failure to do so shall not
relieve the Borrower of any liability hereunder or provide the basis for any
claim against the Administrative Agent.
(c) Each determination of an interest rate by the Administrative
Agent shall be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error.
SECTION 2.11 Payments by the Borrower.
(a) All payments (including prepayments) to be made by the Borrower
on account of principal, interest, fees and other amounts required hereunder
shall be made without set-off, recoupment or counterclaim, shall, except as
otherwise expressly provided herein, be made to the Administrative Agent for
the ratable account of the Lenders at the Administrative Agent's Payment
Office, and shall be made in United States dollars and in immediately available
funds, no later than 1:00 p.m. (Chicago time) on the date specified herein. The
Administrative Agent will promptly distribute to each Lender its Commitment
Percentage (or other applicable share as expressly provided herein) of such
principal, interest, fees or other amounts, in like funds as received. Any
payment which is received by the Administrative Agent later than 1:00 p.m.
(Chicago time) shall be deemed to have been received on the immediately
succeeding Business Day and any applicable interest or fee shall continue to
accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, if any payment hereunder shall be stated to be due on
a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of interest or fees, as the case may be.
(c) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full as and when
required hereunder, the Administrative Agent may assume that the Borrower has
made such payment in full to the Administrative Agent on such date in
immediately available funds and the Administrative Agent may (but shall not be
so required), in reliance upon such assumption, cause to be distributed to
each Lender on such due date an amount equal to the amount then due such
Lender. If and to the extent the Borrower shall not have made such payment in
full to the Administrative Agent, each Lender shall repay to the Administrative
Agent on demand such amount distributed to such Lender, together with interest
thereon for each day from the date such amount is distributed to such Lender
until the
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date such Lender repays such amount to the Administrative Agent, at the Federal
Funds Rate as in effect for each such day, and the Borrower shall pay to the
Administrative Agent a processing fee in the amount of $200 for each such
payment for which the Administrative Agent makes demand to any Lender.
SECTION 2.12 Payments by the Lenders to the Administrative Agent.
(a) Unless the Administrative Agent shall have received notice from a
Lender on the Closing Date or, with respect to each Borrowing after the Closing
Date, on the date of any proposed Borrowing, that such Lender will not make
available to the Administrative Agent as and when required hereunder for the
account of the Borrower the amount of that Lender's Revolving Loan Commitment
Percentage of the Borrowing, the Administrative Agent may assume that each
Lender has made such amount available to the Administrative Agent in
immediately available funds on the applicable Borrowing date and the
Administrative Agent may (but shall not be so required), in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent any Lender shall not have made its full amount available
to the Administrative Agent in immediately available funds and the
Administrative Agent in such circumstances has made available to the Borrower
such amount, that Lender shall on the next Business Day following the date of
such Borrowing make such amount available to the Administrative Agent, together
with a processing fee of $200 and interest at the Federal Funds Rate for and
determined as of each day during such period. A notice of the Administrative
Agent submitted to any Lender with respect to amounts owing under this
subsection 2.12(a) shall be conclusive, absent manifest error. If such amount
is so made available, such payment to the Administrative Agent shall constitute
such Lender's Revolving Loan on the date of Borrowing for all purposes of this
Agreement. If such amount is not made available to the Administrative Agent on
the next Business Day following the date of such Borrowing, the Administrative
Agent shall notify the Borrower of such failure to fund and, upon demand by the
Administrative Agent, the Borrower shall pay such amount to the Administrative
Agent for the Administrative Agent's account, together with interest thereon
for each day elapsed since the date of such Borrowing, at a rate per annum
equal to the interest rate applicable (including the Applicable Margin) at the
time to the Revolving Loans comprising such Borrowing.
(b) The failure of any Lender to make any Revolving Loan on any date
of Borrowing shall not relieve any other Lender of any obligation hereunder to
make a Revolving Loan on the date of such Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Loan to
be made by such other Lender on the date of any Borrowing.
SECTION 2.13 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Revolving Loans
made by it any payment (whether voluntary, involuntary, through the exercise of
any right of set-off including under Section 10.10 of this Agreement, or
otherwise) in excess of its Commitment Percentage of payments on account of the
Revolving Loans obtained by all the Lenders, such Lender shall forthwith:
(i) notify the Administrative Agent of such fact; and
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(ii) purchase from the other Lenders such Participations in the
Revolving Loans made by them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of
them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from the purchasing Lender, such
purchase shall to that extent be rescinded and each other Lender shall
repay to the purchasing Lender the purchase price paid therefor,
together with an amount equal to such paying Lender's Commitment
Percentage (according to the proportion of (i) the amount of such
paying Lender's required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other amount
paid or payable by the purchasing Lender in respect of the total amount
so recovered.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.13 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off, but
subject to Section 10.10) with respect to such participation as fully as if
such Lender were the direct creditor of the Borrower in the amount of such
participation. The Administrative Agent will keep records (which shall be
conclusive and binding in the absence of manifest error) of participations
purchased pursuant to this Section 2.13 and will in each case notify the
Lenders following any such purchases or repayments.
ARTICLE 3
TAXES, YIELD PROTECTION AND ILLEGALITY
SECTION 3.1 Taxes.
(a) Subject to subsection 3.1(g), any and all payments by the
Borrower to each Lender or the Administrative Agent under this Agreement shall
be made free and clear of, and without deduction or withholding for, any and
all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the
case of each Lender and the Administrative Agent, such taxes (including income
taxes or franchise taxes) as are imposed on or measured by each Lender's net
income by the jurisdiction under the laws of which such Lender or the
Administrative Agent, as the case may be, is organized or maintains a Lending
Office or otherwise does business or any political subdivision thereof (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes").
(b) In addition, the Borrower shall pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or
any other Revolving Loan Documents (hereinafter referred to as "Other Taxes").
(c) Subject to subsection 3.1(g), the Borrower shall indemnify and
hold harmless each Lender and the Administrative Agent for the full amount of
Taxes or Other Taxes
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(including any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 3.1) paid by the Lender or the Administrative Agent
and any liability (including penalties, interest, additions to tax and
expenses) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted. Payment under this
indemnification shall be made within thirty (30) days from the date the Lender
or the Administrative Agent makes written demand therefor.
(d) If the Borrower shall be required by law to deduct or withhold
any Taxes or Other Taxes from or in respect of any sum payable hereunder to any
Lender or the Administrative Agent, then, subject to subsection 3.1(g):
(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 3.1) such Lender or the
Administrative 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; and
(iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable law.
(e) Within thirty (30) days after the date of any payment by the
Borrower of Taxes or Other Taxes, the Borrower shall furnish to the
Administrative Agent the original or a certified copy of a receipt evidencing
payment thereof, or other evidence of payment satisfactory to the
Administrative Agent.
(f) Each Lender which is a foreign person (i.e., a person other than
a United States person for United States Federal income tax purposes) agrees
that:
(i) it shall, no later than the Closing Date (or, in the case
of a Lender which becomes a party hereto pursuant to Section 10.8 after
the Closing Date, the date upon which the Lender becomes a party
hereto) deliver to the Borrower through the Administrative Agent two
accurate and complete signed originals of Internal Revenue Service
Form 4224 or any successor thereto ("Form 4224"), or two accurate and
complete signed originals of Internal Revenue Service Form 1001 or any
successor thereto ("Form 1001"), as appropriate, in each case
indicating that the Lender is on the date of delivery thereof entitled
to receive payments of principal, interest fees and other amounts under
this Agreement free from any deduction for or withholding of United
States Federal income tax;
(ii) if at any time the Lender makes any changes necessitating
a new Form 4224 or Form 1001, it shall with reasonable promptness
deliver to the Borrower through the Administrative Agent in replacement
for, or in addition to, the forms previously delivered by it hereunder,
two accurate and complete signed originals of Form 4224, or two
accurate and complete signed originals of Form 1001, as appropriate, in
each case indicating that the Lender is on the date of delivery thereof
entitled to receive
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payments of principal, interest, fees and other amounts under
this Agreement free from withholding of United States Federal income
tax;
(iii) it shall, before or promptly after the occurrence of any
event (including the passing of time but excluding any event mentioned
in (ii) above) requiring a change in or renewal of the most recent Form
4224 or Form 1001 previously delivered by such Lender and deliver to
the Borrower through the Administrative Agent two accurate and complete
original signed copies of Form 4224 or Form 1001 in replacement for the
forms previously delivered by the Lender as appropriate, in each case
indicating that the Lender is on the date of delivery thereof entitled
to receive payments of principal, interest, fees and other amounts
under this Agreement free from withholding of United States Federal
income tax; and
(iv) it shall, promptly upon the Borrower's or the
Administrative Agent's reasonable request to that effect, deliver to
the Borrower or the Administrative Agent (as the case may be) such
other forms or similar documentation as may be required from time to
time by any applicable law, treaty, rule or regulation in order to
establish such Lender's tax status for withholding purposes.
(g) The Borrower will not be required to pay any additional amounts
in respect of United States Federal income tax pursuant to subsection 3.1(d) to
any Lender for the account of any Lending Office of such Lender (and the
Borrower shall appropriately withhold or deduct Taxes):
(i) if the obligation to pay such additional amounts (or
withhold or deduct Taxes) would not have arisen but for a failure by
such Lender to comply with its obligations under subsection 3.1(f) in
respect of such Lending Offce;
(ii) if such Lender shall have delivered to the Borrower a Form
4224 in respect of such Lending Office pursuant to subsection 3.1(f),
and such Lender shall not at any time be entitled to a full and
complete exemption from deduction or withholding of United States
Federal income tax in respect of payments by the Borrower hereunder for
the account of such Lending Office for any reason other than a change
in United States law or regulations or in the official interpretation
of such law or regulations by any governmental authority charged with
the interpretation or administration thereof (whether or not having the
force of law) after the date of delivery of such Form 4224; or
(iii) if the Lender shall have delivered to the Borrower a Form
1001 in respect of such Lending Office pursuant to subsection 3.1(f),
and such Lender shall not at any time be entitled to a full and
complete exemption from deduction or withholding of United States
Federal income tax in respect of payments by the Borrower hereunder
for the account of such Lending Office for any reason other than a
change in United States law or regulations or any applicable tax treaty
or regulations or in the official interpretation of any such law,
treaty or regulations by any governmental authority charged with the
interpretation or administration thereof (whether or not having the
force of law) after the date of delivery of such Form 1001.
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(h) If, at any time, the Borrower requests any Lender to deliver any
forms or other documentation pursuant to subsection 3.1(f)(iv), then the
Borrower shall, on demand of such Lender through the Administrative Agent,
reimburse such Lender for any reasonable costs and expenses (including
Attorney Costs) reasonably incurred by such Lender in the preparation or
delivery of such forms or other documentation.
(i) If the Borrower is required to pay additional amounts to any
Lender or the Administrative Agent pursuant to subsection 3.1(d), then such
Lender shall use its reasonable efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Lending Office so as to
eliminate any such additional payment by the Borrower which may thereafter
accrue if such change in the judgment of such Lender is not otherwise
materially disadvantageous to such Lender.
SECTION 3.2 Illegality.
(a) If any Lender shall determine that the introduction of any
Requirement of Law, or any change in any Requirement of Law or in the
interpretation or administration thereof, has made it unlawful, or that any
central bank or other Governmental Authority has asserted that it is unlawful,
for any Lender or its Lending Office to make LIBOR Revolving Loans, then, on
notice thereof by the Lender to the Borrower through the Administrative
Agent, the obligation of that Lender to make LIBOR Rate Revolving Loans shall
be suspended until the Lender shall have notified the Administrative Agent and
the Borrower that the circumstances giving rise to such determination no longer
exist.
(b) If a Lender shall determine that it is unlawful to maintain any
LIBOR Rate Revolving Loan, the Borrower shall prepay in full all LIBOR Rate
Revolving Loans of that Lender then outstanding (or convert such Revolving Loan
to Base Rate Revolving Loans), together with interest accrued thereon, either
on the last day of the Interest Period thereof if the Lender may lawfully
continue to maintain such LIBOR Rate Revolving Loans to such day, or
immediately, if the Lender may not lawfully continue to maintain such LIBOR
Rate Revolving Loans, together with any amounts required to be paid in
connection therewith pursuant to Section 3.4.
(c) If the obligation of any Lender to make or maintain LIBOR Rate
Revolving Loans has been terminated, the Borrower may elect, by giving notice
to the Lender through the Administrative Agent that all Revolving Loans which
would otherwise be made by the Lender as LIBOR Rate Revolving Loans shall be
instead Base Rate Revolving Loans.
(d) Before giving any notice to the Administrative Agent pursuant to
this Section 3.2, the affected Lender shall designate a different Lending Office
with respect to its LIBOR Rate Revolving Loans if such designation will avoid
the need for giving such notice or making such demand and will not, in the
judgment of the Lender, be illegal or otherwise materially disadvantageous to
the Lender.
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SECTION 3.3 Increased Costs and Reduction of Return.
(a) If any Lender shall determine that, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation after the Closing Date or (ii) the compliance with any guideline or
request from any central bank or other Governmental Authority issued after the
Closing Date (whether or not having the force of law), there shall be any
increase in the cost to such Lender of agreeing to make or making, funding
or maintaining any LIBOR Rate Revolving Loans, then the Borrower shall be
liable for, and shall from time to time, upon demand therefor by such Lender
(with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender, additional amounts as are
sufficient to compensate such Lender for such increased costs.
(b) If any Lender shall have determined that:
(i) the introduction of any Capital Adequacy Regulation after
the Closing Date;
(ii) any change in any Capital Adequacy Regulation after the
Closing Date;
(iii) any change after the Closing Date in the interpretation
or administration of any Capital Adequacy Regulation by any central
bank or other Governmental Authority charged with the interpretation or
administration thereof; or
(iv) compliance by the Lender (or its Lending Office) or any
corporation controlling the Lender, with any Capital Adequacy
Regulation issued after the Closing Date;
affects or would affect the amount of capital required or expected to be
maintained by the Lender or any corporation controlling the Lender and (taking
into consideration such Lender's or such corporation's policies with respect to
capital adequacy and such Lender's desired return on capital) determines that
the amount of such capital is increased as a consequence of its Revolving Loan
Commitment(s), Revolving Loans, credits or obligations under this Agreement,
then, upon demand of such Lender (with a copy to the Administrative Agent), the
Borrower shall pay to the Lender, from time to time as specified by the Lender,
additional amounts sufficient to compensate the Lender for such increase.
(c) Before giving any notice to the Administrative Agent pursuant to
this Section 3.3, the affected Lender shall designate a different Lending Office
with respect to its LIBOR Rate Revolving Loans if such designation will avoid
the need for giving such notice or making such demand and will not, in the
judgment of the Lender, be illegal or otherwise materially disadvantageous to
the Lender.
SECTION 3.4 Funding Losses. The Borrower agrees to reimburse each Lender
and to hold each Lender harmless from any loss or expense which the Lender may
sustain or incur as a consequence of:
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(a) the failure of the Borrower to make any payment of principal of
any LIBOR Rate Revolving Loan (including payments made after any acceleration
thereof);
(b) the failure of the Borrower to borrow, continue or convert a
Revolving Loan after the Borrower has given (or is deemed to have given) a
Notice of Borrowing or a Notice of Conversion or Continuation;
(c) the failure of the Borrower to make any prepayment after the
Borrower has given a notice in accordance with Section 2.6;
(d) the prepayment of a LIBOR Rate Revolving Loan on a day which is
not the last day of the Interest Period with respect thereto; or
(e) the conversion pursuant to Section 2.5 of any LIBOR Rate
Revolving Loan to a Base Rate Revolving Loan on a day that is not the last day
of the applicable Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its LIBOR Rate Revolving Loans hereunder or
from fees payable to terminate the deposits from which such funds were
obtained. Solely for purposes of calculating amounts payable by the Borrower to
the Lenders under this Section 3.4 and under subsection 3.3(b), each LIBOR Rate
Revolving Loan made by a Lender (and each related reserve, special deposit or
similar requirement) shall be conclusively deemed to have been funded at the
LIBOR Rate used in determining the interest rate for such LIBOR Rate Revolving
Loan by a matching deposit or other borrowing in the interbank eurodollar
market for a comparable amount and for a comparable period, whether or not such
LIBOR Rate Revolving Loan is in fact so funded.
SECTION 3.5 Inability to Determine Rates. If the Administrative Agent
shall have determined that for any reason adequate and reasonable means do not
exist for ascertaining the LIBOR Rate for any requested Interest Period with
respect to a proposed LIBOR Rate Revolving Loan or that the LIBOR Rate
applicable pursuant to subsection 2.8(a) for any requested Interest Period with
respect to a proposed LIBOR Rate Revolving Loan does not adequately and fairly
reflect the cost to the Lenders of funding such Revolving Loan, the
Administrative Agent will forthwith give notice of such determination to the
Borrower and each Lender. Thereafter, the obligation of the Lenders to make or
maintain LIBOR Rate Revolving Loans hereunder shall be suspended until the
Administrative Agent revokes such notice in writing. Upon receipt of such
notice, the Borrower may revoke any Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it. If the Borrower does not revoke
such notice, the Lenders shall make, convert or continue the Revolving Loans,
as proposed by the Borrower, in the amount specified in the applicable notice
submitted by the Borrower, but such Revolving Loans shall be made, converted or
continued as Base Rate Revolving Loans.
SECTION 3.6 Reserves on LIBOR Rate Revolving Loans. The Borrower shall
pay to each Lender, as long as such Lender shall be required under regulations
of the Federal Reserve Board to maintain reserves with respect to liabilities
or assets consisting of or including Eurocurrency funds or deposits (currently
known as "Eurocurrency liabilities"), additional costs
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on the unpaid principal amount of each LIBOR Rate Revolving Loan equal to
actual costs of such reserves allocated to such Revolving Loan by the Lender
(as determined by the Lender in good faith, which determination shall be
conclusive), payable on each date on which interest is payable on such
Revolving Loan provided the Borrower shall have received at least fifteen (15)
days' prior written notice (with a copy to the Administrative Agent) of such
additional interest from the Lender. If a Lender fails to give notice fifteen
(15) days prior to the relevant Interest Payment Date, such additional interest
shall be payable fifteen (15) days from receipt of such notice.
SECTION 3.7 Certificates of Lenders. Any Lender claiming reimbursement or
compensation pursuant to this Article 3 shall deliver to the Borrower (with a
copy to the Administrative Agent) a certificate setting forth in reasonable
detail the circumstances which give rise to such claim and the amount payable
to the Lender hereunder and such certificate shall be conclusive and binding on
the Borrower in the absence of manifest error.
SECTION 3.8 Replacement of Lenders. If at any time a Lender fails to fund
all or any portion of its Revolving Loan Commitment (a "Defaulting Lender"),
requests a payment pursuant to Section 3.3 hereof (a "Gross Up Lender") or is
subject to United States withholding tax with respect to the transactions
hereunder, the Borrower shall have the right to replace such Lender with any
Person with the consent of the Administrative Agent, which consent shall not be
unreasonably withheld; provided, that (i) neither the Administrative Agent nor
any Lender shall have any obligation to the Borrower to find such other Person,
(ii) in order for the Borrower to be entitled to replace such a Lender, such
replacement must take place no later than one hundred fifty (150) days after
the date the applicable Lender becomes a Defaulting Lender, a Gross Up Lender,
or becomes subject to United States withholding tax with respect to the
transactions hereunder and (iii) such Lender shall be an Eligible Assignee.
Each Lender agrees to its replacement at the option of the Borrower pursuant to
this Section 3.8; provided that the successor Lender shall purchase without
recourse such Lender's interest in the Obligations and rights and obligations
under the Revolving Loan Documents for cash in an aggregate amount equal to the
aggregate unpaid principal amount owing to such selling lender hereunder, all
unpaid interest accrued thereon, and all other amounts then owing by the
Borrower to such Lender hereunder or under any other Revolving Loan Documents.
SECTION 3.9 Survival. The covenants, agreements and obligations of the
Borrower in this Article 3 shall survive the payment of all other Obligations.
ARTICLE 4
CONDITIONS PRECEDENT
SECTION 4.1 Conditions of Initial Revolving Loans. The obligation of each
Lender to make its initial Revolving Loan is subject to the condition that the
Administrative Agent shall have received on or before the Closing Date all of
the following, in form and substance satisfactory to the Administrative Agent
and each Lender and, where applicable, duly executed by all parties thereto:
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(a) Credit Agreement and Note. This Agreement and the Note;
(b) Secretary's Certificates: Resolutions: Incumbency. A certificate
of the Secretary or Assistant Secretary of the Borrower certifying:
(i) the names and true signatures of the officers of the
Borrower authorized to execute, deliver and perform, as applicable,
this Agreement, all other Revolving Loan Documents to be delivered
hereunder and notices to be delivered to the Administrative Agent; and
(ii) copies of the resolutions of the board of directors of the
Borrower approving and authorizing the execution, delivery and
performance by the Borrower of this Agreement and the other Revolving
Loan Documents to be executed or delivered by it hereunder;
(c) Articles of Incorporation: Bv-laws and Good Standing. Each of the
following documents:
(i) the articles or certificate of incorporation of the
Borrower and each Subsidiary as in effect on the Closing Date,
certified by the Secretary of State (or similar, applicable
Governmental Authority) of the state of incorporation of such Person as
of a recent date, and the bylaws of the Borrower as in effect on the
Closing Date, certified by the Secretary or Assistant Secretary of the
Borrower as of the Closing Date; and
(ii) a good standing and tax good standing certificate for the
Borrower from the Secretary of State (or similar, applicable
Governmental Authority) of its state of incorporation.
(d) Legal Opinions. An opinion of Latham & Watkins, counsel to the
Borrower and addressed to the Administrative Agent and the Lenders,
substantially in the form of Exhibit D;
(e) Certificate. A certificate signed by a Responsible Officer,
dated as of the Closing Date, stating that:
(i) the representations and warranties contained in Article 5
hereof are true and correct on and as of such date, as though made on
and as of such date;
(ii) no Default or Event of Default exists or would result from
the initial Borrowing; and
(iii) there has occurred since December 31, 1996, no event or
circumstance that has resulted or could reasonably be expected to
result in a Material Adverse Effect;
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(f) Fees. Payment of all of the Administrative Agent's outstanding
fees, including the Agency Fee and the Commitment Fee which are payable at or
prior to the Closing Date.
(g) Acquisition Transactions.
(i) copies of the fully executed Acquisition Documents;
(ii) a certification that the conditions to the closing of the
Acquisition Transactions have been satisfied or waived; and
(iii) a certification that since the delivery of the
Acquisition Documents to the Administrative Agent on or about June 18,
1997, no material amendments, revisions or supplements have been made
to the Acquisition Documents; and
(h) Other Documents. Such other approvals, opinions, documents or
materials as the Administrative Agent may reasonably request.
SECTION 4.2 Conditions to All Borrowings and Letters of Credit. The
obligation of each Lender to make any Revolving Loan hereunder is subject to
the satisfaction of the following conditions precedent on the relevant
borrowing, continuation or conversion date:
(a) Notice of Borrowing. Continuation or Conversion. The
Administrative Agent shall have received a Notice of Borrowing or a Notice of
Continuation/Conversion, as applicable.
(b) Continuation of Representations and Warranties. With respect to
any Borrowing, the representations and warranties made by the Borrower
contained in Article 5 shall be true and correct on and as of such Borrowing
with the same effect as if made on and as of such Borrowing (except to the
extent such representations and warranties expressly refer to an earlier date,
in which case they shall be true and correct as of such earlier date); and
(c) No Existing Default. No Default or Event of Default shall exist
or shall result from such Borrowing or continuation or conversion.
Each Notice of Borrowing and Notice of Continuation/Conversion submitted by the
Borrower hereunder shall constitute a representation and warranty by the
Borrower hereunder, as of the date of each such notice or application and as of
the date of each Borrowing or continuation or conversion, as applicable, that
the applicable conditions in Section 4.2 are satisfied.
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and
each Lender that (after giving effect to the Acquisition Transactions):
SECTION 5.1 Corporate Existence and Power. The Borrower and each of its
Subsidiaries:
(a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation (except as
otherwise permitted pursuant to Section 6.4).
(b) has the power and authority and all material governmental
licenses, authorizations, consents and approvals to own its assets, carry on
its business and execute, deliver, and perform its obligations under, the
Revolving Loan Documents;
(c) is duly qualified as a foreign corporation, and licensed and in
good standing, under the laws of each jurisdiction where its ownership, lease
or operation of property or the conduct of its business requires such
qualification or license except to the extent that the failure to do so could
not reasonably be expected to have a Material Adverse Effect; and
(d) is in compliance with all material Requirements of Law.
SECTION 5.2 Corporate Authorization; No Contravention. As of the Closing
Date, the execution, delivery and performance by the Borrower of the Revolving
Loan Documents are within the corporate powers of the Borrower, have been duly
authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any governmental body, agency or official which has
not been taken or made and do not contravene, or constitute a default under,
any provision of applicable law or regulation or of the certificate of
incorporation or bylaws of the Borrower or of any debt instrument or material
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 5.3 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority which has not been obtained, taken or made is necessary
or required in connection with the execution, delivery or performance by, or
enforcement against, the Borrower of this Agreement or any other Revolving Loan
Document.
SECTION 5.4 Binding Elect. This Agreement and each other Revolving Loan
Document to which the Borrower is a party constitute the legal, valid and
binding obligations of the Borrower, enforceable against the Borrower in
accordance with their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, or similar laws affecting the enforcement
of creditors' rights generally or by equitable principles relating to
enforceability.
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SECTION 5.5 Litigation. Except as specifically disclosed in Schedule 5.5,
there is no action, suit, proceeding, claim or dispute pending, or to the best
knowledge of the Borrower, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, against the Borrower, or its
Subsidiaries or any of their respective Properties which could reasonably be
expected to have a Material Adverse Effect. No injunction, writ, temporary
restraining order or any order of any nature has been issued by any court or
other Governmental Authority purporting to enjoin or restrain the execution,
delivery or performance of this Agreement, any Revolving Loan Document, or any
Acquisition Document, or directing that the transactions provided for herein or
therein not be consummated as herein or therein provided.
SECTION 5.6 No Default. No Default or Event of Default exists or would
result from the incurrence of any Obligations by the Borrower. Neither the
Borrower nor any of its Subsidiaries is in default under or with respect to any
Contractual Obligation in any respect which, individually or together with all
such defaults, could reasonably be expected to have a Material Adverse Effect
(provided, that to the extent any such default(s) relate to Indebtedness, the
amount of such Indebtedness shall be at least $25,000,000) or that would, if
such default had occurred after the Closing Date, create an Event of Default.
SECTION 5.7 ERISA Compliance. Schedule 5.7 lists all Plans and separately
identifies Plans intended to be Qualified Plans and Multiemployer Plans. All
written descriptions thereof provided to the Administrative Agent are true and
complete in all material respects. There is (a) no outstanding liability under
Title IV of ERISA with respect to any Qualified Plan maintained or sponsored by
the Borrower or any ERISA Affiliate, nor with respect to any Qualified Plan to
which the Borrower or any ERISA Affiliate contributes or is obligated to
contribute; (b) no Qualified Plan subject to Title IV of ERISA has any Unfunded
Pension Liability in excess of $10,000,000 in the aggregate; and (c) no ERISA
Event which has occurred or is reasonably expected to occur with respect to any
Plan which, in the case of clauses (a), (b) or (c) above, could reasonably be
expected to have a Material Adverse Effect. Neither the Borrower nor any ERISA
Affiliate has incurred nor reasonably expects to incur (i) any liability (and
no event has occurred which, with the giving of notice under Section 4219 of
ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with
respect to a Multiemployer Plan or (ii) any liability under Title IV of ERISA
(other than premiums due and not delinquent under Section 4007 of ERISA) with
respect to a Plan and which, in either case, could reasonably be expected to
have a Material Adverse Effect. Neither the Borrower nor any ERISA Affiliate
has transferred any Unfunded Pension Liability to a Person other than the
Borrower or an ERISA Affiliate or otherwise engaged in a transaction that could
be subject to Section 4069 or 4212(c) of ERISA.
SECTION 5.8 Use of Proceeds; Margin Regulations. The proceeds of the
Revolving Loans are intended to be and shall be used solely for the purposes
set forth in and permitted by Section 6.10, and are intended to be and shall be
used in compliance with Sections 7.7 and 7.18. Neither the Borrower nor any of
its Subsidiaries is generally engaged in the business of purchasing or selling
Margin Stock or extending credit for the purpose of purchasing or carrying
Margin Stock.
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SECTION 5.9 Title to Properties. The Borrower and each of its Subsidiaries
have good record and marketable title in fee simple to, or valid leasehold
interests in, all real Property necessary or used in the ordinary conduct of
their respective businesses, except for such defects in title as could not,
individually or in the aggregate, have a Material Adverse Effect. As of the
Closing Date, the Property of the Borrower and its Subsidiaries is subject to
no Liens, other than Permitted Liens.
SECTION 5.10 Taxes. The Borrower and its Subsidiaries have filed all
Federal and other material tax returns and reports required to be filed, and
have paid all Federal and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their Properties, income or
assets otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP and no Notice of Lien has been filed or
recorded and except for filings and payments required to be made by an
Immaterial Subsidiary so long as any such failure to file or pay by all such
Immaterial Subsidiaries could not reasonably be expected to have a Material
Adverse Effect. There is no proposed tax assessment against the Borrower or any
of its Subsidiaries which could reasonably be expected to have a Material
Adverse Effect.
SECTION 5.11 Financial Condition.
(a) The audited consolidated annual financial statements of the
Borrower and its Subsidiaries dated December 31, 1996, and the related audited
consolidated statements of income or operations, shareholders' equity and cash
flows for the fiscal year ended on December 31, 1996, and the unaudited
consolidated quarterly financial statements of financial condition of the
Borrower and its Subsidiaries dated March 31, 1997, and the related unaudited
consolidated statements of income or operations, shareholders' equity and cash
flows for the fiscal quarter ended on March 31, 1997:
(i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly
noted therein;
(ii) present fairly the consolidated financial condition of the
Borrower and its Subsidiaries as of the date thereof and results of
operations for the period covered thereby; and
(iii) except as specifically disclosed in Schedule 5.11, show
all material indebtedness and other liabilities, direct or contingent
of the Borrower and its consolidated Subsidiaries as of the date
thereof, including liabilities for taxes, material commitments and
contingent obligations.
(b) As of the Closing Date, since December 31, 1996, there has been
no Material Adverse Effect.
SECTION 5.12 Environmental Matters. Except as specifically disclosed in
Schedule 5.12, and except where such non-compliance could not reasonably be
expected to have a Material Adverse Effect, (i) the on-going operations of the
Borrower and each of its Subsidiaries comply in
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all respects with all Environmental Laws; (ii) the Borrower and its
Subsidiaries have obtained all licenses, permits and authorizations required by
Environmental Laws to conduct their business; (iii) none of the Borrower, any
of its Subsidiaries or any of their respective present Property or operations,
is subject to any outstanding written order from or agreement with any
Governmental Authority, nor subject to any judicial or docketed administrative
proceeding, respecting any Environmental Law, Environmental Claim or Hazardous
Material; and (iv) there are no Hazardous Materials or circumstances existing
with respect to any Property of the Borrower or any of its Subsidiaries in
violation of Environmental Laws.
SECTION 5.13 Regulated Entities. None of the Borrower, any Person
controlling the Borrower, or any Subsidiary of the Borrower, is (a) an
"Investment Company" within the meaning of the Investment Company Act of 1940;
(b) subject to regulation under the Public Utility Holding Borrower Act of
1935, the Federal Power Act, the Interstate Commerce Act, any state public
utilities code, or any other statute or regulation of any Governmental
Authority limiting or restricting its ability to incur Indebtedness, other than
the restrictions imposed in connection with the insurance activities and
businesses of the Subsidiaries identified on Schedule 5.13 in accordance with
Requirements of Law applicable generally to them, with respect to all of which
the Borrower and its Subsidiaries, as applicable, are in compliance except
where the failure to be in compliance would not reasonably be expected to have
a Material Adverse Effect; or (c) except as listed on Schedule 5.13, regulated
under any federal or state insurance, health care or similar laws, rules or
regulations.
SECTION 5.14 No Burdensome Restrictions. (a) Neither the Borrower nor any
of its Subsidiaries is a party to or bound by any Contractual Obligation, or
subject to any charter or corporate restriction, or any Requirement of Law,
which could reasonably be expected to have a Material Adverse Effect and which
Material Adverse Effect could not be cured using the proceeds of any Borrowing,
(b) other than Insurance Subsidiaries or as permitted by Section 7.15(b), no
Subsidiary is subject to any Requirement of Law that restricts its ability to
pay dividends (other than those restrictions with respect to capital
requirements and other similar requirements imposed by any applicable state on
all corporations incorporated in such state).
SECTION 5.15 Solvency. The Borrower and each of its Subsidiaries is
Solvent (other than Immaterial Subsidiaries, except to the extent that the
failure of any one such Immaterial Subsidiary or a group of such Immaterial
Subsidiaries in the aggregate to be Solvent could not reasonably be expected to
have a Material Adverse Effect).
SECTION 5.16 Labor Relations. There are no strikes, lockouts or other
labor disputes against the Borrower or any of its Subsidiaries, or, to the best
of the Borrower's knowledge, threatened against or affecting the Borrower or
any of its Subsidiaries, and no significant unfair labor practice complaint is
pending against the Borrower or any of its Subsidiaries or, to the best
knowledge of the Borrower, threatened against any of them before any
Governmental Authority that could reasonably be expected to have a Material
Adverse Effect.
SECTION 5.17 Copyrights, Patents, Trademarks and Licenses, etc. Schedule
5.17 identifies all material United States patents, trademarks, service marks,
trade names and copyrights, and all registrations and applications for
registration thereof and all licenses thereof,
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owned or held by Borrower or any of its Subsidiaries on the Closing Date, and
identifies the jurisdictions in which such registrations and applications have
been filed. Except as otherwise disclosed in Schedule 5.17, as of the Closing
Date, Borrower and its Subsidiaries are the sole beneficial owners of, or have
the right to use, free from any restrictions, claims, rights encumbrances or
burdens, the intellectual property referred to in Schedule 5.17 and all other
processes, designs, formulas, computer programs, computer software packages,
trade secrets, inventions, product manufacturing instructions, technology,
research and development, know-how and all other intellectual property that are
necessary for the operation of Borrower's and its Subsidiaries' businesses as
being operated on the Closing Date after giving effect to the Acquisition
Transactions. Each patent, trademark, service mark, trade name, copyright and
license listed on Schedule 5.17 is in full force and effect except to the
extent the failure to be in effect could not be reasonably be expected to have
a Material Adverse Effect. Except as set forth in Schedule 5.17, to the best
knowledge of Borrower, as of the Closing Date (a) none of the present or
contemplated products or operations of Borrower or its Subsidiaries infringes
any patent, trademark, service mark, trade name, copyright, license or other
right owned by any other Person, and (b) there is no pending or threatened
claim or litigation against or affecting Borrower or any of its Subsidiaries
contesting the right of any of them to manufacture, process, sell or use any
such product or to engage in any such operation, except for claims and/or
litigation which could not reasonably be expected to have a Material Adverse
Effect.
SECTION 5.18 Subsidiaries. As of the Closing Date, the Borrower has no
Subsidiaries or equity investments in any other corporation or entity other
than those specifically disclosed in Schedule 5.18.
SECTION 5.19 Brokers' Fees: Transaction Fees. Other than in connection
with the Acquisition Transactions, neither the Borrower nor any of its
Subsidiaries has any obligation to any Person in respect of any finder's,
broker's or investment banker's fee in connection with the transactions
contemplated hereby.
SECTION 5.20 Insurance. The Properties of the Borrower and its
Subsidiaries are insured with financially sound and reputable insurance
companies not Affiliates of the Borrower, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar Properties in localities where
the Borrower or such Subsidiary operates.
SECTION 5.21 Compliance with Law. The Borrower and each of its
Subsidiaries are in full compliance with all Requirements of Law, except where
such failure to comply could not reasonably be expected to result in a Material
Adverse Effect. The Borrower and each of its Insurance Subsidiaries are in
compliance with (i) all licenses and certifications required pursuant to any
Healthcare Regulation; (ii) all certifications and authorizations necessary to
ensure that the Borrower and each of its Subsidiaries is eligible for all
reimbursements available under the Healthcare Regulations to the extent
applicable to the Subsidiaries and providers of life, health care and
disability insurance of their type; and (iii) all licenses, permits,
authorizations and qualifications required under the Healthcare Regulations in
connection with the ownership or operation of the Subsidiaries and providers of
life, health care and disability insurance and the conduct of the health care,
managed care and health insurance businesses and businesses
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incidental thereto; except where the failure to be in compliance with the items
described in any of the preceding three clauses would not reasonably be
expected to have a Material Adverse Effect.
SECTION 5.22 Full Disclosure. None of the written representations or
warranties made by the Borrower or any of its Subsidiaries in the Revolving
Loan Documents as of the date such representations and warranties are made or
deemed made, and none of the written statements contained in each exhibit,
report, statement or certificate furnished by or on behalf of the Borrower or
any of its Subsidiaries in connection with the Revolving Loan Documents
(including the due diligence materials delivered by or on behalf of the
Borrower to the Lenders prior to the Closing Date), contains any untrue
statement of a material fact or omits any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which there are made, not misleading as of the time when
made or delivered.
ARTICLE 6
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that, so long as any Lender shall have
any Revolving Loan Commitment hereunder, or any Revolving Loan or other
Obligation shall remain unpaid or unsatisfied:
SECTION 6.1 Financial Statements. The Borrower shall deliver to the
Administrative Agent in form and detail satisfactory to the Administrative
Agent and the Majority Lenders, with sufficient copies for each Lender:
(a) as soon as available, but not later than ninety (90) days after
the end of each fiscal year, a copy of the audited consolidated balance sheet of
the Borrower and its Subsidiaries as at the end of such year and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, and accompanied by the opinion of
Deloitte & Touche LLP or another nationally-recognized independent public
accounting firm acceptable to the Administrative Agent which report shall state
that such consolidated financial statements present fairly in all material
respects the financial position for the periods indicated in conformity with
GAAP applied on a basis consistent with prior years. Such opinion shall not be
qualified or limited because of a restricted or limited examination by such
accountant of any material portion of the Borrower's or any Subsidiary's
records;
(b) as soon as available, but not later than forty-five (45) days
after the end of the first three fiscal quarters of each year, a copy of the
unaudited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as of the end of such quarter and the related consolidated
statements of income, shareholders' equity and cash flows for the period
commencing on the first day and ending on the last day of such quarter, and
certified by an appropriate Responsible Officer as being complete and correct
and fairly presenting, in accordance with GAAP, the financial position
and the results of operations of the Borrower and the Subsidiaries, subject to
normal year-end adjustments and absence of footnote disclosure;
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(c) as soon as available, but not later than seventy-five (75) days
after the Closing Date, a copy of the audited consolidated financial statements
of the Borrower as of June 30, 1997 giving effect to the Acquisition
Transactions; and
(d) at least ten Business Days prior to the consummation of an
Acquisition permitted by Section 7.4(f) with a purchase price of $50,000,000 or
more, an Officer's Certificate certifying that immediately after giving effect
to such Acquisition, the Borrower will be in compliance with representations,
warranties and covenants contained in this Agreement and that no Default or
Event of Default will occur as a result of such Acquisition. Such certificate
shall contain calculations sufficient to demonstrate compliance on a pro forma
basis as of the most recently completed four fiscal quarters, as applicable,
and based on the most recent financial statements delivered to the Lenders
pursuant to Section 6.1, and similar financial statements of the applicable
target, with the terms of Sections 7.12, 7.13, and 7.14 hereof. If such
Acquisition is an acquisition of a division, the Borrower shall subtract
(except to the extent that the Administrative Agent disallows such subtraction)
reasonable allocations of corporate overhead.
SECTION 6.2 Certificates: Other Information. The Borrower shall furnish to
the Administrative Agent, with sufficient copies for each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 6.1(a) above, a certificate of the independent
certified public accountants reporting on such financial statements stating
that in making the examination necessary therefor no knowledge was obtained of
any Default or Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 6.1(a) and (b) above, a certificate of a
Responsible Officer in the form of Exhibit E hereto (an "Officer's
Certificate") (i) stating that, to the best of such Responsible Officer's
knowledge and except as previously disclosed to the Lenders, the Borrower,
during such period, has observed and performed all of its covenants and other
agreements, and satisfied every condition contained in this Agreement to be
observed, performed or satisfied by it, and that such officer has obtained no
knowledge of any Default or Event of Default except as specified (by applicable
subsection reference) in such certificate, (ii) stating that, to the best of
such Responsible Officer's knowledge, the Borrower could make each of the
representations and warranties contained in Article V hereof effective as of
the date of the Officer's Certificate, except for those representations and
warranties listed by Section number in an attachment to the Officer's
Certificate which explains the Borrower's inability to make such representation
or warranty, and (iii) showing in detail the calculations supporting such
statement in respect of Sections 7.12, 7.13 and 7.14 hereof;
(c) promptly after the same are sent, copies of all financial
statements and reports which the Borrower sends to its shareholders; and
promptly after the same are filed, copies of all financial statements and
regular, periodical or special reports which the Borrower or any of its
Subsidiaries makes to, or files with, the Securities and Exchange Commission or
any successor or similar Governmental Authority; and
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(d) promptly, such additional business, financial, corporate affairs
and other information as the Administrative Agent, at the request of any Lender,
may from time to time reasonably request.
SECTION 6.3 Notices. The Borrower shall promptly notify the Administrative
Agent and each Lender of any of the following, promptly (and in no event later
than three (3) Business Days) after any member of the Borrower's executive
committee or its corporate controller becoming aware thereof:
(a) the occurrence or existence of any Default or Event of Default;
(b) any breach or non-performance of, or any default under, any
material Contractual Obligation of the Borrower or any of its Subsidiaries;
(c) any material dispute, litigation, investigation, proceeding or
suspension which may exist at any time between the Borrower or any of its
Subsidiaries and any Governmental Authority;
(d) the commencement of, or any material development in, any
litigation or proceeding affecting the Borrower or any Subsidiary (i) which, if
adversely determined, could reasonably be expected to have a Material Adverse
Effect, or (ii) in which the validity of this Agreement, any Revolving Loan
Document or any Acquisition Document is questioned or in which the relief
sought is an injunction or other stay of the performance of this Agreement or
any Revolving Loan Document;
(e) (i) any and all enforcement, cleanup, removal or other
governmental or regulatory actions instituted, completed or threatened in
writing against the Borrower or any of its Subsidiaries or any of their
respective Properties pursuant to any applicable Environmental Laws, (ii) all
other material Environmental Claims, and (iii) any environmental or similar
condition on any real property adjoining or in the vicinity of the property of
the Borrower or any Subsidiary that could reasonably be anticipated to cause
such property or any part thereof to be subject to any restrictions on the
ownership, occupancy, transferability or use of such property under any
Environmental Laws;
(f) any of the following ERISA events affecting the Borrower or any
member of its Controlled Group, together with a copy of any notice with respect
to such event that may be required to be filed with a Governmental Authority
and any notice delivered by a Governmental Authority to the Borrower or any
member or its Controlled Group with respect to such event:
(i) an ERISA Event;
(ii) the adoption of any new Plan that is subject to Title IV
of ERISA or section 412 of the Code by any member of the Controlled
Group;
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(iii) the adoption of any amendment to a Plan that is subject
to Title IV of ERISA or section 412 of the Code, if such amendment
results in a material increase in benefits or unfunded liabilities; or
(iv) the commencement of contributions by any member of the
Controlled Group to any Plan that is subject to Title IV of ERISA or
section 412 of the Code;
(g) any Material Adverse Effect subsequent to the date of the most
recent audited financial statements of the Borrower delivered to the Lenders
pursuant to this Agreement;
(h) any material change in accounting policies or financial
reporting practices by the Borrower or any of its Subsidiaries; and
(i) any material labor controversy resulting in or threatening to
result in any strike, work stoppage, boycott, shutdown or other labor disruption
against or involving the Borrower or any of its Subsidiaries.
Each notice pursuant to this Section shall be accompanied by a written
statement by a Responsible Officer of the Borrower setting forth details of the
occurrence referred to therein, and stating what action the Borrower proposes
to take with respect thereto and at what time. Each notice under subsection
6.3(a) shall describe with particularity any and all clauses or provisions of
this Agreement or other Revolving Loan Document that have been breached or
violated.
SECTION 6.4 Preservation of Corporate Existence, etc. The Borrower shall,
and shall cause each of its Subsidiaries to:
(a) preserve and maintain in full force and effect its corporate
existence and good standing under the laws of its state or jurisdiction of
incorporation except where the failure to maintain the existence of a
Subsidiary could not reasonably be expected to result in a Material Adverse
Effect;
(b) preserve and maintain in full force and effect all rights,
privileges, qualifications, permits, licenses and franchises (including all
licenses and certifications required pursuant to any Healthcare Regulation in
connection with the ownership or operation of Insurance Subsidiaries and the
conduct of the health care, managed care and health insurance businesses and
businesses incidental thereto) necessary or desirable in the normal conduct of
its business (including all certification and authorization necessary to ensure
that each of the Insurance Subsidiaries is eligible for all reimbursements
available under the Healthcare Regulations to the extent applicable) except in
connection with transactions permitted by Section 7.3 and sales of assets
permitted by Section 7.2 and except where such failure (as it relates to a
Subsidiary) could not reasonably be expected to result in a Material Adverse
Effect;
(c) use its reasonable efforts, in the Ordinary Course of Business,
to preserve its business organization and preserve the goodwill and business of
the customers, suppliers and others having material business relations with it,
other than, in the case of Immaterial Subsidiaries,
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where the failure to so preserve, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect; and
(d) preserve or renew all of its registered trademarks, trade names
and service marks, the non-preservation of which could reasonably be expected to
have a Material Adverse Effect.
SECTION 6.5 Maintenance of Property. The Borrower shall maintain and
preserve, and shall cause each of its Subsidiaries to maintain and preserve,
all Property which is used or useful in its or their business in good working
order and condition, ordinary wear and tear excepted and make all necessary
repairs thereto and renewals and replacements thereof except where the failure
to do so could not reasonably be expected to have a Material Adverse Effect and
except as permitted by Section 7.2.
SECTION 6.6 Insurance. The Borrower shall maintain, and shall cause each
of its Subsidiaries to maintain (other than, in the case of Immaterial
Subsidiaries, where the failure to so maintain, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect),
with financially sound and reputable independent insurers, insurance with
respect to its Properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons, including workers' compensation insurance,
public liability and property and casualty insurance. Upon request of the
Administrative Agent or any Lender, the Borrower shall furnish the
Administrative Agent, with sufficient copies for each Lender, at reasonable
intervals (but not more than once per calendar year) a certificate of a
Responsible Officer of the Borrower (and, if requested by the Administrative
Agent, any insurance broker of the Borrower) setting forth the nature and
extent of all insurance maintained by the Borrower and its Subsidiaries in
accordance with this Section 6.6 (and which, in the case of a certificate of a
broker, were placed through such broker).
SECTION 6.7 Payment of Obligations. The Borrower shall, and shall cause
its Subsidiaries to, pay and discharge as the same shall become due and
payable, all their respective material obligations and liabilities, including
all tax liabilities, assessments and governmental charges or levies upon it or
its properties or assets, unless the same are being contested in good faith by
appropriate proceedings and adequate reserves in accordance with GAAP are being
maintained by the Borrower or such Subsidiary.
SECTION 6.8 Compliance with Laws. The Borrower shall comply, and shall
cause each of its Subsidiaries to comply (other than, in the case of Immaterial
Subsidiaries, where the failure to so comply, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect), in all
material respects with all material Requirements of Law of any Governmental
Authority having jurisdiction over it or its business (including applicable
labor laws, insurance laws, health care laws, Environmental Laws and ERISA),
except such as may be contested in good faith or as to which a bona fide
dispute may exist.
SECTION 6.9 Inspection of Property and Books and Records. The Borrower
shall maintain and shall cause each of its Subsidiaries to maintain proper
books of record and account,
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in which full, true and correct entries in conformity with GAAP (or statutory
accounting principles which are converted to GAAP) consistently applied shall
be made of all financial transactions and matters involving the respective
assets and business of the Borrower and such Subsidiaries. The Borrower shall
permit, and shall cause each of its Subsidiaries to permit, representatives and
independent contractors of the Administrative Agent or any Lender to visit and
inspect any of their respective Properties, to examine their respective
corporate, financial and operating records, and make copies thereof or
abstracts therefrom, and to discuss their respective affairs, finances and
accounts with their respective directors, officers, and independent public
accountants at such reasonable times during normal business hours and as often
as may be reasonably desired, upon reasonable advance notice to the Borrower;
provided, however, when a Default or an Event of Default exists the
Administrative Agent or any Lender may do any of the foregoing at the expense
of the Borrower at any time during normal business hours and without advance
notice.
SECTION 6.10 Use of Proceeds. The Borrower shall use the proceeds of the
Revolving Loans solely (a) to fund the Acquisition Transaction and other
permitted Acquisitions, (b) to fund stock purchases, acquisitions or
redemptions to the extent permitted by Section 7.11, and (c) for working
capital and other general corporate purposes not in contravention of any
Requirement of Law.
SECTION 6.11 Solvency. The Borrower shall at all times be, and shall cause
each of its Subsidiaries to be, Solvent, other than, in the case of Immaterial
Subsidiaries, where the failure to remain Solvent, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
SECTION 6.12 Further Assurances. The Borrower shall ensure that all
written information, exhibits and reports furnished to the Administrative Agent
or the Lenders by the Borrower or its Subsidiaries do not and will not contain
any untrue statement of a material fact and do not and will not omit to state
any material fact or any fact necessary to make the statements contained
therein not misleading in light of the circumstances in which made, and will
promptly disclose to the Administrative Agent and the Lenders and correct any
defect or error that may be discovered therein or in any Revolving Loan
Document or in the execution, acknowledgment or recordation thereof.
ARTICLE 7
NEGATIVE COVENANTS
The Borrower hereby covenants and agrees that, so long as any Lender shall have
any Revolving Loan Commitment hereunder, or any Revolving Loan or other
Obligation shall remain unpaid or unsatisfied, unless the Majority Lenders
waive compliance in writing:
SECTION 7.1 Limitation on Liens. The Borrower shall not, and shall not
suffer or permit any of its Subsidiaries to, directly or indirectly, make,
create, incur, assume or suffer to exist any
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Lien upon or with respect to any part of its Property, whether now owned or
hereafter acquired, other than the following ("Permitted Liens"):
(a) any Lien existing on the Property of the Borrower or its
Subsidiaries on the Closing Date and set forth in Schedule 7.1 securing the
principal amount of Indebtedness outstanding on the date hereof;
(b) Liens for taxes, fees, assessments or other governmental charges
which are not delinquent or remain payable without penalty or which are being
contested in good faith by appropriate proceedings and for which appropriate
reserves have been made in accordance with GAAP; provided that no Notice of
Lien (other than with respect to Liens for de-minimus amounts) has been filed
or recorded under the Code;
(c) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other similar Liens arising in the Ordinary Course of Business
which are not delinquent or remain payable without penalty or which are being
contested in good faith and by appropriate proceedings, which proceedings have
the effect of preventing the forfeiture or sale of the Property subject
thereto;
(d) Liens (other than any Lien imposed by ERISA) consisting of
pledges or deposits made in the Ordinary Course of Business in connection with
workers' compensation, unemployment insurance and other social security
legislation;
(e) Liens on the Property of the Borrower or any of its Subsidiaries
securing (i) the non-delinquent performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, (ii) contingent
obligations on surety and appeal bonds, and (iii) other non-delinquent
obligations of a like nature; in each case, incurred in the Ordinary Course of
Business, provided all such Liens in the aggregate would not (even if enforced)
cause a Material Adverse Effect;
(f) Liens consisting of judgment or judicial attachment liens,
provided that such liens in the aggregate shall not exceed $5,000,000, and
provided that such liens are (i) bonded to the reasonable satisfaction of the
Administrative Agent or (ii) covered by insurance to the reasonable
satisfaction of the Administrative Agent;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the Ordinary Course of Business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the Property subject thereto or interfere
with the ordinary conduct of the businesses of the Borrower and its
Subsidiaries;
(h) Liens on assets of corporations which become Subsidiaries after
the date of this Agreement; provided, however, that (i) such Liens existed at
the time the respective corporations became Subsidiaries and were not created
in anticipation thereof and that all such Liens in the aggregate at any time
outstanding for the Borrower and its Subsidiaries, if enforced, would not cause
a Material Adverse Effect, (ii) until such time as such Liens and the related
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Indebtedness have been fully paid, discharged or otherwise satisfied, such
Subsidiary may not engage or participate in any of the transactions permitted
under Sections 7.3, 7.4(c), 7.4(d), 7.4(e), 7.5(b), 7.5(c), 7.5(f) or 7.6, and
(iii) the aggregate principal amount of all Indebtedness of such Subsidiaries
secured by all such Liens does not exceed $25,000,000;
(i) Purchase money security interests on any Property acquired or
held by the Borrower or its Subsidiaries in the Ordinary Course of Business,
securing Indebtedness incurred or assumed for the purpose of financing all or
any part of the cost of acquiring such Property; provided that (i) any such Lien
attaches to such Property concurrently with or within twenty (20) days after
the acquisition thereof, (ii) such Lien attaches solely to the Property so
acquired in such transaction, (iii) the principal amount of the Indebtedness
secured thereby does not exceed 100% of the cost of such Property, and (iv) the
principal amount of the Indebtedness secured by any and all such purchase money
security interests shall not at any time exceed $5,000,000;
(j) Liens securing Capital Lease Obligations on assets subject to
such Capital Leases, provided that such Capital Leases are permitted under
subsection 7.10(c);
(k) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution; provided that (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by the Borrower in excess of those set forth by regulations promulgated
by the Federal Reserve Board, and (ii) such deposit account is not intended by
the Borrower or any of its Subsidiaries to provide collateral to the depository
institution;
(l) leases or subleases of property of the Borrower or any of its
Subsidiaries not interfering with the ordinary conduct of business of the
Borrower or such Subsidiary; and
(m) any interest of any Person party to an agreement to acquire, or
holding an option to acquire, any property not prohibited from being
transferred hereunder.
SECTION 7.2 Disposition of Assets. The Borrower shall not, and shall not
suffer or permit any of its Subsidiaries to, directly or indirectly, sell,
assign, lease, convey, transfer or otherwise dispose of (whether in one or a
series of transactions) any Property (including accounts and notes receivable,
with or without recourse) or enter into any agreement to do any of the
foregoing (collectively, "Dispositions"), except:
(a) Dispositions of inventory, or used, worn-out or surplus
equipment, all in the Ordinary Course of Business;
(b) Dispositions of equipment to the extent that such equipment is
exchanged for credit against the purchase price of similar replacement
equipment, or the proceeds of such sale are, within 90 days of receipt by the
Borrower or such Subsidiary, applied to the purchase price of such replacement
equipment; or
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(c) other Dispositions of Property (including the liquidation of a
Subsidiary other than in an Insolvency Preceding during any fiscal year) not to
exceed 5% of Net Worth (as at December 31 of the immediately preceding fiscal
year);
(d) Dispositions of the Investments described in Sections 7.4(a) and
7.4(b) and, to the extent the transactions described in Section 7.3 constitute
a Disposition, Dispositions specifically permitted in Section 7.3; or
(e) Dispositions by a Subsidiary to the Borrower or to a Wholly-Owned
Subsidiary.
SECTION 7.3 Consolidations and Mergers. The Borrower shall not, and shall
not suffer or permit any of its Subsidiaries to, merge, consolidate with or
into, or convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions all or substantially all of its
assets (whether now owned or hereafter acquired) to or in favor of any Person,
except:
(a) any Subsidiary of the Borrower may (i) merge with the Borrower
(and the Borrower may make such merger), provided that the Borrower shall be the
continuing or surviving corporation, or (ii) merge with any one or more
Subsidiaries of the Borrower, provided that if any transaction shall be between
a Subsidiary and a Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary shall be
the continuing or surviving corporation and shall remain Wholly-Owned;
(b) any Subsidiary of the Borrower may sell all or substantially all
of its assets (upon voluntary liquidation or otherwise), to the Borrower or to a
Wholly-Owned Subsidiary of the Borrower; and
(c) any Subsidiary of the Borrower may merge, consolidate with or
into, or convey, transfer, lease or otherwise dispose of all or substantially
all of its assets in a transaction permitted under Section 7.2(c) so long as
all such transactions hereunder and thereunder comply with the limitations set
forth in Section 7.2(c).
SECTION 7.4 Loans and Investments. The Borrower shall not purchase or
acquire, or suffer or permit any of its Subsidiaries to purchase or acquire, or
make any commitment therefor, any capital stock, equity interest, or any
obligations or other securities of, or any interest in, any Person, or make or
commit to make any Acquisitions, or make or commit to make any advance, loan,
extension of credit or capital contribution to or any other investment in, any
Person including any Affiliate of the Borrower, except for:
(a) investments identified on Schedule 7.4 and other similar
investments made in the Ordinary Course of Business;
(b) investments in Cash Equivalents;
(c) extensions of credit in the nature of accounts receivable or
notes receivable arising from the sale or lease of goods or services in the
Ordinary Course of Business;
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(d) extensions of credit by the Borrower to any of its Wholly-Owned
Subsidiaries or by any of its Wholly-Owned Subsidiaries to the Borrower or to
one of its Wholly-Owned Subsidiaries;
(e) additional investments in the stock of then existing Wholly-Owned
Subsidiaries;
(f) additional Acquisitions so long as no Default or Event of
Default is in existence or would occur as a result therefrom; provided that,
the Borrower shall deliver the certificate described in Section 6.1(d) with
respect to any Acquisition with a purchase price of $50,000,000 or more;
(g) additional purchases of or investments in the stock or interests
of Subsidiaries or Joint Ventures or the capital stock, assets, obligations or
other securities or interests in other Persons not exceeding $15,000,000 in the
aggregate at any one time outstanding;
(h) advances to employees in the ordinary course of business; and
(i) acquisitions and commitments therefor, of the capital stock of
the Borrower, subject to Section 7.11(c).
SECTION 7.5 Limitation on Indebtedness. The Borrower shall not, and shall
not suffer or permit any of its Subsidiaries to, create, incur, assume, suffer
to exist, or otherwise become or remain directly or indirectly liable with
respect to, any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) unsecured Indebtedness of Subsidiaries in an aggregate amount
for all Subsidiaries not to exceed $10,000,000 at any one time outstanding;
(c) Indebtedness outstanding on the Closing Date and set forth in
Schedule 7.5 and extensions, renewals and replacements thereof which do not
increase the principal amount thereof;
(d) Indebtedness secured by Liens permitted by Sections 7.1(h),
7.1(i) and 7.1(j);
(e) Indebtedness incurred in connection with leases permitted
pursuant to Section 7.10;
(f) Indebtedness incurred in connection with an extension of credit
described in Section 7.4(c);
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(g) unsecured Indebtedness of the Borrower in an aggregate amount
not to exceed $100,000,000 at any one time outstanding; provided, that such
Indebtedness is either pari passu with, or subordinated to, the Indebtedness of
the Borrower to the Lenders; and
(h) Indebtedness incurred by the Borrower in connection with Rate
Contracts entered into in the Ordinary Course of Business.
SECTION 7.6 Transactions with Affiliates. The Borrower shall not, and
shall not suffer or permit any of its Subsidiaries to, enter into any
transaction with any Affiliate of the Borrower or of any such Subsidiary (other
than transactions between the Borrower and its Wholly-Owned Subsidiaries or
between its Wholly-Owned Subsidiaries), except:
(a) as expressly permitted by this Agreement; or
(b) in the Ordinary Course of Business and pursuant to the reasonable
requirements of the business of the Borrower or such Subsidiary;
and, in each case (a) and (b), upon fair and reasonable terms no less favorable
to the Borrower or such Subsidiary than would obtain in a comparable arm's
length transaction with a Person not an Affiliate of the Borrower or such
Subsidiary.
SECTION 7.7 Use of Proceeds. The Borrower shall not and shall not suffer
or permit any of its Subsidiaries to use any portion of the Revolving Loan
proceeds, directly or indirectly, to purchase or carry Margin Stock in any
manner which violates Regulation G, T, U or X of the Federal Reserve Board or
repay or otherwise refinance indebtedness of the Borrower or others incurred to
purchase or carry Margin Stock in any manner which violates Regulation G, T, U
or X of the Federal Reserve Board, or otherwise in any manner which is in
contravention of any Requirements of Law.
SECTION 7.8 Amendments to Acquisition Documents. The Borrower shall not
(i) amend, modify, supplement, waive or otherwise modify any provision of, the
Acquisition Agreements, or (ii) take or fail to take any action under the
Acquisition Documents, in either case, that could reasonably be expected to
have a Material Adverse Effect.
SECTION 7.9 Compliance with ERISA. The Borrower shall not, and shall not
suffer or permit any of its Subsidiaries to:
(a) terminate any Plan subject to Title IV of ERISA so as to result
in any material liability to the Borrower or any ERISA Affiliate;
(b) permit to exist any ERISA Event or any other event or condition,
which presents the risk of a material liability to any member of the Controlled
Group;
(c) make a complete or partial withdrawal (within the meaning of
ERISA Section 4201) from any Multiemployer Plan so as to result in any material
liability to the Borrower or any ERISA Affiliate;
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(d) enter into any new Plan or modify any existing Plan so as to
increase its obligations thereunder which could result in any material
liability to any member of the Controlled Group; or
(e) permit the present value of all nonforfeitable accrued benefits
under any Plan (using the actuarial assumptions utilized by the PBGC upon
termination of a Plan) materially to exceed the fair market value of Plan
assets allocable to such benefits, all determined as of the most recent
valuation date for each such Plan.
SECTION 7.10 Lease Obligations. The Borrower shall not, and shall not
suffer or permit any of its Subsidiaries to, create or suffer to exist any
obligations for the payment of rent for any Property under lease or agreement
to lease, except for:
(a) Operating Leases existing on the Closing Date and, in the case
of any single lease with annual rental payments of $50,000 or more, as set
forth on Schedule 7.10 hereof;
(b) Operating Leases entered into by the Borrower or any of its
Subsidiaries after the Closing Date in the Ordinary Course of Business;
(c) leases entered into by the Borrower or any of its Subsidiaries
after the Closing Date, provided, that:
(i) immediately prior to giving effect to such lease, the
Property subject to such lease was sold by the Borrower or any such
Subsidiary to the lessor pursuant to a transaction permitted under
Section 7.2; and
(ii) no Default or Event of Default exists or would occur as a
result of such sale and subsequent lease;
(d) Capital Leases other than those permitted under clause (b) of
this Section 7.10, entered into by the Borrower or any of its Subsidiaries
after the Closing Date to finance the acquisition of equipment in an aggregate
amount not to exceed $10,000,000 at any one time outstanding.
SECTION 7.11 Restricted Payments. The Borrower shall not, and shall not
suffer or permit any of its Subsidiaries to, declare or make any dividend
payment or other distribution of assets, properties, cash, rights, obligations
or securities on account of any shares of any class of its capital stock, or
purchase, redeem or otherwise acquire for value any shares of its capital stock
or any warrants, rights or options to acquire such shares, now or hereafter
outstanding; except that any Subsidiary of the Borrower may declare and pay
dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower and to
its other equity holders; provided, that any such dividend shall not exceed the
net worth of the applicable Subsidiary, and except that the Borrower may:
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(a) declare and make dividend payments or other distributions payable
solely in its common stock;
(b) purchase, redeem or otherwise acquire shares of its common stock
or warrants or options to acquire any such shares with the proceeds received
from the substantially concurrent issue of new shares of its common stock; and
(c) declare or pay cash dividends to its stockholders and purchase,
redeem or otherwise acquire shares of its capital stock or warrants, rights or
options to acquire any such shares for cash (i) in an aggregate amount not to
exceed $150,000,000 for the first four fiscal quarters subsequent to the
Closing Date, and (ii) solely out of 50% of Consolidated Net Income of the
Borrower for fiscal years thereafter, computed on a cumulative consolidated
basis, provided, that, immediately after giving effect to such proposed action,
no Default or Event of Default would exist; and
(d) pay dividends to the extent of any proceeds received by the
Borrower from the issuance of preferred stock.
SECTION 7.12 Fixed Charge Coverage Ratio. The Borrower shall not permit
its Fixed Charge Coverage Ratio, as determined as of the end of each fiscal
quarter, to be less than 2.5.
SECTION 7.13 Consolidated Net Worth. The Borrower shall not permit its Net
Worth, as determined as of the end of each fiscal quarter, to be less than the
greater of (i) $190,000,000, or (ii) the sum of (x) 75% of the Borrower's Net
Worth as determined by the June 30,1997 financial statements, plus (y) the sum
of 50% of the Borrower's Consolidated Net Income earned each fiscal quarter
commencing with the fiscal quarter ending September 30, 1997 (provided that if,
for any fiscal quarter, the Borrower's Consolidated Net Income shall be less
than zero, then for purposes of calculating the Borrower's compliance with this
covenant, the Borrower's Consolidated Net Income shall be deemed to be zero for
that fiscal quarter), plus (z) 50% of the net proceeds received from any
unaffiliated third parties from any stock offering of the Borrower.
SECTION 7.14 Leverage Ratio. The Borrower shall not permit its Leverage
Ratio, as determined as of the end of each fiscal quarter, to be greater than
3.25.
SECTION 7.15 Change in Business. The Borrower shall not, and shall not
permit any of its Subsidiaries to (a) engage in any material line of business
substantially different from those lines of business carried on by the Borrower
or its Subsidiaries on the date hereof or lines of business incidental thereto,
or (b) other than an Insurance Subsidiary, become subject to any Requirement of
Law that restricts its ability to pay dividends (other than those restrictions
with respect to capital requirements and other similar requirements imposed by
any applicable state on all corporations incorporated in such state) unless,
with respect to a Subsidiary, becoming subject to any such Requirement of Law
could not reasonably be expected to have a Material Adverse Effect.
SECTION 7.16 Change in Structure. Except as expressly permitted under
Section 7.3, the Borrower shall not and shall not permit any of its
Subsidiaries to, make any changes in its equity
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capital structure (including in the terms of its outstanding stock), or amend
its certificate of incorporation or by-laws in any material respect unless the
effect thereof could not reasonably be expected to have a Material Adverse
Effect.
SECTION 7.17 Accounting Changes. The Borrower shall not, and shall not
suffer or permit any of its Subsidiaries to, make any material change in
accounting treatment or reporting practices, except as required or permitted by
GAAP, or change the fiscal year of the Borrower or of any of its consolidated
Subsidiaries.
SECTION 7.18 Hostile Acquisitions. The Borrower shall not, and shall not
suffer or permit any of its Subsidiaries to engage or participate in, or pursue
directly or indirectly, directly with the proceeds of any Revolving Loan, any
Acquisition (or any component part of any Acquisition) which receives any
disapproval vote by the board of directors or shareholders of the target
company.
ARTICLE 8
EVENTS OF DEFAULT
SECTION 8.1 Event of Default. Any of the following shall constitute an
"Event of Default":
(a) Non-Payment. The Borrower fails to pay, (i) when and as required
to be paid herein, any amount of principal of any Revolving Loan, or (ii)
within three (3) days after the same shall become due, any interest, fee or any
other amount payable hereunder or pursuant to any other Revolving Loan
Document; or
(b) Representation or Warranty. Any representation or warranty by
the Borrower or any of its Subsidiaries made or deemed made herein, in any
Revolving Loan Document, or which is contained in any certificate, document or
financial or other written statement by the Borrower, any of its Subsidiaries,
or their respective Responsible Officers, furnished at any time under this
Agreement, or in or under any Revolving Loan Document, shall prove to have been
incorrect in any material respect on or as of the date made or deemed made; or
(c) Specific Defaults. The Borrower fails to perform or observe any
term, covenant or agreement contained in (i) Sections 6.1(c) and (d), 6.2,
6.3, 6.4 and 6.10 or Article 7 hereof, or (ii) Sections 6.1(a) and (b) hereof
and such default shall continue unremedied for a period of seven (7) days after
the date due under the applicable section; or
(d) Other Defaults. The Borrower fails to perform or observe any
other term or covenant contained in this Agreement or any Revolving Loan
Document, and such default shall continue unremedied for a period of twenty
(20) days after the earlier of (i) the date upon which a Responsible Officer of
the Borrower knew or should have known of such failure or (ii) the date
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upon which written notice thereof is given to the Borrower by the
Administrative Agent or any Lender; or
(e) Cross-Default. The Borrower or any Subsidiary (i) fails to make
any payment in respect of any Indebtedness having an aggregate principal amount
(including undrawn committed or available amounts and including amounts owing
to all creditors under any combined or syndicated credit arrangement) of more
than $10,000,000 when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) and such failure continues after any
applicable grace or notice period, if any; or (ii) fails to perform or observe
any other condition or covenant, or any other event shall occur or condition
exist, under any agreement or instrument relating to any such Indebtedness, and
such failure if the effect of such failure, event or condition is to cause, or
to permit the holder or holders or beneficiary or beneficiaries of such
Indebtedness (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause such Indebtedness to be declared to be
due and payable prior to its stated maturity, or such Contingent Obligation to
become payable or cash collateral in respect thereof to be demanded; or
(f) Insolvency: Voluntary Proceedings. The Borrower voluntarily
ceases to conduct its business in the ordinary course or the Borrower or any of
its Subsidiaries (i) generally fails to pay, or admits in writing its
inability to pay, its debts as they become due, subject to applicable grace
periods, if any, whether at stated maturity or otherwise; (ii) commences any
Insolvency Proceeding with respect to itself; or (iii) takes any action to
effectuate or authorize any of the foregoing, except in the case of (i), (ii)
or (iii) where such Subsidiary is an Immaterial Subsidiary and so long as all
events described in clauses (i) (ii) or (iii) herein related to an Immaterial
Subsidiary could not reasonably be expected to have a Material Adverse Effect;
or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the Borrower or any Subsidiary of the
Borrower, or any writ, judgment, warrant of attachment, execution or similar
process, is issued or levied against a substantial part of the Borrower's or
any of its Subsidiaries' Properties, and any such proceeding or petition shall
not be dismissed, or such writ, judgment, warrant of attachment, execution or
similar process shall not be released, vacated or fully bonded within sixty
(60) days after commencement, filing or levy; (ii) the Borrower or any of its
Subsidiaries admits the material allegations of a petition against it in any
Insolvency Proceeding, or an order for relief (or similar order under non-U.S.
law) is ordered in any Insolvency Proceeding; or (iii) the Borrower or any of
its Subsidiaries acquiesces in the appointment of a receiver, trustee,
custodian, conservator, liquidator, mortgagee in possession (or agent
therefor), or other similar Person for itself or a substantial portion of its
Property or business, except in the case of (i), (ii) or (iii) where such
Subsidiary is an Immaterial Subsidiary and so long as all events described in
clauses (i) (ii) or (iii) herein related to an Immaterial Subsidiary could not
reasonably be expected to have a Material Adverse Effect; or
(h) ERISA. (i) A member of the Controlled Group shall fail to pay
when due, after the expiration of any applicable grace period, any installment
payment with respect to its withdrawal liability under a Multiemployer Plan;
(ii) the Borrower or an ERISA Affiliate shall fail to satisfy its contribution
requirements under Section 412(c)(11) of the Code, whether or not it
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has sought a waiver under Section 412(d) of the Code; (iii) in the case of an
ERISA Event involving the withdrawal from a Plan of a "substantial employer"
(as defined in Section 4001(a)(2) or Section 4062(e) of ERISA), the withdrawing
employer's proportionate share of that Plan's Unfunded Pension Liabilities is
more than $10,000,000; (iv) in the case of an ERISA Event involving the
complete or partial withdrawal from a Multiemployer Plan, the withdrawing
employer has incurred a withdrawal liability in an aggregate amount exceeding
$10,000,000; (v) in the case of an ERISA Event not described in clause (iii) or
(iv), the Unfunded Pension Liabilities of the relevant Plan or Plans exceed
$10,000,000; (vi) a Plan that is intended to be qualified under Section 401(a)
of the Code shall lose its qualification, and the loss can reasonably be
expected to impose on members of the Controlled Group liability (for additional
taxes, to Plan participants, or otherwise) in the aggregate amount of
$10,000,000 or more; (vii) the commencement or increase of contributions to, or
the adoption of or the amendment of a Plan by, a member of the Controlled Group
shall result in a net increase in unfunded liabilities to the Controlled Group
in excess of $10,000,000; (viii) any member of the Controlled Group engages in
or otherwise becomes liable for a non-exempt prohibited transaction and the
initial tax or additional tax under section 4975 of the Code relating thereto
might reasonably be expected to exceed $10,000,000; (ix) a violation of
section 404 or 405 of ERISA or the exclusive benefit rule under section 401(a)
of the Code if such violation might reasonably be expected to expose a member
or members of the Controlled Group to monetary liability in excess of
$10,000,000; (x) any member of the Controlled Group is assessed a tax under
section 4980B of the Code in excess of $10,000,000; or (xi) the occurrence of
any combination of events listed in clauses (iii) through (x) that involves a
potential liability, net increase in aggregate Unfunded Pension Liabilities,
unfunded liabilities, or any combination thereof, in excess of $10,000,000; or
(i) Monetary Judgments. One or more judgments, noninterlocutory
orders, decrees or arbitration awards shall be entered against the Borrower or
any of its Subsidiaries involving in the aggregate a liability (to the extent
not covered by independent third-party insurance) as to any single or related
series of transactions, incidents or conditions, of $10,000,000 or more, and
the same shall remain unsatisfied, unvacated and unstayed pending appeal for a
period of thirty (30) days after the entry thereof; or
(j) Change of Control. There shall occur a Change of Control.
SECTION 8.2 Remedies. If any Event of Default occurs and is continuing,
the Administrative Agent may, and shall at the request of the Majority Lenders:
(a) declare the Revolving Loan Commitment of each Lender to make
Revolving Loans to be terminated, whereupon such Revolving Loan Commitments
shall forthwith be terminated;
(b) declare the unpaid principal amount of all outstanding Revolving
Loans, all interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under any other Revolving Loan Document to be immediately
due and payable; without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrower; and
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(c) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Revolving Loan Documents or
applicable law;
provided, however, that upon the occurrence of any event specified in
subsections 8.1(f) and (g) above (in the case of clause (i) of paragraph (g)
upon the expiration of the 60-day period mentioned therein), the obligation of
each Lender to make Revolving Loans shall automatically terminate and the
unpaid principal amount of all outstanding Revolving Loans and all interest and
other amounts as aforesaid shall automatically become due and payable without
further act of the Administrative Agent or any Lender.
SECTION 8.3 Rights Not Exclusive. The rights provided for in this
Agreement and the other Revolving Loan Documents are cumulative and are not
exclusive of any other rights, powers, privileges or remedies provided by law
or in equity, or under any other instrument, document or agreement now existing
or hereafter arising.
ARTICLE 9
THE AGENTS
SECTION 9.1 Appointment and Authorization. Each Lender hereby irrevocably
appoints, designates and authorizes the Agents to take such action on its
behalf under the provisions of this Agreement and each other Revolving Loan
Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Revolving Loan
Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Revolving Loan Document, the Agents shall not have
any duties or responsibilities, except those expressly set forth herein, nor
shall the Agents have or be deemed to have any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other
Revolving Loan Document or otherwise exist against the Agents. The Syndication
Agent has no rights, duties, obligations or liabilities under this Agreement.
SECTION 9.2 Delegation of Duties. The Agents may execute any of their
duties under this Agreement or any other Revolving Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. No Agent shall be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
SECTION 9.3 Liability of Agents. No Agent-Related Person shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Revolving Loan Document (except for
its own gross negligence or willful misconduct), or (ii) be responsible in any
manner to any of the Lenders for any recital, statement, representation or
warranty made by the Borrower or any Subsidiary or Affiliate of the Borrower,
or any officer thereof, contained in this Agreement or in any other Revolving
Loan Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agents under or in
connection with, this Agreement or any other Revolving Loan Document, or
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for the value of any Collateral or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Revolving Loan
Document, or for any failure of the Borrower or any other party to any
Revolving Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender to ascertain
or to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Revolving Loan
Document, or to inspect the Properties, books or records of the Borrower or any
of the Borrower's Subsidiaries or Affiliates.
SECTION 9.4 Reliance by Agents. The Agents shall be entitled to rely,
and shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, statement or other document or conversation believed by it
to be genuine and to have been signed, sent or made by the proper Person or
Persons, and upon advice and statements of legal counsel (including counsel to
the Borrower), independent accountants and other experts selected by the
Agents. The Agents shall be fully justified in failing or refusing to take any
action under this Agreement or any other Revolving Loan Document unless the
applicable Agent shall first receive such advice or concurrence of the Lenders
(or, where an action or waiver need only be approved by the Majority Lenders,
by the Majority Lenders) as it deems appropriate and, if it so requests, it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agents shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Revolving Loan Document in accordance with a request or consent of the
Lenders (or, where an action or waiver need only be approved by the Majority
Lenders, by the Majority Lenders) and such request and any action taken or
failure to act pursuant thereto shall be binding upon all of the Lenders.
SECTION 9.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default, except with respect to defaults in the payment of principal, interest
and fees required to be paid to the Administrative Agent for the account of the
Lenders, unless the Administrative Agent shall have received written notice
from a Lender or the Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default". In the event that the Administrative Agent receives such a notice,
the Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be requested by the Majority Lenders in accordance
with Article 8; provided, however, that unless and until the Administrative
Agent shall have received any such request, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable or in the best interest of the Lenders.
SECTION 9.6 Credit Decision. Each Lender expressly acknowledges that no
Agent-Related Person has made any representation or warranty to it and that no
act by the Agents hereinafter taken, including any review of the affairs of
the Borrower and its Subsidiaries shall be deemed to constitute any
representation or warranty by the Agents to any Lender. Each Lender represents
to the Agents that it has, independently and without reliance upon the Agents
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition
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and creditworthiness of the Borrower and its Subsidiaries, and all applicable
bank regulatory laws relating to the transactions contemplated thereby, and
made its own decision to enter into this Agreement and extend credit to the
Borrower hereunder. Each Lender also represents that it will, independently and
without reliance upon the Agents and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this
Agreement and the other Revolving Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly herein required to be furnished to the Lenders by the
Administrative Agent, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of the Borrower which may come into the
possession of the Administrative Agent.
SECTION 9.7 Indemnification. Whether or not the transactions
contemplated hereby shall be consummated, upon demand therefor the Lenders
shall indemnify the Agents (to the extent not reimbursed by or on behalf of the
Borrower and without limiting the obligation of the Borrower to do so), ratably
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses and disbursements of any
kind whatsoever which may at any time (including at any time following the
repayment of the Revolving Loans and the termination or resignation of the
Agents) be imposed on, incurred by or asserted against the Agents in any way
relating to or arising out of this Agreement or any document contemplated by or
referred to herein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Agents under or in connection with any of the
foregoing; provided, however, that no Lender shall be liable for the payment to
an Agent of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from the applicable Agent's gross negligence or willful
misconduct. In addition, each Lender shall reimburse the Agents upon demand for
its ratable share of any costs or out-of-pocket expenses (including Attorney
Costs) incurred by the Agents in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other
Revolving Loan Document, or any document contemplated by or referred to herein
to the extent that the Agents are not reimbursed for such expenses by or on
behalf of the Borrower. Without limiting the generality of the foregoing, if
the Internal Revenue Service or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that the Admunistrative Agent did
not properly withhold tax from amounts paid to or for the account of any Lender
(because the appropriate form was not delivered, was not properly executed, or
because such Lender failed to notify the Administrative Agent of a change in
circumstances which rendered the exemption from, or reduction of, withholding
tax ineffective, or for any other reason) such Lender shall indemnify the
Administrative Agent fully for all amounts paid, directly or indirectly, by the
Administrative Agent as tax or otherwise, including penalties and interest, and
including any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section 9.7, together with all related costs
and expenses (including Attorney Costs). The obligation of the Lenders in this
Section 9.7 shall survive the payment of all Obligations hereunder.
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SECTION 9.8 Administrative Agent in Individual Capacity. LaSalle, First
Chicago and their Affiliates may make Revolving Loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in
and generally engage in any kind of banking, trust, financial advisory or other
business with the Borrower and its Subsidiaries and Affiliates as though
LaSalle or First Chicago, as the case may be, were not Agents hereunder and
without notice to or consent of the Lenders. With respect to their Revolving
Loans, LaSalle and First Chicago's Affiliate, The First National Bank of
Chicago, shall have the same rights and powers under this Agreement as any
other Lender and may exercise the same as though it were not Administrative
Agent, and the terms "Lender" and "Lenders" shall include LaSalle and First
Chicago's Affiliate, The First National Bank of Chicago, in their individual
capacities.
SECTION 9.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon thirty (30) days' prior notice to the
Lenders. If the Administrative Agent shall resign as Administrative Agent under
this Agreement, the successor Administrative Agent shall be First Chicago,
which shall thereupon be both Administrative Agent and Syndication Agent. If
First Chicago declines to be the Administrative Agent, the Majority Lenders
shall appoint from among the Lenders a successor administrative agent for the
Lenders. If no successor administrative agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the
Administrative Agent may thereupon appoint a successor administrative agent
from among the Lenders. Upon the acceptance of its appointment as successor
administrative agent hereunder, such successor administrative agent shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent and the term "Administrative Agent" shall mean such successor
administrative agent and the retiring Administrative Agent's appointment,
powers and duties as Administrative Agent shall be terminated. After any
retiring Administrative Agent's resignation hereunder as Administrative Agent,
the provisions of this Article 9 and Sections 9.4 and 9.5 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor administrative agent
has accepted appointment as Administrative Agent by the date which is thirty
(30) days following a retiring Administrative Agent's notice of resignation
(or, if later, ten (10) days after the date upon which the Administrative Agent
designates a successor administrative agent), the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the
Lenders shall perform all of the duties of the Administrative Agent hereunder
until such time, if any, as the Majority Lenders appoint a successor
administrative agent as provided for above.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Amendments and Waivers. No amendment or waiver of any
provision of this Agreement or any other Revolving Loan Document, and no
consent with respect to any departure by the Borrower therefrom, shall be
effective unless the same shall be in writing and signed by the Majority
Lenders, the Borrower and acknowledged by the Administrative Agent, and then
such waiver shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such waiver,
amendment, or consent shall, unless in
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writing and signed by all the Lenders, the Borrower and acknowledged by the
Administrative Agent, do any of the following:
(a) increase or extend the Revolving Loan Commitment of any
Lender (or reinstate any Revolving Loan Commitment terminated pursuant to
subsection 8.2(a)) or subject any Lender to any additional obligations;
(b) postpone or delay any date fixed for any payment of principal,
interest, fees or other amounts due to the Lenders (or any of them) hereunder
or under any Revolving Loan Document;
(c) reduce the principal of, or the rate of interest specified herein
on any Revolving Loan, or of any fees or other amounts payable hereunder or
under any Revolving Loan Document;
(d) change the percentage of the Revolving Loan Commitments (other
than in connection with any revisions of Schedule I hereto to increase the
amount of the Aggregate Revolving Loan Commitment to an aggregate principal
amount not to exceed $350,000,000, which revisions are specifically approved by
all Lenders signing this Agreement) or of the aggregate unpaid principal amount
of the Revolving Loans which shall be required for the Lenders or any of them
to take any action hereunder; or
(e) amend this Section 10.1 or any provision providing for consent or
other action by all Lenders;
and, provided further, that no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Majority
Lenders or all the Lenders, as the case may be, affect the rights or duties of
the Administrative Agent under this Agreement or any other Revolving Loan
Document; and provided, further that notwithstanding anything to the contrary
contained herein or otherwise, the Administrative Agent and the Borrower may
enter into one or more amendments which have the effect of increasing the
Aggregate Revolving Loan Commitment to an amount not to exceed $350,000,000.
SECTION 10.2 Notices.
(a) All notices, requests and other communications provided for
hereunder shall be in writing (including, unless the context expressly
otherwise provides, by facsimile transmission, provided that any matter
transmitted by the Borrower by facsimile (i) shall be promptly confirmed by a
telephone call to the recipient at the number specified on the applicable
signature page hereof, and (ii) shall be followed promptly by a hard copy
original thereof) and mailed by certified or registered mail, faxed or
delivered, to the address or facsimile number specified for notices on the
applicable signature page hereof; or, if directed to the Borrower or the
Agents, to such other address as shall be designated by such party in a written
notice to each of the other parties hereto given in compliance herewith, or, if
directed to any other party hereto, to such other address as shall be
designated by such party in a written notice given in compliance herewith to
the Borrower and the Agents.
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(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered for
overnight (next day) delivery, or transmitted by facsimile machine,
respectively, or if mailed, upon the third Business Day after the date
deposited into the U.S. Mail, certified or registered, or if delivered, upon
delivery; except that notices pursuant to Article 2 or 9 shall not be effective
until actually received by the Administrative Agent.
(c) The Borrower acknowledges and agrees that any agreement of the
Administrative Agent and the Lenders in Article 2 hereof to receive certain
notices by telephone and facsimile is solely for the convenience and at the
request of the Borrower. The Administrative Agent and the Lenders shall be
entitled to rely on the authority of any Person purporting to be a Person
authorized by the Borrower to give such notice and the Administrative Agent and
the Lenders shall not have any liability to the Borrower or other Person on
account of any action taken or not taken by the Administrative Agent or the
Lenders in reliance upon such telephonic or facsimile notice. The obligation of
the Borrower to repay the Revolving Loans shall not be affected in any way or
to any extent by any failure by the Administrative Agent and the Lenders to
receive written confirmation of any telephonic or facsimile notice or the
receipt by the Administrative Agent and the Lenders of a confirmation which is
at variance with the terms understood by the Administrative Agent and the
Lenders to be contained in the telephonic or facsimile notice.
SECTION 10.3 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Administrative Agent or any Lender,
any right, remedy, power or privilege hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
SECTION 10.4 Costs and Expenses. Whether or not the transactions
contemplated hereby shall be consummated, the Borrower shall pay or reimburse:
(a) LaSalle (including in its capacity as Administrative Agent)
within five (5) Business Days after demand for all costs and expenses (including
without limitation the reasonable fees and expenses of counsel) incurred by
LaSalle (including in its capacity as Administrative Agent) in connection with
the development, preparation, delivery and execution of, and any amendment,
supplement, waiver or modification to (in each case, whether or not
consummated), this Agreement, any Revolving Loan Document and any other
documents prepared in connection herewith or therewith, and the consummation of
the transactions contemplated hereby and thereby, including the reasonable
Attorney Costs incurred by LaSalle (including in its capacity as Administrative
Agent) with respect thereto; provided, that the fees and expenses of counsel in
connection with the initial preparation, delivery, execution and consummation
of this Agreement shall not exceed $50,000;
(b) pay or reimburse each Lender and the Agents within five (5)
Business Days after demand for all costs and expenses (including without
limitation the reasonable fees and expenses of counsel) incurred by them in
connection with the enforcement, attempted
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enforcement, or preservation of any rights or remedies during the existence of
an Event of Default (including in connection with any "workout" or
restructuring regarding the Revolving Loans, and including in any Insolvency
Proceeding or appellate proceeding) under this Agreement, any other Revolving
Loan Document, and any such other documents, including Attorney Costs, incurred
by the Agents and/or any Lender; and
(c) pay or reimburse LaSalle (including in its capacity as
Administrative Agent) within five (5) Business Days after demand for all
appraisal, audit, environmental inspection and review, search and filing costs,
fees and expenses (including, without limitation, the reasonable fees and
expenses of counsel), incurred or sustained by LaSalle (including in its
capacity as Administrative Agent) in connection with the matters referred to
under subsections (a) and (b) of this Section 10.4.
SECTION 10.5 Indemnity. Whether or not the transactions contemplated
hereby shall be consummated, the Borrower shall indemnify, defend and hold
harmless each Lender, the Agents and each of their respective officers,
directors, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, charges, expenses
or disbursements (including reasonable Attorney Costs):
(a) of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement and any
other Revolving Loan Documents, or the transactions contemplated hereby and
thereby, and with respect to any investigation, litigation or proceeding
(including any Insolvency Proceeding or appellate proceeding) related to this
Agreement or the Revolving Loans or the use of the proceeds thereof, whether or
not any Indemnified Person is a party thereto; and
(b) which may be incurred by or asserted against such Indemnified
Person in connection with or arising out of any pending or threatened
investigation, litigation or proceeding, or any action taken by any Person,
with respect to any Environmental Claim arising out of or related to any
Property of the Borrower or its Subsidiaries;
(all the foregoing, collectively, the "Indemnified Liabilities"); provided,
that the Borrower shall have no obligation hereunder to any Indemnified Person
with respect to Indemnified Liabilities arising from the gross negligence or
willful misconduct of such Indemnified Person.
The obligations in this Section 10.5 shall survive payment of all other
Obligations. At the election of any Indemnified Person, the Borrower shall
defend such Indemnified Person using legal counsel satisfactory to such
Indemnified Person in such Person's sole discretion, at the sole cost and
expense of the Borrower. All amounts owing under this Section 10.5 shall be
paid within thirty (30) days after demand.
SECTION 10.6 Marshalling; Payments Set Aside. Neither the
Administrative Agent nor any Lender shall be under any obligation to marshall
any assets in favor of the Borrower or any other Person or against or in
payment of any or all of the Obligations. To the extent that the Borrower makes
a payment or payments to the Administrative Agent or any Lender, or the
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Administrative Agent or any Lender exercise its rights of set-off, and such
payment or payments or the proceeds of such set-off or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by the
Administrative Agent in its discretion) to be repaid to a trustee, receiver or
any other party in connection with any Insolvency Proceeding, or otherwise,
then:
(a) to the extent of such recovery the obligation or part thereof
originally intended to be satisfied shall be revived and continued in full
force and effect as if such payment had not been made or such set-off had not
occurred; and
(b) each Lender severally agrees to pay to the Administrative Agent
upon demand its ratable share of the total amount so recovered from or repaid
by the Administrative Agent.
SECTION 10.7 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that any assignment by any Lender
shall be subject to the provisions of Section 10.8 hereof, and provided further
that the Borrower may not assign or transfer any of its rights or obligations
under this Agreement.
SECTION 10.8 Assignments, Participations, etc.
(a) Any Lender may, subject to the consent of the Borrower and with
the written consent of the Administrative Agent (in either case, which consent
shall not be unreasonably withheld), at any time sell or assign and delegate to
one or more Eligible Assignees (provided that no consent of the Borrower or
Administrative Agent shall be required in connection with any assignment and
delegation by a Lender to an Eligible Assignee that is an Affiliate of such
Lender) (each an "Assignee") all, or any ratable part of all, of the Revolving
Loans, the Revolving Loan Commitments and the other rights and obligations of
such Lender hereunder, in a minimum amount of $10,000,000; provided, however,
that the Borrower and the Administrative Agent may continue to deal solely and
directly with such Lender in connection with the interest so assigned to an
Assignee until:
(i) written notice of such assignment, together with payment
instructions, addresses and related information with respect to the
Assignee, shall have been given to the Borrower and the Administrative
Agent by such Lender and the Assignee;
(ii) such Lender and its Assignee shall have delivered to the
Borrower and the Administrative Agent an Assignment and Acceptance in
the form of Exhibit F (an "Assignment and Acceptance"); and
(iii) the assignor Lender or the Assignee has paid to the
Administrative Agent a processing fee in the amount of $3,500;
provided, however that this section shall not be applicable to an
assignment from a Lender to an Affiliate of the assigning Lender.
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(b) From and after the date that the Administrative Agent notifies
the assignor Lender that the Administrative Agent has received and provided its
consent with respect to an executed Assignment and Acceptance and payment of
the above-referenced processing fee:
(i) the Assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Acceptance, shall have the rights and
obligations of a Lender under this Agreement and the other Revolving
Loan Documents; and
(ii) the assignor Lender shall, to the extent that rights and
obligations hereunder and under the other Revolving Loan Documents have
been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under the
Revolving Loan Documents; provided, however, that any assignor Lender
shall not be released from any claims of any kind arising from any
breach or default under the Revolving Loan Documents by the assignor
Lender which occurred prior to the date of the Administrative Agent's
consent to the assignment.
(c) Immediately upon the making of the processing fee payment to the
Administrative Agent in respect of the Assignment and Acceptance, this
Agreement shall be deemed to be amended to the extent, but only to the extent,
necessary to reflect the addition of the Assignee and the resulting adjustment
of the Revolving Loan Commitments arising therefrom. The Revolving Loan
Commitment allocated to each Assignee shall reduce such Revolving Loan
Commitments of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks
or other Persons not Affiliates of the Borrower (a "Participant") participating
interests in any Revolving Loans, the Revolving Loan Commitment of that Lender
and the other interests of that Lender (the "Originating Lender") hereunder and
under the other Revolving Loan Documents; provided, however, that:
(i) the Originating Lender's obligations under this Agreement
shall remain unchanged;
(ii) the Originating Lender shall remain solely responsible for
the performance of such obligations;
(iii) the Borrower and the Administrative Agent shall continue
to deal solely and directly with the Originating Lender in connection
with the Originating Lender's rights and obligations under this
Agreement and the other Revolving Loan Documents; and
(iv) no Lender shall transfer or grant any participating
interest except under which the Participant shall only have voting
rights with respect to approving (1) a decrease in the Facility Fee or
the Applicable Margin, (2) an increase in Revolving Loan Commitments
only if the Participant's Revolving Loan Commitment is increased, (3)
an extension of the Termination Date, or (4) the waiver of defaults
with respect to this
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Agreement or any other Revolving Loan Document, except to the extent
such amendment, consent or waiver would require unanimous consent of
the Lenders as described in the first proviso to Section 10.1.
In the case of any such participation, and except with respect to the voting
rights in sub-paragraph (iv) above, the Participant shall not have any rights
under this Agreement, or any of the other Revolving Loan Documents, and all
amounts payable by the Borrower hereunder shall be determined as if such Lender
had not sold such participation.
(e) Notwithstanding any other provision contained in this Agreement
or any other Revolving Loan Document to the contrary, any Lender may assign all
or any portion of the Revolving Loans held by it to any Federal Reserve Lender
or the United States Treasury as collateral security pursuant to Regulation A of
the Federal Reserve Board and any Operating Circular issued by such Federal
Reserve Lender, provided that any payment in respect of such assigned Revolving
Loans made by the Borrower to or for the account of the assigning or pledging
Lender in accordance with the terms of this Agreement shall satisfy the
Borrower's obligations hereunder in respect to such assigned Revolving Loans to
the extent of such payment. No such assignment shall release the assigning
Lender from its obligations hereunder.
SECTION 10.9 Confidentiality. Each of the Agents, the Lenders and their
Affiliates shall maintain in confidence in accordance with its customary
procedures for handling confidential information, all written information that
Borrower or any of its Subsidiaries, or any of their authorized
representatives, furnishes to the Agents or any Lender and its Affiliates
("Confidential Information") other than any such Confidential Information that
becomes generally available to the public other than as a result of a breach by
the Agents or any Lender of its obligations hereunder or that is or becomes
available to the Agents or such Lender from a source other than Borrower or any
of its Subsidiaries, or any of their authorized representatives, and that is
not, to the actual knowledge of the recipient thereof, subject to obligations
of confidentiality with respect thereto; provided, however, that the Agents and
each Lender shall in any event have the right to deliver copies of any such
documents, and to disclose any such information, to:
(a) its directors, officers, trustees, employees, agents, attorneys
and professional consultants;
(b) any other Lender and any successor Agents;
(c) any Person to which such Lender offers to sell any Revolving
Loan or any part thereof or interest or participation therein (provided such
Person agrees to keep such information confidential on the terms set forth in
this Section 10.9);
(d) any federal or state regulatory authority or examiner, or any
insurance industry association, including, without limitation, the National
Association of Insurance Commissioners, regulating or having jurisdiction over
the Agents or such Lender; and
(e) any other Person to which such delivery or disclosure may be
necessary or appropriate (i) in compliance with any applicable law, rule,
regulation or order, (ii) in response to
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any subpoena or other legal process or informal investigative demand, (iii) in
connection with any litigation to which the Agents or such Lender is a party,
or (iv) in connection with the enforcement of the rights and remedies of the
Agents or the Lenders under this Agreement and the other Revolving Loan
Documents at any time when an Event of Default shall have occurred and be
continuing.
SECTION 10.10 Set-off. In addition to any rights and remedies of the
Lenders provided by law, if an Event of Default shall have occurred and be
continuing, each Lender is authorized at any time and from time to time,
without prior notice to the Borrower, any such notice being waived by the
Borrower to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) and
other Property at any time held by, including any indebtedness at any time
owing to, such Lender to or for the credit or the account of the Borrower
against any and all Obligations owing to such Lender, now or hereafter
existing, irrespective of whether or not the Administrative Agent or such
Lender shall have made demand under this Agreement or any Revolving Loan
Document and although such Obligations may be contingent or unmatured. Each
Lender agrees promptly to notify the Borrower and the Administrative Agent
after any such set-off and application made by such Lender; provided, however,
that the failure to give such notice shall not affect the validity of such set-
off and application. The rights of each Lender under this Section 10.10 are in
addition to the other rights and remedies (including other rights of set-off)
which the Lender may have, and subject to each Lender's obligations under
Section 2.13 hereof.
SECTION 10.11 Notification of Addresses, Lending Offices, Etc. Each
Lender shall notify the Administrative Agent in writing of any changes in the
address to which notices to the Lender should be directed, of addresses of its
Lending Office, of payment instructions in respect of all payments to be made
to it hereunder and of such other administrative information as the
Administrative Agent shall reasonably request.
SECTION 10.12 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement in any number of separate counterparts,
each of which, when so executed, shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with each of the Borrower and the Administrative Agent.
SECTION 10.13 Severability. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.
SECTION 10.14 Captions. The captions and headings of this Agreement are
for convenience of reference only and shall not affect the interpretation of
this Agreement.
SECTION 10.15 Independence of Provisions. The parties acknowledge that
this Agreement and other Revolving Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters, and
that such limitations, tests and
<PAGE> 71
measurements are cumulative and must each be performed, except as expressly
stated to the contrary in this Agreement.
SECTION 10.16 Interpretation. This Agreement is the result of
negotiations among and has been reviewed by counsel to the Administrative
Agent, the Borrower and other parties, and is the product of all parties
hereto. Accordingly, this Agreement and the other Revolving Loan Documents
shall not be construed against the Lenders or the Administrative Agent merely
because of the Administrative Agent's or Lenders' involvement in the
preparation of such documents and agreements.
SECTION 10.17 No Third Parties Benefited. This Agreement is made and
entered into for the sole protection and legal benefit of the Borrower, the
Lenders and the Agents, and their permitted successors and assigns, and no
other Person shall be a direct or indirect legal beneficiary of, or have any
direct or indirect cause of action or claim in connection with, this Agreement
or any of the other Revolving Loan Documents. Neither the Agents nor any Lender
shall have any obligation arising under the Revolving Loan Documents to any
Person not a party to this Agreement or other Revolving Loan Documents.
SECTION 10.18 Governing Law and Jurisdiction.
(a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS; PROVIDED THAT THE AGENT
AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
AND ANY OTHER REVOLVING LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE
STATE OF ILLINOIS OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF
ILLINOIS, EASTERN DIVISION, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH OF THE BORROWER, THE AGENTS AND THE LENDERS CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS.
EACH OF THE BORROWER, THE AGENTS AND THE LENDERS IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE BORROWER, THE AGENTS AND THE
LENDERS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY ILLINOIS LAW.
SECTION 10.19 WAIVER OF JURY TRIAL. THE BORROWER, THE LENDERS AND THE
AGENTS EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE
OTHER REVOLVING LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION,
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PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES
AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS,
TORT CLAIMS, OR OTHERWISE. THE BORROWER, THE LENDERS AND THE AGENTS EACH AGREE
THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT
A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR
RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS
TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN
PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE
OTHER REVOLVING LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER REVOLVING LOAN DOCUMENTS.
SECTION 10.20 Entire Agreement. This Agreement, together with the other
Revolving Loan Documents, embodies the entire agreement and understanding among
the Borrower, the Lenders and the Agents, and supersedes all prior or
contemporaneous Agreements and understandings of such Persons, verbal or
written, relating to the subject matter hereof and thereof, except for the fee
letters referenced in subsection 2.9(a), and any prior arrangements made with
respect to the payment by the Borrower of (or any indemnification for) any
fees, costs or expenses payable to or incurred (or to be incurred) by or on
behalf of the Administrative Agent or the Lenders.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their duly authorized officers as of the day and
year first above written.
HEALTHCARE COMPARE CORP.
By: Joseph E. Whitters
-------------------------------
Title: VP Finance & CFO
----------------------------
Address for notices:
3200 Highland Avenue
Downers Grove, IL 60615
Attn:
Facsimile: (630) 719-0093
Tel: (630) 241-7510
LASALLE NATIONAL BANK,
as Administrative Agent
By: Douglas J. Lovette
-------------------------------
Title: First Vice President
----------------------------
Address for Payments, Notices of Borrowing,
Notices of Continuation/Conversion:
135 South LaSalle Street
Chicago, IL 60603
Attn: Administrative Services
Karen Daly
Facsimile: (312) 904-2081
Tel: (312) 904-4448
FIRST CHICAGO CAPITAL MARKETS, INC.,
as Syndication Agent
By: Pat W. Bates
-------------------------------
Title: Managing Director
----------------------------
Address for notices:
One First National Plaza
Chicago, IL 60607
Attn: Peter Bartol
Facsimile: (312) 732-2740
Tel: (312) 732-7455
<PAGE> 74
LASALLE NATIONAL BANK, as Lender
By: Douglas J. Lovette
-------------------------
Title:
----------------------
Address for notices: Lending Office:
135 South LaSalle Street 135 South LaSalle Street
Chicago, IL 60603 Chicago, IL 60603
Attn: Douglas J. Lovette Attn: Douglas J. Lovette
Facsimile: (312) 606-8423 Facsimile: (312) 606-8423
Tel: (312) 904-8008 Tel: (312) 904-8008
THE FIRST NATIONAL BANK
OF CHICAGO, as Lender
By: Vincent Kelly
-------------------------
Title: Authorized Agent
----------------------
Address for notices: Lending Office:
One First National Plaza, Suite 0091 One First National Plaza, Suite 0091
Chicago, IL 60607 Chicago, IL 60607
Attn: Jay Sepanski Attn: Ken Fecko
Facsimile: (312) 732-2016 Facsimile: (312) 732-2016
Tel: (312) 732-6726 Tel: (312) 732-4616
