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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K
FOR ANNUAL AND TRANSITION REPORTS PURSUANT TO SECTIONS 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
[X] Annual Report pursuant to Section 13 or 15(d) of the Securities and Exchange
Act of 1934 (No Fee Required, Effective October 7, 1996) for the fiscal
year ended December 31, 1996, or
[ ] Transition Report pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 (No Fee Required) for the transition period from to .
COMMISSION FILE NO.: 0-19786
PHYCOR, INC.
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(Exact name of registrant as specified in its charter)
TENNESSEE 62-1344801
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
30 BURTON HILLS BLVD., SUITE 400
NASHVILLE, TENNESSEE 37215
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(Address of principal executive (Zip Code)
offices)
Registrant's telephone number, including area code: (615) 665-9066
Securities registered pursuant to Section 12(b) of the Act:
Name of Each Exchange
Title of Each Class on Which Registered
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NONE NONE
Securities registered pursuant to Section 12(g) of the Act:
COMMON STOCK, NO PAR VALUE PER SHARE
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(Title of Class)
4.5% CONVERTIBLE SUBORDINATED DEBENTURES DUE 2003
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(Title of Class)
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. YES X NO
--- ---
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
The aggregate market value of the shares of Common Stock (based upon the
closing price of these shares as reported on the Nasdaq Stock Market's National
Market on March 26, 1997) of the registrant held by non-affiliates on March 26,
1997, was approximately $1.831 billion. As of March 26, 1997,63,253,392 shares
of the registrant's Common Stock were outstanding.
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DOCUMENTS INCORPORATED BY REFERENCE
Documents incorporated by reference and the part of Form 10-K into which
the document is incorporated:
<TABLE>
<S> <C>
Portions of the Registrant's 1996 Annual Report to
Shareholders.............................................. Part II
Portions of the Registrant's Definitive Proxy Statement
Relating to the Annual Meeting of Shareholders to be held
on May 21, 1997........................................... Part III
</TABLE>
PART I
ITEM 1. BUSINESS
COMPANY OVERVIEW
PhyCor is a physician practice management company that acquires and
operates multi-specialty medical clinics and develops and manages independent
practice associations ("IPAs"). PhyCor's objective is to organize physicians
into professionally managed networks that assist physicians in assuming
increased responsibility for delivering cost-effective medical care, while
attaining high-quality clinical outcomes and patient satisfaction. As of
December 31, 1996, the Company operated 44 clinics with approximately 3,050
physicians in 25 states. During the first three months of 1997, the Company
affiliated with an additional three clinics with 182 physicians. The Company
also manages IPAs, which are networks of independent physicians, that, as of
December 31, 1996, included over 9,200 physicians in 17 markets. The Company's
affiliated physicians provided capitated medical services to approximately
825,000 members, including approximately 105,000 Medicare members.
The Company's strategy is to position its affiliated multi-specialty
medical clinics and IPAs to be the physician component of organized health care
systems. PhyCor targets for acquisition primary care-oriented multi-specialty
medical clinics with significant market shares and established reputations for
providing quality medical care. The Company is also assisting independent
physicians in particular markets in developing new physician groups that enter
into long-term agreements with the Company. The Company focuses its IPA
development and management efforts in markets that have characteristics
indicating opportunities for rapid enrollment growth and attractive capitation
rates. The Company generates increased demand for the services and capabilities
of its affiliated physician organizations and achieves growth through the
addition of physicians, the expansion of managed care relationships and the
addition and expansion of ancillary services.
PhyCor believes that primary care-oriented multi-specialty physician
organizations are a critical element of organized health care systems, because
physician decisions determine the cost and quality of care. PhyCor believes that
physician-driven organizations, including multi-specialty medical clinics, IPAs
and the combination of such organizations, present more attractive alternatives
for physician consolidation than hospital or insurer/HMO-controlled
organizations. The combination of PhyCor's multi-specialty
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medical clinic and IPA management capabilities and new group-formation efforts
enables the Company to offer physician practice management services to
substantially all types of physician organizations.
PhyCor implements a number of programs and services at each clinic in order
to promote growth and efficiency, including strategic planning and budgeting,
which focus on cost containment and expense reduction. PhyCor negotiates managed
care contracts, enters into national purchasing agreements, conducts
productivity and procedure coding and charge capturing studies and assists the
clinics in physician recruitment efforts. The Company maintains information
processing systems for each of its clinics, which have expanded the Company's
accounting, billing, receivables management, scheduling and reporting systems
capabilities. The Company has also implemented a quality improvement initiative
designed to enhance the quality of patient service delivery systems at each
affiliated clinic through the maintenance and measurement of performance
standards and collection and review of patient evaluations.
MULTI-SPECIALTY MEDICAL CLINICS
A multi-specialty medical clinic provides a wide range of primary and
specialty physician care and ancillary services through an organized physician
group practice representing various medical specialties. Multi-specialty medical
clinics historically have been locally owned organizations managed by practicing
physicians.
PhyCor targets for acquisition primary care-oriented multi-specialty
clinics comprised of typically between 25 and 200 physicians that have
significant market shares and established reputations for providing quality
medical care. Most of the clinics with which PhyCor seeks to affiliate are the
largest multi-specialty clinics in their local markets. See "Clinic Operations"
below.
The Company generates increased demand for the services and capabilities of
its affiliated physician organizations and achieves growth through the addition
of physicians, the expansion of managed care relationships and the addition and
expansion of ancillary services. During 1996, the Company assisted its
affiliated clinics in recruiting 320 new physicians. The Company also merged the
practices of approximately 140 additional physicians into its existing clinics.
The Company is also assisting formerly unaffiliated physicians in particular
markets to develop new physician groups which enter into long-term service
agreements with the Company. In addition, the Company is developing physician
networks around its physician groups to enhance managed care contracting and to
provide the physician component of organized health care systems. Physicians in
affiliated physician groups may participate in IPAs developed and managed by
North American Medical Management, Inc. ("North American"), an entity acquired
by the Company in 1995, or PhyCor Management Corporation ("PMC"), an entity in
which PhyCor owns a minority interest. See "Physician Networks." PhyCor is also
positioning the clinics for participation in organized health care systems by
establishing strategic alliances with HMOs, insurers, hospitals and other health
care providers and by enhancing medical management systems.
Clinic Operations
Upon the acquisition by PhyCor of a clinic's operating assets, the
affiliated physician group simultaneously enters into a long-term service
agreement with the Company. The Company, under the terms of the service
agreement, provides the physician group with the equipment and facilities used
in its medical practice, manages clinic operations, employs most of the clinic's
non-physician personnel, other than certain diagnostic technicians, and receives
a service fee.
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During 1996, the Company acquired the assets of 13 multi-specialty clinics
located in Arizona, Colorado, Georgia, Indiana, Mississippi, North Carolina,
North Dakota, Ohio, South Carolina, Texas and Virginia. The Company's
Mississippi, North Dakota, Ohio and South Carolina affiliated clinics are the
Company's first clinics in those states. The Company also entered into an
administrative services agreement with Straub Clinic & Hospital, Incorporated
("Straub"), effective October 1, 1996, and consummated the merger with Straub
and entered into a long-term service agreement effective January 17, 1997 with
a newly formed entity consisting of the Straub physicians. As of January 1,
1997, the Company consummated the acquisition of certain assets and entered
into a long-term service agreement with a 66-physician multi-specialty clinic
in Vancouver, Washington. In addition, the Company consummated the acquisition
of certain assets and entered into a long-term service agreement with a newly
formed 21-physician multi-specialty clinic in Palm Springs, California
effective February 1, 1997. The Company's Washington and California clinics are
the Company's first clinics in those states. As of February 28, 1997, the
Company purchased all of the capital stock of two multi-specialty clinics in
St. Petersburg, Florida, combined their operations and entered into a long-term
service agreement with the newly formed 95-physician group. In addition, the
Company is pursuing other possible acquisitions in both existing and new
markets. There can be no assurance that additional acquisitions will be
successfully completed.
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The Company operates the following medical clinics in conjunction with the
affiliated physician groups described below (except as noted below, information
is as of December 31, 1996):
<TABLE>
<CAPTION>
PERCENTAGE
OF NUMBER
NUMBER PRIMARY OF PHYCOR
YEAR OF CARE MEDICAL OPERATIONS SERVICE
CLINIC LOCATION FOUNDED PHYSICIANS PHYSICIANS SPECIALTIES COMMENCED SITES
- ------ -------------------- ------- ---------- ------------ ----------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Green Clinic............... Ruston, LA 1948 36 47% 16 Oct. 1988 2
Doctors' Clinic............ Vero Beach, FL 1969 39 46 19 Jan. 1989 5
Nalle Clinic............... Charlotte, NC 1921 119 54 23 Feb. 1990 10
Greeley Medical Clinic..... Greeley, CO 1933 40 55 15 Oct. 1990 4
Pueblo Physicians.......... Pueblo, CO 1970 43 56 13 Sept. 1991 7
First Coast Medical
Group.................... Jacksonville, FL 1921 103 68 18 Nov. 1991 54
Sadler Clinic.............. Conroe, TX 1955 39 54 15 Jan. 1992 7
Diagnostic Clinic.......... San Antonio, TX 1972 45 53 16 Jan. 1992 5
Virginia Physicians........ Richmond, VA 1923 108 74 18 Feb. 1992 17
Valley Diagnostic Medical
and Surgical Clinic...... Harlingen, TX 1954 23 44 13 Aug. 1992 2
Laconia Clinic............. Laconia, NH 1938 24 54 13 Sept. 1992 2
Olean Medical Group........ Olean, NY 1937 32 44 15 Nov. 1992 2
Holston Medical Group...... Kingsport, TN 1975 45 71 13 Jan. 1993 12
The Medical & Surgical
Clinic of Irving......... Irving, TX 1961 33 70 11 Mar. 1993 2
Simon-Williamson Clinic.... Birmingham, AL 1935 52 75 14 July 1993 9
Medical Arts Center........ Dixon, IL 1986 28 36 14 Oct. 1993 6
Medical Arts Clinic........ Corsicana, TX 1952 42 50 18 Jan. 1994 5
Lexington Clinic........... Lexington, KY 1920 160 47 25 Feb. 1994 22
Southern Plains Medical
Center................... Chickasha, OK 1946 32 53 15 Aug. 1994 2
Holt-Krock Clinic.......... Fort Smith, AR 1921 155 44 23 Sept. 1994 20
Burns Clinic Medical
Center................... Petoskey, MI 1931 127 44 26 Oct. 1994 8
Boulder Medical Center..... Boulder, CO 1949 50 42 21 Oct. 1994 3
Tidewater Physicians Multi-
Specialty Group............ Newport News, VA 1993 69 83 11 Jan. 1995 30
Northeast Arkansas
Clinic................... Jonesboro, AR 1977 61 66 9 Mar. 1995 12
PAPP Clinic................ Newnan, GA 1939 39 51 11 May 1995 5
Ogden Clinic............... Ogden, UT 1968 43 51 18 June 1995 3
Arnett Clinic.............. Lafayette, IN 1922 116 41 24 Aug. 1995 11
Casa Blanca Clinic......... Mesa, AZ 1969 97 63 20 Sept. 1995 7
South Texas Medical
Clinics.................. Wharton, TX 1985 62 65 15 Nov. 1995 10
South Bend Clinic.......... South Bend, IN 1916 55 58 19 Nov. 1995(1) 4
Guthrie Clinic............. Sayre, PA 1910 229 42 29 Nov. 1995(2) 30
Arizona Physicians
Center................... Phoenix, AZ 1987 35 74 10 Jan. 1996 2
Clinics of North Texas..... Wichita Falls, TX 1995 73 51 21 Mar. 1996 6
Carolina Primary Care...... Columbia, SC 1995 30 100 3 May 1996 9
Harbin Clinic.............. Rome, GA 1948 66 21 15 May 1996 7
Focus Health Services...... Denver, CO 1989 55 89 7 July 1996 16
Clark-Holder Clinic........ LaGrange, GA 1936 47 38 19 July 1996 5
Medical Arts Clinic........ Minot, ND 1958 44 52 19 Aug. 1996 1
Wilmington Health
Associates............... Wilmington, NC 1971 43 40 13 Aug. 1996 5
Gulf Coast Medical
Group.................... Galveston, TX 1996 33 73 10 Aug. 1996 10
Hattiesburg Clinic......... Hattiesburg, MS 1963 101 44 17 Oct. 1996 12
Toledo Clinic.............. Toledo, OH 1926 80 18 19 Nov. 1996 10
Lewis-Gale Clinic.......... Roanoke, VA 1909 106 49 23 Nov. 1996 14
Straub Clinic &
Hospital................. Honolulu, HI 1921 187 52 26 Jan. 1997(3) 10
The Vancouver Clinic....... Vancouver, WA 1936 66 47 12 Jan. 1997(4) 4
First Physicians Medical
Group.................... Palm Springs, CA 1997 21 67 9 Feb. 1997(5) 16
St. Petersburg-Suncoast
Medical Group............ St. Petersburg, FL 1997 95 37 23 Feb. 1997(6) 7
</TABLE>
(1) Entered into an interim management agreement effective November 1, 1995
and consummated the acquisition of certain assets and entered into a
long-term service agreement effective January 1, 1996.
(2) Entered into a series of agreements whereby PhyCor agreed to provide
management services for up to five years and agreed to acquire certain
assets of the clinic upon the occurrence of certain conditions.
(3) Entered into an administrative services agreement effective October 1,
1996 and consummated the merger with Straub and entered into a long-term
service agreement effective January 17, 1997.
(4) Acquired certain operating assets and entered into a long-term service
agreement effective January 1, 1997.
(5) Acquired certain operating assets and entered into a long-term service
agreement with the newly formed group effective February 1, 1997.
(6) Acquired all of the capital stock of two clinics, combined their
operations and entered into a long-term service agreement with the newly
formed group effective February 28, 1997.
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In addition to the approximately 3,050 physicians affiliated with the
Company at December 31, 1996, the PhyCor-affiliated physician groups employ
approximately 430 physician extenders, which include physician assistants, nurse
practitioners and other mid-level providers. The Company believes physician
extenders comprise an important component of its integrated network strategy by
efficiently expanding the level of services offered in its clinics.
The physician groups offer a wide range of primary and specialty physician
care and ancillary services. Approximately 53% of PhyCor's affiliated physicians
are primary care providers, and approximately 47% practice various medical and
surgical specialties. The primary care physicians are those in family practice,
general internal medicine, obstetrics, pediatrics and emergency and urgent care.
The Company is assisting all of its clinics in recruiting additional primary
care physicians. Medical specialties include allergy, cardiology, dermatology,
endocrinology, gastroenterology, infectious diseases, nephrology, neurology,
occupational medicine, oncology, pulmonology and rheumatology. Surgical
specialties include general surgery, ophthalmology, orthopedics, otolaryngology,
thoracic surgery and urology. The clinics vary in the number and types of
specialties offered. Substantially all of the physicians practicing in the
clinics are certified or eligible to be certified by the applicable medical
specialty boards.
The clinics also offer a wide array of ancillary services. Most clinics
provide a range of imaging services, which may include CAT scanning,
mammography, nuclear medicine, ultrasound and x-ray. In addition, many of the
clinics have clinical laboratories and pharmacies. Ambulatory surgery units and
rehabilitation services are in place or being planned in most clinics, in some
cases through joint ventures. Several of the clinics have diabetes centers,
pharmaceutical clinical trial programs and weight management programs. Some
offer renal dialysis and participate, usually by joint venture, in home infusion
therapy. Ancillary revenue accounted for approximately 25.2% of gross clinic
revenue for the year ended December 31, 1996 compared to 27.0% for the year
ended December 31, 1995.
In connection with an acquisition of assets and execution of a service
agreement, the Company investigates the history and reputation of the physician
group and the individual physicians. The Company obtains representations and
covenants from the physician group with respect to historical financial
performance and employment and licensure of individual physicians. As part of
its services performed under the service agreement, PhyCor personnel undertake
administrative tasks in connection with obtaining and maintaining liability
insurance for the physician group, including maintaining and reviewing files
relating to physician licensure and certification. PhyCor does not, however,
control the practice of medicine by physicians or compliance by them with
licensure or certification requirements. PhyCor's affiliated physicians maintain
full professional control over their medical practices, determine which
physicians to hire or terminate and set their own standards of practice in order
to promote high quality health care.
PhyCor Operations
Pursuant to its service agreements with physician groups, PhyCor manages
all aspects of the clinics other than the provision of medical services, which
is controlled by the physician groups. At each clinic, a joint policy board
equally comprised of physicians and PhyCor personnel focuses on strategic and
operational planning, marketing, managed care arrangements and other major
issues facing the clinic. The joint policy board involves experienced health
care managers in the decision making process and
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brings increased discipline and accountability to clinic operations. PhyCor is
not engaged in the practice of medicine.
PhyCor enhances clinic growth by expanding managed care arrangements,
assisting in the recruitment and merger of physicians and expanding and adding
ancillary services. PhyCor works closely with the physician groups in targeting
and recruiting physicians from outside the community and merging physicians in
sole practice or single specialty groups, especially primary care groups, into
the clinics' physician groups. PhyCor assists in the development of new and
expanded ancillary services by providing the needed capital resources and
management services.
Management believes its clinics have the opportunity to form relationships
with managed care organizations, insurance companies and hospitals to create
high-quality, cost-effective health care delivery systems. The Company is
aligning its affiliated clinics with low-cost, high-quality hospitals and
related providers in each of its markets and through various relationships is
seeking to more closely coordinate the overall delivery of health care to
patients. These plans may include participation by affiliated physicians in
physician networks developed and managed by PhyCor or PMC. See "Physician
Networks." Pursuant to certain of the Company's relationships with managed care
organizations and insurance companies, responsibility for physician services,
hospital utilization and overall medical management is assumed by the physician
networks being developed by PhyCor-affiliated clinics. The Company believes that
medical management performed within physician organizations can yield the
greatest value in quality-driven, cost-effective health care and that premiums
collected from purchasers of health care will be allocated based upon the value
of the services performed by the health care provider members of organized
health care systems.
The Company sponsors the PhyCor Institute for Healthcare Management which
provides practical managed care and medical management training for physicians
affiliated or considering affiliation with PhyCor. Through the Institute's
efforts, physicians in many locations work together to achieve "economies of
intellect" and best practice performance through shared data and experience.
These efforts emphasize outcomes measurement and management and are intended to
improve the physicians' ability to attain optimal clinical outcomes and patient
satisfaction, while emphasizing appropriate utilization of health care
resources. The Company believes that, in the future, its ability to
differentiate its physician organizations based upon quality clinical
performance will increasingly impact financial performance.
The Company focuses the attention of the physician groups on practice
patterns. This effort emphasizes outcomes measurement and management and is
intended to improve the physicians' ability to attain the desired clinical
results while containing the utilization of health resources. Similarly, the
Company's quality service initiative seeks to improve the patient's overall
experience with the health care delivered within the Company's affiliated
clinics and networks.
The Company provides support for the selection and implementation of
information systems at its clinics. The Company has selected certain practice
management and other systems considered to be most effective for capitated risk
management, provider profiling, outcomes analysis and automated patient records
for implementation at its clinics. These systems are designed to allow physician
organizations to successfully capture information that will enable them to more
effectively manage the risk associated with capitated arrangements.
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The Company also negotiates national arrangements that provide cost savings
to its clinics through economies of scale in malpractice insurance, supplies and
equipment. In addition, PhyCor has a service improvement program that aligns
staffing with the volume and service needs of its physician organizations and
focuses on measuring and improving patient satisfaction. Upon assuming the
operations of a clinic, the Company implements a standard set of business
policies and reviews procedure coding practices in each clinic.
Service Agreements
The long-term service agreements currently entered into by the Company are
for terms of 40 years. Long-term agreements entered into prior to 1994 are
generally for terms of 30 years. These agreements cannot be terminated by the
Company or the physician groups without cause, which includes material default
or bankruptcy. Upon the expiration of the term of a service agreement or in the
event of termination, the physician group must purchase all of the
related assets owned by the Company, generally at then current book value. The
physician group agrees not to compete with PhyCor and substantially all of the
physicians agree not to compete with the physician group for a period of time or
agree to pay liquidated damages if they compete. The Company agrees not to
affiliate with other multi-specialty groups in the clinic's service area.
Under most of its service agreements, the Company receives a service fee
equal to the clinic expenses it has paid plus percentages of operating income of
the clinic (net clinic revenue less certain contractually agreed upon clinic
expenses before physician distributions) plus, in some cases, percentages of net
clinic revenue. As clinic operating income improves, whether as a result of
increased revenue or lower expenses, PhyCor's service fees increase.
Several of the Company's service agreements contain provisions granting the
physician groups termination rights or rights of first refusal in certain
events. Many of the service agreements provide that if any person or persons
acquire the right to vote 50% or more of PhyCor's Common Stock, the physician
group may terminate the service agreement, unless the transaction was approved
by PhyCor's Board of Directors or subsequently approved by two-thirds of
PhyCor's directors who are not members of management or affiliates of the
acquiring person. The physician group in Lexington, Kentucky may also terminate
its service agreement if an entity named therein acquires 15% or more of the
Company's outstanding Common Stock. Other groups may terminate their service
agreement in the event of a merger where PhyCor does not survive or a takeover
or sale of substantially all the assets of PhyCor or in the event of a sale of
all or substantially all of the assets or capital stock of the PhyCor subsidiary
with whom the service agreement was entered into. Some physician groups have
rights of first refusal to purchase the clinic assets owned by PhyCor if PhyCor
determines to sell such assets. The above provisions could have an adverse
effect on any efforts to take control of PhyCor without the consent of the Board
of Directors and the physician groups having these rights.
PHYSICIAN NETWORKS
The Company believes that the health care industry will continue to be
driven by local market factors and that organized providers of health care, like
IPAs, will play a significant role in delivering cost-effective, quality medical
care. IPAs offer physicians an opportunity to participate in expanding organized
health care systems and assistance in contracting with insurance and HMO
organizations and other large purchasers of health care services. IPAs
consolidate independent physicians by providing
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general organizational structure and management to the physician network. IPAs
provide or contract for medical management services to assist physician networks
in obtaining and servicing managed care contracts. Physicians affiliated with
IPAs often seek additional practice management services, including billing,
staffing and financial management services, which are provided in certain
circumstances by a management service organization.
PhyCor established its presence in the IPA management business in 1995 and
believes that a significant opportunity exists to develop and manage IPAs. IPAs
consolidate independent physicians by providing general organizational structure
and management to the physician network. IPAs provide or contract for medical
management services to assist physician networks in obtaining and servicing
managed care contracts and enable previously unaffiliated physicians to assume
and more effectively manage capitated risk.
Effective January 1, 1995, the Company acquired all of the outstanding
shares of capital stock of North American. As of December 31, 1996, PhyCor
managed IPAs with over 9,200 physicians in 17 markets. The Company establishes
management companies through which all health plan contracts are negotiated.
These management companies, in which physicians may have an equity interest,
provide information and operating systems, actuarial and financial analysis,
medical management and provider contract services to the IPA. PhyCor assists
physicians in forming networks to develop a managed care delivery system in
which the IPA accepts fiscal responsibility for providing a wide range of
medical services. PhyCor intends to continue to develop primary care-oriented
health care delivery systems in certain markets that do not have established
managed care networks.
In June 1995, PhyCor purchased a minority interest in PMC and manages PMC
pursuant to a ten-year administrative services agreement. PMC develops and
manages IPAs and provides other services to physician organizations. PhyCor has
an option to purchase the remaining equity interest of PMC prior to the end of
May 2005.
REGULATION
General
The health care industry is highly regulated, and there can be no assurance
that the regulatory environment in which the Company operates will not change
significantly in the future. In general, regulation of health care companies is
increasing.
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Every state imposes licensing requirements on individual physicians and on
facilities and services operated by physicians. In addition, federal and state
laws regulate HMOs and other managed care organizations. Many states require
regulatory approval, including certificates of need, before establishing certain
types of health care facilities, offering certain services or making
expenditures in excess of statutory thresholds for health care equipment,
facilities or programs. To date, neither the Company's clinics nor its managed
IPAs have been required to obtain certificates of need for their activities. In
connection with the expansion of existing operations and the entry into new
markets and managed care arrangements, the Company and its affiliated practice
groups as well as its managed IPAs may become subject to compliance with
additional regulation.
The Company and its clinics and managed IPAs are also subject to federal,
state and local laws dealing with issues such as occupational safety,
employment, medical leave, insurance regulations, civil rights and
discrimination, and medical waste and other environmental issues. At an
increasing rate, federal, state and local governments are expanding the
regulatory requirements on businesses, including medical practices. The
imposition of these regulatory requirements may have the effect of increasing
operating costs and reducing the profitability of the Company's operations.
The Company, through its IPAs, enters into contracts and joint ventures
with licensed insurance companies, such as HMOs, whereby the Company and its
IPAs assume risk in connection with providing health care services under various
capitation arrangements. To the extent the Company or its managed IPAs are in
the business of insurance as a result of entering into such risk sharing
arrangements, they are subject to a variety of regulatory and licensing
requirements applicable to insurance companies or HMOs. There can be no
assurance, however, that the Company or its managed IPAs will not be adversely
affected by such regulations. In connection with a recent multi-specialty
medical clinic acquisition, the Company acquired an HMO previously affiliated
with the clinic. The HMO industry is highly regulated at the state level and is
highly competitive. Additionally, the HMO industry has been subject to numerous
legislative initiatives within the past several years. Certain aspects of health
care reform legislation being considered at the federal level have direct and
indirect consequences for the HMO industry. There can be no assurance that
developments in any of these areas will not have an adverse effect on the
Company's wholly-owned HMO or on HMOs in which the Company has a partial
ownership interest or other financial involvement.
Many of the payor contracts entered into on behalf of PhyCor-managed IPAs
are based on capitated fee arrangements. Under capitation arrangements, health
care providers bear the risk, subject to certain loss limits, that the aggregate
costs of providing medical services to the members will exceed the premiums
received. The management fees are based, in part, upon a share of surplus, if
any, of a capitated amount of revenue. Agreements with payors also contain
"shared risk" provisions under which the Company and the IPA can earn additional
compensation based on utilization of hospital services by members and may be
required to bear a portion of any loss in connection with such "shared risk"
provisions. Any such loss could have a material adverse effect on the Company.
The profitability of the managed IPAs is dependent upon the ability of the
providers to effectively manage the per patient costs of providing medical
services and the level of utilization of medical services. The management fees
are also based upon a percentage of revenue collected by the IPAs. Any loss of
revenue by the IPAs as a result of losing affiliated physicians, the termination
of third party payor contracts or otherwise could have a material adverse effect
on management fees derived by the Company from its management of IPAs. Through
its service agreements, the Company also shares in capitation risk assumed by
its affiliated physician groups.
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Federal and state antitrust laws also prohibit agreements in restraint of
trade, the exercise of monopoly power and other practices that are considered to
be anti-competitive. The Company believes that it is in material compliance with
federal and state antitrust laws in connection with the operation of its clinics
and its managed IPAs.
The Company believes its operations are in material compliance with
applicable law and expects to modify its agreements and operations to conform in
all material respects to future regulatory changes. The ability of the Company
to operate profitably will depend in part upon the Company and its affiliated
physician groups and its managed IPAs obtaining and maintaining all necessary
licenses, certificates of need and other approvals and operating in compliance
with applicable health care regulations. The Company is unable to predict what
additional government regulations, if any, affecting its business may be enacted
in the future or how existing or future laws and regulations might be
interpreted. The failure of the Company or any of its affiliated physician
groups or managed IPAs to comply with applicable law could have a material
adverse effect on the Company.
State Legislation
The laws of many states prohibit physicians from splitting fees with
non-physicians, prohibit non-physician entities (such as the Company, including
North American) from practicing medicine and prohibit referrals to facilities in
which physicians have a financial interest. There can be no assurance, however,
that future interpretations of, or changes in, these laws will not require
structural and organizational modifications of the Company's existing
relationships with its clinics or modifications in the existing relationships
with its affiliated IPAs, and there can be no assurance that the Company would
be able to appropriately modify its relationships. In addition, statutes in some
states could restrict expansion of the operations of the Company to those
jurisdictions.
Medicare Payment System
The Company's affiliated physician groups and IPAs derived approximately
20% of their net revenue in 1996 from payments for services provided to
patients enrolled in the federal Medicare program, including patients covered
by risk contracts. Clinics and IPAs managed by the Company provide medical
services under risk contracts to approximately 105,000 Medicare members. The
prior system of Medicare payments, other than for risk contracts, was based on
customary, prevailing and reasonable physician charges and was phased out from
1992 through 1996 and replaced with an annually-adjusted resource-based
relative value scale ("RBRVS"). The Company believes that the RBRVS fee scale
may provide modest increases from historical levels in the per patient
fee-for-service Medicare revenue received by the physician groups and IPAs with
which the Company is affiliated, but does not believe that such restraints on
fee increases will result in a material adverse change in the results of
operations of the Company.
Medicare Fraud and Abuse and Anti-Referral Provisions
The provisions of the Social Security Act addressing illegal remuneration
(the "anti-kickback statute") prohibit providers and others from soliciting,
receiving, offering or paying, directly or indirectly, any form of remuneration
in return for the referral of Medicare or state health program patients or
patient care opportunities, or in return for the purchase, lease arrangements or
order of any item or service that is covered by Medicare or a state health
program. The applicability of these provisions to many business transactions in
the health care industry, including the Company's service
11
<PAGE> 12
agreements with physician groups, management agreements with IPAs and joint
ventures with other health care providers, has not been subject to any
significant judicial and regulatory interpretation.
Management believes that although it is receiving remuneration under its
service agreements for management services and management fees under management
agreements for services to IPAs, the Company is not in a position to make or
influence referrals of patients or services reimbursed under Medicare or state
health programs to the physician groups or networks. Consequently, the Company
does not believe that the service fees and management fees payable to it could
be viewed as remuneration for referring or influencing referrals of patients or
services covered by such programs as prohibited by the anti-kickback statute.
The Company is not a separate provider of Medicare or state health program
reimbursed services except for pharmacy operations operated by Company
subsidiaries at four of its clinic locations. To the extent that the Company is
deemed to be a separate provider of medical services under its service
agreements or management agreements and to receive referrals from physicians,
the financial arrangements could be subject to scrutiny under the anti-kickback
statute. The Company does not believe that its operation of four pharmacies
under provider numbers that are separate from the clinics' creates a material
risk under the anti-kickback statute. The Company, however, intends to bring all
pharmacy operations into the group practices that operate the clinics.
In connection with the transaction with Straub, the Company provides
certain management services to both a physician group practice and a hospital
owned by the group. Because the hospital is subject to extensive regulation and
because hospital management companies have, in some instances, been viewed as
referral sources by federal regulatory agencies, the relationship between PhyCor
and the physician group could come under increased scrutiny under the Medicare
fraud and abuse law. In late 1995, prior to its association with PhyCor, Straub
was served with a federal search warrant in connection with an investigation
into Straub's billing and receivables practices, including with respect to
Medicare, Medicaid and CHAMPUS. The investigation is ongoing, and no
determination can be made at this time as to its outcome. The Company is
indemnified by the physician group affiliated with Straub against any penalties
imposed as a result of the investigation, and PhyCor believes that such
indemnity will be sufficient to satisfy any claims made against PhyCor as a
successor to Straub, although no assurance can be given in that regard. In
addition, the federal government could in certain circumstances suspend or
prevent Straub from participating in government programs, which would have a
negative impact on PhyCor's revenues under its service agreement with Straub.
In July 1991, the federal government published regulations that provide
exceptions, or "safe harbors," for business transactions that will be deemed not
to violate the anti-kickback statute. In September 1993, additional safe harbors
were proposed for eight activities including referrals within group practices
consisting of active investors. While the arrangements between the Company, the
clinics and third parties, including the arrangements between North American and
providers and provider groups, do not in all instances fall within the
protection offered by these safe harbors or the proposed safe harbors, the
Company believes its operations are in material compliance with applicable
Medicare fraud and abuse laws. If the arrangements were found to be illegal, the
Company, the physician groups and/or the individual physicians would be subject
to civil and criminal penalties, including exclusion from participation in
government reimbursement programs, which could materially adversely affect the
Company.
Under legislation known as the "Stark Bill," referrals of certain services
to entities by physicians with an ownership interest in, or financial
relationship with, that entity have been prohibited. The
12
<PAGE> 13
covered services include physical therapy services, occupational therapy
services, radiology services, including MRI, CT and ultrasound, radiation
therapy services, durable medical equipment, parenteral and enteral nutrients,
equipment and supplies, prosthetics, orthotics and prosthetic devices, home
health services, outpatient prescription drugs and inpatient and outpatient
hospital services. The Company believes that its clinics are operating in
compliance with the language of statutory exceptions to the Stark Bill,
including, but not limited to, the exceptions for services provided by
physicians within a group practice or in-office ancillary services. As a result,
the Company does not believe that physicians who are members of the group
practices practicing at its clinics are prohibited from making referrals of
designated health services to the clinics.
Impact of Health Care Regulatory Changes
The United States Congress and many state legislatures routinely consider
proposals to reform or modify the health care system, including measures that
would control health care spending, convert all or a portion of government
reimbursement programs to managed care arrangements, and balance the federal
budget by reducing spending for Medicare and state health programs. These
measures can affect a health care company's cost of doing business and
contractual relationships. For example, recent developments that affect the
Company's activities include: (i) federal legislation requiring a health plan to
continue coverage for individuals who are no longer eligible for group health
benefits and prohibiting the use of "pre-existing condition" exclusions that
limit the scope of coverage; (ii) a Health Care Financing Administration policy
prohibiting restrictions in Medicare risk HMO plans on a physician's
recommending to patients other health plans and treatment options; and (iii)
regulations imposing restrictions on physician incentive provisions in physician
provider agreements. There can be no assurance that such legislation, programs
and other regulatory changes will not have a material adverse effect on PhyCor.
COMPETITION
The business of providing health care related services is highly
competitive. Many companies, including professionally managed physician practice
management companies, have been organized to pursue the acquisition of medical
clinics, managing such clinics, employing clinic physicians or providing
services to IPAs. Large hospitals, other multispecialty clinics and health care
companies, HMOs and insurance companies are also engaged in activities similar
to those of the Company. Some of these competitors have longer operating
histories and significantly greater resources than the Company. There can be no
assurance that the Company will be able to compete effectively, that additional
competitors will not enter the market, or that such competition will not make it
more difficult to acquire the assets of medical clinics or develop or manage
IPAs on terms beneficial to the Company. To the extent that health care industry
reforms make prepaid medical care more attractive and provide incentives to form
organized health care systems, the Company anticipates facing greater
competition. PhyCor's revenues are dependent upon the continued success of the
medical groups with which it has long-term service agreements and IPAs that it
manages. These organizations face competition from several sources, including
sole practitioners, single and multi-specialty groups and staff model HMOs.
INSURANCE
The Company maintains medical professional liability insurance on a claims
made basis for all of its clinics and its operations. Insurance coverage under
such policies is contingent upon a policy being
13
<PAGE> 14
in effect when a claim is made, regardless of when the events which caused the
claim occurred. The Company also maintains general liability and umbrella
coverage on an occurrence basis. The cost and availability of such coverage has
varied widely in recent years. While the Company believes its insurance policies
are adequate in amount and coverage for its current operations, there can be no
assurance that the coverage maintained by the Company is sufficient to cover all
future claims or will continue to be available in adequate amounts or at a
reasonable cost. PhyCor is named as the additional insured on the various
policies maintained by the several physician groups, including the professional
liability insurance policies carried by the physician groups.
EMPLOYEES
As of December 31, 1996, the Company employed approximately 15,000 people,
including 120 in the corporate office. None of the Company's employees is a
member of a labor union, and the Company considers its relations with its
employees to be excellent.
ITEM 2. PROPERTIES
The Company leases approximately 45,000 square feet of rentable space at 30
Burton Hills Boulevard in Nashville, Tennessee, where the Company's headquarters
are located. The Company pays approximately $81,000 per month in rent, which
rental amount increases over the term of the lease to approximately $83,000 per
month in the final year. The lease expires in 2003. The Company believes these
arrangements and other available space are adequate for its current uses and
anticipated growth.
The Company leases, subleases or occupies pursuant to its service
agreements the clinic facilities. In many cases, facilities are leased from the
physician groups with the lease cost generally included in the service fees paid
to PhyCor. In connection with the acquisition of the Company's affiliated clinic
in Lexington, Kentucky, the Company acquired the real estate used by the
physician group, including the clinic's main clinic facility in Lexington and
other satellite facilities in Lexington and the surrounding communities. Certain
of such properties are subject to mortgages assumed by the Company as a result
of the transaction with an aggregate outstanding principal balance as of
February 28, 1997 of $3.7 million and bear interest at rates ranging from 8.25%
to 10.5%. In connection with the Company's acquisitions of its affiliated
clinics in Lafayette, Indiana, and St. Petersburg, Florida, the Company acquired
the real estate used by each of the physician groups. At the time of such
acquisitions, certain of the properties were subject to a mortgage, which
indebtedness was assumed by PhyCor as a result of the transactions and repaid in
full. The Company makes such facilities available to the physician groups
pursuant to the long-term service agreements with Lexington Clinic, Arnett
Clinic and St. Petersburg-Suncoast Medical Clinic, respectively.
The Company may from time to time acquire real estate in connection with
the acquisition of clinic assets. The Company anticipates that as the clinics
continue to grow and add new services, expanded facilities will be required.
Such transactions may require PhyCor's assistance in obtaining financing of the
property on behalf of the physician groups.
ITEM 3. LEGAL PROCEEDINGS
Certain litigation is pending against the physician groups affiliated with
the Company and IPAs managed by the Company. The Company has not assumed any
liability in connection with such
14
<PAGE> 15
litigation. Claims against the physician groups and IPAs could result in
substantial damage awards to the claimants which may exceed applicable insurance
coverage limits. While there can be no assurance that the physician groups and
IPAs will be successful in any such litigation, the Company does not believe any
such litigation will have a material adverse effect on the Company. Certain
other litigation is pending against the Company and certain subsidiaries of the
Company none of which management believes would have a material adverse effect
on the Company's financial position or results of operations taken as a whole.
Certain litigation is pending against subsidiaries of North American which was
outstanding prior to the acquisition of North American by the Company. The
Company is indemnified by certain former shareholders of North American for any
damages as a result of the litigation and the amount of any additional payments
to be made to the former shareholders of North American would be offset by any
damages resulting from such litigation. While there can be no assurance that the
North American subsidiaries will be successful in any such litigation, the
Company does not believe any such litigation will have a material adverse effect
on the Company.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
Not applicable.
FORWARD-LOOKING STATEMENTS
This report contains forward-looking statements regarding the business and
industry of PhyCor, Inc. ("PhyCor" or the "Company"), including those regarding
the acquisition of additional clinics, the development of additional IPAs, the
adequacy of PhyCor's capital resources and other statements regarding trends
relating to various revenue and expense items. Many factors, including the
Company's ability to consolidate clinics and operate them profitably,
competition, regulatory developments and changes, the profitability of
capitated fee arrangements and other methods of payment for medical services,
the fact that the physician groups with which PhyCor affiliates are exposed to
the risk of professional liability claims, its dependence on the revenue
generated by its affiliated clinics and other uncertainties, could cause actual
results to differ materially from those discussed in the forward-looking
statements made in this report.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
Information relating to the Common Stock is set forth in the Company's 1996
Annual Report to Shareholders under the caption "Corporate and Investor
Information -- Common Stock" and is incorporated herein by reference.
ITEM 6. SELECTED FINANCIAL DATA
The Company's selected financial data is set forth in the Company's 1996
Annual Report to Shareholders under the caption "Selected Financial Data" and is
incorporated herein by reference.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Management's discussion and analysis of financial condition and results of
operations is set forth in the Company's 1996 Annual Report to Shareholders
under the caption "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and is incorporated herein by reference.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The Company's financial statements and the related notes, together with the
report of KPMG Peat Marwick LLP thereon, are set forth in the Company's 1996
Annual Report to Shareholders and are incorporated herein by reference.
15
<PAGE> 16
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not Applicable.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Information with respect to the executive officers of the Company is set
forth in the Company's Definitive Proxy Statement relating to the Annual Meeting
of Shareholders to be held on May 21, 1997 under the caption "Executive
Compensation -- Executive Officers of the Company" and is incorporated herein by
reference. Information with respect to the directors of the Company is set forth
in the Company's Definitive Proxy Statement relating to the Annual Meeting of
Shareholders to be held on May 21, 1997 under the caption "Election of
Directors" and is incorporated herein by reference. Information with respect to
compliance with Section 16(a) of the Securities Exchange Act of 1934 is set
forth in the Company's Definitive Proxy Statement relating to the Annual Meeting
of Shareholders to be held on May 21, 1997 under the caption "Compliance With
Reporting Requirements of the Exchange Act" and is incorporated herein by
reference.
ITEM 11. EXECUTIVE COMPENSATION
Information with respect to executive compensation is set forth in the
Company's Definitive Proxy Statement relating to the Annual Meeting of
Shareholders to be held on May 21, 1997 under the caption "Executive
Compensation" and is incorporated herein by reference, except that the
Comparative Performance Graph and the Compensation Committee Report on Executive
Compensation included in the Definitive Proxy Statement are expressly not
incorporated herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Information with respect to the security ownership of certain beneficial
owners and management is set forth in the Company's Definitive Proxy Statement
relating to the Annual Meeting of Shareholders to be held on May 21, 1997 under
the caption "Voting Securities and Principal Holders Thereof" and is
incorporated herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Information with respect to certain relationships and related transactions
is set forth in the Company's Definitive Proxy Statement relating to the Annual
Meeting of Shareholders to be held on May 21, 1997 under the caption "Certain
Relationships and Related Transactions" and is incorporated herein by reference.
16
<PAGE> 17
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) Index to Consolidated Financial Statements, Financial Statement
Schedules and Exhibits
(1) Financial Statements: See Item 8 herein.
(2) Financial Statement Schedules:
Independent Auditors' Report.......................... S-1
Schedule II -- Valuation and
Qualifying Accounts............................... S-2
All other schedules are omitted, because they are not applicable or not
required, or because the required information is included in the consolidated
financial statements or notes thereto.
17
<PAGE> 18
(3) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- ------- -----------------------
<C> <S> <C>
3.1 -- Amended Bylaws of the Registrant (1)
3.2 -- Restated Charter of the Registrant (1)
3.3 -- Amendment to Restated Charter of the Registrant (2)
3.4 -- Amendment to Restated Charter of the Registrant (3)
4.1 -- Form of 4.5% Convertible Subordinated Debenture due 2003 (4)
4.2 -- Form of Indenture by and between the Registrant and First
American National Bank, N.A. (4)
10.1 -- Form of Amended Employment Agreements dated March 31, 1994
entered into by each of Messrs. Hutts, Reeves, Dent and
Wright (5)
10.2 -- Registrant's Amended 1988 Incentive Stock Plan (5)
10.3 -- Registrant's Amended 1992 Non-Qualified Stock Option Plan
for Non-Employee Directors (5)
10.4 -- Registrant's 1991 Amended Employee Stock Purchase Plan (6)
10.5 -- Registrant's Savings and Profit Sharing Plan (6)
10.6 -- Fifth Amended and Restated Credit and Term Loan Agreement,
dated as of July 22, 1996, by and between the Registrant and
Citibank, N.A., and the banks named therein, as amended (7)
10.7 -- Amended and Restated Agreement of Merger, dated October 1,
1996, by and between the Registrant and Straub Clinic &
Hospital, Incorporated (8)
10.8 -- Service Agreement, dated as of January 17, 1997, by and
between PhyCor of Hawaii, Inc. and Straub Clinic & Hospital,
Inc. (8)
10.9 -- Amended Securities Purchase Agreement, dated as of January
1, 1995, by and between the Registrant and North American
Medical Management, Inc. (1)
11 -- Statement re computation of per share earnings (7)
13 -- Portions of the Registrant's Annual Report to Shareholders
for the year ended December 31, 1996 (7)
21 -- List of subsidiaries of the Registrant (7)
23 -- Consent of KPMG Peat Marwick LLP (7)
27 -- Financial Data Schedule (for SEC use only) (7)
</TABLE>
(1) Incorporated by reference to exhibits filed with the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1994, Commission
No. 0-19786.
(2) Incorporated by referenced to exhibits filed with the Registrant's
Registration Statement on Form S-3, Commission No. 33-93018.
(3) Incorporated by referenced to exhibits filed with the Registrant's
Registration Statement on Form S-3, Commission No. 33-98528.
(4) Incorporated by reference to exhibits filed with the Registrant's
Registration Statement on Form S-3, Registration No. 333-328.
(5) Incorporated by reference to exhibits filed with the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1993, Commission
No. 0-19786.
(6) Incorporated by reference to exhibits filed with the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1991, Commission
No. 0-19786.
(7) Filed herewith.
(8) Incorporated by reference to exhibits filed with the Registrant's
Registration Statement on Form S-4, Commission No. 333-15459.
18
<PAGE> 19
EXECUTIVE COMPENSATION PLANS AND ARRANGEMENTS
The following is a list of all executive compensation plans and
arrangements filed as exhibits to this Annual Report on Form 10-K:
(1) Form of Amended Employment Agreement, dated March 31, 1994, between the
Registrant and each of Messrs. Hutts, Reeves, Dent and Wright (filed
as Exhibit 10.1)
(2) Registrant's Amended 1988 Incentive Stock Plan (filed as Exhibit 10.2)
(3) Registrant's Amended 1992 Non-Qualified Stock Option Plan for
Non-Employee Directors (filed as Exhibit 10.3)
(b) Reports on Form 8-K
None
(c) Exhibits
The response to this portion of Item 14 is submitted as a separate
section of this report. See Item 14(a)(3)
(d) Financial Statement Schedules
The response to this portion of Item 14 is submitted as a separate
section of this report. See Item 14(a)(2)
19
<PAGE> 20
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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, in the City of
Nashville, State of Tennessee, on March 28, 1997.
PHYCOR, INC.
By: /s/ JOSEPH C. HUTTS
------------------------------------
Joseph C. Hutts
Chairman of the Board,
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
Report has been signed by the following persons on behalf of the Registrant and
in the capacities and on the date indicated.
<TABLE>
<C> <C> <S>
/s/ JOSEPH C. HUTTS Chairman of the Board, President March 28, 1997
- --------------------------------------------------- and Chief Executive Officer
Joseph C. Hutts (Principal Executive Officer) and
Director
/s/ DERRIL W. REEVES Executive Vice President, March 28, 1997
- --------------------------------------------------- Development and Director
Derril W. Reeves
/s/ JOHN K. CRAWFORD Vice President and Chief March 28, 1997
- --------------------------------------------------- Financial Officer (Principal
John K. Crawford Financial and Accounting Officer)
/s/ THOMPSON S. DENT Executive Vice President, March 28, 1997
- --------------------------------------------------- Corporate Services and Director
Thompson S. Dent
/s/ RICHARD D. WRIGHT Executive Vice President, March 28, 1997
- --------------------------------------------------- Operations and Director
Richard D. Wright
/s/ RONALD B. ASHWORTH Director March 28, 1997
- ---------------------------------------------------
Ronald B. Ashworth
/s/ SAM A. BROOKS, JR. Director March 28, 1997
- ---------------------------------------------------
Sam A. Brooks, Jr.
</TABLE>
<PAGE> 21
<TABLE>
<S> <C> <C>
/s/ WINFIELD DUNN Director March 28, 1997
- ---------------------------------------------------
Winfield Dunn
/s/ C. SAGE GIVENS Director March 28, 1997
- ---------------------------------------------------
C. Sage Givens
/s/ JOSEPH A. HILL, M.D. Director March 28, 1997
- ---------------------------------------------------
Joseph A. Hill, M.D.
/s/ JAMES A. MONCRIEF, M.D. Director March 28, 1997
- ---------------------------------------------------
James A. Moncrief, M.D.
</TABLE>
<PAGE> 22
INDEPENDENT AUDITORS' REPORT
THE BOARD OF DIRECTORS AND SHAREHOLDERS
PHYCOR, INC.:
Under date of February 4, 1997 (except for Note 12(a), which is as of March 7,
1997), we reported on the consolidated balance sheets of PhyCor, Inc. and
subsidiaries as of December 31, 1996 and 1995, and the related consolidated
statements of income, shareholders' equity and cash flows for each of the years
in the three-year period ended December 31, 1996, as contained in the 1996
annual report to shareholders. These consolidated financial statements and our
report thereon are incorporated by reference in the annual report on Form 10-K
for the year 1996. In connection with our audits of the aforementioned
consolidated financial statements, we also audited the related consolidated
financial statement schedule. The financial statement schedule is the
responsibility of the Company's management. Our responsibility is to express an
opinion on the financial statement schedule based on our audits.
In our opinion, the financial statement schedule, when considered in
relation to the basic consolidated financial statements taken as a whole,
presents fairly, in all material respects, the information set forth therein.
KPMG PEAT MARWICK LLP
NASHVILLE, TENNESSEE
FEBRUARY 4, 1997
S-1
<PAGE> 23
PHYCOR, INC. AND SUBSIDIARIES
SCHEDULE II
VALUATION AND QUALIFYING ACCOUNTS
<TABLE>
<CAPTION>
BALANCE ADDITIONS BALANCE
BEGINNING EXPENSE DEDUCTIONS OTHER (1) ENDING
--------- --------- ---------- --------- -------
<S> <C> <C> <C> <C> <C>
ALLOWANCE FOR DOUBTFUL
ACCOUNTS AND CONTRACTUAL
ADJUSTMENTS (IN THOUSANDS)
December 31, 1994............................ $32,160 175,121 (181,496) 43,075 68,860
======= ======= ======== ====== =======
December 31, 1995............................ $68,860 359,652 (360,684) 14,377 82,205
======= ======= ======== ====== =======
December 31, 1996............................ $82,205 699,186 (688,276) 41,441 134,556
======= ======= ======== ====== =======
(1) Represents allowances of acquired clinics.
</TABLE>
<TABLE>
<CAPTION>
BALANCE ADDITIONS BALANCE
BEGINNING EXPENSE DEDUCTIONS (2) ENDING
--------- --------- -------------- -------
<S> <C> <C> <C> <C>
ACCUMULATED AMORTIZATION OF
INTANGIBLE ASSETS (IN
THOUSANDS)
December 31, 1994................................... $ 5,351 2,420 (503) 7,268
======= ======= ======= =======
December 31, 1995................................... $ 7,268 7,039 (195) 14,112
======= ======= ======= =======
December 31, 1996................................... $14,112 13,649 -- 27,761
======= ======= ======= =======
(2) Represents the sale of clinic assets in 1994 and the conversion of bonds in
1995.
</TABLE>
S-2
<PAGE> 24
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- ------- ------------------------------------------------------------
<C> <C> <S>
3.1 -- Amended Bylaws of the Registrant (1)
3.2 -- Restated Charter of the Registrant (1)
3.3 -- Amendment to Restated Charter of the Registrant (2)
3.4 -- Amendment to Restated Charter of the Registrant (3)
4.1 -- Form of 4.5% Convertible Subordinated Debenture due 2003 (4)
4.2 -- Form of Indenture by and between the Registrant and First
American National Bank, N.A. (4)
10.1 -- Form of Amended Employment Agreements dated March 31, 1994
entered into by each of Messrs. Hutts, Reeves, Dent and
Wright (5)
10.2 -- Registrant's Amended 1988 Incentive Stock Plan (5)
10.3 -- Registrant's Amended 1992 Non-Qualified Stock Option Plan
for Non-Employee
10.5 -- Registrant's Savings and Profit Sharing Plan (6)
10.6 -- Fifth Amended and Restated Credit and Term Loan Agreement,
dated as of July 22, 1996, by and between the Registrant and
Citibank, N.A., and the banks named therein, as amended (7)
10.7 -- Amended and Restated Agreement of Merger, dated October 1,
1996, by and between the Registrant and Straub Clinic &
Hospital, Incorporated (8)
10.8 -- Service Agreement, dated as of January 17, 1997, by and
between PhyCor of Hawaii, Inc. and Straub Clinic & Hospital,
Inc. (8)
10.9 -- Amended Securities Purchase Agreement, dated as of January
1, 1995, by and between the Registrant and North American
Medical Management, Inc. (1)
11 -- Statement re computation of per share earnings (7)
13 -- Portions of the Registrant's Annual Report to Shareholders
for the year ended December 31, 1996 (7)
21 -- List of subsidiaries of the Registrant (7)
23 -- Consent of KPMG Peat Marwick LLP (7)
27 -- Financial Data Schedule (for SEC use only) (7).
</TABLE>
(1) Incorporated by reference to exhibits filed with the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1994, Commission
No. 0-19786.
(2) Incorporated by referenced to exhibits filed with the Registrant's
Registration Statement on Form S-3, Commission No. 33-93018.
(3) Incorporated by referenced to exhibits filed with the Registrant's
Registration Statement on Form S-3, Commission No. 33-98528.
(4) Incorporated by reference to exhibits filed with the Registrant's
Registration Statement on Form S-3, Registration No. 333-328.
(5) Incorporated by reference to exhibits filed with the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1993, Commission
No. 0-19786.
(6) Incorporated by reference to exhibits filed with the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1991, Commission
No. 0-19786.
(7) Filed herewith.
(8) Incorporated by reference to exhibits filed with the Registrant's
Registration Statement on Form S-4, Commission No. 333-15459.
<PAGE> 1
Exhibit 10.6
FIRST AMENDMENT TO
FIFTH AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT is dated as of the 16th day of January, 1997, among
PHYCOR, INC., a Tennessee corporation (the "Borrower"), the banks named in the
Credit Agreement described below (the "Banks"), NATIONSBANK, N.A., as
Documentation Agent (the "Documentation Agent"), and CITIBANK, N.A., as an
Issuing Bank thereunder and as agent for the Banks and the Issuing Banks
thereunder (the "Agent").
WITNESSETH:
WHEREAS, the Borrower, the Banks, the Documentation Agent and the Agent
entered into a Fifth Amended and Restated Revolving Credit Agreement dated as of
July 22, 1996 (the "Credit Agreement"); and
WHEREAS, the Borrower has requested (i) the amendment of financial and
other covenants in the Credit Agreement and (ii) the approval of an acquisition
by the Majority Banks, and the Agent and the Majority Banks are willing to agree
to such amendment and provide such approval upon the terms and conditions set
forth below;
NOW, THEREFORE, for valuable consideration hereby acknowledged, the
Borrower, the Banks executing this First Amendment and the Agent agree as
follows:
Section 1. Definitions. Unless otherwise defined herein, terms are used as
defined in the Credit Agreement.
Section 2. Amendments.
(a) Section 5.01(h) of the Credit Agreement is hereby amended by deleting
the phrase "which may materially adversely affect" and inserting in place
thereof the phrase "which could reasonably be expected to have a material
adverse effect on."
(b) Section 6.02(f) of the Credit Agreement is amended by adding a new
subsection (vi) to read as follows:
(vi) Without limiting amounts that may be invested in, or loaned or
advanced to other Persons pursuant to Section 6.02(f)(v), the Borrower's
Subsidiary PhyCor of Hawaii, Inc. ("PhyCor-Hawaii") may make secured loans
to Straub Clinic & Hospital, Inc. ("Straub") to the extent required by, and
in compliance with, Sections 5.8.1, 5.8.2 and 5.8.3 of its Service
Agreement with Straub (in substantially the form attached as Annex E to the
Borrower's Prospectus and Proxy Statement dated November 12, 1996, with the
revisions thereto provided in the revised draft thereof distributed to the
Banks on January 15, 1997) (the "Straub Service Agreement"); provided that:
<PAGE> 2
(A) at the time of each such loan and after giving effect
thereto, no Event of Default or event which would constitute an Event
of Default but for the requirement that notice be given or time elapse
or both shall occur and be continuing;
(B) loans pursuant to Section 5.8.1 of the Straub Service
Agreement ("Straub Capital Loans") shall be secured by a first
priority security interest in all of the assets directly or indirectly
acquired by Straub from the proceeds of any such loans, free and clear
of any other Liens; and the aggregate principal amount of all Straub
Capital Loans may not exceed $50,000,000 at any time outstanding;
(C) loans pursuant to Section 5.8.2 of the Straub Service
Agreement ("Straub Working Capital Loans"; collectively, with the
Straub Capital Loans, the "Straub Loans") shall be made pursuant to a
single credit facility providing loan availability for no more than
one year from the commencement of the term thereof (which may be
renewed on an annual basis, but not provide availability later than
the stated A Revolver Termination Date) and shall be secured by a
first priority security interest in all of the accounts receivable,
inventory, supplies and other current assets of Straub (the "Straub
Loan Base"), free and clear of any other Liens; and the aggregate
principal amount of all Straub Working Capital Loans may not exceed at
any time outstanding the lesser of (1) $40,000,000 or (2) the
aggregate book value (less any reserves applicable thereto) of (x) the
Straub Loan Base as of such time and (y) any current assets acquired
by the Borrower in its merger with Straub Clinic & Hospital,
Incorporated and held by the Borrower at such time, all as determined
in accordance with generally accepted accounting principles;
(D) each Straub Loan shall be evidenced by a promissory note (1)
that shall have a final maturity not later than the stated A Revolver
Termination Date and provide for the repayment of principal prior to
final maturity at the annual rate of one-sixth of the principal
outstanding at the time loan availability under the applicable credit
facility for Straub ceases and (2) that shall be subject to the
repurchase right of Straub provided in the Straub Service Agreement
(the "Straub Repurchase Right"); and
(E) each of the following conditions shall have been satisfied in
a manner acceptable to the Agent:
(1) PhyCor-Hawaii shall be a party to the Pledge Agreement,
(2) each promissory note evidencing a Straub Loan, as
secured by the collateral therefor, shall be pledged, subject to
the Straub Repurchase Right, under an amendment to the Pledge
Agreement (or other security agreements acceptable to the Agent)
to secure the Obligations (as defined in the Pledge Agreement),
2
<PAGE> 3
(3) the Borrower, PhyCor-Hawaii and Straub shall execute and
deliver such documents, including assignments of financing
statements of Straub, make such filings and take such other
action as the Agent may deem necessary or advisable to perfect
its Liens in the promissory notes, as so secured, evidencing the
Straub Loans, and
(4) the Agent shall have received such other instruments,
agreements, opinions and other documents as it shall reasonably
request in such connection;
provided that the conditions provided in this clause (E) may be
satisfied not later than January 31, 1997.
provided that, notwithstanding Section 4 of this First Amendment, the foregoing
amendment is subject to the consummation of the Acquisition (as hereinafter
defined) as contemplated by Section 3 of this First Amendment.
(c) Section 6.03(d) of the Credit Agreement is hereby amended by deleting
the percentage "50%" and inserting in place thereof the percentage "60%";
provided that, notwithstanding Section 4 of this First Amendment, the foregoing
amendment is subject to the consummation of the Acquisition (as hereinafter
defined) as contemplated by Section 3 of this First Amendment.
Section 3. Acquisition Approval.
(a) The Banks hereby give their approval, pursuant to Section 6.02(f)(ii)
of the Credit Agreement, to the terms and conditions of the acquisition (the
"Acquisition") by the Borrower of certain assets of Straub Clinic & Hospital,
Incorporated (the "Clinic") on the terms and conditions and as otherwise
described in the Borrower's Prospectus and Proxy Statement, dated November 12,
1996 (the "Prospectus"); provided that, notwithstanding Section 4 of this First
Amendment, such approval shall be subject to satisfaction of all of the
conditions precedent set forth in Sections 6.02(f)(ii) and 6.02(g) of the Credit
Agreement. In giving such approval, the Banks hereby waive, in the case of the
Acquisition, for one time only, the requirement of Section 6.02(f)(ii) of the
Credit Agreement that the Acquisition be made by a Subsidiary of the Borrower.
In such connection, the Borrower hereby acknowledges and agrees that the Banks
have no obligation to provide any waivers or further consents in respect of the
Straub Loans (as defined in Section 6.02(f)(vi) of the Credit Agreement, as
amended hereby) or to refrain from exercising any of their rights under the Loan
Documents in respect of any events or conditions resulting from the Borrower or
any of its Subsidiaries not providing any Straub Loans in addition to those
permitted by Section 6.02(f)(vi) of the Credit Agreement, as amended hereby.
(b) The Borrower hereby represents that, except as set forth on Schedule A
to this First Amendment, the Borrower or its Subsidiaries shall, in the event
the Acquisition is consummated, be acquiring, free and clear of all liens and
encumbrances, certain assets of the Clinic identified in the Amended and
Restated Agreement of Merger described in the Prospectus. The Borrower hereby
further represents that none of the liens and encumbrances set forth on
3
<PAGE> 4
Schedule A to this First Amendment will attach to any assets of the Borrower not
acquired in the Acquisition. The execution and delivery of this First Amendment
by the Majority Banks shall constitute such Banks' approval of the liens and
encumbrances listed on Schedule A to this First Amendment, provided that none of
such liens and encumbrances shall attach to any assets not acquired in the
Acquisition; and the parties hereto hereby agree that such liens and
encumbrances shall be deemed to be additions to Schedule VI of the Credit
Agreement and, therefore, deemed to be Permitted Liens.
Section 4. Effectiveness of First Amendment. This First Amendment shall
become effective pursuant to Section 9.01 of the Credit Agreement upon the
satisfaction of the following in a manner acceptable to the Agent:
(a) the execution of this First Amendment by the Borrower, the
Majority Banks and the Agent; and
(b) the execution of the Consent and Agreement attached hereto (the
"Subsidiary Consent") by each of the Guarantors.
Section 5. Representations and Warranties. The Borrower represents and
warrants that this First Amendment and the Subsidiary Consent have been duly
authorized, executed and delivered by the Borrower and its Subsidiaries and
constitute the legal, valid, and binding obligations of the Borrower and its
Subsidiaries, enforceable in accordance with their respective terms (except as
enforcement may be limited by equitable principles or by bankruptcy, insolvency,
reorganization, moratorium, or similar laws or equitable principles relating to
or affecting creditors' rights generally). The Borrower further represents and
warrants that (a) there exists no Event of Default or event which would
constitute an Event of Default but for the requirement that notice be given or
time elapse or both as of the date hereof (before and after giving effect to the
transactions contemplated hereby), (b) the representations and warranties set
forth in Article V of the Credit Agreement are true and correct on the date
hereof (before and after giving effect to the transactions contemplated hereby),
and (c) it has complied with all agreements and conditions to be complied with
by it under the Credit Agreement and other Loan Documents by the date hereof.
Section 6. References. From and after the date of effectiveness of this
First Amendment, all references in the Credit Agreement and the other Loan
Documents to the Credit Agreement shall be deemed to be references to the Credit
Agreement as amended hereby.
Section 7. Ratification. This First Amendment supersedes any prior
agreements or understandings with respect to the subject matter hereof. Except
as amended hereby, the Credit Agreement and all other Loan Documents shall
continue in full force and effect.
SECTION 8. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO PRINCIPLES OF CONFLICT OF LAWS THAT WOULD RESULT IN THE APPLICATION OF ANY
OTHER LAW.
4
<PAGE> 5
Section 9. Counterparts. This First Amendment may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument. In making proof hereof, it shall not be necessary to produce or
account for any counterpart other than one signed by the party against which
enforcement is sought.
[SIGNATURES ON THE FOLLOWING PAGE]
5
<PAGE> 6
IN WITNESS WHEREOF, this First Amendment is executed as of the date first
set forth above.
THE BORROWER
PHYCOR, INC.
By:_____________________________________
Name:
Title:
THE AGENT
CITIBANK, N.A.,
as Agent
By:_____________________________________
Name:
Title:
THE DOCUMENTATION AGENT
NATIONSBANK, N.A.,
as Documentation Agent
By:_____________________________________
Name:
Title:
THE ISSUING BANK
CITIBANK, N.A.,
as Issuing Bank
By:_____________________________________
Name:
Title:
<PAGE> 7
THE BANKS
CITIBANK, N.A.
By:_____________________________________
Name:
Title:
NATIONSBANK, N.A.
By:_____________________________________
Name:
Title:
FIRST AMERICAN NATIONAL BANK
By:_____________________________________
Name:
Title:
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By:_____________________________________
Name:
Title:
PNC BANK, KENTUCKY, INC.
By:_____________________________________
Name:
Title:
<PAGE> 8
MELLON BANK, N.A.
By:_____________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By:_____________________________________
Name:
Title:
CORESTATES BANK, N.A.
By:_____________________________________
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By:_____________________________________
Name:
Title:
DEUTSCHE BANK AG, New York Branch and/or
Cayman Islands Branch
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
<PAGE> 9
THE SUMITOMO BANK, LIMITED
By:_____________________________________
Name:
Title:
SUNTRUST BANK, NASHVILLE, N.A.
By:_____________________________________
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By:_____________________________________
Name:
Title:
<PAGE> 10
CONSENT AND AGREEMENT
The undersigned, being all of the Guarantors referred to in the Credit
Agreement (as defined in the foregoing First Amendment) and the other Loan
Documents (as defined in the foregoing First Amendment), hereby consent and
agree to the foregoing First Amendment and hereby confirm their respective
guarantees and grants of security interests and other obligations under the Loan
Documents, which shall remain in full force and effect and be applicable to the
Credit Agreement and the other Loan Documents, as amended by the foregoing First
Amendment.
PHYCOR OF TOLEDO, INC.
PHYCOR OF ROANOKE, INC.
PHYCOR OF HATTIESBURG, INC.
PHYCOR OF DALLAS, INC.
PHYCOR-TEXAS GULF COAST, INC.
PHYCOR OF MINOT, INC.
PHYCOR OF WILMINGTON, INC.
PHYCOR OF LAGRANGE, INC.
PHYCOR OF KENTUCKY, LLC
PHYCOR OF DENVER, INC.
PHYCOR OF ROME, INC.
PHYCOR OF COLUMBIA, INC.
PHYCOR OF WICHITA FALLS, INC.
PHYCOR OF WEST HOUSTON, INC.
PHYCOR OF PHOENIX, INC.
PHYCOR OF SAYRE, INC.
PHYCOR OF SOUTH BEND, LLC
PHYCOR OF WHARTON, INC.
PHYCOR OF MESA, INC.
PHYCOR-LAFAYETTE, LLC
THE MEMBER CORPORATION, INC.
PHYCOR OF OGDEN, INC.
PHYCOR OF NEWNAN, INC.
PHYCOR OF NORTHEAST ARKANSAS, INC.
PHYCOR OF TIDEWATER, INC.
PHYCOR OF BOULDER, INC.
PHYCOR OF NORTHERN MICHIGAN, INC.
PHYCOR OF CHICKASHA, INC.
PHYCOR OF FORT SMITH, INC.
PHYCOR OF CORSICANA, INC.
PHYCOR OF DIXON, INC.
PHYCOR OF CLEBURNE, INC.
PHYCOR OF BIRMINGHAM, INC.
PHYCOR OF IRVING, INC.
PHYCOR OF KINGSPORT, INC.
<PAGE> 11
PHYCOR OF OLEAN, INC.
PHYCOR OF LACONIA, INC.
PHYCOR OF HARLINGEN, INC.
PHYCOR OF RICHMOND, INC.
PHYCOR OF SAN ANTONIO, INC.
PHYCOR OF CONROE, INC.
PHYCOR OF PUEBLO, INC.
PHYCOR OF JACKSONVILLE, INC.
PHYCOR OF GREELEY, INC.
PHYCOR OF WINTER HAVEN, INC.
PHYCOR OF NASHVILLE, INC.
PHYCOR OF VERO BEACH, INC.
PHYCOR OF RUSTON, INC.
PHYCOR OF CHARLOTTE, INC.
as Guarantors
By:_____________________________________
Name:
Title:
NORTH AMERICAN MEDICAL
MANAGEMENT, INC., as Guarantor
By:_____________________________________
Name:
Title:
<PAGE> 12
Schedule A to First Amendment
Additional Liens and Encumbrances
<PAGE> 13
U.S. $300,000,000
FIFTH AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
DATED AS OF JULY 22, 1996
AMONG
PHYCOR, INC.
AS BORROWER,
THE BANKS NAMED HEREIN,
AS BANKS,
NATIONSBANK, N.A.,
AS DOCUMENTATION AGENT,
AND
CITIBANK, N.A.,
AS AGENT
<PAGE> 14
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Section Page
- ------- ----
<S> <C> <C>
ARTICLE I - DEFINITIONS AND ACCOUNTING TERMS...............................................2
SECTION 1.01 Certain Defined Terms..............................................2
SECTION 1.02 Computation of Time Periods.......................................28
SECTION 1.03 Accounting Terms..................................................28
ARTICLE II - AMOUNTS AND TERMS OF THE ADVANCES............................................28
SECTION 2.01 The Committed Rate Advances.......................................28
SECTION 2.02 The Competitive Bid Advances......................................30
SECTION 2.03 Fees..............................................................34
SECTION 2.04 Optional Reduction of the Commitments.............................34
SECTION 2.05 Repayment.........................................................35
SECTION 2.06 Interest..........................................................35
SECTION 2.07 Interest Rate Determination and Protection........................36
SECTION 2.08 Voluntary and Automatic Conversion of Committed Rate Advances.....36
SECTION 2.09 Prepayments.......................................................37
SECTION 2.10 Increased Costs...................................................38
SECTION 2.11 Illegality........................................................39
SECTION 2.12 Payments and Computations.........................................39
SECTION 2.13 Taxes.............................................................40
SECTION 2.14 Sharing of Payments, Etc..........................................45
SECTION 2.15 Evidence of Debt/Register.........................................45
SECTION 2.16 Use of Proceeds...................................................46
SECTION 2.17 Outstanding Advances Under Existing Credit Agreement..............46
ARTICLE III - AMOUNT AND TERMS OF LETTERS OF CREDIT AND PARTICIPATIONS THEREIN............47
SECTION 3.01 Letters of Credit.................................................47
SECTION 3.02 Issuing the Letters of Credit.....................................47
SECTION 3.03 Reimbursement Obligations.........................................48
SECTION 3.04 Participations Purchased by the Banks.............................48
SECTION 3.05 Letter of Credit Fees.............................................49
SECTION 3.06 Indemnification Nature of the Issuing Bank's Duties...............50
SECTION 3.07 Increased Costs...................................................51
SECTION 3.08 Uniform Customs and Practice......................................52
</TABLE>
i
<PAGE> 15
<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE IV - CONDITIONS OF LENDING........................................................52
SECTION 4.01 Conditions Precedent to Any Borrowing and Letter of Credit........52
SECTION 4.02 Conditions Precedent to Fifth Amendment and Restatement...........53
ARTICLE V - REPRESENTATIONS AND WARRANTIES................................................54
SECTION 5.01 Representations and Warranties of the Borrower....................54
ARTICLE VI - COVENANTS OF THE BORROWER....................................................59
SECTION 6.01 Affirmative Covenants.............................................59
SECTION 6.02 Negative Covenants................................................62
SECTION 6.03 Financial Covenants...............................................74
SECTION 6.04 Reporting Requirements............................................75
ARTICLE VII - EVENTS OF DEFAULT...........................................................78
SECTION 7.01 Events of Default.................................................78
ARTICLE VIII - THE AGENT..................................................................82
SECTION 8.01 Authorization and Action..........................................82
SECTION 8.02 Agent's Reliance, Etc.............................................82
SECTION 8.03 Citibank and Affiliates...........................................83
SECTION 8.04 Bank Credit Decision..............................................83
SECTION 8.05 Indemnification...................................................83
SECTION 8.06 Successor Agent/Issuing Bank......................................84
SECTION 8.07 The Documentation Agent...........................................85
ARTICLE IX - MISCELLANEOUS................................................................85
SECTION 9.01 Amendments, Etc...................................................85
SECTION 9.02 Notices, Etc......................................................85
SECTION 9.03 No Waiver; Remedies...............................................86
SECTION 9.04 Costs, Expenses and Taxes.........................................86
SECTION 9.05 Right of Set-off..................................................87
SECTION 9.06 Indemnification...................................................87
SECTION 9.07 Binding Effect....................................................88
SECTION 9.08 Assignments and Participations....................................89
SECTION 9.09 Headings..........................................................91
SECTION 9.10 Confidentiality...................................................91
SECTION 9.11 Severability of Provisions........................................92
SECTION 9.12 Independent of Provisions.........................................92
</TABLE>
ii
<PAGE> 16
<TABLE>
<S> <C> <C>
SECTION 9.13 Consent to Jurisdiction...........................................92
SECTION 9.14 GOVERNING LAW.....................................................93
SECTION 9.15 WAIVER OF JURY TRIAL..............................................93
SECTION 9.16 Execution in Counterparts.........................................93
</TABLE>
iii
<PAGE> 17
SCHEDULES
Schedule I - List of Applicable Lending Offices
Schedule II - Real Property
Schedule III - Subsidiaries
Schedule IV - Service Agreements
Schedule V - Existing Debt
Schedule VI - Existing Liens
Schedule VII - Litigation
iv
<PAGE> 18
EXHIBITS
Exhibit A-1 - Form of Committed Rate A Note
Exhibit A-2 - Form of Committed Rate B Note
Exhibit A-3 - Form of Competitive Bid A Note
Exhibit A-4 - Form of Competitive Bid B Note
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Form of Competitive Bid Request
Exhibit C - Form of Guaranty
Exhibit D - Form of Pledge Agreement
Exhibit E - Form of Intercompany Subordination Agreement
Exhibit F - Form of Assignment and Acceptance
Exhibit G - Form of Solvency Certificate
Exhibit H - Form of Subordination Agreement
Exhibit I - Form of Acknowledgment and Consent
Exhibit J - Forms of Opinion of Counsel
Exhibit K - Form of Acquisition Approval Letter
v
<PAGE> 19
Fifth Amended and Restated Revolving Credit Agreement, dated as of July 22,
1996 (this "Agreement"), among PHYCOR, INC., a Tennessee corporation (the
"Borrower"), the banks (the "Banks") listed on the signature pages hereof and
from time to time parties hereto, NATIONSBANK, N.A. ("NationsBank"), as
Documentation Agent (the "Documentation Agent"), and CITIBANK, N.A.
("Citibank"), as an Issuing Bank hereunder and as agent (the "Agent") for the
Banks and the Issuing Banks.
PRELIMINARY STATEMENTS:
1. On February 28, 1990, the Borrower entered into a Revolving Credit and
Term Loan Agreement with Citibank as Bank, Issuing Bank and Agent. The Borrower
and Citibank, as Bank, Issuing Bank and Agent, subsequently entered into a First
Amendment to and Waiver Under Credit Agreement dated as of January 11, 1991,
which made certain changes to the credit agreement referred to in the foregoing
sentence (such credit agreement, as so amended, being referred to hereinafter as
the "Original Credit Agreement").
2. On December 4, 1991, the Borrower entered into the Amended and Restated
Revolving Credit and Term Loan Agreement with Citibank, as Issuing Bank and
Agent, and the banks listed on the signature pages thereto, which credit
agreement amended and restated the Original Credit Agreement (such agreement, as
amended by the amendments thereto entered into prior to the date hereof, being
referred to hereinafter as the "First Amended and Restated Credit Agreement").
3. On September 29, 1993, the Borrower entered into the Second Amended and
Restated Revolving Credit and Term Loan Agreement with Citibank, as Issuing Bank
and Agent, NationsBank, as Co-Agent, and the banks listed on the signature pages
thereto, which credit agreement amended and restated the First Amended and
Restated Credit Agreement (such agreement, as amended by the amendments thereto
entered into prior to the date hereof, being referred to hereinafter as the
"Second Amended and Restated Credit Agreement").
4. On September 20, 1994, the Borrower entered into the Third Amended and
Restated Revolving Credit and Term Loan Agreement with Citibank, as Issuing Bank
and Agent, NationsBank, as Co-Agent, and the banks listed on the signature pages
thereto, which credit agreement amended and restated the Second Amended and
Restated Credit Agreement (such agreement, as amended by the amendments thereto
entered into prior to the date hereof, being referred to hereinafter as the
"Third Amended and Restated Credit Agreement").
5. On August 29, 1995, the Borrower entered into the Fourth Amended and
Restated Revolving Credit and Term Loan Agreement with Citibank, as Issuing Bank
and Agent, NationsBank of Tennessee, N.A., as Co-Agent, and the banks listed on
the signature pages thereto, which credit agreement amended and restated the
Third Amended and Restated Credit Agreement (such agreement being referred to
hereinafter as the "Existing Credit Agreement").
6. The Borrower has requested that the Existing Credit Agreement be amended
by, among other things, increasing the commitments thereunder, extending the
term thereof, and including certain financial institutions as lenders hereunder.
The Borrower has requested that the
<PAGE> 20
Existing Credit Agreement be amended and restated in its entirety to reflect
such amendments as well as other requested amendments (the "Fifth Amendment and
Restatement").
7. Subject to the terms and provisions hereof, the Banks, the Issuing Bank,
and the Agent are amenable to making such modifications and to amending and
restating the Existing Credit Agreement in its entirety as hereinafter set
forth.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Certain Defined Terms.SECTION 1.01. Certain Defined Terms. As
used in this Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and plural forms of
the terms defined):
"A Advance" means an advance made in respect of the A Commitment
pursuant to Section 2.01(a) or 2.02.
"A Borrowing" means a borrowing in respect of the A Commitment
made pursuant to Section 2.01(a) or 2.02.
"A Commitment" means, as to any Bank, the amount of commitment to
make Committed Rate A Advances or participate in Letters of Credit set
forth opposite such Bank's name on the signature pages hereof or, if
such Bank has entered into one or more Assignments and Acceptances,
the amount thereof set forth for such Bank in the Register maintained
by the Agent pursuant to Section 9.08(c), as such amount may be
reduced from time to time pursuant to Section 2.04.
"A Commitment Percentage" means, as to any Bank, the percentage
equal to such Bank's A Commitment divided by the aggregate A
Commitments of all Banks.
"A Revolver Termination Date" means July 21, 2001, or the earlier
date of termination in whole of the Commitments pursuant to Section
2.04 or 7.01.
"Accounts" means all present and future rights of the Borrower or
any Subsidiary of the Borrower to payment for goods (including
medications) sold or leased or for services rendered pursuant to any
Service Agreement (except those evidenced by instruments or chattel
paper), whether now existing or hereafter arising and wherever arising
and whether or not earned by performance (including, without
limitation, accounts receivable purchased by the Borrower
2
<PAGE> 21
or any of its Subsidiaries from any physician group which has entered
into a Service Agreement with the Borrower or such Subsidiary).
"Acknowledgment and Consent" means the Acknowledgment and
Consent, in substantially the form of Exhibit I, executed and
delivered by the parties thereto in connection with the Fifth
Amendment and Restatement.
"Advance" means a Committed Rate Advance or a Competitive Bid
Advance. In the case of Committed Rate Advances, "Advance" also refers
to a Base Rate Advance or Eurodollar Rate Advance (each of which shall
be a "Type" of Committed Rate Advance). In the case of Competitive Bid
Advances, "Advance" also refers to a Fixed Rate Advance or a LIBOR
Advance (each of which shall be a "Type" of Competitive Bid Advance).
"Affiliate" means, with respect to any Person, any other entity
that, directly or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such
Person.
"Applicable Eurodollar Rate Margin" means for the Initial
Effective Period (as defined below) 0.4250% per annum in respect of A
Advances and 0.4750% per annum in respect of B Advances and thereafter
for each Effective Period (as defined below) 0.5000% per annum in
respect of A Advances and 0.5500% per annum in respect of B Advances;
provided, however, that during any fiscal quarter of the Borrower in
which the Borrower shall have satisfied the Consolidated Debt/EBITDA
Ratio test indicated in the table below, the Applicable Eurodollar
Rate Margin for the Effective Period shall be the percentage rate per
annum set forth opposite the appropriate tests for the A Advances or
the B Advances, as applicable, in the table below.
<TABLE>
<CAPTION>
Applicable Eurodollar Rate Applicable Eurodollar
Consolidated Margin for Rate Margin for
Debt/EBITDA Ratio A Advances B Advances
---------------------------------- -------------------------- ---------------------
<S> <C> <C>
Greater than 3.25 to 1.00 0.5000% 0.5500%
Less than or equal to 3.25 to 1.00 0.4250% 0.4750%
but greater than 2.50 to 1.00
Less than or equal to 2.50 to 1.00 0.3250% 0.3750%
but greater than 2.00 to 1.00
</TABLE>
3
<PAGE> 22
<TABLE>
<CAPTION>
<S> <C> <C>
Less than or equal to 2.00 to 1.00 0.2875% 0.3125%
but greater than 1.50 to 1.00
Less than or equal to 1.50 to 1.00 0.2500% 0.2750%
</TABLE>
The Applicable Eurodollar Rate Margin shall be determined by the Agent
each quarter on the basis of quarterly certified Consolidated
financial statements and a schedule evidencing financial covenant
compliance delivered to the Banks pursuant to Section 6.04(b). The
"Initial Effective Period" shall be the period commencing on the Fifth
Amendment and Restatement Closing Date and ending on August 31, 1996.
The "Effective Period" with respect to the Applicable Eurodollar Rate
Margin or the Applicable Facility Fee Rate, as the case may be, shall
be the period commencing on the last Business Day of the second month
after any fiscal quarter of the Borrower provided that the Borrower
shall have delivered to the Agent the quarterly certified consolidated
financial statements and financial covenant compliance schedule for
such quarter within 45 days of the end of such quarter and ending on
the earlier of (i) the date that is three months after such
commencement date and (ii) the date that is 15 days after delivery to
the Agent of quarterly certified consolidated financial statements and
financial covenant compliance certificate for the subsequent quarter.
Notwithstanding the foregoing, the Applicable Eurodollar Rate Margin
shall be deemed to be 0.5000% per annum in respect of A Advances and
0.5500% per annum in respect of B Advances for each day during an
Effective Period as of which the deliveries required to calculate the
Applicable Eurodollar Rate Margin shall not have been made.
"Applicable Facility Fee Rate" means for the Initial Effective
Period 0.2000% per annum in respect of the A Commitment and 0.1500%
per annum in respect of the B Commitment and thereafter for each
Effective Period 0.2500% per annum in respect of the A Commitment and
0.2000% per annum in respect of the B Commitment; provided, however,
that during any fiscal quarter of the Borrower in which the Borrower
shall have satisfied the Consolidated Debt/EBITDA Ratio test indicated
in the table below, the Applicable Facility Fee Rate for the Effective
Period shall be the percentage rate per annum set forth opposite the
appropriate tests for the A Commitment or the B Commitment, as
applicable, in the table below.
4
<PAGE> 23
<TABLE>
<CAPTION>
Applicable Facility Fee Applicable Facility Fee
Consolidated Rate Margin for Rate Margin for
Debt/EBITDA Ratio the A Commitment the B Commitment
---------------------------------- ----------------------- ------------------------
<S> <C> <C>
Greater than 3.25 to 1.00 0.2500% 0.2000%
Less than or equal to 3.25 to 1.00 0.2000% 0.1500%
but greater than 2.50 to 1.00
Less than or equal to 2.50 to 1.00 0.1750% 0.1250%
but greater than 2.00 to 1.00
Less than or equal to 2.00 to 1.00 0.1500% 0.1250%
but greater than 1.50 to 1.00
Less than or equal to 1.50 to 1.00 0.1250% 0.1000%
</TABLE>
The Applicable Facility Fee Rate shall be determined by the Agent each
quarter on the basis of quarterly certified Consolidated financial
statements and a schedule evidencing financial covenant compliance
delivered to the Banks pursuant to Section 6.04(b). Notwithstanding
the foregoing, the Applicable Facility Fee Rate shall be deemed to be
0.2500% per annum in respect of the A Commitment and 0.2000% per annum
in respect of the B Commitment for each day during an Effective Period
as of which the deliveries required to calculate the Applicable
Facility Fee Rate shall not have been made.
"Applicable Lending Office" means, with respect to each Bank,
such Bank's Domestic Lending Office in the case of a Base Rate Advance
or a Fixed Rate Advance and such Bank's Eurodollar Lending Office in
the case of a Eurodollar Rate Advance or a LIBOR Advance.
"Asset Purchase Agreement" means any agreement between the
Borrower or any of its Subsidiaries and any Person relating to the
purchase by the Borrower or any of its Subsidiaries of the assets of
any Facility or Related Business.
"Assignment and Acceptance" means an assignment and acceptance
entered into by an assigning Bank and an Eligible Assignee, and
accepted by the Agent, in accordance with Section 9.08 and in
substantially the form of Exhibit F.
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<PAGE> 24
"B Advance" means an advance made in respect of the B Commitment
pursuant to Section 2.01(b) or 2.02.
"B Borrowing" means a borrowing in respect of the B Commitment
pursuant to Section 2.01(b) or 2.02.
"B Commitment" means, as to any Bank, the amount of commitment to
make Committed Rate B Advances set forth opposite such Bank's name on
the signature pages hereof or, if such Bank has entered into one or
more Assignments and Acceptances, the amount thereof set forth for
such Bank in the Register maintained by the Agent pursuant to Section
9.08(c), as such amount may be reduced from time to time pursuant to
Section 2.04.
"B Commitment Percentage" means, as to any Bank, the percentage
equal to such Bank's B Commitment divided by the aggregate B
Commitments of all Banks.
"B Revolver Termination Date" means July 18, 1997, or the earlier
date of termination in whole of the Commitments pursuant to Section
2.04 or 7.01.
"Banks" means the banks listed on the signature pages hereof and,
after the date hereof, includes each Eligible Assignee that has
entered into an Assignment and Acceptance which has been accepted by
the Agent.
"Base Rate" means, for any period, a fluctuating interest rate
per annum as shall be in effect from time to time which rate per annum
shall at all times be equal to the highest of:
(a) the rate of interest announced publicly by Citibank in
New York, New York, from time to time, as Citibank's base rate;
or
(b) 1/2 of one percent per annum above the latest three-week
moving average of secondary market morning offering rates in the
United States for three-month certificates of deposit of major
United States money market banks, such three-week moving average
being determined weekly on each Monday (or, if any such day is
not a Business Day, on the next succeeding Business Day) for the
three-week period ending on the previous Friday by Citibank on
the basis of such rates reported by certificate of deposit
dealers to and published by the Federal Reserve Bank of New York
or, if such publication shall be suspended or terminated, on the
basis of quotations for such rates received by Citibank from
three New York certificate of deposit dealers of recognized
standing selected by Citibank in either case adjusted to the
nearest 1/16 of one percent or, if
6
<PAGE> 25
there is no nearest 1/16 of one percent, to the next higher 1/16
of one percent; or
(c) the Federal Funds Rate plus 1/2 of one percent.
"Base Rate Advance" means a Committed Rate Advance which bears
interest as provided in Section 2.06(a)(i).
"Bid Due Date" has the meaning set forth in Section 2.02(c).
"Borrowing" means an A Borrowing or a B Borrowing that is a
Committed Rate Borrowing or a Competitive Bid Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances or
LIBOR Advances, on which dealings in dollar deposits are carried on in
the London interbank market.
"Capital Expenditures" means, with respect to any Person for any
period, the aggregate of all expenditures paid or accrued by such
Person during such period that, in accordance with generally accepted
accounting principles, should be included in or reflected by the
property, plant or equipment or similar fixed asset account reflected
in the balance sheet of such Person.
"Capital Investments" means (without duplication), with respect
to any Person for any period, the aggregate of all investments by such
Person in (i) Capital Expenditures, (ii) joint ventures, general or
limited partnerships, limited liability companies or any other type of
Person that is not a Subsidiary, including loans and advances to such
Person (including loans and advances to any physician group or other
third party related to a Facility or Related Business, or any third
party with whom such Person has entered into a Service Agreement),
(iii) capital investments in, and loans and advances to, a Subsidiary
which becomes a Subsidiary as a result of such investment, (iv) the
purchase of the homes of employees of such Person in connection with
the relocation of such employees, and (v) Existing Clinic
Acquisitions.
"Capital Lease" of any Person means any lease of any property
(whether real, personal or mixed) by such Person as lessee, which
lease should, in accordance with generally accepted accounting
principles, be required to be accounted for as a capital lease on the
balance sheet of such Person.
"CERCLA" means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. ss.
9601 et seq.), and any regulations promulgated thereunder.
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<PAGE> 26
"Change of Control" means the occurrence, after the date of this
Agreement, of (i) any Person or two or more Persons acting in concert
acquiring beneficial ownership (within the meaning of Rule 13d-3 of
the Securities and Exchange Commission under the Securities Exchange
Act of 1934, as amended), directly or indirectly, of securities of the
Borrower (or other securities convertible into such securities)
representing 51% or more of the combined voting power of all
securities of the Borrower entitled to vote in the election of
directors; or (ii) during any period of up to 24 consecutive months,
commencing before or after the date of this Agreement, individuals who
at the beginning of such 24-month period were directors of the
Borrower ceasing for any reason to constitute a majority of the Board
of Directors of the Borrower unless the Persons replacing such
individuals were nominated by the Board of Directors of the Borrower;
or (iii) any Person or two or more Persons acting in concert acquiring
by contract or otherwise, or entering into a contract or arrangement
which upon consummation will result in its or their acquisition of, or
control over, securities of the Borrower (or other securities
convertible into such securities) representing 51% or more of the
combined voting power of all securities of the Borrower entitled to
vote in the election of directors.
"Collateral" means all property and interests in property now
owned or hereafter acquired by the Borrower or any Pledgor in or upon
which a Lien is granted or purported to be granted pursuant to any
Collateral Document or otherwise.
"Collateral Documents" means the Pledge Agreement, as amended,
supplemented or otherwise modified from time to time, and any other
agreement or instrument delivered to the Agent from time to time
pursuant thereto, in each case as amended, supplemented or otherwise
modified from time to time.
"Commitment" means, as to any Bank, its A Commitment or its B
Commitment.
"Commitment Percentage" means, as to any Bank, its A Commitment
Percentage or its B Commitment Percentage, as the case may be.
"Committed Rate A Advance" means an A Advance pursuant to Section
2.01(a).
"Committed Rate A Borrowing" means an A Borrowing pursuant to
Section 2.01(a).
"Committed Rate Advance" means a Committed Rate A Advance or a
Committed Rate B Advance.
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<PAGE> 27
"Committed Rate A Note" means a promissory note of the Borrower
payable to the order of a Bank, in substantially the form of Exhibit
A-1, evidencing the aggregate indebtedness of the Borrower to such
Bank resulting from the Committed Rate A Advances made by such Bank,
and "Committed Rate A Notes" means such promissory notes collectively.
"Committed Rate B Advance" means a B Advance pursuant to Section
2.01(b).
"Committed Rate B Borrowing" means a B Borrowing pursuant to
Section 2.01(b).
"Committed Rate B Note" means a promissory note of the Borrower
payable to the order of a Bank, in substantially the form of Exhibit
A-2, including the aggregate indebtedness of the Borrower to such Bank
resulting from the Committed Rate B Advances made by such Bank, and
"Committed Rate B Notes" means such promissory notes collectively.
"Committed Rate Borrowing" means a Committed Rate A Borrowing or
a Committed Rate B Borrowing.
"Committed Rate Note" means a Committed Rate A Note or a
Committed Rate B Note, and "Committed Rate Notes" means such
promissory notes collectively.
"Common Stock" means Securities having ordinary voting power for
the election of directors that are not entitled to any preference as
to dividends or other distributions or on liquidation.
"Competitive Bid" has the meaning set forth in Section 2.02(c).
"Competitive Bid A Advance" means an A Advance made pursuant to
Section 2.02
"Competitive Bid A Reduction" has the meaning set forth in
Section 2.01(a).
"Competitive Bid Advance" means a Competitive Bid A Advance or a
Competitive Bid B Advance.
"Competitive Bid B Advance" means a B Advance made pursuant to
Section 2.02.
"Competitive Bid B Reduction" has the meaning set forth in
Section 2.01(b).
9
<PAGE> 28
"Competitive Bid Borrowing" means an A Borrowing or a B Borrowing
pursuant to Section 2.02.
"Competitive Bid Note" means a promissory note of the Borrower
payable to the order of a Designated Bidder, in substantially the form
of Exhibit A-3, evidencing the indebtedness of the Borrower to such
Designated Bidder resulting from Competitive Bid Advances made by such
Designated Bidder, and "Competitive Bid Notes" means such promissory
notes collectively.
"Competitive Bid Request" has the meaning set forth in Section
2.02(b).
"Consolidated" and any derivative thereof each means, with
reference to the accounts or financial reports of any Person, the
consolidated accounts or financial reports of such Person and each
Subsidiary of such Person determined in accordance with generally
accepted accounting principles, including principles of consolidation,
consistent with those applied in the preparation of the Borrower's
December 31, 1995 Consolidated financial statements delivered to the
Banks in accordance with Section 6.04(c).
"Contingent Obligation" of any Person means, without duplication,
(i) any direct or indirect liability, contingent or otherwise, of such
Person with respect to any obligation of the type specified in clause
(ii) or (iii) below, or other obligation of another Person, including,
without limitation, any obligation directly or indirectly guaranteed,
endorsed (other than for collection or deposit in the ordinary course
of business), co-made, discounted or sold with recourse by such
Person, or in respect of which such Person is otherwise directly or
indirectly liable (including, without limitation, liable through any
agreement to purchase, repurchase or otherwise acquire such obligation
or provide or purchase any security therefor, or to provide funds for
the payment or discharge of such obligation, or to maintaining any
financial condition of the obligor of such obligation, or to make
payment for any products, materials or supplies or for any
transportation, services or lease (regardless of the non-delivery or
non-furnishing thereof), in any such case if the purpose or intent of
such agreement is to provide assurance that such obligation will be
paid or discharged, or that any agreements relating thereto will be
complied with, or that the holders of such obligation will be
protected against loss in respect thereof), (ii) obligations of such
Person with respect to undrawn letters of credit or unpaid bankers'
acceptances, bankers' assurances or guarantees or similar items, and
(iii) obligations of such Person with respect to any interest rate
protection, hedge, cap, collar or similar agreement or any foreign
exchange or forward sale agreement, or any similar agreement.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of another Type
pursuant to Section 2.07 or 2.08.
10
<PAGE> 29
"Current Liabilities" of any Person means, as of any date of
determination, (i) all Debt (excluding any Debt under Operating
Leases) which by its terms is payable on demand or matures within one
year from the date of creation (excluding any Debt renewable or
extendible, at the exclusive option of the debtor, to a date more than
one year from such date or arising under a revolving credit or similar
agreement that unconditionally obligates the lender or lenders to
extend credit in respect thereof during a period of more than one year
from such date), and (ii) all other items (including taxes accrued as
estimated) which in accordance with generally accepted accounting
principles should be included as current liabilities of such Person,
in each case, including all amounts required to be paid or prepaid
with respect to any Debt of such Person within one year from the date
of determination.
"Debt" of any Person means, without duplication, (i) all
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (but excluding, in the case of
the acquisition of any Facility (or the assets thereof), any Existing
Clinic Acquisition or the acquisition of a Related Business, any
contingent obligation to make payments (other than deferred purchase
price payments) after the closing of such acquisition), (ii) all
obligations of such Person in connection with any agreement to
purchase, redeem, exchange, convert or otherwise acquire for value any
Securities of such Person or any warrants, rights or options to
acquire such Securities, now or hereafter outstanding, (iii) all
obligations of such Person evidenced by bonds, notes, debentures,
convertible debentures or other similar instruments, (iv) all
indebtedness created or arising under any conditional sale or other
title retention agreement with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender
under such agreement in the event of default, acceleration, or
termination are limited to repossession or sale of such property), (v)
all obligations of such Person under Capital Leases, (vi) the amount
of all Contingent Obligations (other than guarantees of medical group
real property leases at Facilities to the extent the amount thereof
incurred in any twelve - month period does not exceed $5 million in
the aggregate, (vii) all Debt referred to in clause (i), (ii), (iii),
(iv), (v) or (vi) above secured by (or for which the holder of such
Debt has an existing right, contingent or otherwise, to be secured by)
any lien, security interest or other charge or encumbrance upon or in
property (including, without limitation, accounts and contract rights)
owned by such Person, even though such Person has not assumed or
become liable for the payment of such Debt, (viii) all mandatorily
redeemable preferred stock, valued at the applicable redemption price,
plus accrued and unpaid dividends payable in respect of such
mandatorily redeemable preferred stock, and (ix) if an ERISA Event
shall have occurred with respect to any Plan, the Insufficiency (if
any) of such Plan (or, in the case of a Plan with respect to which an
ERISA Event described in clauses (iii) through (vi) of the definition
of ERISA Event shall have occurred, the liability related thereto).
11
<PAGE> 30
"Debt/EBITDA Ratio" of any Person means, at any date of
determination, the ratio that (a) such Person's total Debt outstanding
at such date of determination (including, without limitation, all
Subordinated Debt other than, in the case of the Borrower and its
Subsidiaries, the Excluded Convertible Acquisition Debt), less the
amount, if any, by which such Person's unrestricted cash and cash
equivalents exceeds $15,000,000 at such date of determination bears to
(b) such Person's EBITDA.
"Debt/Total Capitalization Ratio" of any Person means, at any
date of determination, the ratio that such Person's Funded Debt at
such date of determination bears to such Person's Total
Capitalization.
"Deferred Acquisition Consideration" means, in the case of the
acquisition of any Facility (or the assets thereof) or any Related
Business, all deferred cash and non-cash consideration to be paid by
the Borrower or any of its Subsidiaries after the closing of such
acquisition; provided that Deferred Acquisition Consideration shall
not include any contingent payments that may be made by the Borrower
or any of its Subsidiaries after such closing.
"Designated Bidder" means each Bank (or its nominee so long as
the beneficial interest in the Competitive Bid Advances held by such
nominee is retained by such Bank) unless such Bank has elected, by
notice in writing to the Agent, the other Banks and the Borrower, not
to be a potential bidder in respect of Competitive Bid Advances. Any
such election may be terminated, at any time, by notice in writing to
the Agent, the other Banks and the Borrower.
"Domestic Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or on the signature page of the
Assignment and Acceptance pursuant to which it became a Bank, or such
other office or Affiliate of such Bank as such Bank may from time to
time specify to the Borrower and the Agent.
"EBITDA" means, with respect to any Person for any fiscal period,
the sum (without duplication) of (i) Net Income (whether positive or
negative), plus (ii) Interest Expense, plus (iii) income tax expense,
plus (iv) depreciation expense, plus (v) amortization expense, plus
(vi) extraordinary losses (determined in accordance with GAAP), minus
(vi) extraordinary gains (determined in accordance with GAAP).
"EBITDAL" means, with respect to any Person for any fiscal
period, the sum (without duplication) of EBITDA plus Lease Expense.
"Eligible Assignee" means (i) a commercial bank organized under
the laws of the United States, or any state thereof, having a combined
capital and surplus of
12
<PAGE> 31
at least $100,000,000; (ii) a savings and loan association or savings
bank 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; (iii) a commercial bank organized under the laws of any
other country which is a member of the OECD, or a political
subdivision of any such country, and having a combined capital and
surplus of at least $100,000,000, provided, that, such bank is acting
through a branch, agency or Affiliate located in the United States or
managed and controlled by a branch, agency or affiliate located in the
United States; (iv) any Affiliate of any Bank if such Affiliate has
Total Assets in excess of $100,000,000; (v) any insurance company
organized under the laws of the United States or any state thereof,
and having Total Assets in excess of $100,000,000 and any other
commercial Financial entity having Total Assets in excess of
$100,000,000; and (vi) any other Person mutually agreed to in writing
by the Borrower and the Agent.
"Environmental Activity" means any past, present or future
storage, holding, existence, release, threatened release, emission,
discharge, generation, processing, abatement, disposition, handling or
transportation of any Hazardous Substance (i) from, under, into or on
any Facility, or (ii) relating to any Facility, or the ownership, use,
operation or occupancy thereof, or any threat of such activity.
"Environmental Laws" means any and all laws, statutes,
ordinances, rules, regulations, judgments, orders, decrees, permits,
licenses, or other governmental restrictions or requirements relating
to the environment, any Hazardous Substance or any Environmental
Activity in effect in any and all jurisdictions in which the Borrower
or any of its Subsidiaries is or from time to time may be doing
business, or where any of the Facilities are from time to time
located, including, without limitation, CERCLA and RCRA.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated
and rulings issued thereunder.
"ERISA Affiliate" means any Person who for purposes of Title IV
of ERISA is a member of the Borrower's controlled group, or under
common control with the Borrower, within the meaning of Section 414 of
the Internal Revenue Code of 1986, as amended from time to time, and
the regulations promulgated pursuant thereto and the rulings issued
thereunder.
"ERISA Event" means (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, unless the 30-day notice
requirement with respect thereto has been waived by the PBGC; (ii) the
provision by the administrator of any Plan of a notice of intent to
terminate such Plan, pursuant to
13
<PAGE> 32
Section 4041(a)(2) of ERISA (including any such notice with respect to
a plan amendment referred to in Section 4041(e) of ERISA); (iii) the
cessation of operations at a facility in the circumstances described
in Section 4068(f) of ERISA; (iv) the withdrawal by the Borrower or an
ERISA Affiliate from a Multiple Employer Plan during a plan year for
which it was a substantial employer, as defined in Section 4001(a)(2)
of ERISA; (v) the failure by the Borrower or any ERISA Affiliate to
make a material payment to a Plan required under Section 302(f)(1) of
ERISA; (vi) the adoption of an amendment to a Plan requiring the
provision of initial or additional security to such Plan, pursuant to
Section 307 of ERISA; or (vii) the institution by the PBGC of
proceedings to terminate a Plan, pursuant to Section 4042 of ERISA, or
the occurrence of any event or condition which might constitute
grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term
in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or on the signature page of the
Assignment and Acceptance pursuant to which it became a Bank (or, if
no such office is specified, its Domestic Lending Office), or such
other office of such Bank as such Bank may from time to time specify
to the Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance or LIBOR Advance comprising part of the same
Borrowing, an interest rate per annum obtained by dividing (i) the
rate of interest determined by the Agent to be equal to the average
(rounded upward to the nearest whole multiple of 1/16 of one percent
per annum, if such average is not such a multiple) of the rate per
annum at which deposits in United States dollars are offered by the
principal office of Citibank in London to prime banks in the London
interbank market at 10:00 A.M. (New York City time) two Business Days
before the first day of such Interest Period in an amount
substantially equal to the Advance comprising part of such Borrowing
and for a period equal to such Interest Period by (ii) a percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage for such
Interest Period. The Eurodollar Rate for any Interest Period for each
Eurodollar Rate Advance or LIBOR Advance comprising part of the same
Borrowing shall be determined by the Agent on the basis of applicable
rates furnished to and received by the Agent from Citibank two
Business Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.07.
14
<PAGE> 33
"Eurodollar Rate Advance" means a Committed Rate Advance which
bears interest as provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" of any Bank for any Interest
Period for any Eurodollar Rate Advance or LIBOR Advance means the
reserve percentage applicable during such Interest Period (or if more
than one such percentage shall be so applicable, the daily average of
such percentages for those days in such Interest Period during which
any such percentage shall be so applicable) under regulations issued
from time to time by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for such Bank with
respect to liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such Interest Period.
"Event of Default" has the meaning specified in Section 7.01.
"Excluded Convertible Acquisition Debt" means the subordinated
convertible notes issued by the Borrower or any of its Subsidiaries as
consideration for the acquisition of Facilities that, at any date of
determination, are convertible into shares of the Borrower's common
stock having a Market Value, as of such date, equal to 140% of the
conversion price of such notes.
"Existing Base Rate Advance" means a Base Rate Advance under, and
as such term is defined in, the Existing Credit Agreement.
"Existing Clinic Acquisition" means the acquisition of an
additional Facility or single-specialty clinic, or the assets thereof,
by a Subsidiary of the Borrower which already owns and operates one or
more Facilities, or the addition of physicians to such Facilities,
which acquisition or addition will supplement the operations of the
existing Facilities.
"Existing Competitive Bid Advances" means a Competitive Bid
Advance under, and as such term is defined in, the Existing Credit
Agreement.
"Existing Eurodollar Rate Advance" means a Eurodollar Rate
Advance under, and as such term is defined in, the Existing Credit
Agreement.
"Facility" means any multi-specialty medical clinic (including
any satellite locations and all real, personal and mixed property
relating to any such clinic) and related businesses certain of the
assets of which are now owned or leased and operated or hereafter
owned or leased and operated by the Borrower or any existing or future
Subsidiary of the Borrower or, in the case of an acquisition, that
such a Subsidiary intends to acquire.
15
<PAGE> 34
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is
a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fifth Amendment and Restatement Closing Date" means the Business
Day on which all the conditions set forth in Section 4.02 shall have
been fulfilled.
"Fifth Amendment and Restatement Loan Documents" means this
Agreement, the Notes, the Acknowledgment and Consent, and the other
documents delivered in connection with the Fifth Amendment and
Restatement.
"Fixed Charge Coverage Ratio" of any Person means, at any date of
determination for any period, the ratio that such Person's EBITDAL for
such period, minus (i) Consolidated cash income tax expense and minus
(ii) Capital Expenditures other than Capital Expenditures which are
funded by Advances or other Debt (to the extent such Debt is permitted
under this Agreement) or by Net Cash Proceeds received from the
issuance, sale or disposition of the Borrower's Securities (common,
preferred or special), securities convertible into or exchangeable for
Securities, and any rights, options, warrants and similar instruments,
bears to such Person's Interest Expense for such period plus Lease
Expense plus all scheduled Debt principal payments (including the
principal component of payments in respect of Capital Leases and
including payments of any deferred purchase price (to the extent such
deferred purchase price is not financed by Advances or other Debt and
to the extent such deferred purchase price does not consist of stock
consideration) in connection with the acquisition of any Facility (or
the assets thereof), any Existing Clinic Acquisition or the
acquisition of any Related Business and any contingent payments made
in connection with such acquisition) for such period.
"Fixed Rate" has the meaning set forth in Section 2.02(c).
"Fixed Rate Advance" means a Competitive Bid Advance which bears
interest as provided in Section 2.06(b).
"Funded Debt" of any Person means Debt (including, without
limitation, all Subordinated Debt other than, in the case of the
Borrower and its Subsidiaries, the Excluded Convertible Acquisition
Debt) which matures more than one year from the date of determination
or matures within one year from such date but is
16
<PAGE> 35
renewable or extendible, at the option of such Person, to a date more
than one year from such date or arises under a revolving credit or
similar agreement which obligates the lender or lenders to extend
credit during a period of more than one year from such date,
including, without limitation, all amounts of Funded Debt required to
be paid or prepaid within one year from the date of determination.
"Guarantors" means the Subsidiaries listed on Schedule III hereto
and each other Subsidiary that from time to time may enter into a
Guaranty pursuant hereto; provided that Subsidiaries that are not
directly owned by the Borrower and that are operated principally as
management companies of independent practice associations shall not be
Guarantors; provided further that Arnett Health Systems, Inc. and its
Subsidiaries as of the date hereof (the "Arnett Subsidiaries") shall
not be Guarantors so long as less than 3.0% of the EBITDA of the
Borrower and its Subsidiaries (calculated on a rolling four quarter
basis) is attributable to their interests in the Arnett Subsidiaries.
"Guaranty" means a guaranty of payment in favor of the Agent, in
substantially the form of Exhibit C, as amended, supplemented,
restated or otherwise modified from time to time.
"Hazardous Substance" means (i) any hazardous substance and toxic
substance as such terms are presently deemed or used in ss. 101(14) of
CERCLA (42 U.S.C. ss. 9601(14)), in 33 U.S.C. ss. 1251 et seq. (Clean
Water Act), or 15 U.S.C. ss. 2601 et seq. (Toxic Substances Control
Act), (ii) any additional substances or materials which are now or
hereafter hazardous or toxic substances under any applicable laws, and
(iii) as of any date of determination, any additional substances or
materials which are hereafter incorporated in or added to the
definition or use of "hazardous substance" or "toxic substance" for
purposes of CERCLA or any other applicable law.
"Indemnitee" or "Indemnitees" has the meaning set forth in
Section 9.06.
"Insufficiency" means, with respect to any Plan, the amount, if
any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Intercompany Creditor" means PhyCor of Nashville, Inc., a
Tennessee corporation and wholly owned Subsidiary of the Borrower.
"Intercompany Debt" means any and all indebtedness from time to
time owed (i) to the Borrower by any of its Subsidiaries, (ii) to the
Intercompany Creditor by any other Subsidiary of the Borrower, or
(iii) to any Subsidiary of the Borrower by the Borrower, including any
investments by the Borrower in any of its Subsidiaries to the extent
such investments are made in the form of loans or
17
<PAGE> 36
advances by the Borrower to such Subsidiary. All Intercompany Debt
shall be payable on demand.
"Intercompany Subordination Agreement" means an intercompany
subordination agreement in substantially the form of Exhibit E among
the Borrower and each of its Subsidiaries, as the same may be amended,
supplemented or otherwise modified from time to time.
"Interest Coverage Ratio" of a Person means, at any date of
determination for any period, the ratio that such Person's EBITDAL for
such period bears to such Person's Interest Expense plus Lease Expense
for such period. For purposes of Section 6.03(c), Interest Coverage
Ratio shall be calculated on a rolling four quarter basis.
"Interest Expense" of any Person means the aggregate amount of
interest paid, accrued or scheduled to be paid or accrued in respect
of any Debt (including the interest portion of rentals under Capital
Leases, but excluding, in the case of the Borrower and its
Subsidiaries, any interest paid, accrued or scheduled to be paid or
accrued in respect of the Excluded Convertible Acquisition Debt to the
extent, and only to the extent, that such interest is offset by a
corresponding increase in fees payable to the Borrower or its
Subsidiary pursuant to the Service Agreement relating to such
acquisition) and all but the principal component of payments in
respect of conditional sales, equipment trust or other title retention
agreements paid, accrued or scheduled to be paid or accrued by such
Person, in each case determined in accordance with generally accepted
accounting principles.
"Interest Period" means, for each Eurodollar Rate Advance or
LIBOR Advance, as the case may be, comprising part of the same
Borrowing, the period commencing on the date of such Advance or, in
the case of a Eurodollar Rate Advance, the date of the Conversion of
any Advance into such Type of Advance and ending on the last day of
the period selected by the Borrower pursuant to the provisions below
and, thereafter, in the case of a Eurodollar Rate Advance, each
subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period
selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months in the case of a Eurodollar Rate Advance or a LIBOR Advance;
provided, however, that:
(i) the Borrower may not select any Interest Period which ends
after the A Commitment Termination Date in the case of A Advances or
the B Commitment Termination Date in the case of B Advances;
18
<PAGE> 37
(ii) Interest Periods commencing on the same date for Advances
comprising part of the same Committed Rate Borrowing shall be of the
same duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day; provided, in the case of any Interest Period for a
Eurodollar Rate Advance or LIBOR Advance, that if such extension would
cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall
occur on the next preceding Business Day; and
(iv) the Borrower may not have more than eight Eurodollar Rate
Borrowings outstanding on any given date.
"Issue" means, with respect to any Letter of Credit, either to
issue, or to extend the expiry of, or to renew, or to increase the
amount of, such Letter of Credit, and the term "Issued" or "Issuance"
shall have corresponding meanings.
"Issuing Bank" means (i) Citibank, N.A. or any Affiliate of
Citibank, N.A. that may from time to time Issue Letters of Credit for
the account of the Borrower and (ii) any other Bank that agrees in
writing to act as an Issuing Bank hereunder with the written consent
of the Borrower, the Majority Banks and the Agent.
"Lease" means any lease, rental contract, occupancy agreement,
license or other arrangement pursuant to which any Person occupies or
has the right to occupy all or any part of the Real Property.
"Lease Expense" of any Person means all payments made by such
Person under Operating Leases. For the purpose of calculating the
Fixed Charge Coverage Ratio and Interest Coverage Ratio of the
Borrower and its Subsidiaries, Lease Expense shall refer to all
payments made by (i) PhyCor Vero Beach pursuant to that certain Lease
entered into by and between PhyCor Vero Beach and Healthcare Realty
Trust, and (ii) the Borrower or any of its Subsidiaries in connection
with any other Lease entered into in the future by such Person which
is not cancelable upon termination of the related Service Agreement or
for which the payments thereunder are not fully reimbursable to the
Borrower or such Subsidiary pursuant to the related Service Agreement.
"Letter of Credit" means any standby letter of credit in form
satisfactory to the Issuing Bank therefor, which is at any time Issued
by such Issuing Bank pursuant to Article III, in each case as amended,
supplemented or otherwise modified from time to time.
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<PAGE> 38
"Letter of Credit Liability" means, as of any date of
determination, all then existing liabilities of the Borrower to the
Issuing Banks in respect of the Letters of Credit Issued for its
account, whether such liability is contingent or fixed, and shall, in
each case, consist of the sum of (i) the aggregate maximum amount then
available to be drawn under such Letters of Credit (the determination
of such maximum amount to assume compliance with all conditions for
drawing) and (ii) the aggregate amount which has then been paid by,
and not been reimbursed to, the Issuing Banks under such Letters of
Credit.
"LIBOR Advance" means a Competitive Bid Advance which bears
interest as provided in Section 2.06(b).
"LIBOR Margin" has the meaning set forth in Section 2.02(c).
"Lien" means any assignment, chattel mortgage, pledge or other
security interest or any mortgage, deed of trust or other lien, or
other charge or encumbrance, upon property or rights (including
after-acquired property or rights), or any preferential arrangement
with respect to property or rights (including after-acquired property
or rights) which has the practical effect of constituting a security
interest or lien.
"Loan Documents" means this Agreement, the Notes, the Collateral
Documents, the Guaranties, the Subordination Agreements, the
Intercompany Subordination Agreement and the other Fifth Amendment and
Restatement Loan Documents, in each case as amended, supplemented,
restated or otherwise modified from time to time.
"Loan Party" means, individually, the Borrower, each Guarantor or
each Pledgor; and "Loan Parties" means the Borrower, the Guarantors
and the Pledgors collectively.
"Majority Banks" means, at any time, Banks holding at least
66-2/3% of the then aggregate unpaid principal amount of the Committed
Rate Advances owing to the Banks, or, if no such principal amount is
then outstanding, having at least 66-2/3% of the Commitments.
"Market Value" means, with respect to any publicly traded
Security at any date of determination, the amount equal to the average
closing price for such Security during the 15 trading days immediately
preceding the date of determination. The closing price of a publicly
traded security on each day shall be the closing price on such day as
reported on any stock exchange, the National Market System of the
National Association of Securities Dealers' Automated Quotation
System, or an established securities quotation service, as the case
may be.
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<PAGE> 39
"Merger Agreement" means any agreement between the Borrower or
any of its Subsidiaries and any Person relating to the purchase by and
merger into the Borrower or any of its Subsidiaries of any Facility
(or the assets thereof) or any Related Business.
"Moody's" means Moody's Investors Service, Inc. or its successor.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued an
obligation to make contributions, such plan being maintained pursuant
to one or more collective bargaining agreements.
"Multiple Employer Plan" means a single employer plan, as defined
in Section 4001(a)(15) of ERISA, which (i) is maintained for employees
of the Borrower or an ERlSA Affiliate and at least one Person other
than the Borrower and its ERISA Affiliates or (ii) was so maintained
and in respect of which the Borrower or any ERISA Affiliate could have
liability under Section 4064 or 4069 of ERISA in the event such plan
has been or were to be terminated.
"NAMM" means North American Medical Management, Inc., a Tennessee
corporation.
"Net Cash Proceeds" means, as to any sale, lease or other
disposition of any Facility (or the assets thereof) or any Related
Business, or of the assets of the Borrower and its Subsidiaries, by
the Borrower or any Subsidiary of the Borrower to any Person other
than the Borrower or any Subsidiary of the Borrower, or the sale or
issuance of any Securities, any securities convertible into or
exchangeable for Securities, or any warrants, rights or options to
acquire Securities of the Borrower or any of its Subsidiaries to any
Person other than the Borrower or any Subsidiary of the Borrower
(other than such sale or issuance pursuant to the Borrower's employee
stock purchase plans or employee and director stock option plans and
other than the issuance of Securities as consideration for the
acquisition of any Facility (or the assets thereof), any Existing
Clinic Acquisition or the acquisition of any Related Business to the
extent such acquisition satisfies the applicable requirements of
Section 6.02(f)(i) or (ii)), or the issuance of any Subordinated Debt,
whether convertible into or exchangeable for Securities (other than in
the case of the Borrower and its Subsidiaries, the subordinated
convertible notes issued by the Borrower or any of its Subsidiaries as
consideration for the acquisition of Facilities (or the assets
thereof), Existing Clinic Acquisitions or the acquisition of Related
Businesses), an amount equal to (i) the cash and other consideration
paid by such Person (but not including (i) any Debt of the Borrower or
its Subsidiaries assumed by such Person in connection with such sale,
lease or
21
<PAGE> 40
other disposition or (ii) any Debt of the Borrower or its Subsidiaries
owed to such Person which is offset against the Total Consideration of
such Facility or Related Business), minus (ii) the sum of (A) in the
case of a Facility, the unpaid principal balance on the date of such
sale or other disposition of any Debt secured by a Lien on such
Facility that may be accelerated as a result of such sale or secured
by Liens not prohibited by the terms of this Agreement and affecting
only such Facility, in each case which is required to be repaid, and
is actually repaid, by the Borrower or any of its existing or future
Subsidiaries on the date of such sale or other disposition, (B) any
tax paid or payable by the Borrower or any of its existing or future
Subsidiaries in connection with or as a consequence of such sale or
other disposition (excluding any such tax for which the Borrower or
any of its existing or future Subsidiaries seller is reimbursed by
such Person to the extent not otherwise included in the determination
of Net Cash Proceeds), (C) the amount of any reserve (other than in
respect of inventory) required to be retained in connection with such
sale or other disposition under generally accepted accounting
principles (excluding any reserve in respect of any amounts not
payable within 180 days), provided, however, that the unused amount of
such reserve at the termination of such reserve in accordance with
generally accepted accounting principles shall be deemed Net Cash
Proceeds in the amount of such unused amount, and (D) reasonable
out-of-pocket costs of such sale or other disposition incurred by the
Borrower or any of its existing or future Subsidiaries to third
parties directly in connection therewith, including, without
limitation, sales commissions, escrow fees, legal fees, tide insurance
premiums and similar expenses.
"Net Income" of any Person, for any period, means the net income
of such Person for such period, determined in accordance with
generally accepted accounting principles, excluding:
(i) the proceeds of any life insurance policy;
(ii) any earnings (or losses), prior to the date of acquisition,
of any other Person acquired in any manner;
(iii) in the case of a successor to such Person by consolidation
or merger or a transferee of its assets, any earnings (or losses) of
the successor or transferee corporation prior to the consolidation,
merger or transfer of assets; and
(iv) any deferred credit (or debit) (or amortization of a
deferred credit) arising from the acquisition of any Person.
"Net Worth" of any Person, as of any date of determination, means
the excess of such Person's Total Assets over Total Liabilities.
22
<PAGE> 41
"Note" means a Committed Rate Note or a Competitive Bid Note, and
"Notes" means such promissory notes collectively.
"Notice of Borrowing" means a written notice, in substantially
the form of Exhibit B-1 hereto, delivered in accordance with, and
within the periods specified in, Section 2.01(c) hereof.
"OECD" means the Organization for Economic Cooperation and
Development or any successor.
"Operating Lease" means any lease of real, personal or mixed
property which is not a Capital Lease.
"Other Taxes" has the meaning set forth in Section 2.13(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor.
"Permitted Investments" of any Person means investments by such
Person in (i) obligations of the United States government due within
360 days, (ii) certificates of deposit, due within 360 days, of a
United States domiciled commercial bank having capital funds of at
least $100,000,000 and whose long term certificates of deposit are
rated at least A- (or the then equivalent grade) by Standard & Poor's
or A3 (or the then equivalent grade) by Moody's, (iii) commercial
paper rated P-1 (or the then equivalent grade) by Moody's or A-I (or
the then equivalent grade) by Standard & Poor's, and maturing not more
than 270 days from the date of creation thereof, (iv) debt of any
state of the United States or political subdivision thereof that is
rated A-(or the then equivalent grade) or better by Moody's or
Standard & Poor's and maturing in less than 360 days, (v) funds or
similar vehicles which invest exclusively in the obligations described
in clauses (iii) and (iv) above, (vi) secured repurchase agreements
relating to an investment of the types described in clauses (i), (ii),
(iii) and (iv) above, provided that for any such repurchase agreement
(a) the counterparty thereto is a government securities dealer
designated by the Federal Reserve Bank of New York as a "reporting
dealer" and whose financial statements indicate that it has capital of
at least $50,000,000, (b) the Permitted Investments which are the
subject of such repurchase agreement shall be at all times during the
term of the repurchase agreement in the possession of the Borrower or
the Subsidiary party thereto (or one or more of their agents or
bailees) or the interest of the Borrower or such Subsidiary therein
shall be appropriately recorded in accordance with United States
federal regulations regarding book-entry Treasury securities, (c) the
fair market value, including accrued interest, of the Permitted
Investments subject to such repurchase agreement and of any additional
collateral securing the obligation of the other party under such
repurchase agreement in which the
23
<PAGE> 42
Borrower or the Subsidiary party thereto has a perfected security
interest shall not at any time be less than 105% (or, in the case of
overnight repurchase agreements, 102%) of the obligation of the
counterparty to the repurchase agreement and (d) the term of such
repurchase agreement shall not exceed 30 days, and (vii) other cash
equivalents of a quality substantially similar to that of the
investments described in clauses (i), (ii), (iii), (iv), (v) and (vi)
above, provided that the aggregate amount invested in all such other
cash equivalents shall not exceed $15,000,000 at any time outstanding.
"Permitted Lien" means:
(i) Any Liens (other than Liens securing Debt, taxes, assessments
or governmental charges or levies, obligations under ERISA or the
Environmental Laws, or other obligations) affecting any of the Real
Property which do not materially adversely affect the use of such Real
Property;
(ii) Liens for taxes, assessments or governmental charges or
levies to the extent not past due or to the extent contested, in good
faith, by appropriate proceedings and for which adequate reserves have
been established;
(iii) Liens imposed by law, such as materialman's, mechanic's,
carrier's, workman's, and repairman's Liens and other similar Liens
arising in the ordinary course of business which relate to obligations
which are not overdue for a period of more than 30 days or which are
being contested in good faith, by appropriate proceedings and for
which adequate reserves have been established;
(iv) pledges or deposits in the ordinary course of business to
secure nondelinquent obligations under workman's compensation or
unemployment laws or similar legislation or to secure the performance
of leases or contracts entered into in the ordinary course of business
or of public or nondelinquent statutory obligations, bids, or appeal
bonds;
(v) Liens upon or in any property acquired or held by the
Borrower or any of its Subsidiaries (other than the Intercompany
Creditor) to secure the purchase price or construction costs (and, to
the extent financed, sales and excise taxes, delivery and installation
costs and other related expenses) of such property or to secure
indebtedness incurred solely for the purpose of financing or
refinancing the acquisition or construction of any such property to be
subject to such Liens, or Liens existing on any such property at the
time of acquisition, or extensions, renewals or replacements of any of
the foregoing for the same or a lesser amount, provided that such Lien
is established within thirty days of the acquisition of said property
or expenditure of said construction costs, and provided, further, that
no such Lien shall extend to or cover any property other than the
property being acquired and no such extension, renewal or replacement
24
<PAGE> 43
shall extend to or cover any property not theretofore subject to the
Lien being extended, renewed or replaced, and provided, further, that
the incurrence of any Debt secured by the Liens permitted by this
clause (v) shall not exceed the amount then allowed under any of the
covenants set forth in Section 6.03;
(vi) zoning restrictions, easements, licenses, landlord's liens
or restrictions on the use of real property owned or leased by the
Borrower or any of its Subsidiaries, which do not materially impair
the use of such property in the operation of the business of the
Borrower or any of its Subsidiaries or the value of such property for
the purpose of such business;
(vii) Liens on the property or assets of any Subsidiary in favor
of the Borrower or a Subsidiary, provided, that, the holder and
grantor of such Lien have each entered into the Intercompany
Subordination Agreement and are parties to the Collateral Documents,
and provided that, any Debt that is secured by such Lien is evidenced
by an instrument that has been pledged pursuant to the Pledge
Agreement or other Collateral Document;
(viii) Liens listed on Schedule VI;
(ix) Liens on the property or assets of the Borrower and its
Subsidiaries securing the Borrower's obligations under any interest
rate protection, hedge, cap, collar, swap or similar agreement entered
into by the Borrower with any of the Banks or their respective
Affiliates from time to time, to the extent such Liens are pari passu
with or junior to the Liens securing the obligations of the Loan
Parties under the Loan Documents; and
(x) Liens not described in subclauses (i) through (ix) above that
relate to liabilities which are not in excess of $5,000,000 in the
aggregate.
"Person" means a individual, partnership, corporation (including
a business trust), joint stock company, trust, unincorporated
association, joint venture or other entity, or a government or any
political subdivision or agency or instrumentality thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pledge Agreement" means a Pledge Agreement made by the Pledgor
in substantially the form of Exhibit D, as amended, supplemented,
restated or otherwise modified from time to time.
"Pledged Securities" means all of the outstanding Securities of
the Borrower's existing or future Subsidiaries that may from time to
time be pledged pursuant to the Pledge Agreement or a Collateral
Document; provided that the
25
<PAGE> 44
pledge of the voting interest represented by the Securities of any
Subsidiaries of the Borrower that are limited liability companies
shall be limited to 75% of such voting interest for as long as the
pledge of the balance of such voting interest shall subject such
company to material risk of being treated as an association taxable as
a corporation for federal income tax purposes.
"Pledgor" means the Borrower and any Guarantor that in the future
grants or purports to grant a Lien to the Agent for the benefit of the
Banks pursuant to the Pledge Agreement or other Collateral Document
covering Securities of a Person or Intercompany Debt.
"Process Agent" has the meaning set forth in Section 9.13(a).
"RCRA" means the Resource Conservation and Recovery Act of 1976,
as amended (42 U.S.C. ss. 6901 et seq.), and any regulations
promulgated thereunder.
"Real Property" means the real property of the Borrower and its
Subsidiaries located in the United States described in Schedule II
hereto, consisting of real property or any interest in real property,
including a leasehold interest or an option to purchase, and all
buildings, structures and improvements now or hereafter located on all
or any portion of said real property, provided, that, notwithstanding
the foregoing, only leasehold interests of the Borrower and its
Subsidiaries which relate to the main clinic of any Facility or for
which the Borrower or any of its Subsidiaries incurs Lease Expense
equal to or in excess of $100,000 per year shall be described in
Schedule II.
"Register" has the meaning specified in Section 9.08(c).
"Related Business" means (i) a business that principally operates
(A) one or more independent practice associations (each an "IPA")
providing general organizational structure and management to physician
networks and related management companies providing information and
operating systems, actuarial and financial analysis, medical
management and provider contract services to the IPAs or (B) one or
more management service organizations (each a "MSO") providing IPAs
with practice management services, including billing, staffing and
financial management services, or (ii) a business (other than a
single-specialty clinic, or the assets thereof) related to the
operation of a Facility, IPA or MSO, the acquisition or operation of
which would not result in a material change in the nature of the
Borrower's business as of the date hereof. A Related Business shall
also include all real, personal and mixed property relating thereto.
"Restricted Payment" of any Person, means any dividend payment or
other distribution of assets, properties, cash, rights, obligations or
securities on account of any shares of any class of Securities of such
Person, or any purchase,
26
<PAGE> 45
redemption or other acquisition for value of any shares of any class
of Securities of such Person, or any warrants, rights or options to
acquire any such Securities, now or hereafter outstanding; provided,
however, that (i) any dividend payment or other distribution payable
in common stock of such Person and (ii) any purchase, redemption or
other acquisition of shares of such Person's Securities or warrants,
rights or options to acquire any such Securities with the proceeds
received from the substantially concurrent issue of new shares of such
Person's Securities shall not be considered a Restricted Payment.
"Securities" means shares of capital stock of a corporation (or
similar property right in the case of partnerships, limited liability
companies and trusts).
"Senior Debt" means all Debt outstanding pursuant to this
Agreement and any other Debt of the Borrower and its Subsidiaries not
expressly subordinated on terms satisfactory to the Majority Banks to
the Debt outstanding under this Agreement.
"Service Agreement" means any of (i) the Service Agreements
listed on Schedule IV and (ii) any similar agreement entered into by
the Borrower or any existing or future Subsidiary of the Borrower
after the Fifth Amendment and Restatement Closing Date, in each case
as any of such agreements may from time to time be amended, restated,
supplemented or otherwise modified.
"Single-Employer Plan" means a single-employer plan, as defined
in Section 4001(a)(15) of ERISA, which (i) is maintained for employees
of the Borrower or an ERISA Affiliate and no Person other than the
Borrower and its ERISA Affiliates or (ii) was so maintained and in
respect of which the Borrower or an ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
"Solvency Certificate" means a duly executed certificate for each
Loan Party in substantially the form of Exhibit G.
"Solvent" means, with respect to any Person, that as of any date
of determination, (i) the then fair saleable value of the assets of
such Person is (a) greater than the then total amount of liabilities
(including contingent, subordinated, matured and unliquidated
liabilities) of such Person and (b) greater than the amount that will
be required to pay such Person's probable liability on such Person's
then existing debts as they become absolute and matured, (ii) such
Person's capital is not unreasonably small in relation to its business
or any contemplated or undertaken transaction, and (iii) such Person
does not intend to incur, or believe or reasonably should believe that
it will incur, debts beyond its ability to pay such debts as they
become due.
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<PAGE> 46
"Standard & Poor's" means Standard & Poor's Corporation or its
successor.
"Stock Purchase Agreement" means any agreement between the
Borrower or any of its Subsidiaries and any Person that operates a
Facility or a Related Business relating to the purchase by the
Borrower or any of its Subsidiaries of all of the Securities of such
Person.
"Subordinated Debt" means any Debt of the Borrower that is
subordinated to the Debt of the Borrower under this Agreement and the
Notes on, and that otherwise contains, terms and conditions
satisfactory to the Majority Banks.
"Subordination Agreement" means a duly executed subordination
agreement in substantially the form of Exhibit H, as amended,
supplemented or otherwise modified from time to time.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company, trust or other Person of which
more than 50% of the outstanding Securities having ordinary voting
power to elect a majority of the board of directors of such
corporation (or similar governing body or Person with respect to
partnerships, limited liability companies and trusts) (irrespective of
whether or not at the time Securities of any other class or classes of
such Person shall or might have voting power upon the occurrence of
any contingency) is at the time directly or indirectly owned by such
Person, or one or more other Subsidiaries of such Person, or by one or
more other Subsidiaries of such Person.
"Tangible Net Assets" of any Person, as at any date of
determination, means (without duplication) such Person's cash, net
Accounts, inventory, equipment, fixtures, real property and the
refundable portion of any prepaid expense which, in accordance with
generally accepted accounting principles, are treated as tangible
assets of such Person, in each case (to the extent applicable), less
the sum of (i) Current Liabilities, (ii) cash held in a sinking or
other analogous fund established for the purpose of redemption,
retirement or prepayment of Securities or Debt, and (iii) any write-up
in the book value of such asset resulting from a revaluation (but not
a valuation of an asset in connection with an acquisition subject to
purchase accounting treatment under generally accepted accounting
principles; provided that such valuation is accomplished in accordance
with such principles).
"Taxes" has the meaning set forth in Section 2.13(a).
"Total Assets" of any Person, as of the date of determination,
means all property, whether real, personal, tangible, intangible or
otherwise, which, in
28
<PAGE> 47
accordance with generally accepted accounting principles, should be
included in determining total assets as shown on the assets portion of
a balance sheet of such Person.
"Total Capitalization" of any Person, as of the date of
determination, means the sum of such Person's Funded Debt plus Net
Worth.
"Total Consideration" means, with respect to the acquisition of
any Facility (or the assets thereof) or Related Business, whether or
not such acquisition is accomplished by Securities purchase or asset
purchase or by merger, the sum of (i) all cash and non-cash
consideration (including, without limitation, assumed liabilities and
equity consideration) paid by the Borrower or any of its Subsidiaries
at the closing of such transaction, and (ii) all Deferred Acquisition
Consideration; provided that Total Consideration shall not include any
contingent payments that may be made by the Borrower or any of its
Subsidiaries after such closing.
"Total Liabilities" of any Person, as of the date of
determination, means all obligations, including, without limitation,
all Debt of such Person, which, in accordance with generally accepted
accounting principles, should be included in determining total
liabilities as shown on the liabilities portion of a balance sheet of
such Person, including all Subordinated Debt other than, in the case
of the Borrower and its Subsidiaries, the Excluded Convertible
Acquisition Debt.
"UCP" has the meaning set forth in Section 3.08.
"Unused A Commitment" means, with respect to any Bank at any
time, (a) such Bank's A Commitment at such time (as such A Commitment
may be reduced pursuant to Section 2.04 or on account of an Assignment
and Acceptance entered into by such Bank) minus (b) the aggregate
principal amount of all Committed Rate A Advances made by such Bank
outstanding at such time.
"Unused B Commitment" means, with respect to any Bank at any
time, (a) such Bank's B Commitment at such time (as such B Commitment
may be reduced pursuant to Section 2.04 or on account of an Assignment
and Acceptance entered into by such Bank) minus (b) the aggregate
principal amount of all Committed Rate B Advances made by such Bank
outstanding at such time.
"Welfare Plan" means a welfare plan, as defined in Section 3(1)
of ERISA, which section covers plans, funds and programs providing
(among other things) medical, surgical, or hospital care or benefits,
or benefits in the event of sickness, accident, disability, death or
unemployment, together with plans which provide workmen's
compensation, unemployment compensation or disability insurance
benefits.
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"Withdrawal Liability" has the meaning given such term under Part
I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement, in the
computation of a period of time from a specified date to a later specified date,
unless otherwise stated, the word "from" or "commencing" means "from and
including" and the word "to" or "until" means "to but excluding."
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with United States generally
accepted accounting principles consistent with those applied in the preparation
of the Borrower's December 31, 1995 Consolidated financial statements delivered
to the Banks in accordance with Section 6.04(c).
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Committed Rate Advances.
(a) Each Bank severally agrees, on the terms and conditions hereinafter set
forth, to make Committed Rate A Advances to the Borrower from time to time on
any Business Day during the period from the Fifth Amendment and Restatement
Closing Date until the A Revolver Termination Date, in an amount for each such A
Advance not to exceed such Bank's Unused A Commitment on such Business Day;
provided, however, that such Bank shall not be obligated to make such Committed
Rate A Advance if, after giving effect to such Committed Rate A Advance and the
other Committed Rate A Advances to be made by the other Banks as part of the
same A Borrowing, the then outstanding aggregate principal amount of all
Committed Rate A Advances plus the then existing Letter of Credit Liability
shall exceed the aggregate A Commitments of the Banks less the then outstanding
aggregate principal amount of all Competitive Bid A Advances; provided further
that, for the purposes of this Section 2.01(a), such Bank's Unused A Commitment
shall be deemed to be reduced on such Business Day by an amount equal to the
product of (i) the then outstanding principal amount of all Competitive Bid A
Advances and (ii) such Bank's A Commitment Percentage (the "Competitive Bid A
Reduction"). Each Committed Rate A Borrowing shall be in an aggregate amount of
$3,000,000 or an integral multiple of $1,000,000 in excess thereof, and shall
consist of Advances made on the same day by the Banks ratably according to their
respective A Commitments. Within the limits of each Bank's Unused A Commitment
(as deemed reduced by the Competitive Bid A Reduction) in effect from time to
time, the Borrower may borrow under this Section 2.01(a), prepay pursuant to
Section 2.09 and reborrow under this Section 2.01(a).
(b) Each Bank severally agrees, on the terms and conditions hereinafter set
forth, to make Committed Rate B Advances to the Borrower from time to time on
any Business Day during the period from the Fifth Amendment and Restatement
Closing Date until the B Revolver Termination Date, in an amount for each such B
Advance not to exceed such Bank's Unused
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B Commitment on such Business Day; provided, however, that such Bank shall not
be obligated to make such Committed Rate B Advance if, after giving effect to
such Committed Rate B Advance and the other Committed Rate B Advances to be made
by the other Banks as part of the same B Borrowing, the then outstanding
aggregate principal amount of all Committed Rate B Advances shall exceed the
aggregate B Commitments of the Banks less the then outstanding aggregate
principal amount of all Competitive Bid B Advances; provided further that, for
the purposes of this Section 2.01(b), such Bank's Unused B Commitment shall be
deemed to be reduced on such Business Day by an amount equal to the product of
(i) the then outstanding principal amount of all Competitive Bid B Advances and
(ii) such Bank's B Commitment Percentage (the "Competitive Bid B Reduction").
Each Committed Rate B Borrowing shall be in an aggregate amount of $3,000,000 or
an integral multiple of $1,000,000 in excess thereof, and shall consist of
Advances made on the same day by the Banks ratably according to their respective
B Commitments. Within the limits of each Bank's Unused B Commitment (as deemed
reduced by the Competitive Bid B Reduction) in effect from time to time, the
Borrower may borrow under this Section 2.01(b), prepay pursuant to Section 2.09
and reborrow under this Section 2.01(b); provided that the Borrower may not
borrow or reborrow under this Section 2.01(b) while there are any Unused A
Commitments other than in respect of the then existing Letter of Credit
Liability.
(c) Each Committed Rate Borrowing shall be made on notice, given not later
than 11:00 A.M. (New York City time) (i) on the second Business Day prior to the
date of the proposed Borrowing, in the case of Eurodollar Rate Advances, and
(ii) on the date of the proposed Borrowing, in the case of Base Rate Advances,
by the Borrower to the Agent, which shall give each Bank prompt notice thereof
by telecopier, telex or cable. Each such notice of a Borrowing (a "Notice of
Borrowing") shall be by telecopier, telex or cable, confirmed immediately in
writing, in substantially the form of Exhibit B-1 hereto, specifying therein (i)
whether the requested Borrowing shall consist of A Advances or B Advances, (ii)
the requested date of such Borrowing, (iii) the requested Type of Advances
comprising such Borrowing, (iv) the requested aggregate amount of such
Borrowing, and (v) in the case of a Borrowing comprised of Eurodollar Rate
Advances, the requested initial Interest Period for each such Advance. Each Bank
shall, before 12:00 noon (New York City time) on the date of such Borrowing,
make available for the account of its Applicable Lending Office to the Agent at
its address referred to in Section 9.02, in same day funds, such Bank's ratable
portion of such Borrowing. After the Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article IV, the Agent will
make such funds available to the Borrower at the Agent's aforesaid address.
Anything in this subsection (c) above to the contrary notwithstanding, (A) the
Borrower may not select Eurodollar Rate Advances for any Committed Rate
Borrowing if the obligation of the Banks to make Eurodollar Rate Advances shall
then be suspended pursuant to Section 2.11 and (B) no more than eight Committed
Rate Borrowings consisting of Eurodollar Rate Advances may be outstanding at any
one tune.
(d) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Committed Rate Borrowing which the related Notice
of Borrowing specifies is to
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be comprised of Eurodollar Rate Advances, the Borrower shall indemnify each Bank
against any loss (including loss of anticipated profits), cost or expense
incurred by such Bank as a result of any failure to fulfill on or before the
date specified in such Notice of Borrowing for such Borrowing the applicable
conditions set forth in Article IV, including, without limitation, any loss,
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Bank to fund the Advance to be made by
such Bank as part of such Borrowing when such Advance, as a result of such
failure, is not made on such date.
(e) Unless the Agent shall have received notice from a Bank prior to the
date of any Committed Rate Borrowing that such Bank will not make available to
the Agent such Bank's ratable portion of such Borrowing, the Agent may assume
that such Bank has made such portion available to the Agent on the date of such
Borrowing in accordance with subsection (c) above and the Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so made
such ratable portion available to the Agent, such Bank and the Borrower
severally agree to repay to the Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount is
made available to the Borrower until the date such amount is repaid to the
Agent, at (i) in the case of the Borrower, the interest rate applicable at the
time to Advances comprising such Borrowing and (ii) in the case of such Bank,
the Federal Funds Rate. If such Bank shall repay to the Agent such corresponding
amount, such amount so repaid shall constitute such Bank's Advance as part of
such Borrowing for purposes of this Agreement. To the extent that any Bank makes
a payment of principal or interest to the Agent pursuant to this subsection (e),
the Borrower shall not be obligated to make such payment.
(f) The failure of any Bank to make the Advance to be made by it as part of
any Committed Rate Borrowing shall not relieve any other Bank of its obligation,
if any, hereunder to make its Advance on the date of such Borrowing, but no Bank
shall be responsible for the failure of any other Bank to make the Advance to be
made by such other Bank on the date of any Committed Rate Borrowing.
SECTION 2.02. The Competitive Bid Advances.
(a) Each Designated Bidder severally agrees, on the terms and conditions
hereinafter set forth, that the Borrower may avail itself of Competitive Bid
Advances from time to time on any Business Day during the period from the Fifth
Amendment and Restatement Closing Date until 30 days prior to the A Revolver
Termination Date, in the case of Competitive Bid A Advances, or the B Revolver
Termination Date, in the case of Competitive Bid B Advances, in the manner set
forth in this Section 2.02; provided that (i) the aggregate principal amount of
Competitive Bid A Advances made on any Business Day may not exceed the aggregate
Unused A Commitments of the Banks on such Business Day less the then existing
Letter of Credit Liability and the then outstanding principal amount of any
other Competitive Bid A Advances, and (ii) the aggregate principal amount of
Competitive Bid B Advances made on any Business Day may not exceed the aggregate
Unused B Commitments of the Banks on such Business Day
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and the then outstanding principal amount of any other Competitive Bid B
Advances; provided further that Competitive Bid B Advances may not be made while
there are any Unused A Commitments other than in respect of the then existing
Letter of Credit Liability.
(b) The Borrower may request a Competitive Bid Borrowing by delivering to
the Agent, by telecopier, telex or cable, confirmed immediately in writing, a
request, in substantially the form of Exhibit B-2 (a "Competitive Bid Request"),
specifying therein (i) whether the requested Borrowing shall consist of A
Advances or B Advances, (ii) whether Fixed Rate Advances or LIBOR Advances are
being requested, (iii) the date (which shall be a Business Day) and aggregate
amount of the proposed Competitive Bid Borrowing, (iv) the maturity date for
repayment of the Competitive Bid Advances to be made as part of such Borrowing
(which maturity date shall be a date occurring not less than 30 days after the
date of such Borrowing, but not later than the A Revolver Termination Date in
the case of Competitive Bid A Advances or the B Revolver Termination Data in the
case of Competitive Bid B Advances), (v) the interest payment date or dates
relating thereto, in the case of a request for Fixed Rate Advances, and the
applicable Interest Period, in the case of a request for LIBOR Advances, and
(vi) any other terms to be applicable to such Borrowing, not later than 11:00
A.M. (New York City time) at least (A) one Business Day, in the case of a
request for Fixed Rate Advances, or (B) four Business Days, in the case of a
request for LIBOR Advances, prior to the date of the proposed Competitive Bid
Borrowing. The Agent shall in turn promptly notify each Designated Bidder of
each request for such Competitive Bid Borrowing received by it by sending such
Designated Bidder a copy of the related Competitive Bid Request.
(c) Each Designated Bidder may, if, in its sole discretion, it elects to do
so, irrevocably offer to make one or more Competitive Bid Advances to the
Borrower as part of such proposed Competitive Bid Borrowing at a rate or rates
of interest specified by such Designated Bidder in its sole discretion. Any such
offer (a "Competitive Bid") may be made by notifying the Agent (i) before 10:00
A.M. (New York City time) on the date of such proposed Competitive Bid
Borrowing, in the case of a request for Fixed Rate Advances, and (ii) before
10:00 A.M. (New York City time) on the third Business Day before the date of
such proposed Competitive Bid Borrowing, in the case of a request for LIBOR
Advances (the "Bid Due Date"), specifying the following:
(A) the amount of each Competitive Bid Borrowing which such Designated
Bidder would be willing to make as part of such proposed Competitive Bid
Borrowing (which amount may, subject to the proviso to the first sentence
of subsection (a) above, exceed a Bank's Commitment but may not exceed the
principal amount of the Competitive Bid Advances of the Type and maturity
requested by the Borrower);
(B) in the case of a request for a LIBOR Advance, the margin above or
below the applicable Eurodollar Rate (the "LIBOR Margin") offered for such
Competitive Bid Advance, expressed as a percentage (rounded upwards, if
necessary, to the nearest 1/16 of one percent) to be added to or subtracted
from the applicable Eurodollar Rate;
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(C) in the case of a request for a Fixed Rate Advance, the rate of
interest per annum (rounded upwards, if necessary, to the nearest 1/16 of
one percent) (the "Fixed Rate") offered for such Competitive Bid Advance;
and
(D) the identity of the Designated Bidder submitting the Competitive
Bid;
provided that if the Agent in its capacity as a Designated Bidder shall, in its
sole discretion, elect to make any such Competitive Bid, it shall notify the
Borrower of such Competitive Bid before 9:30 A.M. (New York City time) on the
Bid Due Date. If any Designated Bidder shall elect not to make such a
Competitive Bid, such Designated Bidder shall so notify the Agent, before 10:00
A.M. (New York City time) on the Bid Due Date, and such Designated Bidder shall
not be obligated to, and shall not, make any Advance as part of such Competitive
Bid Borrowing; provided that the failure by any Designated Bidder to give such
notice shall not cause such Designated Bidder to be obligated to make any
Advance as part of such proposed Competitive Bid Borrowing. Unless otherwise
agreed by the Borrower and the Agent, no Competitive Bid shall contain
qualifying, conditional or similar language or propose terms other than or in
addition to those set forth in the Competitive Bid Request and, in particular,
no Competitive Bid may be conditioned upon acceptance by the Borrower of all (or
some specified minimum) of the principal amount of the Competitive Bid Advances
offered.
(d) The Agent shall, as promptly as practicable after the Competitive Bid
is submitted (but in any event not later than 10:15 A.M. (New York City time) on
the Bid Due Date), notify the Borrower of the terms (A) of any Competitive Bid
submitted that is in accordance with subsection (c) above and (B) of any
Competitive Bid that amends, modifies or is otherwise inconsistent with a
previous Competitive Bid with respect to the same Competitive Bid Request. Any
such subsequent Competitive Bid may be submitted solely to correct a manifest
error in such former Competitive Bid. The Agent's notice to the Borrower shall
specify (1) the aggregate principal amount of the Competitive Bid Borrowing for
which Competitive Bids have been received and (2) the respective principal
amounts and the Fixed Rates and LIBOR Margins, as the case may be, so offered by
each Designated Bidder (identifying the Designated Bidder that made each
Competitive Bid).
(e) The Borrower shall, in turn, before 11:00 A.M. (New York City time) (i)
on the day of the proposed Competitive Bid Borrowing, in the case of requests
for Fixed Rate Advances, or (ii) on the third Business Day prior to the date of
the proposed Competitive Bid Advances, in the case of a request for LIBOR
Advances, (or, in any such case, such other time and date as the Borrower and
the Agent, with the consent of the Majority Banks, may agree), either:
(i) cancel such Competitive Bid Borrowing by giving the Agent notice
to that effect, or
(ii) accept one or more of the Competitive Bids, in its sole
discretion, by giving notice to the Agent of the amount of each Competitive
Bid Advance to be made by
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each Designated Bidder as part of such Competitive Bid Borrowing, and
reject any remaining Competitive Bids by giving the Agent notice to that
effect; provided that (A) the Borrower may only accept Competitive Bids in
the order of the lowest to the highest Fixed Rates or LIBOR Margins, as the
case may be, offered, (B) the Borrower may not accept Competitive Bids in
excess of the amount requested pursuant to subsection (b) above, or the
amount offered pursuant to subsection (c) above, for any maturity date or
Interest Period, and (C) if two or more Designated Bidders make Competitive
Bids at the same Fixed Rates or LIBOR Margins, as the case may be, for the
same maturity date or Interest Period, the Borrower may only accept such
Competitive Bids in proportion (as nearly as possible) to the amounts which
such Designated Bidders offered at such rate for such maturity or Interest
Period (in amounts of not less than $1,000,000 or an integral multiple of
$100,000 in excess thereof).
(f) If the Borrower notifies the Agent that such Competitive Bid Borrowing
is canceled pursuant to subsection (d)(i) above, the Agent shall give prompt
notice thereof to the Designated Bidders, and such Competitive Bid Borrowing
shall not be made.
(g) If the Borrower accepts one or more of the Competitive Bids made by any
Designated Bidder or Designated Bidders pursuant to subsection (d)(ii) above,
the Agent shall in turn promptly notify (A) each Designated Bidder that has made
a Competitive Bid as described in subsection (c) above, of the date and
aggregate amount of such Competitive Bid Borrowing and whether or not any
Competitive Bid or Bids made by such Designated Bidder pursuant to subsection
(c) above have been accepted by the Borrower, (B) each Designated Bidder that is
to make an Advance as part of such Competitive Bid Borrowing, of the amount of
each Advance to be made by such Bank as part of such Borrowing, and (C) each
Designated Bidder that is to make an Advance as part of such Competitive Bid
Borrowing, as to whether such Competitive Bid Borrowing conforms of the
requirements of Section 2.02. Each Designated Bidder that is to make an Advance
as part of such Competitive Bid Borrowing shall, before 11:30 A.M. (New York
City time) on the date of such Competitive Bid Borrowing specified in the notice
received from the Agent pursuant to clause (A) of the preceding sentence
(provided such Designated Bidder shall have received a Competitive Bid Note and
a favorable notice from the Agent pursuant to clause (C) of the preceding
sentence), make available to the Agent at its address referred to in Section
9.02, in same day funds, such Designated Bidder's portion of such Competitive
Bid Borrowing. Upon fulfillment of the applicable conditions set forth in
Article IV and after receipt by the Agent of such funds, the Agent will make
such funds available to the Borrower at the Agent's aforesaid address. Promptly
after each Competitive Bid Borrowing, the Agent shall notify each Bank of the
amount of the Competitive Bid Borrowing, the consequent Competitive Bid
Reduction and the dates upon which such Competitive Bid Reduction commenced and
will terminate.
(h) Each Competitive Bid Borrowing shall be in an aggregate amount not less
than $3,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of
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such Competitive Bid Borrowing, the Borrower shall be in
compliance with the limitations set forth in the proviso to the first sentence
of subsection (a) above.
(i) Each acceptance by Borrower pursuant to subsection (g) above shall be
irrevocable and binding on the Borrower. In the case of any acceptance of a
Competitive Bid for LIBOR Advances, the Borrower shall indemnify each Designated
Bidder against any loss (including loss of anticipated profits), cost or expense
incurred by such Designated Bidder as a result of any failure to fulfill on or
before the date specified pursuant to subsection (g) above for such Competitive
Bid Borrowing the applicable conditions set forth in Article IV, including,
without limitation, any loss, cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such
Designated Bidder to fund the LIBOR Advance to be made by such Bank as part of
such Borrowing when such Advance, as a result of such failure, is not made on
such date.
(j) The failure of any Designated Bidder to make the Advance to be made by
it as part of any Competitive Bid Borrowing shall not relieve any other
Designated Bidder of its obligation, if any, hereunder to make its Advance on
the date of such Borrowing, but no Designated Bidder shall be responsible for
the failure of any other Designated Bidder to make the Advance to be made by
such other Designated Bidder on the date of any Competitive Bid Borrowing.
(k) Within the limits and on the conditions set forth in this Section 2.02,
the Borrower may from time to time borrow under this Section 2.02, repay
pursuant to Section 2.05 and reborrow under this Section 2.02; provided that not
more than ten Competitive Bid Borrowings may be outstanding at any time (for
which purpose Competitive Bid Advances made on the same date, but having
different maturities or representing Borrowings under different Commitments,
shall be deemed to be separate Competitive Bid Borrowings).
SECTION 2.03. Fees.
(a) Facility Fees. The Borrower agrees to pay to the Agent, for the account
of each of the Banks, the following:
(i) a facility fee on the average daily A Commitment of such Bank from
the Fifth Amendment and Restatement Closing Date until the A Revolver
Termination Date at the Applicable A Facility Fee Rate from time to time in
effect, payable quarterly in arrears on the last day of each March, June,
September and December, commencing September 30, 1996, and on the A
Revolver Termination Date; and
(ii) a facility fee on the average daily B Commitment of such Bank
from the Fifth Amendment and Restatement Closing Date until the B Revolver
Termination Date at the Applicable B Facility Fee Rate from time to time in
effect, payable quarterly in arrears on the last day of September and
December 1996 and March and June 1997 and on the B Revolver Termination
Date.
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(b) Agency, Auction and Arrangement Fees. The Borrower agrees to pay to the
Agent, for its own account, the agency fees and the auction fees and to an
Affiliate of the Agent, the arrangement fee, in such amounts and on such dates
as are specified in the letter agreement dated July 22, 1996, between the
Borrower and the Agent.
SECTION 2.04. Optional Reduction of the Commitments. The Borrower shall
have the right, upon at least three Business Days' notice to the Agent,
permanently to terminate in whole or reduce ratably in part the Unused A
Commitments or the Unused B Commitments of the Banks; provided that (a) each
partial reduction shall be in the aggregate amount of $3,000,000 or an integral
$1,000,000 multiple in excess thereof, (b) each reduction shall be made ratably
among the Banks in accordance with their Unused A Commitments or the Unused B
Commitments, as the case may be, (c) no reduction may reduce the aggregate A
Commitments of the Banks below the aggregate amount of the then outstanding
Letter of Credit Liability and the then outstanding principal amount of the
Competitive Bid A Advances, (d) no reduction may reduce the aggregate B
Commitments of the Banks below the then outstanding principal amount of the
Competitive Bid B Advances, and (e) no reduction may reduce the aggregate A
Commitments of the Banks while any B Commitments are in effect.
SECTION 2.05. Repayment.
(a) The Borrower shall repay on the A Revolver Termination Date the
aggregate principal amount of the Committed Rate A Advances of each Bank
outstanding on the A Revolver Termination Date, together with accrued interest
thereon.
(b) The Borrower shall repay on the B Revolver Termination Date the
aggregate principal amount of the Committed Rate B Advances of each Bank
outstanding on the B Revolver Termination Date, together with accrued interest
thereon.
(c) The Borrower shall repay the aggregate principal amount of the
Competitive Bid Advances of each Designated Bidder, together with accrued
interest thereon, in such amounts and on such dates as specified pursuant to
Section 2.02(b).
SECTION 2.06. Interest.
(a) The Borrower shall pay interest on the unpaid principal amount of each
Committed Rate Advance made by each Bank from the date of such Advance until
such principal amount shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a Base
Rate Advance, a rate per annum equal at all times to the sum of the Base
Rate in effect from time to time, payable quarterly in arrears on the last
day of each March, June, September and December during such periods and on
the date such Base Rate Advance shall be Converted or paid in full.
Notwithstanding the foregoing, during the continuance of an Event of
Default, the principal amount of each Base Rate Advance shall bear
interest, to
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the fullest extent permitted by law, from the date on which such amount is
due until such amount is paid in full, payable on demand, at a fluctuating
rate per annum equal at all times to 2% per annum above the Base Rate in
effect from time to time.
(ii) Eurodollar Rate Advances. During such periods as such Advance is
a Eurodollar Rate Advance, a rate per annum equal at all times during the
Interest Period for such Advance to the sum of the Eurodollar Rate for such
Interest Period plus the Applicable Eurodollar Rate Margin, payable on the
last day of such Interest Period and, if such Interest Period has a
duration of six months, on the day that occurs during such Interest Period
three months from the first day of such Interest Period; provided, however,
that in the event that the Applicable Eurodollar Rate Margin for any fiscal
quarter of the Borrower has not yet been determined in accordance with the
provisions of the definition of Applicable Eurodollar Rate Margin in
Section 1.01 as of the time when interest on a Eurodollar Rate Advance
becomes due, the Borrower shall pay such interest on the date when due
based on the then existing Applicable Eurodollar Rate Margin and any
necessary subsequent adjustments in the amount of interest payable
hereunder (due to any subsequent change in the Applicable Eurodollar Rate
Margin) shall be made on the first date on which any interest on any
Committed Rate Advance is payable after the date of determination of the
Applicable Eurodollar Rate Margin. Notwithstanding the foregoing, during
the continuance of an Event of Default, the principal amount of each
Eurodollar Rate Advance shall bear interest, to the fullest extent
permitted by law, from the date on which such amount is due until such
amount is paid in full, payable on demand, at a rate per annum equal at all
times to 2% per annum above the Eurodollar Rate plus the Applicable
Eurodollar Rate Margin until the end of the Interest Period applicable to
such Eurodollar Rate Advance, at which time the rate per annum shall become
2% per annum above the Base Rate, in each case as in effect from time to
time.
(b) The Borrower shall pay interest on the unpaid principal amount of each
Competitive Bid Advance from the date of such Advance until such principal
amount shall be paid in full, at the rate of interest for such Advance specified
by the Designated Bidder making such Advance in its Competitive Bid with respect
thereto delivered pursuant to Section 2.02(c), payable on the interest payment
date or dates specified by the Borrower for such Advance in the related
Competitive Bid Request delivered pursuant to Section 2.02(b) and on the
maturity date of such Competitive Bid Advance. Notwithstanding the foregoing,
during the continuance of an Event of Default, the principal amount of each
Competitive Bid Advance shall bear interest, to the fullest extent permitted by
law, from the date on which such amount is due until such amount is paid in
full, payable on demand, at a rate equal to 2% per annum above the interest rate
specified by the Designated Bidder that made such Advance in its Competitive Bid
with respect thereto delivered pursuant to Section 2.02(c).
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SECTION 2.07. Interest Rate Determination and Protection.
(a) The Agent shall give prompt notice to the Borrower and the Banks of the
applicable interest rate under Section 2.06(a)(i) or (ii).
(b) If, with respect to any Eurodollar Rate Advance, the Majority Banks
notify the Agent that the Eurodollar Rate for any Interest Period for such
Advance will not adequately reflect the cost to such Majority Banks of making,
funding or maintaining their respective Eurodollar Rate Advance for such
Interest Period, the Agent shall forthwith so notify the Borrower and the Banks,
whereupon:
(i) each Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate
Advance, and
(ii) the obligation of the Banks to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Agent shall notify
the Borrower and the Banks that the circumstances causing such suspension
no longer exist.
(c) If the Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advance in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the Agent will
forthwith so notify the Borrower and the Banks and such Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into Base Rate Advances.
SECTION 2.08 Voluntary and Automatic Conversion of Committed Rate Advances.
(a) The Borrower may on any Business Day, upon notice given to the Agent
not later than 11:00 A.M. (New York City time) on the second Business Day prior
to the date of the proposed Conversion and subject to the provisions of Sections
2.07 and 2.11, Convert all Committed Rate Advances of one Type comprising the
same Borrowing into Committed Rate Advances of another Type; provided, however,
that any Conversion of any Eurodollar Rate Advances into Base Rate Advances
shall be made on, and only on, the last day of an Interest Period for such
Eurodollar Rate Advances. Each such notice of Conversion shall, within the
restrictions specified above, specify (i) the date of such Conversion, (ii) the
Advances to be Converted, and (iii) if such Conversion is into Eurodollar Rate
Advances, the duration of the Interest Period for each such Advance.
(b) On the date on which the unpaid aggregate principal amount of
Eurodollar Rate Advances comprising any Committed Rate Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $3,000,000, the
Eurodollar Rate Advances comprising such Borrowing shall automatically Convert
into Base Rate Advances, and on and after such date the Borrower may not convert
such Base Rate Advances to Eurodollar Rate Advances until such time as the
aggregate principal amount of Base Rate Advances equals or exceeds $3,000,000.
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SECTION 2.09. Prepayments.
(a) Voluntary Prepayments. The Borrower may, upon at least (i) in the case
of Eurodollar Rate Advances, two Business Days' and (ii) in the case of Base
Rate Advances, the same Business Day's notice to the Agent stating the proposed
date and aggregate principal amount of the prepayment, and if such notice is
given, the Borrower shall, prepay the outstanding principal amounts of the
Advances comprising part of the same Committed Rate Borrowing in whole or
ratably in part, together with accrued interest to the date of such prepayment
on the principal amount prepaid and, in the case of Eurodollar Rate Advances,
any amounts payable under Section 9.04(b); provided, however, that (i) each
partial prepayment shall be in an aggregate principal amount not less than
$3,000,000 or any integral multiple of $1,000,000 in excess thereof and (ii) A
Advances may not be prepaid unless all outstanding Committed Rate B Advances are
first prepaid. The Borrower may not prepay any Competitive Bid Advances.
(b) Asset Sales and Subordinated Debt Issuance Mandatory Prepayments. Upon
(i) the sale, lease or other disposition by the Borrower or any Subsidiary of
the Borrower of assets of the Borrower and its Subsidiaries constituting more
than 5% of the Consolidated Total Assets of the Borrower and its Subsidiaries at
the time of sale, lease or other disposition or (ii) the issuance, if permitted
in writing by the Majority Banks, by the Borrower or any of its Subsidiaries of
any Subordinated Debt, whether or not convertible into or exchangeable for
Securities (other than the subordinated convertible notes issued by the Borrower
or any of its Subsidiaries as consideration for the acquisition of Facilities
(or the assets thereof), any Existing Clinic Acquisitions or the acquisition of
Related Businesses), then (x) the Net Cash Proceeds of such sale, lease or other
disposition or issuance shall be delivered as soon as practicable to the Agent,
(y) any deferred cash proceeds of such sale, lease, or other disposition or
issuance shall be delivered to the Agent as soon as practicable after their
receipt (at which time the same shall become Net Cash Proceeds), and (z) any
noncash proceeds of such sale, lease, or other disposition or issuance shall be
delivered to the Agent as soon as practicable to be held as pledged Collateral
for the Borrower's obligations under this Agreement and thereafter converted as
soon as practicable into cash (at which time the same shall become Net Cash
Proceeds), and any such Net Cash Proceeds shall be applied in accordance with
Section 2.09(d).
(c) Stock Issuance Mandatory Prepayment. The sale or issuance by the
Borrower or any of its Subsidiaries of any Securities, any securities
convertible into or exchangeable for Securities, or any warrants, rights or
options to acquire Securities to any Person other than the Borrower or any of
its Subsidiaries other than such sale or issuance pursuant to the Borrower's
employee stock purchase plans or employee and director stock option plans or
similar plan available to physicians practicing at a Facility or Related
Business and other than the issuance of Securities as consideration for, or the
proceeds of which are within 180 days after receipt used for, or the issuance of
subordinated convertible notes as consideration for, the acquisition of any
Facility (or the assets thereof) or any Existing Clinic Acquisitions or the
acquisition of any Related Businesses to the extent such acquisition satisfies
all the requirements of Section 6.2(f)(i) or (ii), as the case may be), then (x)
50% of the Net Cash Proceeds of such sale
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or issuance shall be delivered as soon as practicable to the Agent, (y) 50% of
any deferred cash proceeds of such sale or issuance shall be delivered to the
Agent as soon as practicable after their receipt (at which time the same shall
become Net Cash Proceeds), and (z) 50% of any noncash proceeds of such sale or
issuance shall be delivered to the Agent as soon as practicable to be held as
pledged Collateral for the Borrower's obligations under this Agreement and
thereafter converted as soon as practicable into cash (at which time the same
shall become Net Cash Proceeds), and any such Net Cash Proceeds shall be applied
in accordance with Section 2.09(d).
(d) Application of Prepayments. Mandatory prepayments pursuant to Section
2.09(b) or (c) shall be: first, applied to the payment of any amount then owing
to the Agent or any Bank pursuant to Section 9.04(a); second, applied to the
ratable payment of outstanding Committed Rate B Advances, together with accrued
interest to the date of such payment on the principal amount repaid and any
amounts payable pursuant to Section 9.04(b) in respect thereof; third, applied
to the ratable payment of outstanding Committed Rate A Advances, together with
accrued interest to the date of such payment on the principal amount repaid and
any amounts payable pursuant to Section 9.04(b) in respect thereof; and fourth,
delivered to the Agent to be held as pledged Collateral to be applied to the
ratable payment when due of outstanding Competitive Bid Advances, together with
accrued interest to the date of such payment on the principal amount repaid.
SECTION 2.10. Increased Costs.
(a) If, due to either (i) the introduction of or any change (other than any
change by way of imposition or increase of reserve requirements, in the case of
Eurodollar Rate Advances or LIBOR Advances, included in the Eurodollar Rate
Reserve Percentage) in or in the interpretation of any law or regulation or (ii)
the compliance with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law), there shall be
any increase in the cost to any Bank of agreeing to make or making, funding or
maintaining Eurodollar Rate Advances or LIBOR Advances, then the Borrower shall
from time to time, upon demand by such Bank (with a copy of such demand to the
Agent), pay to the Agent for the account of such Bank additional amounts
sufficient to compensate such Bank for such increased cost. A certificate as to
the amount of such increased cost, submitted to the Borrower and the Agent by
such Bank, shall be conclusive and binding for all purposes, absent manifest
error.
(b) If any Bank determines that compliance with any law or regulation or
any guideline or request from any central bank or other governmental authority
(whether or not having the force of law) affects or would affect the amount of
capital required or expected to be maintained by such Bank or any corporation
controlling such Bank and that the amount of such capital is increased by or
based upon the existence of such Bank's commitment, or offer or agreement, to
lend hereunder and other commitments, or offers or agreements, of this type,
then, upon notice by such Bank (with a copy of such notice to the Agent), the
Borrower shall immediately pay to the Agent for the account of such Bank, from
time to time as specified by
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such Bank, additional amounts sufficient to compensate such Bank or such
corporation in the light of such circumstances, to the extent that such Bank
reasonably determines such increase in capital to be allocable to the existence
of such Bank's commitment, or offer or agreement, to lend hereunder. Such notice
as to such amounts submitted and delivered to the Borrower and the Agent by such
Bank shall set forth in summary fashion the basis of such allocation and shall
be conclusive and binding for all purposes, absent manifest error.
SECTION 2.11. Illegality. Notwithstanding any other provision of this
Agreement, if any Bank shall notify the Agent that the introduction of or any
change in or in the interpretation of any law or regulation makes it unlawful,
or any central bank or other governmental authority asserts that it is unlawful,
for any Bank or its Eurodollar Lending Office to perform its obligations or
agreements hereunder to make Eurodollar Rate Advances or LIBOR Advances or to
fund or maintain Eurodollar Rate Advances or LIBOR Advances hereunder: (a) in
the case of Eurodollar Rate Advances, (i) the obligation of the Banks to make,
or to Convert Advances into, Eurodollar Rate Advances shall be suspended until
the Agent shall notify the Borrower and the Banks that the circumstances causing
such suspension no longer exist and (ii) the Borrower shall forthwith prepay in
full all Eurodollar Rate Advances of all Banks then outstanding, together with
interest accrued thereon and any costs payable pursuant to Section 9.04(b),
unless the Borrower, within five Business Days of notice from the Agent,
Converts all Eurodollar Rate Advances of all Banks then outstanding into Base
Rate Advances in accordance with Section 2.08, and (b) in the case of LIBOR
Advances, such Bank shall no longer be obligated to fund any LIBOR Advance it
has agreed to fund thereafter.
SECTION 2.12. Payments and Computations.
(a) The Borrower shall make each payment hereunder and under the Notes not
later than 11:00 A.M. (New York City time) on the day when due free and clear of
any taxes, offset or other charge in United States dollars to the Agent at its
address referred to in Section 9.02 in same day funds. The Agent will promptly
thereafter cause to be distributed like funds relating to the payment of
principal or interest or facility fees (i) ratably (other than amounts payable
pursuant to Section 2.10, 2.13 or 9.04) to the Banks for the account of their
respective Applicable Lending Offices, in the case of Committed Rate Advances,
and to the applicable Designated Bidder (for the account of its Applicable
Lending Office), in the case of Competitive Bid Advances, and like funds
relating to the payment of any other amount payable to any Bank to such Bank for
the account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 9.08(d), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder in respect of the interest assigned thereby to the Bank assignee
thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
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(b) The Borrower hereby authorizes each Bank, if and to the extent payment
owed to such Bank is not made when due hereunder or under the Note held by such
Bank, to charge from time to time against any or all of the Borrower's accounts
with such Bank any amount so due.
(c) All computations of interest (other than interest on Base Rate
Advances) and of fees shall be made on the basis of a year of 360 days, and all
computations of interest on Base Rate Advances shall be made on the basis of a
year of 365 or 366 days (as the case may be), in each case for the actual number
of days (including the first day but excluding the last day) occurring in the
period for which such interest or fees are payable. Each determination by the
Agent of an interest rate or fee hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated to be
due on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or facility fee, as the case
may be; provided, however, if such extension would cause payment of interest on
or principal of Eurodollar Rate Advances or LIBOR Advances to be made in the
next following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Banks hereunder in respect of
Committed Rate Advances that the Borrower will not make such payment in full,
the Agent may assume that the Borrower has made such payment in full to the
Agent on such date and the Agent may, in reliance upon such assumption, cause to
be distributed to each Bank on such due date an amount equal to the amount then
due such Bank. If and to the extent the Borrower shall not have so made such
payment in full to the Agent, each Bank shall repay to the Agent forthwith on
demand such amount distributed to such Bank together with interest thereon, for
each day from the date such amount is distributed to such Bank until the date
such Bank repays such amount to the Agent, at the Federal Funds Rate.
(f) Notwithstanding any provision in this Agreement or any other Loan
Document to the contrary, all payments received by the Agent under the other
Loan Documents, the application of which are not provided for in such Loan
Documents, may be held as Collateral for, and/or then or at any time thereafter
be applied in whole or in part by the Agent for the ratable benefit of the Banks
(except in the case of Competitive Bid Advances), against all or part of the
Advances or other obligations of the Borrower hereunder or under the other Loan
Documents, in such order and manner as the Agent shall elect.
SECTION 2.13. Taxes.
(a) Any and all payments by the Borrower hereunder or under the Notes shall
be made, in accordance with Section 2.12, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities
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with respect thereto, excluding, in the case of each Bank and the Agent, taxes
imposed on its income, and franchise taxes imposed on it, by the jurisdiction
under the laws of which such Bank or the Agent (as the case may be) is organized
or any political subdivision thereof and, in the case of each Bank, taxes
imposed on its income, and franchise taxes imposed on it, by the jurisdiction of
such Bank's Applicable Lending Office or any political subdivision thereof (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to any Bank or the Agent, (i) the sum payable shall
be increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.13) such Bank or the Agent (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Borrower agrees to 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 under the Notes or from
the execution, delivery or registration of, or otherwise with respect to, this
Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Bank and the Agent for the full amount
of Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section 2.13) paid by
such Bank or the Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
This indemnification shall be made within 30 days from the date such Bank or the
Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
will furnish to the Agent, at its address referred to in Section 9.02, the
original or a certified copy of a receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.13 shall survive the payment in full of principal and interest
hereunder and under the Notes.
(f) Prior to the date of the first Borrowing under this Agreement in the
case of each Bank party hereto on the date hereof, on the date of the
effectiveness of the Assignment and Acceptance pursuant to which it became a
Bank in the case of each other Bank, and within 30 days following the first day
of each calendar year or if otherwise requested from time to time by the
Borrower or the Agent, each Bank organized under the laws of a jurisdiction
outside the United States shall provide the Agent and the Borrower with two
counterparts of each of the forms prescribed by the Internal Revenue Service
(Form 1001 or 4224, or successor form(s), as
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the case may be, or another appropriate form) of the United States certifying as
to such Bank's status for purposes of determining exemption from United States
withholding taxes with respect to all payments to be made to such Bank under any
Loan Document. Unless the Borrower and the Agent have received such forms or
other documents satisfactory to them indicating that payments under any Loan
Document are not subject to United States withholding tax, the Borrower or the
Agent (if not withheld by the Borrower) shall withhold taxes from such payments
at the applicable statutory rate, without any obligation to "grossup" or make
such Bank or the Agent whole under Section 2.13(a); provided, however, that the
Borrower shall have the obligation to make such Bank or the Agent whole and to
"gross-up" under Section 2.13(a), if the failure to so deliver such forms or
make such statements (other than the forms and statements required to be
delivered on or made prior to the date of the initial Borrowing, on the date of
the Assignment and Acceptance pursuant to which an Eligible Assignee became a
Bank) is the result of the occurrence of an event (including, without
limitation, any change in treaty, law or regulation) which (alone or in
conjunction with other events) renders such forms inapplicable, that would
prevent such Bank or the Agent from making the statements contemplated by such
forms or which removes or reduces an exemption (whether partial or complete)
from withholding tax previously available to such Bank or the Agent. Each Bank
(and the Agent, if applicable) will promptly notify the Borrower of the
occurrence (when known to it) of an event contemplated by the foregoing proviso.
SECTION 2.14. Sharing of Payments. Etc. If any Bank shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of any Committed Rate Advances made by it
(other than pursuant to Section 2.10, 2.13 or 9.04) in excess of its ratable
share of payments on account of such Committed Rate Advances obtained by all the
Banks, such Bank shall forthwith purchase from the other Banks such
participations in such Committed Rate Advances made by them as shall be
necessary to cause such purchasing Bank to share the excess payment ratably with
each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Bank, such purchase from
each Bank shall be rescinded and such Bank shall repay to the purchasing Bank
the purchase price to the extent of such recovery together with an amount equal
to such Bank's ratable share (according to the proportion of (i) the amount of
such Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Borrower agrees
that any Bank so purchasing a participation from another Bank pursuant to this
Section 2.14 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Bank were the direct creditor of the Borrower
in the amount of such participation.
SECTION 2.15. Evidence of Debt/Register.
(a) The Debt of the Borrower resulting from the Committed Rate A Advances,
Committed Rate B Advances and Competitive Bid Advances shall be evidenced by the
Committed Rate A Notes, the Committed Rate B Notes and the Competitive Bid
Notes,
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respectively, delivered to the Banks pursuant to Article IV, and the remaining
principal amount thereof shall be recorded by the Banks, and, prior to any
transfer, endorsed on the grids thereto in accordance with the terms of the
Notes. The Agent shall also maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower under this
Agreement and the amounts of principal and interest payable and paid to each
Bank from time to time under this Agreement.
(b) The Register maintained by the Agent pursuant to Section 9.08(c) shall
include a control account, and a subsidiary account for each Bank, in which
accounts (taken together) shall be recorded: (i) the date and amount of each
Borrowing, the Commitment to which such Borrowing relates, the Type of Advance
comprising such Borrowing and the Interest Period applicable thereto (if any)
from time to time, (ii) the terms of each Assignment and Acceptance delivered to
and accepted by it, (iii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Bank, and (iv)
the amount of any sum received by the Agent from the Borrower hereunder and each
Bank's share thereof.
SECTION 2.16. Use of Proceeds. The proceeds of the Advances shall be used
by the Borrower for Capital Investments (to the extent permitted under this
Agreement), acquisitions of Facilities and Related Businesses (to the extent
permitted under this Agreement) and other general corporate purposes.
SECTION 2.17. Outstanding Advances Under Existing Credit Agreement.
(a) Conversion to Advances Hereunder; Termination of Commitment under
Existing Credit Agreement. On the Fifth Amendment and Restatement Closing Date:
(i) all outstanding Existing Base Rate Advances shall automatically become Base
Rate Advances under the A Commitment as if Borrowed on the Fifth Amendment and
Restatement Closing Date and shall thereafter bear interest as provided herein
and payable at such times and otherwise on such terms as are provided herein for
Base Rate Advances under the A Commitment, (ii) there shall be no outstanding
Existing Eurodollar Rate Advances or Existing Competitive Bid Advances, and
(iii) the Commitments, as such term is defined in the Existing Credit Agreement,
shall be permanently terminated in full.
(b) Adjustment Assignments and Payments Among Lenders. Notwithstanding the
requirements set forth in Section 9.08 or any other provision to the contrary
contained herein, on the Fifth Amendment and Restatement Closing Date, through
the Agent, the Lenders shall enter into such assignments and make such payments
(including any accrued interest or fees) in immediately available funds among
themselves as shall be necessary for each Lender to have funded its ratable
share, in accordance with its Commitment hereunder, of all Existing Base Rate
Advances as if such Advances were borrowed on the Fifth Amendment and
Restatement Closing Date hereunder and to participate, in accordance with its A
Commitment hereunder, in all Letters of Credit outstanding on the Fifth
Amendment and Restatement Closing Date.
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ARTICLE III
AMOUNT AND TERMS OF LETTERS OF
CREDIT AND PARTICIPATIONS THEREIN
SECTION 3.01. Letters of Credit. Each Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to Issue for the account of the Borrower, one
or more Letters of Credit from time to time during the period from the Fifth
Amendment and Restatement Closing Date until the date which occurs 30 days
before the A Revolver Termination Date in an aggregate undrawn amount not to
exceed at any time $20,000,000, each such Letter of Credit upon its Issuance to
expire on or before the earlier of (x) the date which occurs one year from the
date of its Issuance or (y) the A Revolver Termination Date; provided, however,
that any letter of credit issued under the Existing Credit Agreement which
continues to be undrawn in whole or in part on the Fifth Amendment and
Restatement Closing Date shall be deemed to be a Letter of Credit Issued
hereunder; provided, further, no Issuing Bank shall be obligated or permitted to
Issue any Letter of Credit if:
(i) after giving effect to the Issuance of such Letter of Credit, the
then outstanding aggregate amount of the Letter of Credit Liability and all
A Advances (including any A Advances required to be made but not funded)
shall exceed the aggregate amount of the A Commitments of the Banks; or
(ii) the Agent or the Majority Banks shall have notified such Issuing
Bank and the Borrower, that no further Letters of Credit are to be Issued
by such Issuing Bank due to failure to meet any of the applicable
conditions set forth in Article IV, and such notice has not expired or been
withdrawn by the Majority Banks.
Within the limits of the obligations of each Issuing Bank set forth above, the
Borrower may request an Issuing Bank to Issue one or more Letters of Credit,
reimburse such Issuing Bank for payments made thereunder pursuant to Section
3.03(a), and request any Issuing Bank to Issue one or more additional Letters of
Credit under this Section 3.01.
SECTION 3.02. Issuing the Letters of Credit. Each Letter of Credit shall be
Issued on at least five Business Days' notice from the Borrower to the Issuing
Bank specifying the date, amount, expiry, and beneficiary thereof, accompanied
by such application and agreement for letter of credit and other documents as
the Issuing Bank may specify to the Borrower, each in form and substance
satisfactory to the Issuing Bank. On the date specified by the Borrower in such
notice and upon fulfillment of the applicable conditions set forth in Section
3.01 and Article IV, the Issuing Bank shall Issue such Letter of Credit in the
form specified in such notice and such application and agreement for letter of
credit and shall promptly notify the Agent thereof.
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SECTION 3.03. Reimbursement Obligations.
(a) Notwithstanding any provisions to the contrary in any application and
agreement for letter of credit applicable to any Letter of Credit, the Borrower
shall:
(i) pay to the Issuing Bank an amount equal to, and in reimbursement
for, each amount which such Issuing Bank pays under any Letter of Credit on
or before the earlier of (A) the time specified therefor in the application
and agreement for letter of credit applicable to such Letter of Credit or
(B) the date which occurs one Business Day after payment of such amount by
such Issuing Bank under such Letter of Credit; and
(ii) pay to the Issuing Bank interest on any amount remaining unpaid
under clause (i) above from the date on which such Issuing Bank pays such
amount under any Letter of Credit until such amount is reimbursed in full
to such Issuing Bank pursuant to clause (i) above, payable on demand, at a
fluctuating rate per annum equal to the sum of the Base Rate in effect from
time to time, provided that any such amount which is not reimbursed to such
Issuing Bank within one Business Day after notice thereof by the Issuing
Bank shall thereafter bear interest, until such amount is reimbursed in
full to such Issuing Bank pursuant to clause (i) above, payable on demand,
at the Base Rate in effect from time to time plus 2-1/2% per annum.
(b) All amounts to be reimbursed to the Issuing Bank in accordance with
subsection (a) above may, subject to the limitations set forth in Section 2.01
(exclusive of the minimum borrowing limitations), be paid from the proceeds of
Committed Rate A Advances. The Borrower hereby authorizes the Banks to make
pursuant to Section 2.01 Committed Rate A Advances which are in the amounts of
the reimbursement obligations of the Borrower set forth in subsection (a) above,
and further authorizes the Agent (i) to give the Banks, pursuant to Section
2.01(c), a Notice of Borrowing with respect to the Borrowing comprised of such
Advances (which shall be Base Rate Advances) and (ii) to distribute the proceeds
of such Advances to the Issuing Bank to pay such amounts. The Borrower agrees
that all such Advances so made shall be deemed to have been requested by it, and
directs that all proceeds thereof shall be used to pay such reimbursement
obligations under subsection (a) above.
SECTION 3.04. Participations Purchased by the Banks.
(a) On the date of Issuance of each Letter of Credit, the Issuing Bank
shall be deemed irrevocably and unconditionally to have sold and transferred to
each Bank without recourse or warranty, and each Bank shall be deemed to have
irrevocably and unconditionally purchased and received from such Issuing Bank,
an undivided interest and participation, to the extent of such Bank's Commitment
Percentage, in effect from time to time, in such Letter of Credit and all Letter
of Credit Liability relating to such Letter of Credit and all Loan Documents
securing, guaranteeing, supporting, or otherwise benefiting the payment of such
Letter of Credit Liability. As to each Letter of Credit Issued or to be Issued
by the Issuing Bank, the Agent will promptly
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(after it receives notification from the Issuing Bank pursuant to Section 3.02)
notify each Bank of such Letter of Credit and its date of Issue, amount, expiry,
and reference number.
(b) In the event that any reimbursement obligation under Section 3.03(a) is
not paid when due to the Issuing Bank with respect to any Letter of Credit, the
Issuing Bank shall promptly notify the Agent to that effect, and the Agent shall
promptly notify the Banks of the amount of such reimbursement obligation and
each Bank shall immediately pay to the Issuing Bank, in lawful money of the
United States and in same day funds, an amount equal to such Bank's Commitment
Percentage then in effect of the amount of such unpaid reimbursement obligation
with interest at the Federal Funds Rate for each day after such notification
until such amount is paid to the Agent.
(c) Promptly after the Issuing Bank receives a payment on account of a
reimbursement obligation with respect to any Letter of Credit, the Issuing Bank
shall promptly pay to the Agent, and the Agent shall promptly pay to each Bank
which funded its participation therein, in lawful money of the United States and
in the kind of funds so received, an amount equal to such Bank's ratable share
thereof.
(d) Upon the request of any Bank, the Agent shall furnish to such Bank
copies of any Letter of Credit and any application and agreement for letter of
credit and other documents related thereto as may be reasonably requested by
such Bank.
(e) The obligation of each Bank to make payments under Section 3.04(b)
above shall be unconditional and irrevocable and shall be made under all
circumstances, including, without limitation, any of the circumstances referred
to in Section 3.06(b).
(f) If any payment received on account of any reimbursement obligation with
respect to a Letter of Credit and distributed to a Bank as a participant under
Section 3.04(c) is thereafter recovered from the Issuing Bank in connection with
any bankruptcy or insolvency proceeding relating to the Borrower, each Bank
which received such distribution shall, upon demand by the Agent, repay to the
Issuing Bank such Bank's ratable share of the amount so recovered together with
an amount equal to such Bank's ratable share (according to the proportion of (i)
the amount of such Bank's required repayment to (ii) the total amount so
recovered) of any interest or other amount paid or payable by such Issuing Bank
in respect of the total amount so recovered.
SECTION 3.05. Letter of Credit Fees.
(a) The Borrower hereby agrees to pay nonrefundable letter of credit fees
with respect to each Letter of Credit on the maximum amount available to be
drawn under such Letter of Credit from time to time after giving effect to
scheduled reductions thereof (the determination of such maximum amount to assume
compliance with all conditions for drawing) from the date of Issuance of such
Letter of Credit until the expiry date of such Letter of Credit, (i) to each
Bank (in accordance with its A Commitment Percentage) at a rate equal to (A) the
Applicable Eurodollar Rate Margin for A Advances from time to time in effect
less (B) 1/8 of one percent
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per annum and (ii) to the Issuing Bank at a rate equal to 1/8 of one percent per
annum, for the number of months or any fraction thereof that such Letter of
Credit is outstanding, payable in advance on the date of Issuance of each Letter
of Credit and on the last day of each March, June, September and December
thereafter prior to the expiry date of such Letter of Credit for the number of
months or fraction thereof until the earlier of (A) the expiry date of such
Letter of Credit and (B) the date three months after such date.
(b) The Borrower shall pay to the Issuing Bank, for its own account and on
demand, sums equal to standard fees (other than its letter of credit fee),
charges and expenses that such Issuing Bank may impose, pay or incur in
connection with the Issuance, amendment, administration, transfer or
cancellation of any or all Letters of Credit or in connection with any payment
by such Issuing Bank thereunder.
SECTION 3.06. Indemnification: Nature of the Issuing Bank's Duties.
(a) The Borrower agrees to indemnify and save harmless the Agent, each
Issuing Bank and each Bank from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
attorneys' fees) which the Agent, such Issuing Bank or such Bank may incur or be
subject to as a consequence, direct or indirect, of (i) the Issuance of any
Letter of Credit or (ii) any action or proceeding relating to a court order,
injunction, or other process or decree restraining or seeking to restrain such
Issuing Bank from paying any amount under any Letter of Credit.
(b) The obligations of the Borrower hereunder with respect to Letters of
Credit shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms hereof under all circumstances, including, without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of any Letter of Credit or
Loan Document or any agreement or instrument relating thereto;
(ii) the existence of any claim, setoff, defense or other right which
the Borrower may have at any time against the beneficiary, or any
transferee, of any Letter of Credit, or any Issuing Bank, any Bank, or any
other Person;
(iii) any draft, certificate, or other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) any lack of validity, effectiveness, or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign
any Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part;
(v) any loss or delay in the transmission or otherwise of any document
required in order to make a drawing under any Letter of Credit or of the
proceeds thereof;
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(vi) the release or non-perfection of any Collateral or the amendment,
modification or termination of any Collateral Document;
(vii) any failure of the beneficiary of a Letter of Credit to strictly
comply with the conditions required in order to draw upon any Letter of
Credit;
(viii) any misapplication by the beneficiary of any Letter of Credit
of the proceeds of any drawing under such Letter of Credit; or
(ix) any other circumstance or happening whatsoever, whether or not
similar to the foregoing;
provided, that, notwithstanding the foregoing, neither an Issuing Bank nor the
Agent shall be relieved of any liability it may otherwise have as a result of
its gross negligence or willful misconduct.
SECTION 3.07. Increased Costs.
(a) Change in Law. If any change in any law or regulation or in the
interpretation thereof by any court or administrative or governmental authority
charged with the administration thereof shall either (i) impose, modify or deem
applicable any reserve, special deposit or similar requirement against letters
of credit issued by an Issuing Bank or (ii) impose on such Issuing Bank or any
Bank any other condition regarding letters of credit or, in the case of such
Bank, its participation hereunder in Letters of Credit, and the result of any
event referred to in the preceding clause (i) or (ii) shall be to increase the
cost to such Issuing Bank of Issuing or maintaining or, in the case of such
Bank, having a participation in Letters of Credit, then, upon demand by such
Issuing Bank or such Bank (with a copy to the Agent), the Borrower shall
immediately pay to such Issuing Bank or such Bank from time to time as specified
by such or such Bank (with a copy to the Agent) additional amounts which shall
be to compensate such Issuing Bank or such Bank for such increased cost. Each
certificate as to such increased cost, and amount thereof, incurred by any
Issuing Bank or any Bank as a result of any event mentioned in clause (i) or
(ii) above, submitted by such Issuing Bank or such Bank to the Borrower and the
Agent, shall set out in reasonable detail the calculation of such amounts and
shall be conclusive and binding for all purposes, absent manifest error.
(b) Capital. If any Issuing Bank or any Bank determines that compliance
with any law or regulation or with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law)
has or would have the effect of reducing the rate of return on the capital of
any Issuing Bank or such Bank or any corporation controlling such Issuing Bank
or such Bank as a consequence of, or with reference to, such Issuing Bank's
commitment to issue, issuance of, or, with respect to such Bank's commitment, to
participate in, any Letter of Credit hereunder below the rate that such Issuing
Bank, such Bank or such other corporation could have achieved but for compliance
(taking into account the policies of such Issuing Bank, such Bank or corporation
with capital), then the Borrower, shall from time to time,
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upon demand by such Issuing Bank or such Bank (with a copy of such demand to the
Agent), immediately pay to such Issuing Bank or such Bank additional amounts
sufficient to compensate such Issuing Bank or other corporation for such
reduction. A certificate as to such amounts, to the Borrower and the Agent by
such Issuing Bank or such Bank, shall be conclusive and binding for all
purposes, absent manifest error. Each Issuing Bank and each Bank agree promptly
to notify the Borrower and the Agent of any circumstances that would Borrower to
pay additional amounts pursuant to this subsection (b), provided that the
failure to give such notice shall not affect the Borrower's obligation to pay
such additional amounts hereunder.
(c) Survival of Obligations. Without prejudice to the survival of any other
obligation of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 3.07 shall survive the payment in full of the
A Advances (after the A Revolver Termination Date).
SECTION 3.08. Uniform Customs and Practice. The Uniform Customs and
Practice for Documentary Credits as most recently published by the International
Chamber of Commerce ("UCP") shall in all respects be deemed a part of this
Article III as if incorporated herein and shall apply to the Letters of Credit.
ARTICLE IV
CONDITIONS OF LENDING
SECTION 4.01. Conditions Precedent to Any Borrowing and Letter of Credit.
The obligation of each Bank to make an Advance on the occasion of any Borrowing,
and the obligation of each Issuing Bank to Issue any Letter of Credit, shall be
subject to the conditions precedent that on the date of such Borrowing or
Issuance (a) the following statements shall be true and the Agent shall have
received a certificate signed by a duly authorized officer of the Borrower,
dated the date of such Borrowing or Issuance, stating that such statements are
true (and each of the giving of the applicable Notice of Borrowing and the
acceptance by the Borrower of the proceeds of such Borrowing or the issuance of
such Letter of Credit shall constitute a representation and warranty by the
Borrower and each Loan Party (as to each Loan Document to which it is a party)
that on the date of such Borrowing or such Issuance such statements are true):
(i) the representations and warranties contained in Section 5.01 of
this Agreement, in Section 6 of each Guaranty, in Section 4 of the Pledge
Agreement, and in Section 11 of the Intercompany Subordination Agreement,
are correct on and as of the date of such Borrowing or Issuance, before and
after giving effect to such Borrowing or Issuance and to the application of
the proceeds therefrom, as though made on and as of such date; and
(ii) no event has occurred and is continuing, or would result from
such Borrowing or such Issuance or from the application of the proceeds
therefrom, which
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constitutes an Event of Default or would constitute an Event of Default but
for the requirement that notice be given or time elapse or both;
and (b) the Competitive Bid A Note in the case of an A Borrowing or a
Competitive Bid B Note in the case of a B Borrowing, duly executed by the
Borrower, to the order of the appropriate Designated Bidder, shall have been
received by the Agent, and (c) the Agent shall have received such other
approvals, opinions or documents as the Agent may reasonably request.
SECTION 4.02 Conditions Precedent to Fifth Amendment and
Restatement. The effectiveness of the Fifth Amendment and Restatement is subject
to the following conditions precedent:
(i) The Agent shall have received payment, in immediately available
funds, of all interest, fees and charges outstanding on the Fifth Amendment
and Restatement Closing Date under the Existing Credit Agreement (after
giving effect to Section 2.17).
(ii) The Agent shall have received the following documents, each in
form and substance satisfactory to the Agent and (except for the Committed
Rate Notes) in sufficient copies for each Bank:
(a) This Agreement, duly executed by the Borrower and the Banks.
(b) The Committed Rate A Notes and the Committed Rate B Notes,
each duly executed by the Borrower, to the order of the appropriate
Banks.
(c) The Acknowledgment and Consent, duly executed by each
Guarantor.
(d) The Pledge Agreement, duly executed by each Pledgor, and all
documents or instruments evidencing any Collateral upon which a Lien
is granted or purported to be granted to the Banks thereunder which
has not been delivered to the Agent previously and, where appropriate,
accompanied by undated stock powers or instruments of transfer
executed in blank or executed endorsements in blank.
(e) Certified copies of the (i) resolutions of the Board of
Directors of each Loan Party approving each Fifth Amendment and
Restatement Loan Document to which it is a party, and of all documents
evidencing other necessary corporate action and governmental
approvals, if any, with respect to each such Fifth Amendment and
Restatement Loan Document, (ii) all documents evidencing other
corporate action or governmental approvals, if any, necessary or, in
the reasonable opinion of the Agent, advisable in connection with the
execution, delivery and performance of each Fifth Amendment and
Restatement Loan Document; (iii) the certificate of incorporation and
by-laws of the Borrower and
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of each of its Subsidiaries, as amended through the Fifth Amendment
and Restatement Closing Date or, with respect to any of the Borrower's
Subsidiaries, a certification that such Subsidiary's articles of
incorporation and bylaws delivered to the Agent in connection with the
Fourth Amendment and Restatement are true and correct copies of the
articles of incorporation and bylaws of such Subsidiary and that such
articles of incorporation and bylaws have not been amended or
otherwise modified since the date such copies were delivered to the
Agent and (iv) good standing certificates with respect to the Borrower
and each of its Subsidiaries from the Secretary of State (or similar
official) of the state in which the Borrower or such Subsidiary is
incorporated.
(f) A certificate of the Secretary or an Assistant Secretary of
each Loan Party certifying the names and true signatures of the
officers of such Loan Party authorized to sign each Fifth Amendment
and Restatement Loan Document to which it is a party and the other
documents to be delivered hereunder.
(g) A Solvency Certificate, duly executed by the treasurer or
chief financial officer of each Loan Party.
(h) A certificate of the Borrower, signed on behalf of the
Borrower by its President or a Vice President, dated the Fifth
Amendment and Restatement Closing Date, certifying as to the absence
of any event occurring and continuing, or resulting from the Fifth
Amendment and Restatement, that constitutes an Event of Default or
would constitute an Event of Default but for the requirement that
notice be given or time elapse or both.
(i) Favorable opinions of N. Carolyn Forehand, general counsel of
the Borrower, and Waller Lansden Dortch & Davis, special counsel for
the Borrower and the other Loan Parties, substantially in the forms of
Exhibit J.
(j) A favorable opinion of Gibson, Dunn & Crutcher LLP, counsel
for the Agent, satisfactory to the Agent.
(k) Such other agreements, certificates, financing statements,
consents and other documents that the Agent or any Bank may reasonably
request.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01. Representations and Warranties of the Borrower. The Borrower
represents and warrants as follows:
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(a) Each of the Borrower and its Subsidiaries is a corporation duly
incorporated, validly existing and in good standing under the laws of its
respective jurisdiction of incorporation, is duly qualified as a foreign
corporation and is in good standing in each jurisdiction as to which the
location of its assets or the nature of its business makes qualification
necessary, and has all power, corporate or otherwise, to conduct its
business and to own, or hold under lease, its assets, and to execute and
deliver, and to perform all of its obligations under, each of the Loan
Documents to which it is or will be a party.
(b) The execution, delivery and performance by each Loan Party of each
Loan Document to which it is or will be a party are within such Loan
Party's corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) such Loan Party's charter or
by-laws, or (ii) any law, rule, regulation (including, without limitation,
Regulation G, T, U or X of the Board of Governors of the Federal Reserve
System), order, writ, judgment, injunction, decree, determination or award
binding on or affecting such Loan Party or any of its properties, or (iii)
any contractual restriction binding on or affecting such Loan Party or any
of its properties, and do not result in or require the creation of any Lien
(other than pursuant hereto) upon or with respect to any of its properties;
and no Loan Party is in default in any material respect under any such law,
rule, regulation, order, writ, judgment, injunction, decree, determination,
award or restriction.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
for the due execution, delivery and performance by any Loan Party of any
Loan Document to which it is or will be a party except for those which have
been duly obtained or made and are in full force and effect.
(d) This Agreement is, and each other Loan Document to which each Loan
Party will be a party when executed and delivered hereunder will be, the
legal, valid and binding obligation of such Loan Party enforceable against
such Loan Party in accordance with its terms.
(e) The Consolidated balance sheets of the Borrower and its
Subsidiaries as at December 31, 1995 and the related Consolidated
statements of operations, stockholders' equity and cash flow of the
Borrower and its Subsidiaries for the fiscal year then ended, copies of
which have been furnished to the Agent, fairly present the financial
condition of the Borrower and its Subsidiaries as at such date and the
results of the operations of the Borrower and its Subsidiaries for the year
ended on such date, all in accordance with generally accepted accounting
principles consistently applied, and since December 31, 1995 there has been
no material adverse change, in the business, prospects or condition
(financial or otherwise) or in the results of operations of the Borrower
and its Subsidiaries taken as a whole.
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(f) (i) Each Loan Party has good title to all of the presently
existing Collateral covered by the Collateral Documents to which it is
or will be a party, free and clear of all Liens, except for Liens
created under the Collateral Documents and Permitted Liens.
(ii) Schedule II sets forth a complete and accurate description
and list of the locations, by state and street address, and the Person
which owns all Real Property or interest in Real Property of the
Borrower and its Subsidiaries as of the date hereof.
(iii) Each Lease or other agreement relating to the Real
Property described in Schedule II is a valid and subsisting Lease or
other agreement and is in full force and effect in accordance with the
terms thereof; and the Borrower or its Subsidiary is in possession of
all such leaseholds and no material default by the Borrower or any of
its Subsidiaries exists under any such Lease or other agreement and,
to the best of the Borrower's knowledge, no lessor has any accrued
right to terminate any such Lease or other agreement on account of a
default by the Borrower or its Subsidiaries.
(g) As of the date hereof, the Borrower has delivered to the Agent a
true and complete copy of each Service Agreement and of each amendment or
modification thereof. Each such Service Agreement is a valid and subsisting
agreement and is in full force and effect in accordance with the terms
thereof; and no material default by the Borrower or any of its Subsidiaries
exists under any such Service Agreement and, to the best of the Borrower's
knowledge, no party to any of the Service Agreements has any accrued right
to terminate any such Service Agreement on account of a default by the
Borrower or any of its Subsidiaries.
(h) Other than as set forth on Schedule VII, no judgment, order,
decree, injunction or other restraint affecting any Loan Party has been
rendered or imposed by any court, governmental agency or arbitrator, and
there is no pending or, to the best knowledge of the Borrower, threatened
action or proceeding affecting any Loan Party before any court,
governmental agency or arbitrator, which may materially adversely affect
the business, prospects or condition (financial or otherwise) or operations
of the Borrower and its Subsidiaries, taken as a whole, or which purports
to affect the legality, validity or enforceability of this Agreement or any
other Loan Document.
(i) Set forth on Schedule III is a complete and accurate list of all
of the Subsidiaries of the Borrower as of the date hereof, showing as of
such date (as to each such Subsidiary) the jurisdiction of its
incorporation, the number of shares of each class of Securities outstanding
on the date hereof, the direct owner of the outstanding shares of each such
class owned, and the jurisdictions in which such Subsidiary is qualified to
do business as a foreign corporation. There are no outstanding options,
warrants, rights of conversion or purchase, and similar rights to acquire
Securities of any of the Subsidiaries,
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except as set forth on Schedule III, and all of the outstanding Securities
of all of the Subsidiaries has been validly issued, is fully paid and
nonassessable and is owned by the Borrower free and clear of (i) all liens,
security interests and other charges or encumbrances and (ii) any
restrictions (other than laws, rules or regulations) on the ability to vote
or alienate such Securities.
(j) All information, exhibits and reports furnished in writing by or
on behalf of the Borrower or any of its Subsidiaries and made available to
the Agent or any Bank relating to the condition (financial or otherwise),
operations, business or properties of the Borrower or such Subsidiary, are
true, correct and complete and not misleading in all material respects.
(k) With respect to all business plans and other forecasts and
projections furnished by or on behalf of the Borrower or any of its
Subsidiaries and made available to the Agent or any Bank relating to the
financial condition, operations, business, properties or prospects of the
Borrower or any of its Subsidiaries, to the best of the Borrower's
knowledge: (i) all facts stated as such therein are true and complete in
all material respects, (ii) all facts upon which the forecasts or
projections therein contained are based are true and complete in all
material respects, and (iii) all estimates and assumptions were made in
good faith and believed to be reasonable at the time made.
(l) Schedule V sets forth, as of the Fifth Amendment and Restatement
Closing Date, all Debt of the Borrower and its Subsidiaries other than Debt
representing miscellaneous liabilities not in excess of $5,000,000 in the
aggregate.
(m) Neither the business nor the properties of the Borrower or any of
its Subsidiaries are affected by any strike, lockout, fire, explosion,
earthquake, embargo, act of God or of the public enemy or other casualty
which could have a material adverse effect on the business, prospects,
condition (financial or otherwise) or results of operations of the Borrower
and its Subsidiaries taken as a whole.
(n) No ERISA Event has occurred with respect to any Plan or is
reasonably expected to occur with respect to any Plan.
(o) Schedule B (Actuarial Information) to the most recently completed
annual report (Form 5500 Series) for each Plan of the Borrower or its
Subsidiaries, copies of which have been or will be filed with the Internal
Revenue Service and furnished to the Agent, is complete and accurate in all
material respects and fairly presents the funding status of such Plan, and
since the date of such Schedule B there has been no material adverse change
in such funding status.
(p) Neither the Borrower nor any ERISA Affiliate has incurred or is
reasonably expected to incur any material Withdrawal Liability to any
Multiemployer Plan.
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(q) Neither the Borrower nor any ERISA Affiliate has been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or has been terminated, within the meaning of Title IV of
ERISA and no Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of Title IV of
ERISA.
(r) The Borrower and its Subsidiaries on a Consolidated basis are, and
each Loan Party individually is, and after receipt and application of the
Advances in accordance with the terms of this Agreement and execution of
each Loan Document to which it is or is to be a party will be, Solvent.
(s) Neither the Borrower nor any Subsidiary of the Borrower is, or is
required to be, registered under the Investment Company Act of 1940, as
amended.
(t) Each of the Borrower and its Subsidiaries is in compliance in all
material respects with the provisions of all Environmental Laws. Neither
the Borrower nor any of its Subsidiaries nor, to the knowledge of the
Borrower, any other Person, has engaged in any Environmental Activity, nor,
to the knowledge of the Borrower, has any Environmental Activity otherwise
occurred, in material violation of any provision of any applicable
Environmental Laws.
(u) Neither the Borrower nor any of its Subsidiaries has any
liability, absolute or contingent, in connection with any Environmental
Activity the satisfaction of which could have a material adverse effect on
the business, prospects, condition (financial or otherwise) or results of
operations of the Borrower and its Subsidiaries taken as a whole.
(v) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock (within the meaning
of Regulation U issued by the Board of Governors of the Federal Reserve
System). No proceeds of any Advance will be used to purchase or carry any
margin stock (within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System) or to extend credit to others for
the purpose of purchasing or carrying any margin stock (within the meaning
of Regulation U issued by the Board of Governors of the Federal Reserve
System) in violation of applicable law, including, without limitation,
Regulation U issued by the Board of Governors of the Federal Reserve
System.
(w) The Intercompany Creditor (i) is not liable in respect of any Debt
other than Intercompany Debt, (ii) has no other liabilities or obligations
other than contingent obligations that are not material in amount in
respect of operating leases entered into prior to May 1, 1993, and (iii)
has not engaged in any operations, and has not received any notice of a
claim or threatened claim in respect of any operations or the sale thereof,
since May 1, 1993.
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ARTICLE VI
COVENANTS OF THE BORROWER
SECTION 6.01. Affirmative Covenants. So long as any Note shall remain
unpaid, any Letter of Credit shall remain outstanding, any amount shall remain
due hereunder, or any Bank shall have any Commitment hereunder, the Borrower
will, unless the Majority Banks shall otherwise consent in writing:
(a) Payment of Taxes, Etc. Pay and discharge, and cause each
Subsidiary to pay and discharge, before the same shall become delinquent,
(i) all taxes, assessments and governmental charges or levies imposed upon
it or upon its property, and (ii) all lawful claims which, if unpaid, might
by law become a Lien upon its property; provided, however, that neither the
Borrower nor any Subsidiary shall be required to pay or discharge any such
tax, assessment, charge or claim which is being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained.
(b) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations (i) in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which the Borrower
or such Subsidiary operates, and (ii) reasonably satisfactory to the Agent,
and naming the Agent as an additional insured or as loss payee as the
respective interests appear.
(c) Preservation of Corporate Existence, Etc. Except as is otherwise
expressly permitted hereby, preserve and maintain, and cause each
Subsidiary to preserve and maintain, its corporate existence, rights
(charter and statutory) and franchises.
(d) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with the requirements of
all applicable laws, rules, regulations and orders, including, without
limitation, all Environmental Laws relating to the Real Property and the
ownership, use, operation and occupancy thereof.
(e) Visitation Rights. At any reasonable time and from time to time
after notice, permit the Agent or any of the Banks or any agents or
representatives thereof, to examine and make copies of and abstracts from
the records and books of account of, and visit the properties of, the
Borrower and/or any of the Subsidiaries of the Borrower, and to discuss the
affairs, finances and accounts of the Borrower and any such Subsidiary with
any of their officers or directors and with their independent certified
public accountants.
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(f) Keeping of Books. Keep, and cause each Subsidiary of the Borrower
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with
generally accepted accounting principles consistently applied.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause
each Subsidiary of the Borrower to maintain and preserve, all of its
properties which are used or useful in the conduct of its business in good
working order and condition, ordinary wear and tear excepted.
(h) Compliance with Terms of All Leaseholds. Make all payments and
otherwise perform, and cause each of its Subsidiaries to make all payments
and otherwise perform, all of its material obligations in respect of all
material Leases, and use its best efforts, and cause each of its
Subsidiaries to use its best efforts, to keep, and to take all action to
keep, such Leases in full force and effect and not allow any such Leases to
lapse or be terminated or any rights to renew such Leases to be forfeited
or canceled; provided, however, that any such Lease may lapse or be
terminated or such renewal rights may be forfeited or canceled if in the
reasonable business judgment of the Borrower or its Subsidiary, as the case
may be, it is in its best economic interests to allow or cause such lapse,
termination, forfeiture or cancellation.
(i) Solvency. Continue, and cause each of its Subsidiaries to
continue, to be Solvent.
(j) Further Assurances.
(A) If and to the extent requested by the Agent from time to
time, execute and deliver such documents and take such other action,
and cause each of its Subsidiaries to execute and deliver such
documents and take such other action, as may be necessary or
reasonably requested by the Agent, in order to assure and confirm that
(i) all obligations under this Agreement (including reimbursement
obligations in respect of outstanding Letters of Credit), the Notes or
any of the other Loan Documents are at all times guaranteed on terms
satisfactory to the Agent by Guaranties of each of its present and
future Subsidiaries (other than Subsidiaries described in the proviso
in the definition of "Guarantors" in Section 1.01) as requested by the
Agent from time to time, and (ii) all obligations under this Agreement
(including reimbursement obligations in respect of outstanding Letters
of Credit), the Notes or any of the other Loan Documents are secured
in a manner acceptable to the Agent and consistent with this Agreement
and the Pledge Agreement.
(B) Promptly upon the acquisition of the Securities of any
Subsidiary by the Borrower or one of its Subsidiaries or, in the event
the newly acquired
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Subsidiary owns no assets on the date of such acquisition, promptly
upon the newly acquired Subsidiary acquiring assets, the Borrower
will, and will cause each of its Subsidiaries to, pledge such
Securities (or so much thereof as is contemplated by the definition of
"Pledged Securities" in Section 1.01) of such newly acquired
Subsidiary to the Agent pursuant to the Pledge Agreement, and will
enter into, and will cause each of its Subsidiaries to enter into, the
Guaranty, the Intercompany Subordination Agreement and/or such
Collateral Documents, as the Agent may request.
(C) Promptly upon the receipt of any instruments evidencing Debt
owed to the Borrower or to any of its Subsidiaries by a third party,
or, in the case of Intercompany Debt permitted under the terms of
Section 6.02(p), promptly upon the creation of such Intercompany Debt,
the Borrower will, and will cause each of its Subsidiaries, to pledge
such instruments evidencing such newly acquired Debt or newly created
Intercompany Debt, as the case may be, pursuant to the Pledge
Agreement, and will deliver, and will cause each of its Subsidiaries
to deliver, to the Agent the instruments evidencing such Debt in
accordance with terms of the Pledge Agreement and, in the case of the
Intercompany Debt, in accordance with the terms of the Intercompany
Subordination Agreement.
(k) Employment of Technology. Disposal of Hazardous Materials, Etc.
(i) Employ, and cause each of its Subsidiaries to employ, in connection
with its use, if any, of the Real Property, appropriate technology and
compliance procedures to maintain compliance with any applicable
Environmental Laws, (ii) obtain and maintain, and cause each of its
Subsidiaries to obtain and maintain, any and all material permits required
by applicable Environmental Laws in connection with its or its
Subsidiaries' operations and (iii) dispose of, and cause each of its
Subsidiaries to dispose of, any and all Hazardous Substances only at
facilities and with carriers reasonably believed to possess valid permits
under RCRA, if applicable, and any applicable state and local Environmental
Laws. The Borrower shall use its best efforts, and cause each of its
Subsidiaries to use its best efforts, to obtain all certificates required
by law to be obtained by the Borrower and its Subsidiaries from all
contractors employed by the Borrower or any of its Subsidiaries in
connection with the transport or disposal of any Hazardous Substances.
(l) Environmental Matters. If the Borrower or any of its Subsidiaries
shall:
(i) receive written notice that any material violation of any
Environmental Laws may have been committed or is about to be committed
by the Borrower or any of its Subsidiaries;
(ii) receive written notice that any administrative or judicial
complaint or order has been filed or is about to be filed against the
Borrower or any of its Subsidiaries alleging any material violation of
any Environmental Laws or requiring the Borrower or any of its
Subsidiaries to take any action in connection
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with the release or threatened release of Hazardous Substances or
solid waste into the environment; or
(iii) receive written notice from a federal, state, foreign or
local governmental agency or private party alleging that the Borrower
or any of its Subsidiaries is liable or responsible for costs
associated with the response to cleanup, stabilization or
neutralization of any Environmental Activity;
then it shall provide the Agent with a copy of such notice within five
Business Days of the Borrower's or such Subsidiary's receipt thereof.
Within ten days of the date the Borrower or such Subsidiary shall have
learned of the enactment or promulgation of any Environmental Laws which
may have a material adverse effect on the business, property, condition
(financial or otherwise) or results of operations of the Borrower and its
Subsidiaries, taken as a whole, the Borrower shall provide the Agent with
notice thereof. The Borrower shall monitor compliance with Environmental
Laws by any and all owners or operators of the Real Property.
(m) Violation of Law, Etc. Prior to the Borrower or any Subsidiary of
the Borrower commencing any acquisition of the stock of or other interest
in assets of any Person, including, without limitation, commencing a merger
or tender offer for shares of another Person, the Borrower will deliver to
the Agent an opinion of the general counsel of the Borrower satisfactory to
the Agent that such activity (taking into account Section 6.02(a) and the
use or proposed use of the proceeds of any Advances in connection with such
activity) does not violate any law, rule or regulation (including without
limitation Regulation U issued by the Board of Governors of the Federal
Reserve System).
SECTION 6.02. Negative Covenants. So long as any Note shall remain unpaid,
any Letter of Credit shall remain outstanding, any amount shall remain due
hereunder, or any Bank shall have any Commitment hereunder, the Borrower will
not, without the written consent of the Majority Banks:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any
Lien upon or with respect to any of its properties of any character
(including, without limitation, Accounts), whether now owned or hereafter
acquired, or assign any right to receive income, or sign or file, or permit
any of its Subsidiaries to sign or file, under the Uniform Commercial Code
a financing statement that names the Borrower or any of its Subsidiaries as
debtor or the equivalent or sign, or permit any of its Subsidiaries to
sign, any security agreement authorizing any secured party thereunder to
file any such financing statement or other document, or assign, or permit
any of its Subsidiaries to assign, any Accounts, excluding, however, from
the operation of the foregoing restrictions the Liens created by or
pursuant to the Loan Documents and Permitted Liens.
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(b) Restrictive Covenants. Enter into, or permit any of its
Subsidiaries to enter into, any agreement or instrument (other than the
Loan Documents) (i) which restricts the ability of the Borrower or any of
its Subsidiaries to create or suffer to exist any Lien upon or with respect
to its Securities, whether now or hereafter issued, or upon or with respect
to any of its properties, whether now owned or leased or hereafter acquired
or leased, except in connection with transactions contemplated by clause
(v) of the definition "Permitted Lien" in which case any such agreement
shall be limited to the property acquired in connection with such
transactions and any Lien granted is limited as provided in said clause (v)
and except for investments of no more than $10,000,000 in any individual
case (or series of individual cases), but in no event more than $20,000,000
in the aggregate at any time, by the Borrower and its Subsidiaries in any
Person which is not a Subsidiary, in which the Borrower or its Subsidiaries
hold less than 50% of the equity interest and as to which the Borrower or
its Subsidiaries are prohibited by law to grant a Lien on any such equity
interest, or (ii) which restricts the ability of any Subsidiary of the
Borrower to (A) pay dividends or make other distributions on its Securities
or to the Borrower or any other Subsidiary of the Borrower, (B) make any
loan or advance to the Borrower or any of its Subsidiaries, or (C) create,
incur, assume or suffer to exist, or pay or prepay, any Intercompany Debt,
provided, that any such agreement or instrument mandated by any federal
law, rule or regulation or order governing the business of the Borrower and
its Subsidiaries shall not be a violation of this Section 6.02(b)(ii).
(c) Debt. Create, incur, assume or suffer to exist, or permit any of
its Subsidiaries to create, incur, assume or suffer to exist, any Debt
other than:
(i) Debt hereunder;
(ii) Debt under the Loan Documents;
(iii) Debt secured by Liens permitted by clause (v) of the
definition of "Permitted Lien";
(iv) the Debt listed on Schedule V, provided that such Debt may
be renewed, extended or otherwise modified on terms no less favorable
to the Borrower or its Subsidiaries or the Banks than the existing
terms of such Debt;
(v) Debt not otherwise permitted by this Section 6.02(c) incurred
by the Borrower and/or its Subsidiaries (other than the Intercompany
Creditor) in connection with the acquisition of any Facility (or the
assets thereof), any Existing Clinic Acquisition or the acquisition of
any Related Business, so long as such acquisition satisfies all the
conditions precedent set forth in Section 6.02(f)(i) or (ii), as the
case may be;
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(vi) convertible Subordinated Debt incurred by the Borrower or
any Subsidiary of the Borrower (other than the Intercompany Creditor)
in connection with the acquisition of a Facility (or the assets
thereof), any Existing Clinic Acquisition or the acquisition of any
Related Business, provided that the holder of any such Debt shall have
executed and delivered a Subordination Agreement to the Agent;
(vii) Subordinated Debt, whether convertible or not, in an
aggregate principal amount not in excess of $100,000,000; provided
that (a) the Agent and the Majority Banks shall have approved in
writing prior to the issuance thereof the terms and conditions
relating to the issuance of such Subordinated Debt, including the
terms of any indenture executed in connection therewith, and (b) the
Borrower shall deliver to the Agent all Net Cash Proceeds, deferred
cash proceeds and noncash proceeds of such issuance in accordance with
Section 2.09(d);
(viii) any Debt permitted under the terms of Section 6.02(i) or
6.02(p);
(ix) Contingent Obligations permitted under Section 6.02(d);
(x) Debt under any interest rate protection, hedge, cap, collar,
swap or similar agreement entered into by the Borrower with any of the
Banks or their respective Affiliates from time to time; and
(xi) unsecured Senior Debt in an aggregate principal amount not
in excess of $50,000,000 incurred by the Borrower or any of its
Subsidiaries (other than the Intercompany Creditor) to fund any
Existing Clinic Acquisition or the acquisition of any Facility (or the
assets thereof) or any Related Business; provided, however, that such
unsecured Senior Debt contains terms and conditions, including,
without limitation, interest rates, covenants and defaults, no greater
or more restrictive, as the case may be, than those contained herein;
provided, further, that there can be no principal repayments of such
unsecured Senior Debt until one year after the date of the final
scheduled principal payment under this Agreement.
(d) Contingent Obligations. Create, incur, assume or suffer to exist,
or permit any of its Subsidiaries to create, incur, assume or suffer to
exist, any Contingent Obligations except (i) by reason of endorsement of
negotiable instruments for deposit or collection or similar transactions in
the ordinary course of business, (ii) Contingent Obligations created
pursuant to the Loan Documents, (iii) guaranties by the Borrower of Capital
Leases, Operating Leases or Service Agreement of any Subsidiary of the
Borrower (including consents by the Borrower to the assignment of such
guaranties), provided that such Capital Leases or Operating Leases are
otherwise permitted hereunder, (iv) Contingent Obligations of the type
specified in clauses (ii) and (iii) of the definition of "Contingent
Obligation" created in the ordinary course of business, (v) miscellaneous
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Contingent Obligations not to exceed at any time outstanding $10,000,000,
(vi) guaranties by the Subsidiaries of the Borrower of the Borrower's
obligations under a Capital Lease or an Operating Lease provided that such
Capital Lease or Operating Lease is otherwise permitted hereunder and only
to the extent of the portion of such Capital Lease or Operating Lease that
directly benefits such Subsidiary, (vii) Contingent Obligations not
otherwise permitted by this Section 6.02(d) incurred by the Borrower and/or
its Subsidiaries (other than the Intercompany Creditor) in connection with
the acquisition of any Facility (or the assets thereof), any Existing
Clinic Acquisition or the acquisition of any Related Business, so long as
such acquisition satisfies all the conditions precedent set forth in
Section 6.02(f)(i) or (ii), as the case may be, and (viii) Contingent
Obligations permitted pursuant to Section 6.02(c) and Section 6.02(o) and
Contingent Obligations listed on Schedule V.
(e) Restricted Payments. Make, or permit any of its Subsidiaries to
make, any Restricted Payment, except that:
(i) the Borrower may pay dividends on its Common Stock, or
purchase or otherwise acquire for value any shares of its Common Stock
(each a "Common Stock Payment"), provided that (A) no Event of Default
or event that would constitute an Event of Default but for the
requirement that notice be given or time elapse or both shall have
occurred and be continuing or would result from such Common Stock
Payment, (B) the aggregate amount of Common Stock Payments made during
the period from January 1, 1996 through the date of such Common Stock
Payment shall not exceed an amount equal to ten percent of the
Consolidated Net Income of the Borrower and its Subsidiaries for the
period from January 1, 1996 through the last day of the fiscal quarter
most recently ended prior to the date of such Common Stock Payment
(treated for such purposes as a single accounting period), provided
that in no event may the aggregate amount of Common Stock Payments
made to purchase or otherwise acquire for value shares of Common Stock
exceed $20,000,000 in the aggregate for all such purchases or other
acquisitions, and (C) the Borrower shall have provided the Agent with
a certificate of the treasurer or chief financial officer of the
Borrower setting forth computations in reasonable detail demonstrating
satisfaction of the foregoing conditions; and
(ii) the Borrower and its Subsidiaries may make Restricted
Payments to terminated employees in an amount not to exceed $100,000
in any year.
(f) Investments. Make, or permit any of its Subsidiaries to make, any
investment other than Permitted Investments and Capital Investments,
provided that:
(i) Subsidiaries of the Borrower (other than the Intercompany
Creditor) can make Capital Investments consisting of an acquisition of
a Facility
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(or the assets thereof) or Related Businesses or Existing Clinic
Acquisitions that satisfy all of the following:
(A) the Total Consideration for each such acquisition shall
be less than $50,000,000;
(B) the aggregate Total Consideration for all such
acquisitions in any twelve-month period shall not exceed
$500,000,000;
(C) the aggregate number of such acquisitions (other than
Existing Clinic Acquisitions) in any twelve-month period shall
not exceed fifteen;
(D) except in the case of Existing Clinic Acquisitions, the
Agent and the Banks shall have received at least one day before
the scheduled closing for such acquisition financial and other
information relating to such acquisition, including, without
limitation:
(1) the Total Consideration to be paid for such
acquisition; and
(2) a schedule, duly certified by the chief financial
officer of the Borrower, demonstrating compliance on a pro
forma basis with the financial covenants contained in
Section 6.03 after such acquisition; provided, however, that
in preparing such pro forma schedule, the Borrower shall
include all Debt to be incurred in connection with such
acquisition and the EBITDA of the Facility or Related
Business to be acquired (which shall be based on audited, if
available, historical numbers, adjusted as contemplated by
Section 6.03);
(E) the Agent and the Banks shall have received at least one
day before the scheduled closing of such acquisition all other
information, financial or otherwise, regarding such acquisition
as the Agent or the Banks may reasonably request;
(F) except in the case of Existing Clinic Acquisitions, the
Agent shall have received, on or before the date of such
acquisition, in form and substance satisfactory to the Agent and
in sufficient copies for each Bank, each of the following
documents:
(1) a certified copy of the Asset Purchase Agreement,
Merger Agreement, Stock Purchase Agreement or other document
relating to the acquisition of such Facility (or the assets
thereof) or
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Related Business, substantially in the form to be executed
(with an executed copy thereof to be delivered promptly
after the acquisition);
(2) a Guaranty (dated on or before the date of such
acquisition), duly executed by the Subsidiary of the
Borrower formed to acquire or resulting from the acquisition
of such Facility (or the assets thereof) or Related
Business;
(3) an amendment (dated on or before the date of such
acquisition) to the Pledge Agreement, which amendment shall
amend such Pledge Agreement to make all of the outstanding
Securities of the Subsidiary of the Borrower formed to
acquire or resulting from the acquisition of such Facility
(or the assets thereof) or Related Business (or so much
thereof as is contemplated by the definition of "Pledged
Securities" in Section 1.01) Pledged Securities under such
Pledge Agreement, together with (i) certificates, if any,
representing such Securities of such Subsidiary and undated
stock powers or instruments of transfer for such
certificates executed in blank and (ii) such documents as
the Agent may reasonably request;
(4) an amendment (dated on or before the date of such
acquisition) to the Intercompany Subordination Agreement,
which amendment shall make the Subsidiary of the Borrower
formed to acquire or resulting from the acquisition of such
Facility (or the assets thereof) or Related Business a
"Subordinated Creditor" under such Intercompany
Subordination Agreement;
(5) a certified copy of the Service Agreement, if any,
related to such acquisition and any other material contract
(including, without limitation, any material leases)
relating to such Facility or Related Business, substantially
in the form to be executed (with an executed copy thereof to
be delivered promptly after the acquisition);
(6) certificates of insurance for the insurance
coverage obtained by the Borrower (or a Subsidiary of the
Borrower) relating to such Facility or Related Business
showing that all such insurance is maintained with
responsible and reputable insurance companies or
associations in such amounts and covering such risks as is
satisfactory to the Agent, together with loss payee
endorsements, showing coverage of the Agent for its benefit
and the benefit of the Banks;
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(7) certified copies of the (i) resolutions of the
Board of Directors of each Loan Party approving each Loan
Document delivered pursuant to this Section 6.02(f)(i)(F) in
connection with such acquisition to which it is a party, and
of all documents evidencing other necessary corporate action
and governmental approvals, if any, with respect to each
such Loan Document, (ii) all documents evidencing other
corporate action or governmental approvals, if any,
necessary or, in the reasonable opinion of the Agent,
advisable in connection with the execution, delivery and
performance of each Loan Document delivered pursuant to this
Section 6.02(f)(i)(F) in connection with such acquisition,
(iii) the certificate of incorporation and by-laws of the
Subsidiary of the Borrower formed to acquire or resulting
from the acquisition of such Facility (or the assets
thereof) or Related Business relating to such acquisition,
as amended through the date of such acquisition and (iv)
good standing certificates with respect to such Subsidiary
from the Secretary of State (or similar official) of the
state in which such Subsidiary is incorporated;
(8) a certificate of the Secretary or an Assistant
Secretary of each Loan Party that will deliver any Loan
Document pursuant to this Section 6.02(f)(i)(F) certifying
the names and true signatures of the officers of such Loan
Party authorized to sign each such Loan Document to which it
is a party and the other documents to be delivered under
this Section 6.02(f)(i)(F) (and the Agent may conclusively
rely on such certificate of such Loan Party until the Agent
shall receive a further certification of the Secretary or
Assistant Secretary of such Loan Party canceling or amending
the prior certificate of such Loan Party and submitting the
names and signatures of the officers named in such further
certificate);
(9) a Solvency Certificate, duly executed by the
treasurer or chief financial officer of the Subsidiary of
the Borrower formed to acquire or resulting from the
acquisition of such Facility (or the assets thereof) or
Related Business;
(10) copies of such other financial and non-financial
information regarding the Borrower or the Subsidiary of the
Borrower formed to acquire or resulting from the acquisition
of such Facility (or the assets thereof) or Related Business
or such Facility or Related Business as any Bank through the
Agent may reasonably request; and an executed process agent
letter from CT
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Corporation System for such Subsidiary of the Borrower in
form and substance satisfactory to the Agent;
(11) a supplement to Schedule II hereto to the extent
such supplement is necessary to make the representation and
warranty contained in Section 5.01(f)(ii) correct on and as
of the date of such acquisition; and
(12) such other documents (including a favorable legal
opinion of the general counsel of the Borrower) as the Agent
may reasonably request.
(ii) Subsidiaries of the Borrower (other than the Intercompany
Creditor) can make Capital Investments consisting of an acquisition of
a Facility (or the assets thereof) or Related Businesses for which the
Total Consideration equals or exceeds $50,000,000 only with the prior
approval in writing of the terms and conditions of such acquisition by
the Majority Banks in substantially the form of Exhibit K (it being
understood that the Banks shall use reasonable efforts to notify the
Borrower within ten Business Days after receipt of all of the
information regarding a proposed acquisition described in clause (A)
below of their decision to approve or disapprove the proposed
acquisition), and
(A) the Banks and the Agent shall have received complete
information, financial and otherwise, regarding the proposed
acquisition as may be necessary or desirable, in the reasonable
judgment of the Banks, to enable the Banks to evaluate the
proposed acquisition for the purpose of approving such
acquisition under this Section 6.02(f)(ii), including, without
limitation, information regarding the Total Consideration to be
paid, a schedule, duly certified by the chief financial officer
of the Borrower, demonstrating compliance on a pro forma basis
with the financial covenants contained in Section 6.03 after such
acquisition, and any other information as the Banks may
reasonably request; provided, however, that in preparing such pro
forma schedule, the Borrower shall include all Debt to be
incurred in connection with such acquisition and the EBITDA of
the Facility or Related Business to be acquired (which shall be
based on audited, if available, historical numbers, adjusted as
contemplated by Section 6.03); and
(B) the Agent shall have received on or before the day of
such acquisition, in form and substance satisfactory to the Agent
and in sufficient copies for each Bank, each of the documents
described in subsection 6.02(f)(i)(F); provided that certified
copies of drafts of the documents referred to in clauses (a) and
(e) thereof shall be delivered ten days in advance, and if any
material changes to the terms and conditions of
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such acquisition reflected in such documents occur after such
delivery, the closing of such acquisition shall be postponed
until such time as the Majority Banks shall have approved in
writing such changed terms and conditions.
(iii) The Borrower and its Subsidiaries may make Capital
Expenditures that are not acquisitions of, or other investments in,
Facilities, Related Businesses or other Persons (or all or
substantially all of the assets thereof) in the ordinary course of
business, provided that no Event of Default or event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both shall have occurred and be continuing or
would result therefrom.
(iv) The Borrower and its Subsidiaries may make capital
investments in, and loans and advances to, Subsidiary joint ventures,
general or limited partnerships, limited liability companies or other
types of Persons that are not wholly-owned by the Borrower and its
Subsidiaries in an aggregate amount of not more than $10,000,000
during any fiscal year, and in no event in an aggregate amount
exceeding $20,000,000 at any time outstanding.
(v) The Borrower and its Subsidiaries may make capital
investments in, and loans and advances to, joint ventures, general or
limited partnerships, limited liability companies or other types of
Persons that are not Subsidiaries in an aggregate amount not exceeding
$10,000,000 at any time outstanding.
(g) Mergers, Etc. Merge or 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 acquire all or substantially all of the
assets (other than the acquisition of assets of any Facility or Related
Business or an Existing Clinic Acquisition, whether or not such acquisition
is accomplished by merger or by Securities or asset purchase, so long as
such acquisition satisfies all the conditions precedent set forth in
Section 6.02(f)(i) or (ii) of, any Person, or permit any of its
Subsidiaries to do so, except that:
(i) any Subsidiary may consolidate with or merge into the
Borrower (only if the Borrower shall be the continuing or surviving
corporation) or (except for the Intercompany Creditor) with or into
one or more other Subsidiaries that are Guarantors, provided that (A)
immediately before and after giving effect to such consolidation or
merger, the parties thereto and the survivor thereof all are Solvent,
(B) all Liens created by the Collateral Documents shall continue in
full force and effect in favor of the Agent and the priority thereof
shall not be impaired by such transaction, (C) all Guaranties shall
continue in full force and effect, and (D) the Agent shall have been
furnished with a favorable opinion of counsel reasonably satisfactory
to the Agent covering such matters as the Agent may reasonably
request; and
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(ii) the Borrower may consolidate or merge with any other Person,
provided that (A) immediately before and after giving effect to such
consolidation or merger, the parties thereto and the survivor thereof
all are Solvent, (B) the Borrower shall be the continuing or surviving
corporation, (C) no Change of Control shall occur, (D) all Liens
created by the Collateral Documents shall continue in full force and
effect in favor of the Agent and shall not be impaired by such
transaction, (E) all Guaranties shall continue in full force and
effect, and (F) the Agent shall have been furnished with a favorable
opinion of counsel reasonably satisfactory to the Agent covering such
matters as the Agent may reasonably request;
provided, however, that immediately before and after any consolidation or
merger under this Section 6.02(g), no Event of Default, or event which,
with the giving of notice or lapse of time or both, would become an Event
of Default, shall have occurred and be continuing.
(h) Limitation on Sales of Assets. Except for the sale of inventory in
the ordinary course of business, the sale of worn-out or obsolete assets
and intercompany transfers permitted under Section 6.02(g), sell, lease,
transfer or otherwise dispose of its assets, or permit any Subsidiary to
sell, lease, transfer or otherwise dispose of its assets (including any
interest in a Subsidiary), unless (i) the book value of such assets sold
constitutes less than 5% of the value of the Borrower's Consolidated
Tangible Net Assets at the time of sale or other disposition, provided that
the aggregate book value of all such assets sold in any twelve-month period
shall not exceed 15% of the value of the Borrower's average Consolidated
Tangible Net Assets for the twelve-month period ending with the quarter
immediately preceding the date of determination, as evidenced by a
certificate duly executed by the chief financial officer of the selling
entity on the date of such sale or disposition, and provided further that
such assets do not constitute Securities of the Intercompany Creditor or
Intercompany Debt, or (ii) such sale is required in connection with the
termination of a Service Agreement or a change in control under the Amended
Securities Purchase Agreement, dated as of January 1, 1995, with respect to
NAMM, and, in each case, the Net Cash Proceeds of such sale are delivered
directly to the Agent to be applied in accordance with Section 2.09(d).
(i) Transactions with Affiliates. Lend or advance money to, contract
with or engage in any other transactions with, or permit any Subsidiary of
the Borrower to lend or advance money to, contract with or engage in any
other transactions with, Subsidiaries or Affiliates of the Borrower, except
in the ordinary course of their business with third parties or on terms and
for consideration which is no less favorable to the Borrower and its
Subsidiaries than the terms and consideration which the Borrower or such
Subsidiaries would be obligated to pay in an arms' length transaction,
subject, however, to the limitation that the Borrower and its Subsidiaries
shall not loan more than $100,000 times the number of Facilities operated
by the Borrower and its Subsidiaries to employees at
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any one time outstanding; provided, however, that nothing in this Section
6.02(i) shall prohibit the Borrower and its Subsidiaries from engaging in
transactions with joint ventures in which the Borrower or any of its
Subsidiaries is a joint venture partner to the extent permitted by Section
6.02(f)(iv) or (v).
(j) Prepayments of Debt. Prepay, redeem, defease (whether actually or
in substance) or purchase in any manner (or deposit or set aside funds or
securities for the purpose of the foregoing), or make any payment (other
than for scheduled payments of principal and interest due on the date of
payment thereof, if such payment is permitted to be made pursuant to the
terms of the documents evidencing or governing the applicable Debt) in
respect of, or establish any sinking fund, reserve or like set-aside of
funds or other property for the redemption, retirement or repayment of, any
Debt, or transfer any property in payment of or as security for the payment
of, or violate the subordination terms of, any Debt, or amend, modify or
change in any manner less favorable to Borrower or any of its Subsidiaries
or the Banks the terms of any Debt or any instrument, indenture or other
document evidencing, governing or affecting the terms of any Debt, or cause
or permit any of its Subsidiaries to do any of the foregoing; provided,
however, that nothing in this Section 6.02(j) shall prohibit (i) any
payments of the Debt hereunder in accordance with the terms of Section
2.09, (ii) the conversion of convertible Subordinated Debt of the Borrower
into Securities of the Borrower, (iii) the prepayment in any fiscal year of
the Borrower of up to $30,000,000 in principal amount of Senior Debt of the
Borrower or any of its Subsidiaries if the effective yield payable in
respect of such Senior Debt is greater than the interest payable hereunder
in respect of Base Rate Advances or Eurodollar Rate Advances, whichever is
lower, (iv) the prepayment of the existing operating capital notes payable
to the various physicians listed on Schedule V in the aggregate principal
amount specified therein, (v) setoff of any convertible Subordinated Debt
against the purchase price to be paid by the holder of such Debt in
connection with the repurchase by such holder of any Facility pursuant to
the Asset Purchase Agreement relating to such Facility, or (vi) payment of
any Deferred Acquisition Consideration in connection with any acquisition
of Facilities (or the assets thereof), any Existing Clinic Acquisition or
any acquisition of a Related Business to the extent such acquisition
satisfies the requirements of Section 6.02(f)(i) or (ii), as the case may
be.
(k) Accounting Changes. Change its fiscal year, or make, or permit any
of its Subsidiaries to make, any other significant change in Consolidated
accounting treatment and reporting practices except as required or
permitted by generally accepted accounting principles.
(l) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business as
conducted as of the date hereof.
(m) Securities. Except as is provided in Section 6.02(g), permit any
of its Subsidiaries to issue or sell any of its Securities or any rights,
warrants or options to
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acquire any of its Securities, or permit any of its Subsidiaries to sell or
otherwise dispose of any Securities of any of its Subsidiaries, or permit
any of its Subsidiaries to amend its charter, bylaws or other constituent
instruments so as to affect the conversion rights, payments, privileges or
other terms in respect of such Securities or in any respect that affects
any of the foregoing interests of its respective securityholders.
(n) Welfare Plan Liabilities. Create or suffer to exist, or permit any
of its Subsidiaries to create or suffer to exist, any liability with
respect to Welfare Plans if, immediately after giving effect to such
liability, the aggregate annualized cost (including, without limitation,
the cost of insurance premiums) with respect to Welfare Plans and other
benefit plans and insurance of the type described in the definition of
"Welfare Plans" contained in Section 1.01 for which the Borrower and its
Subsidiaries are or may become liable in any fiscal year of the Borrower
could have a material adverse effect on the business, property, prospects,
condition (financial or otherwise) or results of operations of the Borrower
and its Subsidiaries, taken as a whole.
(o) Recruitment Subsidies. Create, incur, assume or suffer to exist,
or permit any of its Subsidiaries to create, incur, assume or suffer to
exist, any Contingent Obligation to make recruitment subsidy advances (but
excluding any advances made for the purpose of supplementing the income of
new physicians during the first two years of any new physician joining any
physician group that has entered into a Service Agreement with the Borrower
or any of its Subsidiaries) pursuant to any Service Agreement in excess of
(i) $750,000 by the Borrower or any of its Subsidiaries pursuant to any
individual Service Agreement during any fiscal year of the Borrower, and
(ii) an aggregate of $10,000,000 by the Borrower and all of its
Subsidiaries pursuant to all Service Agreements during any fiscal year of
the Borrower; provided that the Borrower shall not create, incur, assume or
suffer to exist, or permit any of its Subsidiaries to create, incur, assume
or suffer to exist, any obligation to make advances for the purpose of
subsidizing any new physician at any time other than during the first two
years of such new physician joining any physician group that has entered
into a Service Agreement with the Borrower or any of its Subsidiaries, and
such recruitment subsidy advances by the Borrower and its Subsidiaries
shall not exceed an aggregate of $10,000,000 for any fiscal year.
(p) Intercompany Debt; Intercompany Creditor. Create, incur, or suffer
to exist, or permit any of its Subsidiaries to create, incur, or suffer to
exist, any Intercompany Debt which is not evidenced by notes or similar
instruments pledged by the Borrower or the Intercompany Creditor to the
Agent for the ratable benefit of the Banks pursuant to the terms of the
Pledge Agreement; or permit the Intercompany Creditor to engage in any
business or operations except the receipt and advancing of Intercompany
Debt and the holding of Intercompany Debt or Securities of other
Subsidiaries of the Borrower.
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SECTION 6.03. Financial Covenants. So long as any Note shall remain unpaid,
any Letter of Credit shall remain outstanding, any amount shall remain due
hereunder, or any Banks shall have any Commitment hereunder, the Borrower will
not, without the written consent of the Majority Banks:
(a) Consolidated Net Worth. Permit at any date of determination the
Consolidated Net Worth of the Borrower and its Subsidiaries to be less than
$330,000,000, plus (i) 100% of the net proceeds received from the issuance,
sale or disposition of the Borrower's Securities (common, preferred or
special), securities converted into or exchanged for Securities, and any
rights, options, warrants and similar instruments from March 31, 1996 to
such date of determination and (ii) 50% of positive Consolidated Net Income
(if any) earned from March 31, 1996 through such date of determination.
(b) Fixed Charge Coverage Ratio. Permit, for the four consecutive
fiscal quarters ending September 30, 1996 and for each period of four
consecutive fiscal quarters ending thereafter, the Consolidated Fixed
Charge Coverage Ratio of the Borrower and its Subsidiaries, calculated at
the end of each fiscal quarter of the Borrower, to be less than 1.25 to
1.00.
(c) Interest Coverage Ratio. Permit, for the four consecutive fiscal
quarters ending September 30, 1996 and for each period of four consecutive
fiscal quarters ending thereafter, the Consolidated Interest Coverage Ratio
of the Borrower and its Subsidiaries, calculated at the end of each fiscal
quarter of the Borrower, to be less than 2.00 to 1.00.
(d) Consolidated Debt/Total Capitalization Ratio. Permit, at any time,
the Consolidated Debt/Total Capitalization Ratio of the Borrower and its
Subsidiaries to be greater than 50%.
(e) Consolidated Debt/EBITDA Ratio. Permit, for each period of four
consecutive fiscal quarters ending September 30, 1996 and for each period
of four consecutive fiscal quarters ending thereafter, the Consolidated
Debt/EBITDA Ratio of the Borrower and its Subsidiaries to be greater than
3.75 to 1.00.
For the purposes of subsections (b), (c) and (e) above and the calculation of
any Applicable Eurodollar Rate Margin and the Applicable Facility Fee Rates, if,
as of any date, a determination of EBITDA, EBITDAL, Lease Expense, Capital
Expenditures or any other component of the ratios referred to in such
subsections (the "Ratio Components") is required to be made as to any period
prior to the date of such determination (a "Determination Period"), such
determination shall be made so as to give effect to the following:
(i) if any Person, Facility or Related Business (an "Acquired
Business") shall have been acquired in compliance with this Agreement since
the beginning of such Determination Period and must be Consolidated with
the Borrower and its Subsidiaries in
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accordance with GAAP, the Ratio Components of such Acquired Business from
the beginning of the Determination Period to the date of acquisition shall
be included on a pro forma basis with the same effect as if such Acquired
Business had been a Consolidated Subsidiary of the Borrower for such
portion of the Determination Period, subject to the following:
(A) for any date of determination occurring on or before the
completion of one full fiscal quarter after the date of acquisition of
such Acquired Business, pro forma adjustments may be made to reflect
(1) specifically identified changes in physician compensation,
complements of physicians, malpractice insurance costs and other group
purchase arrangements, all of which shall be consistent with the terms
and conditions of any Service Agreement entered into in connection
with such acquisition and (2) other planned cost savings which will be
realized by such Acquired Business as a consequence of such
acquisition to the extent demonstrated by the Borrower to the
satisfaction of the Majority Banks; and
(B) For any date of determination occurring after the completion
of one full fiscal quarter after the date of such acquisition, the
actual Ratio Components for the period through the end of the then
most recently ended fiscal quarter shall be annualized for the
Determination Period; and
(ii) if any Person, Facility or Related Business (a "Disposed
Business") which shall have been Consolidated with the Borrower and its
Subsidiaries shall have been discontinued, lost, sold or otherwise disposed
of as of the date of determination, the Ratio Components of such Disposed
Business shall be excluded for the Determination Period.
SECTION 6.04. Reporting Requirements. So long as any Note shall remain
unpaid, any Letter of Credit shall remain outstanding, or amount shall remain
due hereunder or any Bank shall have any Commitment hereunder, the Borrower will
furnish to the Agent, for distribution to the Banks, in sufficient copies for
each Bank, the following:
(a) as soon as available and in any event within 30 days after the end
of each month, Consolidated balance sheets of the Borrower and its
Subsidiaries as of the end of such month and Consolidated statements of
operations and cash flow position of the Borrower and its Subsidiaries for
such month and for the period commencing at the end of the previous fiscal
year and ending with the end of such month, together with a certificate of
the chief financial officer of the Borrower stating that no Event of
Default has occurred and is continuing or, if an Event of Default has
occurred and is continuing, a statement as to the nature thereof and the
action that the Borrower has taken or proposes to take with respect
thereto;
(b) as soon as available and in any event within 45 days after the end
of each fiscal quarter, Consolidated balance sheets of the Borrower and its
Subsidiaries as of the
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end of such fiscal quarter and Consolidated statements of operations and
cash flow of the Borrower and its Subsidiaries for the period commencing at
the end of the previous fiscal year and ending with the end of such fiscal
quarter, certified by the chief financial officer of the Borrower, together
with (i) a certificate of said officer stating that no Event of Default has
occurred and is continuing or, if an Event of Default has occurred and is
continuing, a statement as to the nature thereof and the action that the
Borrower has taken or proposes to take with respect thereto, (ii) a
schedule in form satisfactory to the Agent of the computations used by the
Borrower in determining compliance with the covenants contained in Section
6.03 and in sufficient detail for determining the Applicable Facility Fee
Rates and the Applicable Eurodollar Rate Margins in accordance with the
definitions of such terms set forth in Section 1.01, and (iii) a
certificate of said officer or of the general counsel of the Borrower
regarding additions to and deletions from Schedule II reflecting changes
occurring during such fiscal quarter;
(c) as soon as available and in any event within 120 days after the
end of each fiscal year, a copy of the annual audit report for such year
for the Borrower, including therein an audited Consolidated balance sheet
of the Borrower and its Subsidiaries as of the end of such fiscal year and
audited Consolidated statements of operations, stockholders' equity and
cash flow of the Borrower and its Subsidiaries for such fiscal year (i)
certified by a nationally recognized public accounting firm, together with
a certificate of such accounting firm stating that in the course of the
regular audit of the business of the Borrower, which audit was conducted in
accordance with generally accepted auditing standards, such accounting firm
has obtained no knowledge that an Event of Default has occurred and is
continuing, or, if in the opinion of such accounting firm, an Event of
Default has occurred and is continuing, a statement as to the nature
thereof, and (ii) accompanied by a copy of the management letter from such
accounting firm accompanying such financial statements;
(d) as soon as available and in any event not later than the
distribution date for the Borrower's annual reports for each fiscal year,
the Borrower's budget of cash flow, income and balance sheet data for the
then current fiscal year of the Borrower and its Subsidiaries;
(e) as soon as possible and in any event within two days after the
occurrence of an Event of Default of which the Borrower or any Subsidiary
has knowledge, a statement of the chief financial officer of the Borrower
setting forth details of such Event of Default and the action which the
Borrower has taken and proposes to take with respect thereto;
(f) promptly after any change in accounting policies or reporting
practices that could have a material adverse effect on the condition
(financial or otherwise), operations, business, assets or prospects of the
Borrower or of any of its Subsidiaries or
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on the rights of the Banks under any of the Loan Documents, notice and a
description in reasonable detail of such change;
(g) promptly after any change in the certificate of incorporation of
the Borrower or any of its Subsidiaries, notice and a copy of such change;
and promptly after any change in the by-laws of the Borrower or any of its
Subsidiaries, notice and a copy of such change;
(h) promptly and in any event within ten days after the Borrower or
any ERISA Affiliate knows or has reason to know that any ERISA Event has
occurred, a statement of the chief financial officer of the Borrower
describing such ERISA Event and the action, if any, that the Borrower or
such ERISA Affiliate has taken or proposes to take with respect thereto;
(i) promptly and in any event within two Business Days after receipt
thereof by the Borrower or any ERISA Affiliate (i) copies of each notice
from the PBGC stating its intention to terminate any Plan or to have a
trustee appointed to administer any Plan and (ii) copies of each material
notice received from the United States Department of Labor in connection
with any ERISA requirements;
(j) promptly and in any event within 30 days after the filing thereof
with the Internal Revenue Service, copies of each Schedule B (Actuarial
Information) to each annual report (Form 5500 Series) with respect to each
Plan, if applicable;
(k) promptly and in any event within five Business Days after receipt
thereof by the Borrower or any ERISA Affiliate from the sponsor of a
Multiemployer Plan, a copy of each notice received by the Borrower or any
ERISA Affiliate concerning (i) the imposition of Withdrawal Liability by a
Multiemployer Plan, (ii) the determination that a Multiemployer Plan is, or
is expected to be, in reorganization within the meaning of Title IV of
ERISA, (iii) the termination of a Multiemployer Plan within the meaning of
Title IV of ERISA or (iv) the amount of liability incurred, or expected to
be incurred, by the Borrower or any ERISA Affiliate in connection with any
event described in clause (i), (ii) or (iii) above;
(l) promptly and in any event within ten days after the commencement
thereof, notice of all actions, suits and proceedings before any court or
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting the Borrower or any of its
Subsidiaries, of the type described in Section 5.01(h);
(m) promptly and in any event within ten days after the sending or
filing in final form thereof, copies of all proxy statements and financial
statements that the Borrower or any of its Subsidiaries sends to its
securityholders generally, and copies of all registration statements (other
than those relating to employee stock plans), without exhibits, all
periodic reports on Forms 10-K and 10-Q and reports on Form 8-K that the
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Borrower or any of its Subsidiaries files with the Securities and Exchange
Commission or any governmental authority that may substituted therefor, or
any national securities exchange or with the National Association of
Securities Dealers;
(n) promptly after the occurrence thereof, notice of (A) any event of
which Borrower or any Subsidiary is aware which makes any of the
representations obtained in Section 5.01 inaccurate in any respect or (B)
the receipt by the Borrower or any Subsidiary of any notice, order,
directive or other communication from a governmental authority alleging
violations of or noncompliance with any Environmental Law; and
(o) such other information respecting the condition or operations,
financial or otherwise, of the Borrower or any of its Subsidiaries as any
Bank through the Agent may from time to time reasonably request.
Notwithstanding the foregoing, upon the occurrence and during the continuance of
an Event of or a Default, the Borrower will, and will cause its Subsidiaries to,
provide to the Agent for each Bank additional information and any and all of the
above information more frequently to the extent reasonably requested by the
Agent or any Bank.
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. Events of Default. If any of the following events (each an
"Event of Default") shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of or any interest on
any Advance or Note, any reimbursement obligation under any Letter of
Credit, or any fees or other amounts payable under any Loan Document, in
each case when the same becomes due and payable; or
(b) any representation or warranty made or deemed by any Loan Party
(or any of its officers) in any Loan Document or certificate or other
writing delivered pursuant thereto shall prove to have been incorrect in
any material respect when made or deemed made; or
(c) (i) any Loan Party shall fail to perform or observe any term,
covenant or agreement contained in Section 6.01 or Section 6.02 or Section
6.03; or (ii) any Loan Party shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement or in any other
Loan Document on its part to be performed or observed if such failure shall
remain unremedied for ten days after written notice thereof shall have been
given to such Loan Party by the Agent or any Bank; or
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(d) any Loan Party or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt which is outstanding in a
principal amount of at least $5,000,000 in the aggregate (but excluding
Debt evidenced by the Notes or under Letters of Credit) of such Loan Party
or such Subsidiary (as the case may be), when the same becomes due and
payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the applicable
grace period, if any, specified in the agreement or instrument relating to
such Debt; or any other event shall occur or condition shall exist under
any agreement or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or
to permit the acceleration of, the maturity of such Debt; or any such Debt
shall be declared to be due and payable, or required to be prepaid (other
than by a regularly scheduled required prepayment), redeemed, purchased or
defeased, or any offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the stated maturity
thereof; or
(e) any Loan Party or any of its Subsidiaries shall generally not pay
its debts as such debts become due, or shall admit in writing its inability
to pay its debts generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by or against
any Loan Party or any of its Subsidiaries seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its
debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official for
it or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of 30 days, or
any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment of
a receiver, trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or any Loan Party or any of
its Subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this subsection (e); or
(f) any proceeding shall be instituted against any Loan Party or any
of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under any law relating
to bankruptcy, insolvency or reorganization or relief or protection of
debtors or seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for it or for any
substantial part of its property, and either such proceeding shall remain
undismissed or unstayed for a period of 30 days or any of the actions
sought in such proceeding (including, without limitation, the entry of an
order for relief against it or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part of
its property) shall occur; or
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(g) any judgment or order for the payment of money in excess of
$5,000,000 which is not covered by insurance shall be rendered against any
Loan Party or any of its Subsidiaries and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of 10 consecutive days during which
a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
(h) any non-monetary judgment or order shall be rendered against the
Borrower or any of its Subsidiaries that is materially adverse to the
business, property, prospects, condition (financial or otherwise) or
results of operations of the Borrower and its Subsidiaries, taken as a
whole, and either (i) enforcement proceedings shall have been commenced by
any Person upon such judgment or order or (ii) there shall be any period of
ten consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
or
(i) any Loan Document after delivery thereof pursuant to Article IV of
the Existing Credit Agreement or Article IV hereof or otherwise shall, for
any reason cease to be valid and binding on the respective Loan Party or
Loan Parties thereto (other than, in the case of Loan Documents delivered
in connection with Article IV of the Existing Credit Agreement, because of
the effect of the Fifth Amendment and Restatement); or a Loan Party shall
so state in writing or shall contest the validity or enforceability of any
material term or provision of any Loan Document; or
(j) any Collateral Document after delivery thereof pursuant to Article
IV of the Existing Agreement or Article IV hereof or otherwise shall, for
any reason (other than pursuant to the terms thereof) cease to create a
valid and perfected security interest in any material portion of the
Collateral purported to be covered thereby; or
(k) any one or more Service Agreements shall be terminated during any
period of four consecutive fiscal quarters that represent, in the
aggregate, 5% of the Consolidated EBITDA of the Borrower and its
Subsidiaries for such period, measured as of the end of any fiscal quarter
ending after the date of any such termination, provided that it shall not
be an Event of Default hereunder if the Service Agreement for the Facility
owned by PhyCor Ruston is terminated without cause; or
(l) any ERISA Event with respect to a Plan shall have occurred and, 30
days after notice thereof shall have been given to the Borrower by the
Agent, (i) such ERISA Event shall still exist and (ii) the sum (determined
as of the date of occurrence of such ERISA Event) of the Insufficiency of
such Plan and the Insufficiency of any and all other Plans with respect to
which an ERISA Event shall have occurred and then exist (or in the case of
a Plan with respect to which an ERISA Event described in clauses (iii)
through (vi) of the definition of ERISA Event shall have occurred and then
exist, the liability related thereto) is equal to or greater than
$5,000,000 for any fiscal year; or
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(m) the Borrower or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated
with all other amounts required to be paid to Multiemployer Plans by the
Borrower and its ERISA Affiliates as Withdrawal Liability (determined as of
the date of such notification), exceeds $5,000,000 for any fiscal year; or
(n) the Borrower or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA, if as a result of such reorganization or termination the aggregate
annual contributions of the Borrower and its ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated
have been or will be increased over the amounts contributed to such
Multiemployer Plans for the respective plan year of each such Multiemployer
Plan immediately preceding the plan year in which the reorganization on
termination occurs by an amount exceeding $5,000,000; or
(o) there shall occur any Change of Control; or
(p) any three of Messrs. Joseph C. Hutts, Thompson S. Dent, Derril W.
Reeves or Richard D. Wright shall, within any six-month period, cease to be
employed full time as officers of the Borrower other than by reason of the
death or incapacity of any such person; or
(q) since December 31, 1995 there has been, in the reasonable judgment
of the Agent or the Majority Banks, any material adverse change in the
Consolidated condition, financial or otherwise, operations, properties or
prospects of the Borrower and its Subsidiaries; or
(r) any default under any interest rate protection, hedge, cap,
collar, swap or similar agreement between the Borrower or any of its
Subsidiaries and any Financial institution, and such default shall continue
after any applicable grace period specified in such agreement;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Majority Banks, by notice to the Borrower, declare the
obligation of each Bank to make Advances and the obligations of the Issuing Bank
to Issue Letters of Credit to be terminated, whereupon the same shall forthwith
terminate, (ii) shall at the request, or may with the consent, of the Majority
Banks, by notice to the Borrower, declare the Notes, all interest thereon and
all other amounts payable under this Agreement to be forthwith due and payable,
whereupon the Notes, all such interest and all such amounts shall become and be
forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower,
(iii) shall at the request, or may with the consent, of the Majority Banks
demand that the Borrower, and if such demand is made the Borrower shall, pay
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to the Agent for the benefit of the Issuing Banks, an amount in immediately
available funds equal to the then outstanding Letter of Credit Liability which
shall be held by the Agent (or the Issuing Banks) as cash collateral in a cash
collateral account under the exclusive control and dominion of the Agent (or
Issuing Banks) and applied to the reduction of such Letter of Credit Liability
as drawings are made on outstanding Letters of Credit, (iv) shall at the
request, or may with the consent, of the Majority Banks exercise any and all
remedies with respect to the Collateral as set forth in the Collateral Documents
or as provided by law, and (v) shall at the request, or may with the consent, of
the Majority Banks exercise any other remedies provided hereunder or by law;
provided, however, that in the event of an actual or deemed entry of an order
for relief with respect to the Borrower or any of its Subsidiaries under the
Federal Bankruptcy Code, (A) the obligation of each Bank to make Advances and of
the Issuing Banks to Issue Letters of Credit shall automatically be terminated
and (B) the Notes, all such interest and all such amounts (including the amounts
referred to in clause (iii) above) shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by the Borrower.
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action. Each Bank and each Issuing Bank
hereby appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to the
Agent by the terms hereof, together with such powers as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Majority Banks, and such instructions shall be binding upon all Banks and
all holders of Notes; provided, however, that the Agent shall not be required to
take any action which exposes the Agent to personal liability or which is
contrary to any Loan Document or applicable law. The Agent agrees to give to
each Bank prompt notice of each notice given to it by the Borrower pursuant to
the terms of this Agreement.
SECTION 8.02. Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this Agreement,
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Agent: (i) may treat the
payee of any Note as the holder thereof, and treat the Bank that purchased or
funded a participation with respect to a Letter of Credit as the holder or owner
of the Debt resulting therefrom, until the Agent receives written notice of the
assignment or transfer thereof signed by such payee and including the agreement
of the assignee or transferee to be bound hereby as it would have been if it had
been an original Bank party hereto, in form satisfactory to the Agent; (ii) may
consult with legal counsel (including counsel for the Borrower), independent
public
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accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Bank and shall not be responsible to any Bank for any
statements, warranties or representations (whether written or oral) made in or
in connection with any Loan Document; (iv) shall not have any duty to ascertain
or to inquire as to the performance or observance of any of the terms, covenants
or conditions of any Loan Document on the part of the Borrower or any Subsidiary
of the Borrower or to inspect the property (including the books and records) of
the Borrower or any such Subsidiary; (v) shall not be responsible to any Bank
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of any Loan Document or any Collateral purported to be
covered thereby or any other instrument or document furnished pursuant thereto;
and (vi) shall incur no liability under or in respect of any Loan Document by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by telecopier, telegram, cable facsimile or telex) believed by it
to be genuine and signed or sent by the proper party or parties.
SECTION 8.03. Citibank and Affiliates. With respect to its Commitment, the
Advances made by it, the Notes issued to it and the participations in Letters of
Credit purchased by it, Citibank shall have the same rights and powers under
this Agreement as any other Bank and may exercise the same as though it were not
the Agent; and the term "Bank" or "Banks" shall, unless otherwise expressly
indicated, include Citibank in its individual capacity. Citibank and its
Affiliates may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with, the Borrower,
any of its Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if Citibank were not
the Agent and without any duty to account therefor to the Banks.
SECTION 8.04. Bank Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent, the Issuing Bank or any other
Bank and based on the financial statements referred to in Section 5.01(e) and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Bank also acknowledges that it will, independently and without
reliance upon the Agent, any Issuing Bank or any other Bank and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
SECTION 8.05. Indemnification. The Banks agree to indemnify the Agent and
each Issuing Bank (in each case, to the extent not reimbursed by the Borrower),
ratably according to the respective principal amounts of the Committed Rate A
Advances then held by each of them (or if no Committed Rate A Advances are at
the time outstanding ratably according to the respective amounts of their A
Commitments), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against the Agent or any Issuing Bank, as the case may be, in any way
relating to or
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arising out of this Agreement or any other Loan Document or any Letter of
Credit or any action taken or omitted by the Agent or such Issuing Bank, as the
case may be, under this Agreement or any other Loan Document or any Letter of
Credit, provided that no Bank shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Agent's or any
Issuing Bank's, as the case may be, gross negligence or willful misconduct.
Without limitation of the foregoing, each Bank agrees to reimburse the Agent
and each Issuing Bank promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the Agent or such
Issuing Bank, as the case may be, in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement or any
Letter of Credit, to the extent that the Agent or such Issuing Bank, as the
case may be, is not reimbursed for such expenses by the Borrower.
SECTION 8.06. Successor Agent/Issuing Bank. The Agent may resign at any
time by giving written notice thereof to the Banks and the Borrower and the
Agent and/or any Issuing Bank may be removed at any time with or without cause
by the Majority Banks. Upon any such resignation or removal, in the case of the
Agent, or removal, in the case of any Issuing Bank, the Majority Banks shall
have the right, subject to the approval of the Borrower (which shall not be
unreasonably withheld), to appoint a successor Agent or a successor Issuing
Bank, as the case may be. If no successor Agent or successor Issuing Bank, as
the case may be, shall have been so appointed by the Majority Banks, and shall
have accepted such appointment, within 30 days after the retiring Agent's giving
of notice of resignation or the Majority Banks' removal of the retiring Agent or
the retiring Issuing Bank, then the retiring Agent or the retiring Issuing Bank,
as the case may be, may, on behalf of the Banks, appoint a successor Agent or a
successor Issuing Bank, as the case may be, which shall be a commercial bank
organized under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $100,000,000. Upon the
acceptance of any appointment as Agent or as an Issuing Bank hereunder by a
successor Agent or a successor Issuing Bank, respectively, such successor Agent
or Issuing Bank shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent or the retiring
Issuing Bank, as the case may be, and the retiring Agent or the retiring Issuing
Bank, as the case may be, shall be discharged from its duties and obligations
under this Agreement and the other Loan Documents. After any retiring Agent's
resignation or removal hereunder as Agent, or any retiring Issuing Bank's
removal hereunder as an Issuing Bank, the provisions of this Article VIII shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent or an Issuing Bank, as the case may be, under this Agreement and
the other Loan Documents. Notwithstanding the foregoing, no Issuing Bank may be
removed unless prior to or contemporaneously with such removal it shall have
received an amount, in immediately available funds, equal to all outstanding
Letter of Credit Liability then outstanding and then owing to such Issuing Bank
and shall have been indemnified by the Borrower, the Banks and such successor
Issuing Bank, to the Issuing Bank's satisfaction, against all such Letter of
Credit Liability. The fees referred to in Section 3.05(b) shall continue to
inure to such Issuing Bank's benefit, with respect to each Letter of Credit
Issued
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by it, until such time as all Letter of Credit Liability in respect of such
Letter of Credit has been discharged in full.
SECTION 8.07. The Documentation Agent. The Documentation Agent, as such,
shall have no duties or obligations whatsoever with respect to this Agreement,
the Notes or any of the other Loan Documents.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the Notes or the Loan Documents (including the release of
Collateral), nor consent to any departure by the Borrower therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Majority Banks (or consented to in writing in the case of the Loan Documents),
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed by all the
Banks, do any of following: (a) waive any of the conditions specified in Article
IV, (b) increase the A Commitments or the B Commitments of the Banks or subject
the Banks to any additional monetary obligations, (c) reduce the principal of,
or interest on, the Committed Rate A Advances, the Committed Rate B Advances or
the Committed Rate Notes or any fees or other amounts payable hereunder, (d)
postpone the date fixed for the scheduled payment of principal of, or interest
on, the Committed Rate A Advances, the Committed Rate B Advances or the
Committed Rate Notes or any fees or other amounts payable hereunder or waive any
such payment when due, (e) change the percentage of the A Commitments, the B
Commitments or of the aggregate unpaid principal amount of the Committed Rate A
Advances, the Committed Rate B Advances or the Committed Rate Notes, or the
number or percentage of Banks, which shall be required for the Banks or any of
them to take any action hereunder, (f) amend this Section 9.01 or (g) release
any Collateral except in connection with any sale of assets permitted hereunder;
provided, further, that no amendment, waiver or consent shall, in writing and
signed by the Agent in addition to the Banks required above to take such action,
affect the rights or duties of the Agent under this Agreement or any Note; and
provided, further, that no amendment, waiver or consent shall, unless in writing
and signed by any Issuing Bank in addition to the Banks required above to take
such action, affect the rights or duties of such Issuing Bank under this
Agreement; and provided also that no amendment, waiver or consent, unless in
writing and signed by the Designated Bidder holding such Note, affect the rights
of the holder of a Competitive Bid Note under such Note.
SECTION 9.02. Notices, Etc. All notices and other communications provided
for hereunder shall be in writing (including telecopier, telegraphic, telex or
cable communication) and mailed (by certified mail, return receipt requested),
telecopied, telegraphed, telexed, cabled or delivered, if to the Borrower, at
its address at 30 Burton Hills Blvd., Suite 500, Nashville, TN 37215, Attention:
Mr. Joseph Hutts/President; if to any Bank, at its Domestic Lending Office
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specified opposite its name on Schedule I hereto; if to the Agent, at its
address at 399 Park Avenue, New York, New York 10043, Attention: Ms. Barbara
Cohen; and if to any Issuing Bank, at its address specified opposite its name on
Schedule I hereto; with a copy, in the cases of notices to the Agent or the
Issuing Bank, to Ms. Margaret A. Brown, 399 Park Avenue, 8th Floor, Zone 11, New
York, New York 10043; or, as to each Person, at such other address as shall be
designated by such party in a written notice to the other parties. All such
notices and communications shall, when mailed (by certified mail, return receipt
requested), telecopied, telegraphed, telexed, cabled, or faxed be effective when
deposited in the mails, telecopied, delivered to the telegraph company,
confirmed by telex answerback, delivered to the cable company or confirmed
received in the case of a telecopy or facsimile, respectively, except that
notices and communications to the Agent pursuant to Article II or VIII or to any
Issuing Bank pursuant to Article III or VIII shall not be effective until
received by the Agent or such Issuing Bank, as the case may be.
SECTION 9.03. No Waiver: Remedies. No failure on the part of any Bank, any
Issuing Bank or the Agent to exercise, and no delay in exercising, any right
under any Loan Document shall operate as a waiver thereof; nor shall any single
or partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs. Expenses and Taxes.
(a) The Borrower agrees to pay the Agent and each Issuing Bank on demand
all reasonable costs and expenses of the Agent and such Issuing Bank in
connection with the preparation, negotiation, approval, execution, delivery,
filing, recording, administration, modification and amendment of the Loan
Documents (including, without limitation, the Fifth Amendment and Restatement
Loan Documents) and the other documents to be delivered under the Loan Documents
(including, without limitation, the Fifth Amendment and Restatement Loan
Documents), including, without limitation, the reasonable fees and out-of-pocket
expenses of special and local counsel for the Agent and such Issuing Bank with
respect thereto and with respect to advising the Agent and such Issuing Bank as
to its rights and responsibilities under the Loan Documents (including, without
limitation, the Fifth Amendment and Restatement Loan Documents) and the other
documents to be delivered hereunder and thereunder. The Borrower further agrees
to pay on demand (i) all costs and expenses, if any, of the Agent, each Issuing
Bank or any Bank in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of the Loan Documents (including,
without limitation, the Fifth Amendment and Restatement Loan Documents) and the
other documents to be delivered under the Loan Documents (including, without
limitation, the Fifth Amendment and Restatement Loan Documents), including,
without limitation, reasonable counsel fees and expenses in connection with the
enforcement of rights under this Section 9.04(a), and (ii) all costs and
expenses in connection with appraisals, valuations, audits and search reports,
all insurance and title costs, and all filing and recording fees required hereby
or associated with any enforcement of rights or remedies specified in clause
(i).
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(b) If any payment of principal of, or Conversion of, any Eurodollar Rate
Advance or LIBOR Advance is made other than on the last day of an Interest
Period relating to such Advance, as a result of a payment (including, without
limitation, any payment pursuant to Section 2.09) or Conversion pursuant to
Section 2.08 or 2.11 or acceleration of the maturity of the Notes pursuant to
Section 7.01 or for any other reason, the Borrower shall, upon demand by any
Bank (with a copy of such demand to the Agent), pay to the Agent for the account
of such Bank any amounts required to compensate such Bank for any additional
losses (including loss of anticipated profits), costs or expenses which it may
reasonably incur as a result of such payment or Conversion, including, without
limitation, any loss, cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Bank to fund or
maintain such Advance.
SECTION 9.05. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 7.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 7.01 or
to demand payment of (or cash collateralization of) all then outstanding Letter
of Credit Liability, each Bank is hereby authorized at any time and from time to
time, 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) at any time
held and other indebtedness at any time owing by such Bank to or for the credit
or the account of the Borrower against any and all of the obligations of the
Borrower now or hereafter existing under any Loan Document to such Bank
(including, to the fullest extent permitted by law, obligations indirectly owed
to such Bank by virtue of its purchase of a participation of the Letter of
Credit Liability pursuant to Section 3.04), whether or not such Bank shall have
made any demand under this Agreement or such Note and although such obligations
may be unmatured. Each Bank agrees promptly to notify the Borrower after any
such set-off and application made by such Bank, provided that the failure to
give such notice shall not affect the validity of such setoff and application.
The rights of each Bank under this Section 9.05 are in addition to other rights
and remedies (including, without limitation, other rights of set-off) which such
Bank may have.
SECTION 9.06. Indemnification. The Borrower agrees to defend, protect,
indemnify and hold harmless the Agent, each Bank and each Issuing Bank and their
respective Affiliates and the directors, officers, employees, attorneys and
agents of the Agent, each Bank, each Issuing Bank and such Affiliates (each of
the foregoing being an "Indemnitee" and all of the foregoing being collectively
the "Indemnitees") from and against any and all claims, actions, damages,
liabilities, costs and expenses (including, without limitation, all fees and
disbursements of counsel and environmental consultants which may be incurred in
the investigation or defense of any matter) imposed upon, incurred by or
asserted against any Indemnitee by any third party, whether direct, indirect or
consequential and whether based on any federal, state or foreign laws or other
statutes or regulations (including, without limitation, securities laws,
commercial laws and Environmental Laws and regulations), under common law or on
equitable cause, or on contract, tort or otherwise, including, without
limitation, those arising:
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(a) by reason of, relating to or in connection with the execution,
delivery, performance or enforcement of any Loan Document, any commitments
relating thereto, or any transaction contemplated by any Loan Document; or
(b) in connection with any investigation, litigation, proceeding or
other action relating to any Loan Document (whether or not any Indemnitee
is a party thereto); or
(c) by reason of, relating to or in connection with any credit
extended or used under the Loan Documents or any act done or omitted by any
Person, or any event occurring, in connection therewith, or the exercise of
any rights or remedies thereunder, including, without limitation, the
acquisition of any Collateral by the Agent, or any Environmental Activity
or Environmental Law; or
(d) arising out of, related to or in connection with any acquisition
or proposed acquisition (including, without limitation, by tender offer,
merger or other method) by the Borrower or any of its Subsidiaries or
Affiliates of any Facility (or the assets thereof) or any Related
Businesses or any Existing Clinic Acquisition, whether or not an Indemnitee
is a party thereto;
provided, however, that, notwithstanding the foregoing, the Borrower shall not
be liable to any Indemnitee for any portion of such claims, damages, liabilities
and expenses resulting from such Indemnitee's or such Indemnitee's Affiliate's,
director's, officer's, employee's, attorney's or agent's gross negligence or
willful misconduct. In the event this indemnity is unenforceable as a matter of
law as to a particular matter or consequence referred to herein, it shall be
enforceable to the full extent permitted by law.
This indemnification applies, without limitation, to any act, omission,
event or circumstance existing or occurring on or prior to the date of payment
in full of the Advances, including any Environmental Activity or Environmental
Law, regardless of whether the act, omission, event or circumstance constituted
a violation of any Environmental Law at the time of its existence or occurrence.
The indemnification provisions set forth above shall be in addition to any
liability the Borrower may otherwise have. Without prejudice to the survival of
any other obligation of the Borrower hereunder, the indemnities and obligations
of the Borrower contained in this Section 9.06 shall survive the payment in full
of the Advances.
SECTION 9.07. Binding Effect. This Agreement shall become effective when it
shall have been executed by the Borrower, the Agent and each Issuing Bank and
when the Agent shall have been notified by each Bank that such Bank has executed
it and thereafter shall be binding upon and inure to the benefit of the
Borrower, the Agent, each Issuing Bank and each Bank and their respective
successors and assigns, except that the Borrower shall not have the right to
assign its rights hereunder or any interest herein without the prior written
consent of the Banks.
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SECTION 9.08. Assignments and Participations.
(a) Each Bank may assign, with the prior consent of the Borrower, any
Issuing Bank and the Agent (which, in either case, shall not be unreasonably
withheld), to one or more banks, financial institutions or other entities all or
a portion of its rights and obligations as a Bank under this Agreement and the
other Loan Documents (including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Notes held by it in respect of the
Committed Rate Advances and reimbursement obligations of the Borrower in respect
of Letters of Credit); provided, however, that (i) each such assignment shall be
of a constant, and not a varying, percentage of all of the assigning Bank's
rights and obligations under the Loan Documents, (ii) the amount of the
Commitments, if any, of the assigning Bank being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $10,000,000, and
shall be an integral multiple of $1,000,000 in excess thereof, or the remaining
amount of such Bank's Commitments, (iii) each such assignment shall be to an
Eligible Assignee, and (iv) the parties to each such assignment shall execute
and deliver to the Agent, for its acceptance and recording in the Register (as
hereinafter defined), an Assignment and Acceptance, together with any Notes
subject to such assignment and a processing and recordation fee of $3,000;
provided, further, that each Bank may, without the consent of the Borrower or
the Agent, assign, as collateral or otherwise, any of its rights under this
Agreement and the other Loan Documents (including, without limitation, the right
to payment of principal and interest under the Notes) to any Federal Reserve
Bank, and such assignment of rights to the Federal Reserve Bank shall not be
subject to the conditions and restrictions set forth in items (i) through (v) of
the immediately foregoing proviso; and provided, further, that each Bank may,
without the consent of (but with prior written notice to) the Borrower or the
Agent, assign, in whole or in part, any of its rights and obligations under this
Agreement and the other Loan Documents to any of its Affiliates, and such
assignment to Affiliates shall not be subject to the conditions and restrictions
set forth in items (i) through (v) of the proviso above. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, (x) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations under the Loan Documents
have been assigned to it pursuant to such Assignment and Acceptance, have the
rights and obligations of a Bank hereunder and thereunder and (y) the Bank
assignor thereunder shall, to the extent that rights and obligations under the
Loan Documents have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Loan Documents (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Bank's rights and obligations under the
Loan Documents, such Bank shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the Bank
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with any Loan Document or
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the execution, legality, validity, enforceability, genuineness, sufficiency or
value of any Loan Document or any other instrument or document furnished
pursuant hereto or thereto; (ii) such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of any Loan Party or the performance or observance by any Loan Party of any of
its obligations under any Loan Document or any other instrument or document
furnished pursuant hereto or thereto; (iii) such assignee confirms that it has
received a copy of each of the Loan Documents, together with copies of the
financial statements referred to in Section 5.01(e) and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Agent, any Issuing Bank, such
assigning Bank or any other Bank and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement or any other Loan Document;
(v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement and the other Loan Documents as are
delegated to the Agent by the terms hereof and thereof, together with such
powers as are reasonably incidental thereto; and (vii) such assignee agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Loan Documents are required to be performed by it as a Bank.
(c) The Agent shall maintain at its address referred to in Section 9.02 a
copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Banks and the
Commitment and principal amount of the Advances owing to, each Bank from time to
time (the "Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the Agent and
the Banks may treat each Person whose name is recorded in the Register as a Bank
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Borrower or any Bank at any reasonable time and from time
to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Bank and an assignee representing that it is an Eligible Assignee,
together with any Notes subject to such assignment, the Agent shall, if such
Assignment and Acceptance has been completed and is in substantially the form of
Exhibit F, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register, and (iii) give prompt notice
thereof to the Borrower. Within five Business Days after its receipt of such
notice, the Borrower, at its own expense, shall execute and deliver to the Agent
in exchange for the surrendered Committed Rate Notes, new Committed Rate Notes
to the order of such Eligible Assignee in an aggregate principal amount equal to
the principal amount of Committed Rate Advances owed to it pursuant to such
Assignment and Acceptance and, if the assigning Bank has retained any principal
amount of Committed Rate Advances hereunder, new Committed Rate Notes to the
order of the assigning Bank in an aggregate principal amount equal to such
principal amount. Such new Committed Rate Notes shall be in an aggregate
principal amount equal to the aggregate principal
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amount of such surrendered Committed Rate Notes, shall be dated the effective
date of such Assignment and Acceptance, shall consist of Committed Rate Notes
payable to the order of such Eligible Assignee and, if the assigning Bank has
retained ownership of any Committed Rate Advances hereunder, the assigning Bank
in the appropriate principal amounts, and shall otherwise be in substantially
the forms required by this Agreement.
(e) Each Bank may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under the Loan
Documents (including, without limitation, all or a portion of its Commitments,
the Notes held by it and reimbursement obligations of the Borrower in respect of
Letters of Credit); provided, however, that (i) such Bank's obligations under
the Loan Documents (including, without limitation, its Commitments to the
Borrower hereunder) shall remain unchanged, (ii) such Bank shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Bank shall remain the holder of any such Notes for all purposes of
the Loan Documents, and (iv) the Borrower, the Agent, each Issuing Bank and the
other Banks shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under the Loan Documents;
provided, further, that, to the extent of any such participation (unless
otherwise stated therein and subject to the preceding proviso), the assignee or
purchaser of such participation shall, to the fullest extent permitted by law,
have the same rights and benefits hereunder as it would have if it were a Bank
hereunder; and provided, further, that each such participation shall be granted
pursuant to an agreement providing that the purchaser thereof shall not have the
right to consent or object to any action by the selling Bank (who shall retain
such right) other than an action which would (i) reduce principal of or interest
on any Advance or fees in which such purchaser has an interest, (ii) postpone
any date fixed for payment of principal of or interest on any such Advance or
such fees or (iii) release any material portion of the Collateral other than
pursuant to the terms hereof or any other Loan Document.
(f) The Borrower agrees that any Bank purchasing a participation from
another Bank pursuant to Section 2.14 or 9.08(e) may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Bank were the
direct creditor of the Borrower in the amount of such participation.
(g) Notwithstanding any other provision of this Section 9.08, each
Designated Bidder may assign to one or more Eligible Assignees any Competitive
Bid Note.
SECTION 9.09. Headings. Article and Section headings in this Agreement are
included for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose.
SECTION 9.10. Confidentiality. Neither the Agent nor any Bank shall
disclose to any third party any Confidential Information disclosed to the Agent
or such Bank pursuant to the Loan Documents, except that (i) the Agent or any
Bank may disclose Confidential Information to a third party to the extent
compelled by law, subpoena, civil investigative demand, interrogatory or similar
legal process or by any rule, regulation or request of any regulatory authority
having
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jurisdiction over the Agent or such Bank, as the case may be, (ii) the Agent or
any Bank may disclose Confidential Information to a potential transferee who is
an Eligible Assignee, provided that such potential transferee agrees to be bound
by the same confidentiality obligations as the Banks under this Section and
(iii) the Agent or any Bank may disclose Confidential Information to its
affiliates or its legal counsel or other agents provided that prior to any such
disclosure the Agent or such Bank, as the case may be, informs such affiliates,
counsel or agent of the confidential nature of such Confidential Information.
For purposes hereof, Confidential Information is written information disclosed
by the Borrower or any of its Subsidiaries to the Agent or any Bank pursuant
hereto that is not information which (x) has become generally available to the
public, other than as a result of disclosure by the Agent or such Bank, (y) was
available on a non-confidential basis prior to its disclosure to the Agent or
such Bank by the Borrower or any of its Subsidiaries, or (z) becomes available
to the Agent or such Bank on a non-confidential basis from a source other than
the Borrower or any of its Subsidiaries. The Agent and the Banks acknowledge
that the Confidential Information may from time to time include material
non-public information relating to the Borrower or its Subsidiaries.
SECTION 9.11. Severability of Provisions. Each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited or
unenforceable in any jurisdiction, such provision shall, as to such
jurisdiction, be ineffective only to the extent of such prohibition or
unenforceability without invalidating the remainder of such provision or the
remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
SECTION 9.12. Independence of Provisions. All agreements and covenants
hereunder and under the Loan Documents shall be given independent effect such
that if a particular action or condition is prohibited by the terms of any such
agreement or covenant, the fact that such action or condition would be permitted
within the limitations of another agreement or covenant shall not be construed
as allowing such action to be taken or condition to exist.
SECTION 9.13. Consent to Jurisdiction.
(a) The Borrower hereby irrevocably submits to the jurisdiction of any New
York State or Federal court sitting in New York City in any action or proceeding
arising out of or relating to this Agreement or any Loan Document, and the
Borrower hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such New York State or Federal court.
The Borrower hereby irrevocably waives, to the fullest extent it may effectively
do so, the defense of an inconvenient forum to the maintenance of such action or
proceeding. The Borrower hereby irrevocably appoints CT Corporation System (the
"Process Agent"), with an office on the date hereof at 1633 Broadway, New York,
New York 10019, United States, as its agent to receive on behalf of the Borrower
and its property service of copies of the summons and complaint and any other
process which may be served in any such action or proceeding. Such service may
be made by mailing or delivering a copy of such process to the
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Borrower in care of the Process Agent at the Process Agent's above address, and
the Borrower hereby irrevocably authorizes and directs the Process Agent to
accept such service on his behalf. As an alternative method of service, the
Borrower also irrevocably consents to the service of any and all process in any
such action or proceeding by the mailing of copies of such process to the
Borrower at its address specified in Section 9.02. The Borrower agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
(b) Nothing in this section shall affect the right of any Bank, any Issuing
Bank or the Agent to serve legal process in any other manner permitted by law or
affect the right of any Bank, any Issuing Bank or the Agent to bring any action
or proceeding against the Borrower or its property in the courts of any other
jurisdictions.
SECTION 9.14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO PRINCIPLES OF CONFLICT OF LAWS THAT WOULD RESULT IN THE APPLICATION
OF ANY OTHER LAW.
SECTION 9.15. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE AGENT, THE
ISSUING BANK AND THE BANKS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT' OF OR RELATING TO ANY OF
THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
SECTION 9.16. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
93
<PAGE> 112
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE BORROWER
PHYCOR, INC.
By________________________________________
Name:
Title:
THE AGENT
CITIBANK, N.A.,
as Agent
By________________________________________
Name:
Title:
THE DOCUMENTATION AGENT
NATIONSBANK, N.A.,
as Documentation Agent
By________________________________________
Name:
Title:
THE ISSUING BANK
CITIBANK, N.A.,
as Issuing Bank
By_______________________________________
Name:
Title:
94
<PAGE> 113
Commitment: THE BANKS
A Commitment: $23,333,333.33 CITIBANK, N.A.
B Commitment: $11,666,666.67
By________________________________________
Name:
Title:
A Commitment: $21,666,666.67 NATIONSBANK, N.A.
B Commitment: $10,833,333.33
By________________________________________
Name:
Title:
A Commitment: $16,666,666.67 FIRST AMERICAN NATIONAL BANK
B Commitment: $ 8,333,333.33
By________________________________________
Name:
Title:
A Commitment: $18,333,333.33 FIRST UNION NATIONAL BANK OF
B Commitment: $ 9,166,666.67 NORTH CAROLINA
By________________________________________
Name:
Title:
A Commitment: $16,666,666.67 PNC BANK, KENTUCKY, INC.
B Commitment: $ 8,333,333.33
By________________________________________
Name:
Title:
A Commitment: $16,666,666.67 MELLON BANK, N.A.
B Commitment: $ 8,333,333.33
By________________________________________
Name:
Title:
95
<PAGE> 114
A Commitment: $12,333,333.33 BANK OF NOVA SCOTIA
B Commitment: $ 6,166,666.67
By________________________________________
Name:
Title:
A Commitment: $12,333,333.33 CORESTATES BANK, N.A.
B Commitment: $ 6,166,666.67
By________________________________________
Name:
Title:
A Commitment: $12,333,333.33 CREDIT LYONNAIS NEW YORK BRANCH
B Commitment: $ 6,166,666.67
By________________________________________
Name:
Title:
A Commitment: $12,333,333.33 DEUTSCHE BANK AG, New York Branch and/or
B Commitment: $ 6,166,666.67 Cayman Islands Branch
By________________________________________
Name:
Title:
By________________________________________
Name:
Title:
A Commitment: $ 6,666,666.67 THE SUMITOMO BANK, LIMITED
B Commitment: $ 3,333,333.33
By________________________________________
Name:
Title:
A Commitment: $18,333,333.33 SUNTRUST BANK, NASHVILLE, N.A.
B Commitment: $ 9,166,666.67
By________________________________________
Name:
Title:
96
<PAGE> 115
A Commitment: $12,333,333.33 TORONTO DOMINION (TEXAS), INC.
B Commitment: $ 6,166,666.67
By________________________________________
Name:
Title:
Total A Commitments: $200,000,000
Total B Commitments: $100,000,000
Total Commitments: $300,000,000
DA961880.004/16+
97
<PAGE> 1
EXHIBIT 11
PHYCOR, INC. AND SUBSIDIARIES
Statement Regarding Computation of Earnings Per Share
(all amounts are expressed in thousands, except for earnings per share)
<TABLE>
<CAPTION>
1996 1995 1994
------- ------- -------
<S> <C> <C> <C>
Earnings per common share:
Net income (in thousands) $36,380 7,140 11,675
======= ======= =======
Weighted average common shares outstanding 61,096 17,247 24,219
======= ======= =======
Earnings per share $ .60 0.41 0.48
======= ======= =======
Earnings per common share, assuming full dilution:
Net income (in thousands) $11,675
Interest on subordinated debentures 2,121
-------
Adjusted net income (in thousands) $13,796
=======
Weighted average common shares outstanding 28,952
=======
Earnings per share $ 0.47
=======
</TABLE>
Note: The convertible debentures were not included in the calculation of the
fully diluted earnings per share calculation since the effect of
inclusion would be antidilutive.
<PAGE> 1
EXHIBIT 13
FINANCIAL TABLE OF CONTENTS
<TABLE>
<S> <C>
Selected Financial Data 18
Management's Discussion and Analysis
of Financial Condition and Results of Operations 19
Independent Auditors' Report 24
Consolidated Balance Sheets 25
Consolidated Statements of Income 26
Consolidated Statements of Shareholders' Equity 27
Consolidated Statements of Cash Flows 28
Notes to Consolidated Financial Statements 30
Corporate and Investor Information - Common Stock 43
</TABLE>
17
<PAGE> 2
SELECTED FINANCIAL DATA
<TABLE>
<CAPTION>
Year ended December 31, 1996 1995 1994 1993 1992
- ------------------------------------------------------------------------------------------------------------------------------------
(In thousands, except per share data)
<S> <C> <C> <C> <C> <C>
Statement of Income Data:
Net revenue (note 2) $ 766,325 $ 441,596 $ 242,485 $ 167,381 $ 135,866
Operating expenses (income):
Clinic salaries, wages and benefits 291,361 166,031 88,443 63,202 51,264
Clinic supplies 119,081 67,596 37,136 25,031 19,265
Purchased medical services 21,330 17,572 11,778 8,920 10,122
Other clinic expenses 125,947 71,877 40,939 28,174 22,813
General corporate expenses 21,115 14,191 9,417 5,418 3,717
Rents and lease expense 65,577 36,740 23,413 16,441 13,210
Depreciation and amortization 40,182 21,445 12,229 8,394 6,397
Interest income (3,867) (1,816) (1,334) (309) (629)
Interest expense 15,981 5,230 3,963 3,878 4,481
Minority interest 10,463 6,933 -- -- --
Provision for clinic restructuring(1) -- -- -- -- 18,566
- ------------------------------------------------------------------------------------------------------------------------------------
Net operating expenses 707,170 405,799 225,984 159,149 149,206
- ------------------------------------------------------------------------------------------------------------------------------------
Earnings (loss) before income taxes 59,155 35,797 16,501 8,232 (13,340)
Income tax expense 22,775 13,923 4,826 1,092 405
- ------------------------------------------------------------------------------------------------------------------------------------
Net earnings (loss) $ 36,380 $ 21,874 $ 11,675(3) $ 7,140(3) $ (13,745)(2)
====================================================================================================================================
Net earnings (loss) per share(4)
Primary $ .60 $ .41 $ .32(3) $ .28(3) $ (.57)(2)
Fully diluted -- -- .31(3) -- --
====================================================================================================================================
Weighted average shares outstanding(4)
Primary 61,096 53,510 36,329 25,869 23,942
Fully diluted -- -- 43,427 -- --
====================================================================================================================================
December 31, 1996 1995 1994 1993 1992
- ------------------------------------------------------------------------------------------------------------------------------------
Balance Sheet Data:
Working capital $ 212,946 $ 111,420 $ 80,533 $ 46,927 $ 35,920
Total assets 1,118,581 643,586 351,385 171,174 141,442
Long-term debt, capital leases, convertible notes
and amounts due to physicians 474,600 140,633 94,653 69,014 54,087
Total shareholders' equity 451,703 388,822 184,125 70,005 53,879
</TABLE>
(1) Relates to the non-recurring pre-tax charge to earnings of $18.6
million incurred in connection with the restructuring and sale of
assets of the Miller Medical Clinic, which was formerly affiliated with
the Company.
(2) Excluding the effect of the restructuring charge described in Note 1
and a net operating loss carryforward, the Company's net earnings and
net earnings per share for 1992 would have been approximately $3.2
million and $.14 per share, respectively.
(3) Excluding the effect of the utilization of a net operating loss
carryforward to reduce income taxes in 1993 and 1994, net earnings and
net earnings per share would have been $5.1 million, or $.20 per share,
and $10.2 million, or $.27 per share, in such years.
(4) Per share amounts and weighted average shares outstanding have been
adjusted for the three-for-two stock splits effected in June 1996,
September 1995 and December 1994.
18
<PAGE> 3
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
OVERVIEW
The Company acquires and operates primary care-oriented multi-specialty
medical clinics and develops and manages IPAs. Most of the revenue in 1996 and
1995 was earned under clinic service agreements. Revenue earned under the
service agreements is equal to the net revenue of the clinics, less amounts
retained by physician groups. The service agreements contain financial
incentives for the Company to assist the physician groups in increasing clinic
revenues and controlling expenses.
To increase clinic revenue, the Company works with the affiliated
physician groups to recruit additional physicians, merge other physicians
practicing in the area into the affiliated physician groups, negotiate contracts
with managed care organizations and provide additional ancillary services. To
reduce or control expenses, among other things, PHYCOR utilizes national
purchasing contracts for key items, reviews staffing levels to make sure they
are appropriate and assists the physicians in developing more cost-effective
clinical practice patterns.
The Company has increased its focus on the development of IPAs to
enable the Company to provide services to a broader range of physician
organizations, to enhance the operating performance of existing clinics and to
further develop physician relationships. The Company develops IPAs that include
affiliated clinic physicians to enhance the clinics' attractiveness as providers
to managed care organizations.
The table below indicates the number of clinics and physicians
affiliated with the Company and provides certain information with respect to the
Company's IPA operations at the end of the years indicated:
<TABLE>
<CAPTION>
1996 1995 1994 1993 1992
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Clinic operations:
Number of affiliated clinics 44 31 22 18 14
Number of
affiliated physicians 3,050 1,955 1,143 674 480
IPA operations:
Number or markets 17 13 7(1) -- --
Number of
commercial members 306,000 180,000 105,000(1) -- --
Number of
Medicare members 69,000 38,000 24,000(1) -- --
</TABLE>
(1) Information as of January 1, 1995
The table below indicates the percentage of the aggregate net revenue
earned by the physician groups and IPA's currently affiliated with the Company
from various sources.
<TABLE>
<CAPTION>
Year ended December 31, 1996 1995 1994 1993 1992
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Medicare 20% 20% 29% 32% 32%
Medicaid 3% 3% 3% 4% 4%
Managed care(1) 42% 37% 25% 24% 19%
Private payor and insurance 35% 40% 43% 40% 45%
- --------------------------------------------------------------------------------
100% 100% 100% 100% 100%
================================================================================
</TABLE>
(1) Includes HMO, PPO, Medicare risk contracts and direct employer contracts,
of which approximately two-thirds in 1996 is attributable to prepaid and
capitated contracts.
19
<PAGE> 4
The payor mix varies from clinic to clinic and changes as acquisitions
are made. Over the past five years, managed care revenue as a percentage of all
revenue has increased with significant increases in 1995 and 1996 relating to
management of IPAs. PHYCOR believes that this trend will continue as a greater
portion of the population in the Company's markets joins managed care plans. The
Company also believes that the revenue received from managed care plans will
increasingly be in the form of capitation rather than fee-for-service. Other
changes in payor mix have resulted from the acquisition of clinics with payor
mixes different from historical payor mixes experienced by the Company's
affiliated groups.
During 1996, PHYCOR affiliated with thirteen multi-specialty clinics
and numerous smaller medical practices, adding $357.5 million in assets. PHYCOR
also completed its acquisition of SPACO Management Company, Inc. (SPACO), an
IPA management company in Dallas, Texas, and certain assets of the 972-physician
IPA associated with SPACO. The principal assets acquired were accounts
receivable, property and equipment and service agreement costs, an intangible
asset. The consideration for the 1996 clinic acquisitions consisted of
approximately 67% cash, 21% liabilities assumed and 12% stock and convertible
notes. The cash portion of the purchase price was funded by a combination of
operating cash flow, the proceeds from the issuance of convertible subordinated
debentures and borrowings under the Company's bank credit facility. Property and
equipment acquired consists mostly of clinic operating equipment, although the
Company has purchased certain land and buildings. Service agreement costs are
amortized over the life of the related service agreement, with recoverability
assessed periodically.
Since December 31, 1996, the Company has affiliated with three
multi-specialty clinics with an aggregate of 182 physicians. Additionally, in
January 1997, PHYCOR consummated its merger with Straub Clinic & Hospital,
Incorporated (Straub), an integrated health care system with a 152-physician
multi-specialty clinic and 159-bed acute care hospital located in Honolulu,
Hawaii. In connection with the merger, PHYCOR will also provide management
services to a related 35-physician group.
RESULTS OF OPERATIONS
The following table shows the percentage of net revenue represented by
various expense categories reflected in the Company's Consolidated Statements of
Income.
<TABLE>
<CAPTION>
Year ended December 31, 1996 1995 1994
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
Net revenue 100.0% 100.0% 100.0%
Operating expenses:
Clinic salaries, wages and benefits 38.0 37.6 36.5
Clinic supplies 15.5 15.3 15.3
Purchased medical services 2.8 4.0 4.8
Other clinic expenses 16.4 16.3 16.9
General corporate expenses 2.8 3.2 3.9
Rents and lease expense 8.6 8.3 9.7
Depreciation and amortization 5.2 4.8 5.0
Interest income (0.5) (0.4) (0.5)
Interest expense 2.1 1.2 1.6
Minority interest 1.4 1.6 --
- --------------------------------------------------------------------------------
Net operating expenses 92.3 91.9 93.2
- --------------------------------------------------------------------------------
Earnings before income taxes 7.7 8.1 6.8
Income tax expense 3.0 3.1 2.0
- --------------------------------------------------------------------------------
Net earnings 4.7% 5.0% 4.8%
================================================================================
</TABLE>
1996 Compared to 1995
Net revenue increased from $441.6 million for 1995 to $766.3 million
for 1996, an increase of $324.7 million, or 73.5%. Net revenue from the 23
service agreements in effect as of January 1, 1995 increased 16.1% in 1996. Same
clinic growth resulted from the addition of new physicians, the expansion of
ancillary services, and increases in both patient volume and fees.
20
<PAGE> 5
During 1996, most categories of operating expenses were relatively
stable as a percentage of net revenue when compared to 1995, despite the large
increase in the dollar amounts resulting from acquisitions and clinic growth.
The increase in clinic salaries, wages and benefits resulted from the
acquisition of clinics with higher levels of these expenses compared to the
existing base of clinics and the addition of primary care physicians at existing
clinics. The ratio of staffing costs to net revenue is higher for primary care
practices than for specialty care. The reduction in purchased medical services
as a percentage of net revenue resulted from the Company's continuing efforts to
reduce clinic operating costs by improving the productivity of non-physician
personnel and limiting payments for outside medical services. While general
corporate expenses decreased as a percentage of net revenue, the dollar amount
of general corporate expenses increased as a result of the addition of corporate
personnel to accommodate increased acquisition activity and to respond to
increasing physician group needs for support in managed care negotiations,
information systems implementation and clinic outcomes management programs.
Income tax expense increased from the prior year as a result of the
Company's increased profitability. The Company's effective tax rate was
approximately 38.5% in 1996.
1995 Compared to 1994
Net revenue increased from $242.5 million for 1994 to $441.6 million
for 1995, an increase of 82.1%. Net revenue from the 17 service agreements in
effect January 1, 1994 increased 18.1% in 1995. Same clinic growth resulted
from the addition of new physicians, the expansion of ancillary services, and
increases in both patient volume and fees. The remaining increase was the
result of the acquisition of clinic assets and the acquisition of North
American Medical Management (North American).
During 1995, most categories of operating expenses were relatively
stable as a percentage of net revenue when compared to 1994, despite the large
increase in the dollar amounts resulting from acquisitions and clinic growth.
The increase in clinic salaries, wages and benefits resulted from the
acquisition of clinics with higher levels of these expenses compared to the
existing base of clinics and the addition of primary care physicians at existing
clinics. The ratio of staffing costs to net revenue is higher for primary care
practices than for specialty care. The reductions in purchased medical services
as a percentage of net revenue resulted from the Company's continuing efforts to
reduce clinic operating costs by improving the productivity of non-physician
personnel and limiting payments for outside medical services. While general
corporate expenses decreased as a percentage of net revenue, the dollar amount
of general corporate expenses increased as a result of the addition of corporate
personnel to accommodate increased acquisition activity and to respond to
increasing physician group needs for support in managed care negotiations,
information systems implementation and clinic outcomes management programs. The
decease in other clinic expenses and rents and leases as a percentage of net
revenue resulted from the acquisition of clinics with lower levels of these
expenses compared to the existing base of clinics. Minority interest earnings of
consolidated partnerships relate to the IPA operations of North American.
Income tax expense increased from the prior year as a result of the
Company's increased profitability and the fact that benefits relating to net
operating loss carry forwards were substantially consumed during 1994. The
Company's effective tax rate was approximately 39% in 1995.
Summary of Operations by Quarter
The following table presents unaudited quarterly operating results for
1996 and 1995. The Company believes that all necessary adjustments have been
included in the amounts stated below to present fairly the quarterly results
when read in conjunction with the Consolidated Financial Statements. Results of
operations for any particular quarter are not necessarily indicative of results
of operations for a full year or predictive of future periods.
21
<PAGE> 6
<TABLE>
<CAPTION>
1996 QUARTER ENDED 1995 Quarter Ended
- ----------------------------------------------------------------------------------------------------------------------------------
MARCH 31 JUNE 30 SEPT. 30 DEC. 31 March 31 June 30 Sept. 30 Dec. 31
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
In thousands, except per share data
Net revenue $162,501 $176,643 $196,418 $230,763 $92,764 $99,146 $114,038 $135,648
Earnings before taxes 12,504 13,690 14,753 18,208 6,845 7,508 10,024 11,420
Net earnings 7,690 8,419 9,073 11,198 4,176 4,617 6,115 6,966
Net earnings per share(1) $ .13 $ .14 $ .15 $ .18 $ .09 $ .09 $ .11 $ .12
</TABLE>
(1) Adjusted to reflect the three-for-two stock splits effected June 1996 and
September 1995.
LIQUIDITY AND CAPITAL RESOURCES
At December 31, 1996, the Company had $212.9 million in working
capital, up from $111.4 million as of December 31, 1995. Also, the Company
generated $64.8 million of cash flow from operations in 1996 compared to $48.1
million in 1995. At December 31, 1996, net accounts receivable of $295.4 million
amounted to 73 days of net clinic revenue compared to $167.0 million and 68 days
at the end of the prior year. The increase is attributable to growth in revenues
at the Company's clinics and, to a lesser extent, the acquisition of clinic
assets with a higher number of days of net clinic revenue outstanding than the
existing base of affiliated physician groups.
During February 1996, the Company completed a public offering of
convertible subordinated debentures, which mature in 2003. Gross and net
proceeds from the offering were $200.0 million and approximately $194.4 million,
respectively. The debentures were priced at par with a coupon rate of 4.5% and
are convertible into the Company's common stock at $38.67 per share. The
debentures may not be redeemed at the Company's option prior to February 15,
1998. From February 15, 1998 to February 15, 1999, the debentures may be
redeemed only if the price of the Company's common stock exceeds $54.13. From
February 15, 1999 to maturity, the debentures may be redeemed by the Company at
prices decreasing from 102.572% of face value to face value. As a result of
acquisitions and related debt incurred and the issuance of convertible
subordinated debentures during 1996, debt was 51.2% of total capitalization at
December 31, 1996, compared to 26.6% at the end of 1995.
In 1996, $11.5 million of convertible subordinated notes previously
issued in connection with physician group asset acquisitions were converted into
common stock. These conversions, common stock and warrants issued in
acquisitions, option exercises and net earnings for 1996 resulted in an increase
of $62.9 million in shareholders' equity compared to December 31, 1995.
Capital expenditures during 1996 totaled $50.1 million. The Company is
responsible for capital expenditures required at its affiliated clinics under
its service agreements. The Company expects to make approximately $60 million in
capital expenditures during 1997.
Effective January 1, 1995, the Company completed its acquisition of
North American. The Company paid $20.0 million at closing and may make
additional future payments pursuant to an earn-out formula during 1996, 1997,
and 1998 of up to an aggregate of $70.0 million. The total acquisition
consideration may increase to a maximum of $130.0 million in the event of future
acquisitions by North American of additional interests in IPA management
entities. The first of such payments was made in the first quarter of 1996 and
totaled approximately $13.9 million in cash. The second cash payment totaling
approximately $21.1 million will be paid at the end of the first quarter of
1997. Of the future payments to be made, a portion may be payable in shares of
the Company's common stock.
In addition, deferred acquisition payments are payable to physician
groups in the event such physician groups attain predetermined financial targets
during established periods of time following the acquisitions. If each group
satisfied their applicable financial targets for the periods covered, the
Company would
22
<PAGE> 7
be required to pay an aggregate of approximately $64.0 million of additional
consideration over the next five years, of which $23.6 million would be payable
during 1997.
The Company may exercise its option to acquire the outstanding Class B
Common Stock of PMC before the end of 1997. In accordance with the terms of the
options, the aggregate purchase price for these shares at that time would be
approximately $18 to $19 million.
PHYCOR has been the subject of an audit by the IRS since 1991. The IRS
has proposed adjustments relating to the timing of recognition for tax purposes
of certain revenue and deductions relating to uncollectible accounts. PHYCOR
disagrees with the positions asserted by the IRS and is vigorously contesting
these proposed adjustments. The Company believes that any adjustments resulting
from resolution of this disagreement would not affect reported net earnings of
PHYCOR but would defer tax benefits and change the levels of current and
deferred tax assets and liabilities. For the years under audit, and
potentially, for subsequent years, any such adjustments could result in
material cash payments by the Company. PHYCOR does not believe the resolution
of this matter will have a material adverse effect on its financial condition
or results of operations, although there can be no assurance as to the outcome
of this matter.
In July 1996, the Company completed modifications to its bank credit
facility which included the revision of certain terms and conditions and the
addition of six participating financial institutions. The Company's bank credit
facility provides for a five-year, $200.0 million revolving line of credit and a
$100 million 364-day facility for use by the Company prior to July 2001 for
acquisitions, working capital, capital expenditures and general corporate
purposes. The Company's bank credit facility provides that borrowings under the
facility bear interest at either the agent's base rate or between .25% to .55%
above the applicable eurodollar rate. The Company is required to pay a facility
fee of between .10% to .25% per annum on the commitments, payable quarterly in
arrears, until the commitments are terminated. The total drawn cost under the
facility ranges from .375% to .75% above the applicable eurodollar rate.
The Company's bank credit facility contains covenants which, among
other things, require the Company to maintain certain financial ratios and
impose certain limitations or prohibitions on the Company with respect to (i)
the incurring of certain indebtedness, (ii) the creation of a security interest
on the assets of the Company, (iii) the payment of cash dividends on, and the
redemption or repurchase of, securities of the Company, (iv) investments and (v)
acquisitions. The Company is required to obtain bank consent for an acquisition
with an aggregate purchase price of $50.0 million or more. The Company was in
compliance with such covenants at December 31, 1996.
In the first quarter of 1997, the Company completed a public offering
of 7,295,000 shares of its common stock at a price of $30.00 per share. Net
proceeds from the offering of approximately $210.5 million were used to repay
bank debt.
At March 21, 1997, the Company had cash and cash equivalents of
approximately $30.0 million and $254.2 million available under its bank credit
facility. The Company believes that the combination of funds available under the
Company's bank credit facility, together with cash reserves and cash flow from
operations, should be sufficient to meet the Company's current planned
acquisition, expansion, capital expenditures and working capital needs through
1997. In addition, in order to provide the funds necessary for the continued
pursuit of the Company's long-term expansion strategy, the Company expects to
continue to incur, from time to time, additional short-term and long-term
indebtedness and to issue equity and debt securities, the availability and terms
of which will depend upon market and other conditions. There can be no assurance
that such additional financing will be available on terms acceptable to the
Company.
23
<PAGE> 8
INDEPENDENT AUDITORS' REPORT
The Board of Directors and Shareholders
PHYCOR, Inc.:
We have audited the consolidated balance sheets of PHYCOR, Inc. and
subsidiaries as of December 31, 1996 and 1995 and the related consolidated
statements of income, shareholders' equity and cash flows for each of the years
in the three-year period ended December 31, 1996. These consolidated financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these consolidated financial
statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of PHYCOR, Inc.
and subsidiaries as of December 31, 1996 and 1995, and the results of their
operations and their cash flows for each of the years in the three-year period
ended December 31, 1996, in conformity with generally accepted accounting
principles.
KPMG PEAT MARWICK LLP
Nashville, Tennessee
February 4, 1997, except for note 12(a)
which is as of March 7, 1997
24
<PAGE> 9
PHYCOR, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
December 31, 1996 and 1995 1996 1995
- -------------------------------------------------------------------------------------------------------------------------------
(All amounts are expressed in thousands)
<S> <C> <C>
ASSETS (NOTE 10)
Current assets:
Cash and cash equivalents $ 30,530 $ 18,827
Accounts receivable, less allowances of $134,556 in 1996 and $82,205 in 1995 295,437 167,028
Inventories 15,185 8,939
Prepaid expenses and other assets (note 15) 42,275 22,727
- -------------------------------------------------------------------------------------------------------------------------------
Total current assets 383,427 217,521
Property and equipment, net (notes 4, 10, and 11) 160,228 108,813
Intangible assets (note 6) 559,705 308,963
Other assets (notes 5 and 15) 15,221 8,289
- -------------------------------------------------------------------------------------------------------------------------------
Total assets $1,118,581 $ 643,586
===============================================================================================================================
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Current installments of long-term debt (note 10) $ 424 $ 587
Current installments of obligations under capital leases (note 11) 1,237 1,799
Accounts payable 24,103 20,020
Income taxes payable -- 2,714
Due to physician groups (notes 2 and 3) 75,340 48,917
Salaries and benefits payable 23,120 11,381
Other accrued expenses and liabilities 46,257 20,683
- -------------------------------------------------------------------------------------------------------------------------------
Total current liabilities 170,481 106,101
Long-term debt, excluding current installments (note 10) 123,112 65,905
Obligations under capital leases, excluding current installments (note 11) 1,467 1,637
Purchase price payable (note 3) 66,103 13,722
Deferred tax credits and other liabilities (note 13) 21,797 8,030
Convertible subordinated notes payable to physician groups (notes 7 and 8) 83,918 59,369
Convertible subordinated debentures (notes 7 and 9) 200,000 --
- -------------------------------------------------------------------------------------------------------------------------------
Total liabilities 666,878 254,764
- -------------------------------------------------------------------------------------------------------------------------------
Shareholders' equity (notes 8, 9, and 12):
Preferred stock, no par value, 10,000 shares authorized -- --
Common stock, no par value; 250,000 shares authorized in 1996 and 100,000 shares in 1995;
issued and outstanding, 54,831 shares in 1996 and 53,399 shares in 1995 389,712 363,211
Retained earnings 61,991 25,611
- -------------------------------------------------------------------------------------------------------------------------------
Total shareholders' equity 451,703 388,822
- -------------------------------------------------------------------------------------------------------------------------------
Commitments, contingencies and subsequent events (notes 3, 11, 12, and 14)
Total liabilities and shareholders' equity $1,118,581 $ 643,586
===============================================================================================================================
</TABLE>
See accompanying notes to consolidated financial statements.
25
<PAGE> 10
PHYCOR, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
<TABLE>
<CAPTION>
Years ended December 31, 1996, 1995, and 1994 1996 1995 1994
- ----------------------------------------------------------------------------------------------------------------------------
(All amounts are expressed in thousands, except for earnings per share)
<S> <C> <C> <C> <C>
Net revenue (note 2) $ 766,325 $ 441,596 $ 242,485
Operating expenses (income):
Clinic salaries, wages and benefits 291,361 166,031 88,443
Clinic supplies 119,081 67,596 37,136
Purchased medical services 21,330 17,572 11,778
Other clinic expenses 125,947 71,877 40,939
General corporate expenses 21,115 14,191 9,417
Rents and lease expense 65,577 36,740 23,413
Depreciation and amortization 40,182 21,445 12,229
Interest income (3,867) (1,816) (1,334)
Interest expense 15,981 5,230 3,963
Minority interest in earnings of consolidated partnerships 10,463 6,933 --
- ----------------------------------------------------------------------------------------------------------------------------
Net operating expenses 707,170 405,799 225,984
- ----------------------------------------------------------------------------------------------------------------------------
Earnings before income taxes 59,155 35,797 16,501
Income tax expense (note 13) 22,775 13,923 4,826
- ----------------------------------------------------------------------------------------------------------------------------
Net earnings $ 36,380 $ 21,874 $ 11,675
============================================================================================================================
Earnings per common share:
Primary $ .60 $ .41 $ .32
Fully diluted -- -- .31
============================================================================================================================
Weighted average number of shares and share equivalents outstanding (note 12):
Primary 61,096 53,510 36,329
Fully diluted -- -- 43,427
============================================================================================================================
</TABLE>
See accompanying notes to consolidated financial statements.
26
<PAGE> 11
PHYCOR, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
<TABLE>
<CAPTION>
Retained
Common Stock earnings
------------------- (accumulated
Years ended December 31, 1996, 1995, and 1994 Shares Amount deficit) Total
- -------------------------------------------------------------------------------------------------------------------------------
(All amounts are expressed in thousands)
<S> <C> <C> <C> <C>
Balances at December 31, 1993 24,197 $ 77,943 $ (7,938) $ 70,005
Issuance of common stock, net of placement commissions and
offering expenses totaling $3,590 8,978 76,726 -- 76,726
Conversion of subordinated debentures to common stock 4,113 23,129 -- 23,129
Conversion of notes payable to common stock 589 2,498 -- 2,498
Stock options exercised 22 92 -- 92
Net earnings for the year ended December 31, 1994 -- -- 11,675 11,675
- -------------------------------------------------------------------------------------------------------------------------------
Balances at December 31, 1994 37,899 180,388 3,737 184,125
Issuance of common stock and warrants, net of placement commissions
and offering expenses totaling $5,760 7,835 127,773 -- 127,773
Conversion of subordinated debentures to common stock 4,882 27,566 -- 27,566
Conversion of notes payable to common stock 2,670 26,405 -- 26,405
Stock options exercised and related tax benefits 113 1,079 -- 1,079
Net earnings for the year ended December 31, 1995 -- -- 21,874 21,874
- -------------------------------------------------------------------------------------------------------------------------------
Balances at December 31, 1995 53,399 363,211 25,611 388,822
Issuance of common stock and warrants, net of placement commissions
and offering expenses totaling $192 261 10,312 -- 10,312
Conversion of notes payable to common stock 859 11,450 -- 11,450
Stock options exercised and related tax benefits 312 4,739 -- 4,739
Net earnings for the year ended December 31, 1996 -- -- 36,380 36,380
- -------------------------------------------------------------------------------------------------------------------------------
Balances at December 31, 1996 54,831 $389,712 $ 61,991 $451,703
===============================================================================================================================
</TABLE>
See accompanying notes to consolidated financial statements.
27
<PAGE> 12
PHYCOR, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Years ended December 31, 1996, 1995, and 1994 1996 1995 1994
- ---------------------------------------------------------------------------------------------------------------------------------
(All amounts are expressed in thousands)
<S> <C> <C> <C>
Cash flows from operating activities:
Net earnings $ 36,380 $ 21,874 $ 11,675
Adjustments to reconcile net earnings to net cash provided by operating activities:
Depreciation and amortization 40,182 21,445 12,229
Deferred income taxes 9,616 2,948 1,566
Minority interests 172 729 --
Increase (decrease) in cash, net of effects of acquisitions, due to changes in:
Accounts receivable, net (36,376) (12,179) (9,496)
Inventories (1,880) (1,280) (576)
Prepaid expenses and other assets (16,481) (1,749) (2,046)
Accounts payable (3,291) 5,474 1,646
Due to physician groups 13,489 8,595 29
Other accrued expenses and liabilities 23,006 2,204 (1,527)
- ---------------------------------------------------------------------------------------------------------------------------------
Net adjustments 28,437 26,187 1,825
- ---------------------------------------------------------------------------------------------------------------------------------
Net cash provided by operating activities 64,817 48,061 13,500
- ---------------------------------------------------------------------------------------------------------------------------------
Cash flows from investing activities:
Payments for acquisitions, net (252,270) (145,075) (69,164)
Purchase of property and equipment (50,053) (29,292) (17,496)
Payments to acquire other assets (4,719) (2,943) (4,488)
- ---------------------------------------------------------------------------------------------------------------------------------
Net cash used by investing activities (307,042) (177,310) (91,148)
- ---------------------------------------------------------------------------------------------------------------------------------
Cash from financing activities:
Net proceeds from issuance of stock and warrants 4,975 113,594 59,131
Net proceeds from issuance of convertible debentures 194,395 -- --
Proceeds from long-term borrowings 161,000 130,400 42,100
Repayment of long-term borrowings (104,546) (100,144) (17,115)
Repayment of obligations under capital leases (1,811) (1,965) (3,170)
Loan costs incurred (85) (269) (38)
- ---------------------------------------------------------------------------------------------------------------------------------
Net cash provided by financing activities 253,928 141,616 80,908
- ---------------------------------------------------------------------------------------------------------------------------------
Net increase in cash and cash equivalents 11,703 12,367 3,260
Cash and cash equivalents--beginning of year 18,827 6,460 3,200
- ---------------------------------------------------------------------------------------------------------------------------------
Cash and cash equivalents--end of year $ 30,530 $ 18,827 $ 6,460
=================================================================================================================================
</TABLE>
28
<PAGE> 13
PHYCOR, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS, CONTINUED
<TABLE>
<CAPTION>
Years ended December 31, 1996, 1995, and 1994 1996 1995 1994
- -----------------------------------------------------------------------------------------------------------------------------
(All amounts are expressed in thousands)
<S> <C> <C> <C>
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION
Cash paid during the period for:
Interest $ 13,745 $ 4,674 $ 5,092
Income taxes, net of refunds 13,991 10,760 2,828
=============================================================================================================================
SUPPLEMENTAL SCHEDULE OF NONCASH INVESTING AND FINANCING ACTIVITIES
Effects of acquisitions (note 3):
Assets acquired, net of cash $ 384,807 $ 270,925 $ 172,441
Liabilities assumed (89,326) (50,015) (64,577)
Issuance of convertible subordinated notes payable (36,084) (62,942) (16,931)
Issuance of common stock and warrants (7,127) (12,893) (17,438)
Cash received from disposition of clinic assets -- -- (4,331)
- -----------------------------------------------------------------------------------------------------------------------------
Payment for assets acquired $ 252,270 $ 145,075 $ 69,164
=============================================================================================================================
Capital lease obligations incurred to acquire equipment $ 471 $ 173 $ 466
Conversion of subordinated debentures and notes payable to common stock 11,450 53,971 25,627
=============================================================================================================================
</TABLE>
See accompanying notes to consolidated financial statements.
29
<PAGE> 14
PHYCOR, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 1996, 1995, and 1994
(1) SIGNIFICANT ACCOUNTING POLICIES AND PRACTICES
(a) Description of Business
PHYCOR, Inc. (Company) is a physician practice management company that
acquires and operates multi-specialty medical clinics and develops and manages
independent practice associations (IPAs). PHYCOR's objective is to organize
physicians into professionally managed networks that assist physicians in
assuming increased responsibility for delivering cost-effective medical care
while attaining high-quality clinical outcomes and patient satisfaction. The
Company, through wholly-owned subsidiaries, acquires certain assets of and
operates clinics under long-term service agreements with affiliated physician
groups that practice exclusively through such clinics. The Company provides
administrative and technical support for professional services rendered by the
physician groups under service agreements. Under most service agreements, the
Company is reimbursed for all clinic expenses, as defined in the agreement, and
participates at varying levels in the excess of net clinic revenue over clinic
expenses. As of December 31, 1996, the Company operated 44 clinics in 25 states.
The Company also manages IPAs which are networks of independent
physicians. At December 31, 1996, these IPAs include over 9,200 physicians in 17
markets which provide capitated medical services to approximately 375,000
members, including approximately 69,000 Medicare members.
(b) Principles of Consolidation
The consolidated financial statements include the accounts of the
Company and its majority owned subsidiaries, partnerships and other entities in
which the company has more than 50% ownership interest or exercises control.
All significant intercompany balances and transactions are eliminated in
consolidation.
(c) Cash and Cash Equivalents
The Company considers all highly liquid investments with a maturity of
three months or less when purchased to be cash equivalents. Cash and cash
equivalents as of December 31, 1996 include approximately $2,936,000 of
consolidated partnership cash. These balances may only be used for the
operations of the respective partnerships.
(d) Accounts Receivable
Accounts receivable principally represent receivables from patients and
third-party payors for medical services provided by physician groups. Such
amounts are recorded net of contractual allowances and estimated bad debts.
Accounts receivable are a function of net clinic revenue rather than net revenue
of the Company (See note 2).
(e) Inventories
Inventories are comprised primarily of medical supplies, medications
and other materials used in the delivery of health care services by the
physician groups at the Company's clinics. The Company values inventories at the
lower of cost or market with cost determined using the first-in, first-out
(FIFO) method.
(f) Property and Equipment
Property and equipment are stated at cost. Equipment held under capital
leases is stated at the present value of minimum lease payments at the inception
of the related leases. Depreciation of property and equipment is calculated
using the straight-line method over the estimated useful lives of the assets.
Equipment held under capital leases and leasehold improvements are amortized on
a straight line basis over the shorter of the lease term or estimated useful
life of the assets.
(g) Intangible Assets
Clinic Service Agreements
Costs of obtaining clinic service agreements are amortized using the
straight-line method over the periods during which the agreements are effective,
currently twenty-five to forty years. Clinic service agreements represent the
exclusive right to operate the Company's clinics in affiliation with the related
physician groups during the term of the agreements. In the event of termination
of a service agreement, the related physician group is required to purchase all
clinic assets, including the unamortized portion of intangible assets, generally
at then current net book value.
30
<PAGE> 15
PHYCOR, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Excess of Cost of Acquired Assets Over Fair Value
Excess of cost of acquired assets over fair value (goodwill) is
amortized using the straight line method over thirty years.
Other Intangible Assets
Other intangible assets include costs associated with obtaining
long-term financing which are being amortized systematically over the terms of
the related debt agreements.
Amortization and Recoverability
The Company periodically reviews its intangible assets to assess
recoverability and impairments would be recognized in the statement of
operations if a permanent impairment were determined to have occurred.
Recoverability of intangibles is determined based on undiscounted future
operating cash flows from the related business unit or activity. The amount of
impairment, if any, is measured based on discounted future operating cash flows
using a discount rate reflecting the Company's average cost of funds.The
assessment of the recoverability of intangible assets will be impacted if
estimated future operating cash flows are not achieved.Amortization of
intangibles amounted to $15,150,000, $7,441,000, and $3,518,000 for 1996, 1995
and 1994, respectively.
(h) Impairment of Long-Lived Assets
The Company adopted the provisions of SFAS No. 121, Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of, on
January 1, 1996. This Statement requires that long-lived assets and certain
identifiable intangibles be reviewed for impairment whenever events or changes
in circumstances indicate that the carrying amount of an asset may not be
recoverable. Recoverability of assets to be held and used is measured by a
comparison of the carrying amount of an asset to future net cash flows expected
to be generated by the asset. If such assets are considered to be impaired, the
impairment to be recognized is measured by the amount by which the carrying
amount of the assets exceeded the fair value of the assets. Adoption of this
Statement did not have a material impact on the Company's financial position,
results of operations, or liquidity.
(i) Income Taxes
Income taxes are accounted for under the asset and liability method.
Deferred tax assets and liabilities are recognized for the future tax
consequences attributable to differences between the financial statement
carrying amounts of existing assets and liabilities and their respective tax
bases. Deferred tax assets and liabilities are measured using enacted tax rates
expected to apply to taxable income in the years in which those temporary
differences are expected to be recovered or settled. The effect on deferred tax
assets and liabilities of a change in tax rates is recognized in income in the
period that includes the enactment date.
(j) Stock Option Plans
Prior to January 1, 1996, the Company accounted for its stock option
plans in accordance with the provisions of Accounting Principles Board ("APB")
Opinion No. 25, Accounting for Stock Issued to Employees, and related
interpretations. As such, compensation expense would be recorded on the date of
grant only if the current market price of the underlying stock exceeded the
exercise price. On January 1, 1996, the Company adopted SFAS No. 123, Accounting
for Stock-Based Compensation, which permits entities to recognize as expense
over the vesting period the fair value of all stock-based awards on the date of
grant. Alternatively, SFAS No. 123 also allows entities to continue to apply the
provisions of APB Opinion No. 25 and provide pro forma net income and pro forma
earnings per share disclosures for employee stock option grants made in 1995 and
future years as if the fair-value-based method defined in SFAS No. 123 had been
applied. The Company has elected to continue to apply the provisions of APB
Opinion No. 25 and provide the pro forma disclosure provisions of SFAS No. 123.
(k) Earnings Per Share
Primary earnings per share have been computed by dividing net earnings
by the weighted average number of common shares and common share equivalents
outstanding during the periods. Common share equivalents included in determining
earnings per share include shares issuable upon exercise of warrants and stock
options and shares issuable upon conversion of certain debentures and notes
payable, if dilutive.
31
<PAGE> 16
PHYCOR, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Fully diluted earnings per share have been computed by dividing net
earnings plus convertible subordinated debenture and note interest and
amortization expense (net of income taxes) by the weighted average number of
common shares and common share equivalents after giving effect to the common
stock equivalents noted above and those arising from the conversion of the
convertible subordinated debentures.
(l) Use of Estimates
Management of the Company has made certain estimates and assumptions
relating to the reporting of assets and liabilities and the disclosure of
contingent assets and liabilities to prepare these financial statements in
conformity with generally accepted accounting principles. Actual results could
differ from those estimates.
(m) Reclassifications
Certain prior year amounts have been reclassified to conform to the
1996 presentation.
(n) New Accounting Standards
The Financial Accounting Standards Board has issued Statement of
Financial Accounting Standards No. 128 (SFAS 128), Earnings per Share and
Statement of Financial Accounting Standards No. 129 (SFAS 129), Disclosure of
Information about Capital Structure. SFAS 128 establishes standards for
computing and presenting earnings per share and applies to entities with
publicly held common stock. SFAS 129 establishes standards for disclosing
information about an entity's capital structure and applies to all entities.
Management believes that the Company's adoption of these standards, when
effective, will not have a significant impact on the Company's financial
statements.
(2) NET REVENUE
Clinic service agreement revenue is equal to the net revenue of the
clinics, less amounts retained by physician groups. Net clinic revenue is
recorded by the physician groups at established rates reduced by provisions
for doubtful accounts and contractual adjustments. Contractual adjustments
arise due to the terms of certain reimbursement and managed care contracts.
Such adjustments represent the difference between charges at established rates
and estimated recoverable amounts and are recognized in the period the services
are rendered. Any differences between estimated contractual adjustments and
actual final settlements under reimbursement contracts are recognized as
contractual adjustments in the year final settlements are determined.
IPA management revenue is equal to the difference between the amount of
capitation and risk pool payments due to the IPA's managed by the Company less
amounts retained by the IPA.
The following represent amounts included in the determination of net
revenue (in thousands):
<TABLE>
<CAPTION>
1996 1995 1994
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
Gross physician group revenue $1,926,505 $1,069,033 $ 581,156
Less:
Provisions for doubtful accounts
and contractual adjustments 699,186 359,653 175,120
- --------------------------------------------------------------------------------
Net physician group revenue 1,227,319 709,380 406,036
IPA revenue 302,928 146,975 --
- --------------------------------------------------------------------------------
Net physician group and
IPA revenue 1,530,247 856,355 406,036
Less amounts retained by
physician groups and IPAs:
Physician groups 459,179 266,725 148,983
Clinic technical employee
compensation 50,395 29,435 14,568
IPAs 254,348 118,599 --
- --------------------------------------------------------------------------------
Net revenue $ 766,325 $ 441,596 $ 242,485
================================================================================
</TABLE>
The Company derives most of its net revenue from 44 physician groups
located in 25 states at December 31, 1996 with which it has service agreements.
The Company's affiliated physician groups derived approximately 20% of
their net revenues from services provided under the Medicare program for the
years ended December 31, 1996 and 1995. Other than the Medicare program,
the physician groups have no customers which represent more than 10% of
aggregate net clinic revenue or 5% of accounts receivables at December 31, 1996.
32
<PAGE> 17
PHYCOR, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(3) ACQUISITIONS
(a) Multispecialty Medical Clinics
During 1996, 1995, and 1994, the Company, through wholly-owned
subsidiaries, acquired certain operating assets of the following clinics:
<TABLE>
<CAPTION>
Clinic Effective Date Location
- --------------------------------------------------------------------------------
<S> <C> <C>
1996:
Arizona Physicians Center January 1, 1996 Phoenix, Arizona
Clinics of North Texas March 1, 1996 Wichita Falls, Texas
Carolina Primary Care May 1, 1996 Columbia, South Carolina
Harbin Clinic May 1, 1996 Rome, Georgia
Focus Health Services July 1, 1996 Denver, Colorado
Clark-Holder Clinic July 1, 1996 LaGrange, Georgia
Medical Arts Clinic August 1, 1996 Minot, North Dakota
Wilmington
Health Associates August 1, 1996 Wilmington, North Carolina
Gulf Coast Medical Group August 1, 1996 Galveston, Texas
Hattiesburg Clinic October 1, 1996 Hattiesburg, Mississippi
Straub Clinic & Hospital (A) October 1, 1996 Honolulu, Hawaii
Toledo Clinic November 1, 1996 Toledo, Ohio
Lewis-Gale Clinic November 1, 1996 Roanoke, Virginia
1995:
Tidewater Physicians
Multispecialty Group January 1, 1995 Newport News, Virginia
Northeast Arkansas Clinic March 1, 1995 Jonesboro, Arkansas
PAPP Clinic May 1, 1995 Newnan, Georgia
Ogden Clinic June 1, 1995 Ogden, Utah
Arnett Clinic August 1, 1995 Lafayette, Indiana
Casa Blanca Clinic September 1, 1995 Mesa, Arizona
South Texas Medical Clinics November 1, 1995 Wharton, Texas
South Bend Clinic (B) November 1, 1995 South Bend, Indiana
Guthrie Clinic (C) November 17, 1995 Sayre, Pennsylvania
1994:
Medical Arts Clinic January 1, 1994 Corsicana, Texas
Lexington Clinic (D) August 1, 1994 Lexington, Kentucky
Southern Plains
Medical Center August 1, 1994 Chickasha, Oklahoma
Holt-Krock Clinic September 1, 1994 Fort Smith, Arkansas
Burns Clinic October 1, 1994 Petoskey, Michigan
Boulder Medical Center October 1, 1994 Boulder, Colorado
</TABLE>
(A) Straub Clinic & Hospital (Straub) was operated under an administrative
services agreement effective October 1, 1996. The Company completed its
merger and entered into a long-term service agreement with Straub
effective January 17, 1997.
(B) The South Bend Clinic was operated by the Company under a management
agreement between November 1, 1995 and December 31, 1995. Effective
January 1, 1996 the Company completed the purchase of certain clinic
operating assets and entered into a 40-year service agreement with the
affiliated physician group.
(C) The Company has entered into a series of agreements with Guthrie Clinic
whereby the Company agreed to provide management services for up to
five years and agreed, pending satisfaction of certain conditions, to
acquire certain assets of the clinic prior to the termination or
expiration of the interim management agreement.
(D) The Lexington Clinic was operated by the Company under a management
agreement between February 15, 1994 and July 31, 1994.
In addition, the Company acquired certain operating assets of various
individual physician practices and single specialty groups which were merged
into clinics already operated by the Company.
The Company acquires operating assets and liabilities in exchange for
cash, convertible debentures, common stock or a combination thereof. Such
consideration for the above clinic acquisitions and single specialty mergers was
$357,458,000 for 1996, $239,620,000 for 1995, and $172,441,000 for 1994. The
acquisitions were accounted for as purchases, and the accompanying consolidated
financial statements include the results of their operations from the dates of
acquisition. Simultaneous with each acquisition, the Company
33
<PAGE> 18
PHYCOR, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
entered into a long-term service agreement with each physician group.
In conjunction with certain acquisitions, the Company is obligated to make
deferred payments to physician groups. Such payments are included in due to
physician groups and purchase price payable in the accompanying balance sheets.
On September 30, 1994, the Company completed the sale of the assets of
the Winter Haven, Florida clinic back to the affiliated physician group and
ended its service agreement with the physician group. No gain or loss was
realized by the Company in connection with the transaction.
(b) North American Medical Management, Inc. (North American)
Effective January 1, 1995, the Company completed its acquisition of
North American, an operator and manager of IPAs. The Company paid $20.0 million
at closing and committed to make additional future payments pursuant to an
earn-out formula during 1997 and 1998 of up to an aggregate of $70.0 million.
The total acquisition consideration may increase to a maximum of $130.0 million
in the event of future acquisitions by North American of additional interest in
IPA management entities. The first of such payments was made in 1996 and totaled
approximately $13.9 million in cash. The second payment totaling approximately
$21.1 million will be paid in cash at the end of the first quarter of 1997. Of
the future payments to be made, a portion may be paid in shares of the Company's
common stock.
(c) Pro Forma Information and Subsequent Events
The unaudited consolidated pro forma results of all current, continuing
operations, assuming all 1996 and 1995 acquisitions, excluding the Guthrie
Clinic which is operated under a management agreement, had been consummated on
January 1, 1995, are as follows (in thousands except for earnings per share):
<TABLE>
<CAPTION>
1996 1995
- ----------------------------------------------------------------------------
<S> <C> <C>
Net revenue $905,135 $748,310
Earnings before income taxes 68,854 58,701
Net earnings 42,303 35,845
Earnings per common share .67 .64
Weighted average number of shares
and share equivalents outstanding 62,946 56,252
- ----------------------------------------------------------------------------
</TABLE>
Since December 31, 1996, the Company has completed the purchase of
certain operating assets of First Physicians Medical Group, a 21-physician
clinic based in Palm Springs, California, The Vancouver Clinic, a 66-physician
clinic based in Vancouver, Washington, and St. Petersburg Medical Clinic and
Suncoast Medical Clinic which formed the 95-physician St. Petersburg-Suncoast
Medical Group based in St. Petersburg, Florida. The Company has also entered
into a 40-year service agreement with each of these multi-specialty physician
groups.
In January 1997, PHYCOR consummated its merger with Straub Clinic &
Hospital, Incorporated, an integrated health care system with a 152-physician
multi-specialty clinic and 159-bed acute care hospital located in Honolulu,
Hawaii. In connection with the merger, PHYCOR will also provide management
services to a related 35-physician group.
(4) PROPERTY AND EQUIPMENT
Property and equipment at December 31, are summarized as follows (in
thousands):
<TABLE>
<CAPTION>
1996 1995
- -----------------------------------------------------------------------------
<S> <C> <C>
Land and improvements $ 3,326 $ 3,677
Buildings and leasehold improvements 50,154 42,779
Equipment 142,745 83,786
Equipment under capital leases 9,571 8,300
Construction in progress 10,470 4,666
- -----------------------------------------------------------------------------
216,266 143,208
Less accumulated depreciation and amortization 56,038 34,395
- -----------------------------------------------------------------------------
Net property and equipment $160,228 $108,813
=============================================================================
</TABLE>
(5) INVESTMENT IN PHYCOR MANAGEMENT CORPORATION (PMC)
In June 1995, the Company purchased a minority interest of
approximately 9% in PMC and manages PMC pursuant to a 10-year administrative
services agreement. PMC develops and manages IPA's and provides other services
to physician organizations. PHYCOR has an option to purchase the remaining
equity interest of PMC prior to the end of May 2005 at increasing prices based
on the issuance price of the stock plus a fixed annual return. In connection
with the PMC transaction, the Company committed to
34
<PAGE> 19
PHYCOR, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
establish a revolving line of credit of $2.0 million for PMC for a period of
five years of which no amounts were outstanding as of December 31, 1996.
(6) INTANGIBLE ASSETS
Intangible assets at December 31, consist of the following (in
thousands):
<TABLE>
<CAPTION>
1996 1995
- -----------------------------------------------------------------------------
<S> <C> <C>
Clinic service agreements $508,869 $288,787
Excess of cost of acquired assets over fair value 42,571 16,583
Franchise rights 2,219 2,366
Other 6,046 1,227
- -----------------------------------------------------------------------------
$559,705 $308,963
=============================================================================
</TABLE>
(7) FAIR VALUE OF FINANCIAL INSTRUMENTS
As of December 31, 1996 and 1995, the fair value of the Company's cash
and cash equivalents, accounts receivable, accounts payable, due to physician
groups, and accrued expenses approximated their carrying value because of the
short maturities of those financial instruments. The fair value of the Company's
long-term debt also approximates its carrying value since the related notes bear
interest at current market rates.
The estimated fair value of the convertible subordinated notes payable
to physician groups was approximately $89,635,000 and $99,293,000 as of December
31, 1996 and 1995, respectively. The carrying value of these notes was
approximately $83,918,000 and $59,369,000 at December 31, 1996 and 1995,
respectively. The estimated fair value of the Company's convertible subordinated
debentures as of December 31, 1996 was $198,000,000, compared to a carrying
value of $200,000,000. The estimated fair value of these convertible securities
is based on the greater of their face value and the closing market value of the
common shares into which they could have been converted at the respective
balance sheet date.
(8) CONVERTIBLE SUBORDINATED NOTES PAYABLE TO PHYSICIAN GROUPS
At December 31, 1996 and 1995, the Company had outstanding subordinated
convertible notes payable to affiliated physician groups in the aggregate
principal amount of approximately $83,918,000 and $59,369,000, respectively.
These notes bear interest at rates of 6.0% to 7.0% and are convertible into
shares of the Company's common stock at conversion prices ranging from $9.59 to
$57.78 per share. A convertible subordinated note of $33,295,000 issued in
connection with the Guthrie Clinic transaction will be convertible into
approximately 903,000 shares of common stock upon the Company's acquisition of
the clinic's assets. If the then current price of the common stock is less than
the conversion price, PHYCOR will pay the clinic the principal amount of the
note. The remaining convertible notes may be converted into approximately
2,527,000 shares of common stock commencing on varying dates in 1996 and 1997 at
the option of the holders.
(9) CONVERTIBLE SUBORDINATED DEBENTURES
At December 31, 1994, the Company had $28,655,000 of convertible
subordinated debentures outstanding. The debentures had a coupon rate of 6.5%
and were convertible into the Company's common stock at $5.87 per share. The
Company called for redemption effective January 20, 1995, all outstanding
debentures at a redemption price of 105.2% of par value plus accrued interest.
In January 1995, prior to the redemption date, the debentures were converted
into common stock of the Company.
During February 1996, the Company completed a public offering of
convertible subordinated debentures, which mature in 2003. Gross and net
proceeds from the offering were $200,000,000 and approximately $194,395,000,
respectively. The debentures were priced at par with a coupon rate of 4.5% and
are convertible into the Company's common stock at $38.67 per share. The
debentures may not be redeemed at the Company's option prior to February 15,
1998. From February 15, 1998 to February 15, 1999, the bonds may be redeemed
only if the price of the Company's common stock exceeds $54.13. From February
15, 1999 to maturity, the bonds may be redeemed at prices decreasing from
102.572% of face value to face value.
35
<PAGE> 20
PHYCOR, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(10) LONG-TERM DEBT
Long-term debt at December 31, consists of the following (in
thousands):
<TABLE>
<CAPTION>
1996 1995
- ------------------------------------------------------------------------------
<S> <C> <C>
Term loan and revolving credit agreement,
bearing interest at rates of 6.19% to 6.31%
at December 31, 1996 $119,000 $58,300
Mortgages payable, bearing interest at rates
ranging from 8.00% to 10.5%, secured by land,
building, and certain equipment 3,899 7,767
Other notes payable 637 425
- ------------------------------------------------------------------------------
Total long-term debt 123,536 66,492
Less current installments 424 587
- ------------------------------------------------------------------------------
Long-term debt, excluding current installments $123,112 $65,905
==============================================================================
</TABLE>
In July 1996, the Company completed modifications to its bank credit
facility (Bank Credit Facility), which included the revision of certain terms
and conditions and the addition of six participating financial institutions. The
revised Bank Credit Facility provides for a five-year, $200,000,000 revolving
line of credit and a $100,000,000 364-day facility for use by the Company prior
to July 2001, for acquisitions, working capital, capital expenditures and
general corporate purposes. The Bank Credit Facility provides that borrowings
under the facility bear interest at either the Agent's base rate or .25% to .55%
above the applicable eurodollar rate. The Company is required to pay a facility
fee of between .10% to .25% per annum on the commitments, payable quarterly in
arrears, until the commitments are terminated. The total drawn cost of
borrowings under the Bank Credit Facility ranges from .375% to .75% above the
applicable eurodollar rates.
The Bank Credit Facility contains covenants which, among other things,
require the Company to maintain certain financial ratios and impose certain
limitations or prohibitions on the Company with respect to (i) the incurrence of
certain indebtedness, (ii) the creation of security interest on the assets of
the Company, and (iii) the payment of cash dividends on, and the redemption or
repurchase of, securities of the Company, investments and acquisitions. The
Company is required to obtain bank consent for acquisitions with an aggregate
purchase price of $50.0 million or more. The Company was in compliance with such
covenants at December 31, 1996.
The aggregate maturities of long-term debt at December 31, 1996, are as
follows (in thousands):
<TABLE>
<S> <C>
1997 $ 424
1998 245
1999 264
2000 285
2001 119,302
Thereafter 3,016
- --------------------------------------------------------------------------------
$123,536
================================================================================
</TABLE>
(11) LEASES
The Company has entered into operating leases of commercial property
and clinic equipment with affiliated physician groups and third parties.
Commercial properties under operating leases include clinic buildings, satellite
operations, and administrative facilities. Capital leases relating to clinic
equipment expire at various dates during the next five years.
36
<PAGE> 21
PHYCOR, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The future minimum lease payments under noncancelable operating leases
and the present value of future minimum capital lease payments at December 31,
1996, are as follows (in thousands):
<TABLE>
<CAPTION>
Net
Capital operating
leases leases
- ------------------------------------------------------------------------------
<S> <C> <C>
1997 $1,491 4,189
1998 924 3,331
1999 362 2,779
2000 209 2,198
2001 84 2,025
Thereafter 71 8,699
- ------------------------------------------------------------------------------
Total minimum lease payments $3,141 23,221
======
Less amount representing interest
(at rates ranging from 10% to 13%) 437
- -------------------------------------------------------------
Present value of net minimum capital lease
payments 2,704
Less current installments of obligations
under capital leases 1,237
- -------------------------------------------------------------
Obligations under capital leases,
excluding current installments $1,467
=============================================================
</TABLE>
At December 31, 1996, equipment with a cost of approximately $9,571,000
and accumulated depreciation of approximately $6,054,000 was held under capital
leases.
Net payments under operating leases include total commitments of
$539,682,000 reduced by amounts to be reimbursed under clinic service agreements
of $516,461,000. Payments due under operating leases include $231,139,000
payable to physician groups and their affiliates. In the event of a service
agreement termination, any related lease obligations are also terminated. Total
rental expense for operating leases in 1996, 1995, and 1994 was approximately
$65,577,000, $37,920,000, and $22,961,000, respectively.
(12) SHAREHOLDERS' EQUITY
(a) Common Stock
On April 15, 1994, the Company completed a public offering of 6,885,000
shares of its common stock. Net proceeds from the offering were approximately
$58,700,000. On June 23, 1995, the Company completed an additional public
offering of 6,955,000 shares of its common stock. Net proceeds from the offering
were approximately $110,900,000.
On November 18, 1994, the Company declared a three-for-two stock split
effected in the form of a 50% stock dividend on outstanding shares distributed
December 15, 1994 to shareholders of record on December 1, 1994. A second
three-for-two stock split was declared on August 18, 1995 to shareholders of
record on September 1, 1995. A third three-for-two stock split was declared on
May 17, 1996 to shareholders of record on May 31, 1996. All common share and per
share data included in the accompanying consolidated financial statements and
footnotes thereto have been restated to reflect these stock splits.
On February 27, 1997, the Company completed a public offering of
6,400,000 shares of its common stock at a price of $30.00 per share. On March 7,
1997, the Companyu sold 895,000 additional shares. Net proceeds to the Company
from the offering totaled approximately $210,500,000 and were used to repay bank
debt.
(b) Preferred Stock
The Company has 10,000,000 shares of authorized but unissued preferred
stock. The Company has reserved for issuance 500,000 shares of Series A Junior
Participating Preferred Stock issuable in the event of certain change-in-control
events.
37
<PAGE> 22
PHYCOR, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(c) Warrants
In February 1992, the Company issued a warrant to purchase 42,188
shares of common stock at an exercise price of $4.74 per share of which the
right to purchase 15,000 shares has been exercised.
In June 1995, the Company issued warrants for the purchase of 348,001
shares of common stock in connection with the PMC offering, which consisted of
the warrants and shares of PMC's Class B common stock. The exercise price of the
warrants is $15.40. The warrants are exercisable at any time prior to May 2005.
In connection with certain clinic transactions, the Company has issued warrants
for the purchase of a total of 506,010 shares of common stock. The following
represents a summary of warrants outstanding at December 31, 1996:
<TABLE>
<CAPTION>
Exercisable at
Grant Expiration Number Exercise December 31,
date date of shares price 1996
- ---------------------------------------------------------------------------
<S> <C> <C> <C> <C>
February 1992 1998 27,188 $ 4.74 27,188
June 1995 2005 348,001 15.40 348,001
November 1995 2003 387,967 25.78 --
April 1996 2002 50,208 29.87 --
July 1996 2002 67,835 44.23 --
- ---------------------------------------------------------------------------
881,199 375,189
===========================================================================
</TABLE>
(d) 1988 Stock Incentive Plan and Other Stock Plans
The Company has two stock option plans. Under the Amended 1988
Incentive Stock Plan ("Incentive Plan"), the Company has reserved 13,500,000
shares of it common stock for issuance pursuant to option and stock grants to
employees and directors. Under the Amended 1992 Directors Stock Plan ("
Directors Plan"), 337,500 shares of common stock are reserved. Under both plans,
stock options are granted with an exercise price equal to the estimated fair
market value of the Company's common stock on the date of grant. All options
have a term of ten years and become exercisable in installments over periods
ranging up to five years. In addition to options granted under the two plans,
the Company has granted options for the purchase of 25,313 shares of its common
stock to a director of the Company and a consultant.
At December 31, 1996, there were approximately 2,476,000 and 166,000
additional shares available for grant under the Incentive Plan and the Directors
Plan, respectively.
The per share weighted-average fair value of stock options granted
during 1996 and 1995 was $16.97 and $9.25 on the date of grant using the Black
Scholes option-pricing model with the following weighted-average assumptions:
expected dividend yield of 0.0% for both 1996 and 1995, expected volatility of
56% in 1996 and 43% in 1995, risk-free interest rate ranging from 5.25% to 6.63%
in 1996 and 5.50% to 7.75% in 1995, and an expected life of five years for both
1996 and 1995.
The Company applies APB Opinion No. 25 in accounting for its Plan and,
accordingly, no compensation cost has been recognized for its stock options in
the financial statements. Had the Company determined compensation cost based on
the fair value at the grant date for its stock options under SFAS No. 123, the
Company's net income would have been reduced to the pro forma amounts indicated
below (in thousands except for earnings per share):
<TABLE>
<CAPTION>
1996 1995
- ------------------------------------------------------------------------------
<S> <C> <C> <C>
Net income As reported $36,380 $21,874
Pro forma 31,427 20,673
Earnings per share As reported $ .60 $ .41
Pro forma .51 .39
</TABLE>
Pro forma net income reflects only options granted in 1996 and 1995.
Therefore, the full impact of calculating compensation cost for stock options
under SFAS No. 123 is not reflected in the pro forma net income amounts
presented above because compensation cost is reflected over the options' vesting
period and compensation cost for options granted prior to January 1, 1995 is not
considered.
38
<PAGE> 23
PHYCOR, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Stock option activity during the periods indicated is as follows
(shares in thousands):
<TABLE>
<CAPTION>
Number of Weighted-Average
Shares Exercise Price
- --------------------------------------------------------------------------------
<S> <C> <C>
Balance at December 31, 1994 4,870 7.13
Granted 2,924 19.81
Exercised (113) 4.27
Forfeited (127) 9.36
- --------------------------------------------------------------------------------
Balance at December 31, 1995 7,554 11.93
Granted 3,164 30.55
Exercised (297) 5.25
Forfeited (134) 19.49
- --------------------------------------------------------------------------------
Balance at December 31, 1996 10,287 17.84
================================================================================
</TABLE>
At December 31, 1996, the range of exercise prices and weighted-average
remaining contractual life of outstanding options was $2.97 - $38.33 and 8.16
years, respectively.
At December 31, 1996 and 1995, the number of options exercisable was
1,392,000 and 854,000, respectively, and the weighted-average exercise price of
those options was $5.23 and $4.15, respectively.
(e) Stock Purchase Plans
The Company has reserved 843,750 common shares for issuance pursuant to
its employee stock purchase plan. During 1996 and 1995, approximately 110,000
and 66,000 shares were issued relative to the plan. Shares issued under the
employee stock purchase plan will generally be priced at the lower of 85% of the
fair market value of the Company's common stock on the first or the last trading
days of the plan year.
The Company also established the 1996 Affiliate Stock Purchase Plan and
has reserved 2,250,000 common shares for this plan. Eligible participants
generally include physicians and other employees of medical clinics with which
the Company has a management or service agreement and employees of limited
liability companies and partnerships in which the Company has an equity interest
of at least 50%. Shares issued under the plan will be priced using a similar
method as that of the employee stock purchase plan. To date, no shares have been
issued under this plan.
(13) INCOME TAX EXPENSE
Current income tax expense for the years ended December 31, 1996, 1995,
and 1994, consists of (in thousands):
<TABLE>
<CAPTION>
1996 1995 1994
- -----------------------------------------------------------------------------
<S> <C> <C> <C>
Current:
Federal $10,935 $9,476 $2,199
State 2,224 1,499 1,061
Deferred:
Federal 9,354 2,564 1,302
State 262 384 264
- -----------------------------------------------------------------------------
$22,775 $13,923 $4,826
=============================================================================
</TABLE>
39
<PAGE> 24
PHYCOR, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Total income tax expense differed from the amount computed by applying
the U.S. Federal income tax rate of 34 percent in 1994 and 35 percent in 1995
and 1996 to earnings before income taxes as a result of the following (in
thousands):
<TABLE>
<CAPTION>
1996 1995 1994
- ------------------------------------------------------------------------------
<S> <C> <C> <C>
Computed "expected" tax expense $20,704 $12,529 $ 5,610
Increase (reduction) in income
taxes resulting from:
Net operating loss carryforwards utilized -- -- (3,662)
State income taxes,
net of federal income tax benefit 1,616 1,224 875
Reduction of goodwill of acquired entity -- -- 1,951
Increase in deferred tax rate -- 160 --
Amortization of nondeductible goodwill 499 -- --
Other (44) 10 52
- ------------------------------------------------------------------------------
Total income tax expense $22,775 $13,923 $ 4,826
==============================================================================
</TABLE>
The tax effects of temporary differences that give rise to significant
portions of the deferred tax asset and deferred tax liability are presented
below (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31, December 31,
1996 1995
- -------------------------------------------------------------------------------
<S> <C> <C>
Deferred tax assets:
Reserves for incurred but not
reported self-insurance claims $ 3,013 $ 555
Operating loss carryforwards 4,921 4,208
Deferred gain on sale and leaseback -- 304
Other 1,427 1,288
- -------------------------------------------------------------------------------
Total gross deferred tax asset 9,361 6,355
Less valuation allowance (3,441) (2,520)
- -------------------------------------------------------------------------------
Net deferred tax asset 5,920 3,835
- -------------------------------------------------------------------------------
Deferred tax liability:
Plant and equipment, principally due to
differences in depreciation 6,968 3,463
Capital leases 2,347 1,814
Clinic service agreements 10,265 4,658
Prepaid expenses 1,726 1,293
Income from partnerships 1,506 --
Other 382 265
- -------------------------------------------------------------------------------
Total gross deferred tax liability 23,194 11,493
- -------------------------------------------------------------------------------
Net deferred tax liability $17,274 $ 7,658
===============================================================================
</TABLE>
40
<PAGE> 25
PHYCOR, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The significant components of the deferred tax expense as of December
31, 1996 and 1995 are as follows (in thousands):
<TABLE>
<CAPTION>
1996 1995
- -----------------------------------------------------------------------------
<S> <C> <C>
Change in net deferred tax liability $9,616 $1,669
Deferred taxes of acquired entities -- 1,279
- -----------------------------------------------------------------------------
Deferred tax expense $9,616 $2,948
=============================================================================
</TABLE>
The valuation allowance for deferred tax assets as of December 31, 1996
was $3,441,000. The net change in the total valuation allowance, which primarily
relates to federal and state net operating loss carryforwards, for the year
ended December 31, 1996 was an increase of $921,000. The increase in the
valuation reserve relates to deferred tax assets of entities acquired during
1996. As of December 31, 1996, the Company had approximately $3,650,000 of
federal and $56,000,000 of state net operating loss carryforwards which begin to
expire in 2003. The utilization of these carryforwards is subject to the future
level of taxable income of the applicable subsidiaries.
The Company has been the subject of an audit by the IRS since 1991, and
the IRS has proposed adjustments relating to the timing of recognition for tax
purposes of certain revenue and deductions relating to uncollectable accounts.
PHYCOR disagrees with the positions asserted by the IRS and is vigorously
contesting these proposed adjustments. The Company believes that any
adjustments resulting from resolution of this disagreement would not affect
reported net earnings of PHYCOR but would defer tax benefits and change the
levels of current and deferred tax assets and liabilities.
(14) EMPLOYEE BENEFIT PLANS
As of January 1, 1989, the Company adopted the PHYCOR, Inc. Savings and
Profit Sharing Plan. The Plan is a defined contribution plan covering
substantially all employees. Company contributions are based on specified
percentages of employee compensation. The Company funds contributions as
accrued. The contributions for 1996, 1995, and 1994 amounted to $7,803,000,
$3,976,000, and $2,265,000, respectively.
In connection with certain of the Company's acquisitions, the Company
adopted employee retirement plans previously sponsored solely by the physician
groups. The Company has recognized as expense its required contributions to be
made to the plans of approximately $3,174,000, $1,248,000, and $1,016,000
relative to its employees for 1996, 1995 and 1994, respectively.
(15) COMMITMENTS AND CONTINGENCIES
(a) Employment Agreements
The Company has entered into employment agreements with certain of its
management employees, which include, among other terms, noncompetitive
provisions and salary and benefits continuation.
(b) Commitments to Physician Groups
Under terms of certain of its service agreements, the Company is
committed to provide capital for the improvement and expansion of clinic
facilities. The commitments vary depending on such factors as total capital
expenditures, the number of physicians practicing at each clinic, and the cost
of specific planned projects. All projects funded under these commitments must
be approved by the Company before they commence.
41
<PAGE> 26
PHYCOR, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The Company is also committed to provide, under certain circumstances,
advances to physician groups to principally finance the recruitment of new
physicians. These advances will be repaid out of the physician groups' share of
future clinic revenue. At December 31, 1996 and 1995, $2,230,000, and $672,000,
respectively, of such advances were outstanding.
(c) Litigation
The Company is subject to various claims and legal actions which arise
in the ordinary course of business. The Company has malpractice and other
insurance to protect against such claims or legal actions. In the opinion of
management, the ultimate resolution of such matters will be adequately covered
by the insurance and will not have a material adverse effect on the Company's
financial position, results of operation or liquidity.
(d) Insurance
The Company and its affiliated physician groups are insured with
respect to medical malpractice risks on a claims-made basis. There are known
claims and incidents that may result in the assertion of additional claims, as
well as claims from unknown incidents that may be asserted. Management is not
aware of any claims against it or its affiliated physician groups which might
have a material impact on the Company's financial position.
(e) Contingent Consideration
In connection with the acquisition of clinic operating assets, the
Company is contingently obligated to pay an estimated additional $64,000,000 in
future years, depending on the achievement of certain financial and operational
objectives by the related physician groups. Such liability, if any, will be
recorded in the period in which the outcome of the contingency becomes known.
Any payment made will be allocated among the assets acquired and will not
immediately be charged to expense.
42
<PAGE> 27
COMMON STOCK
PHYCOR, Inc. Common Stock is traded on the Nasdaq Stock Market under
the symbol PHYC. The Company's 4.5% convertible subordinated debentures due
2003, are traded on the Nasdaq Stock Market under the symbol PHYCH. The
Company's initial public offering took place on January 22, 1992. The high and
low sale prices have been adjusted to reflect the three-for-two stock splits
effected in December 1994, September 1995, and June 1996.
<TABLE>
<CAPTION>
1995 High Low
- -----------------------------------------
<S> <C> <C>
First Quarter $15.89 $10.89
Second Quarter 17.05 12.00
Third Quarter 23.05 15.22
Fourth Quarter 34.00 20.50
- -----------------------------------------
1996
- -----------------------------------------
First Quarter $37.00 $25.50
Second Quarter 41.63 26.67
Third Quarter 39.25 26.75
Fourth Quarter 41.50 25.63
- -----------------------------------------
1997
- -----------------------------------------
First Quarter $35.38 $26.75
- -----------------------------------------
</TABLE>
As of March 31, 1997, the Company had approximately 20,600
shareholders, including approximately 2,300 shareholders of record and
approximately 18,300 persons or entities holding Common Stock in nominee name.
The Company has never declared or paid a dividend on its Common Stock,
except for the three-for-two stock splits referred to above, each of which was
paid in the form of a 50% stock dividend. The Company intends to retain its
earnings to finance the growth of its businesses. The declaration of dividends
is currently prohibited by the Company's bank credit facility, and it is
anticipated that loan agreements which the Company may enter into in the future
will also contain restrictions on the payment of dividends by the Company.
43
<PAGE> 1
EXHIBIT 21
PHYCOR, INC.
LIST OF SUBSIDIARIES
Name of Entity State of Incorporation
- -------------- ----------------------
PhyCor - Lafayette, LLC Tennessee
PhyCor/Lexington Real Estate, LLC Tennessee
PhyCor of Birmingham, Inc. Tennessee
PhyCor of Boulder, Inc. Tennessee
PhyCor of Charlotte, Inc. Tennessee
PhyCor of Chickasha, Inc. Tennessee
PhyCor of Cleburne, Inc. Tennessee
PhyCor of Coachella Valley, Inc. Tennessee
PhyCor of Columbia, Inc. Tennessee
PhyCor of Conroe, Inc. Tennessee
PhyCor of Corsicana, Inc. Tennessee
PhyCor of Dallas, Inc. Texas
PhyCor of Denver, Inc. Tennessee
PhyCor of Dixon, Inc. Tennessee
PhyCor of Eugene, Inc. Tennessee
PhyCor of Fort Collins, Inc. Tennessee
PhyCor of Fort Smith, Inc. Tennessee
PhyCor of Freeport, Inc. Tennessee
PhyCor GF-2, Inc. Tennessee
PhyCor of Greeley, Inc. Tennessee
PhyCor of Harlingen, Inc. Tennessee
PhyCor of Hattiesburg, Inc. Tennessee
PhyCor of Hawaii, Inc. Tennessee
PhyCor of Irving, Inc. Tennessee
PhyCor of Jacksonville, Inc. Tennessee
PhyCor of Kentucky, LLC Tennessee
PhyCor of Kingsport, Inc. Tennessee
PhyCor of Laconia, Inc. Tennessee
PhyCor of Lafayette, Inc. Tennessee
PhyCor of LaGrange, Inc. Tennessee
PhyCor of Madisonville, Inc. Tennessee
PhyCor of Mesa, Inc. Tennessee
PhyCor of Minot, Inc. Tennessee
PhyCor of Nashville, Inc. Tennessee
PhyCor of Newnan, Inc. Tennessee
PhyCor of Northeast Arkansas, Inc. Tennessee
PhyCor of Northern Michigan, Inc. Tennessee
PhyCor of Ogden, Inc. Tennessee
1
<PAGE> 2
Name of Entity State of Incorporation
- -------------- ----------------------
PhyCor of Olean, Inc. Tennessee
PhyCor of Phoenix, Inc. Tennessee
PhyCor of Pueblo, Inc. Tennessee
PhyCor of Richmond, Inc. Tennessee
PhyCor of Roanoke, Inc. Tennessee
PhyCor of Rome, Inc. Tennessee
PhyCor of Ruston, Inc. Louisiana
PhyCor of San Antonio, Inc. Tennessee
PhyCor of Sayre, Inc. Tennessee
PhyCor of South Bend, LLC Tennessee
PhyCor of St. Petersburg, Inc. Tennessee
PhyCor of Tidewater, Inc. Tennessee
PhyCor of Toledo, Inc. Tennessee
PhyCor of Vancouver, Inc. Tennessee
PhyCor of Vero Beach, Inc. Florida
PhyCor of West Houston, Inc. Tennessee
PhyCor of Wharton, Inc. Tennessee
PhyCor of Wichita Falls, Inc. Tennessee
PhyCor of Wilmington, Inc. Tennessee
PhyCor of Winter Haven, Inc. Tennessee
PhyCor-Texas Gulf Coast, Inc. Tennessee
The Member Corporation, Inc. Tennessee
North American Medical Management, Inc. Tennessee
IPA Management Associates, Inc. Texas
St. Petersburg Medical Clinic, Inc. Florida
2
<PAGE> 1
EXHIBIT 23
INDEPENDENT AUDITORS' CONSENT
The Board of Directors and Shareholders
PhyCor, Inc.:
We consent to incorporation by reference in the registration statements of
PhyCor, Inc. on Form S-3 (Nos. 33-98528 and 333-21151), Form S-4
(Nos. 33-66210, 33-98530 and 333-15459) and Form S-8 (No. 33-65228) of our
report dated February 4, 1997, except for Note 12(a) which is as of March 7,
1997, relating to the consolidated balance sheets of PhyCor, Inc. and
subsidiaries as of December 31, 1996 and 1995, and the related consolidated
statements of income, shareholders' equity, and cash flows for each of the
years in the three-year period ended December 31, 1996 and all related
schedules which reports appear in the December 31, 1996 annual report on Form
10-K of PhyCor, Inc.
KPMG PEAT MARWICK LLP
Nashville, Tennessee
March 28, 1997
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<CASH> 30,530
<SECURITIES> 0
<RECEIVABLES> 429,993
<ALLOWANCES> 134,556
<INVENTORY> 15,185
<CURRENT-ASSETS> 383,427
<PP&E> 216,266
<DEPRECIATION> 56,038
<TOTAL-ASSETS> 1,118,581
<CURRENT-LIABILITIES> 170,481
<BONDS> 323,112
0
0
<COMMON> 389,712
<OTHER-SE> 61,991
<TOTAL-LIABILITY-AND-EQUITY> 1,118,581
<SALES> 0
<TOTAL-REVENUES> 766,325
<CGS> 0
<TOTAL-COSTS> 684,593
<OTHER-EXPENSES> 10,463
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 12,114
<INCOME-PRETAX> 59,155
<INCOME-TAX> 22,775
<INCOME-CONTINUING> 36,380
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 36,380
<EPS-PRIMARY> .60
<EPS-DILUTED> .60
</TABLE>
