- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM 10-Q
[X] Quarterly Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
For the quarterly period ended September 30, 1998
[ ] Transition Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
For the transition period from
to
Commission File Number: 0-22392
----------
PRIME MEDICAL SERVICES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 74-2652727
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1301 Capital of Texas Highway, Austin, Texas 78746
(Address of principal executive offices) (Zip Code)
(512) 328-2892
(Registrant's telephone number, including area code)
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 the number of shares outstanding of each of the issuer's classes
of common equity, as of the latest practicable date.
Number of Shares Outstanding at
Title of Each Class October 31, 1998
-------------------- --------------------
Common Stock, $.01 par value 17,880,067
<PAGE>
PART I
FINANCIAL INFORMATION
-2-
<PAGE>
PRIME MEDICAL SERVICES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
($ in thousands, except per share data)
<TABLE>
<S> <C> <C> <C> <C>
Three Months Ended Nine Months Ended
September 30, September 30,
-------------- --------------
1998 1997 1998 1997
---- ---- ---- ----
Fee revenue:
Lithotripsy:
Fee revenues $23,053 $23,429 $62,598 $63,161
Management fees 1,444 1,702 3,797 4,847
Equity income 727 695 1,977 1,676
--- --- ----- -----
25,224 25,826 68,372 69,684
Manufacturing 3,313 401 7,474 401
Prostatherapy 344 -- 651 --
Cardiac and other 55 134 263 385
------ ------ ------ ------
28,936 26,361 76,760 70,470
------ ------ ------ ------
Costs and expenses:
Cost of services and general
and administrative expense
Lithotripsy 6,282 6,461 17,456 18,785
Manufacturing 2,993 345 6,150 345
Prostatherapy 259 -- 528 --
Cardiac and other 49 196 197 358
Corporate 1,328 1,375 3,979 4,213
Nonrecurring restructuring/
development costs -- -- 1,617 --
------ ----- ------ ------
10,911 8,377 29,927 23,701
Depreciation and amortization 2,567 2,464 7,740 7,282
----- ----- ----- -----
13,478 10,841 37,667 30,983
------ ------ ------ ------
Operating income 15,458 15,520 39,093 39,487
Other income (deductions):
Interest and dividends 564 212 1,150 507
Interest expense (2,312) (1,859) (6,426) (5,602)
Financing costs -- -- (4,982) (360)
Other, net (147) (82) 185 71
---- --- --- --
(1,895) (1,729) (10,073) (5,384)
------ ------ ------- ------
Income before provision for income taxes
and minority interest 13,563 13,791 29,020 34,103
Minority interest in consolidated income 7,036 7,345 18,069 19,010
Provision for income taxes 2,586 1,926 4,661 4,027
----- ----- ----- -----
Net income $ 3,941 $ 4,520 $ 6,290 $11,066
======= ======= ======= =======
Basic earnings per share:
Net income $ 0.21 $ 0.23 $ 0.33 $ 0.57
======= ======= ======= =======
Weighted average shares outstanding 18,437 19,299 18,943 19,265
====== ====== ====== ======
Diluted earnings per share:
Net income $ 0.21 $ 0.23 $ 0.33 $ 0.57
======= ======= ======= =======
Weighted average shares outstanding 18,561 19,483 19,084 19,458
====== ====== ====== ======
</TABLE>
See accompanying notes to consolidated financial statements.
-3-
<PAGE>
PRIME MEDICAL SERVICES, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
($ in thousands)
September 30, December 31,
1998 1997
---- ----
(Unaudited)
ASSETS
Current assets:
Cash $ 32,563 $ 23,770
Accounts receivable, less allowance
for doubtful accounts of $658 in
1998 and $811 in 1997 21,419 19,387
Other receivables 2,295 1,103
Deferred income taxes 2,367 1,506
Prepaid expenses and other current assets 2,798 1,776
----- -----
Total current assets 61,442 47,542
Property and equipment:
Equipment, furniture and fixtures 34,079 32,673
Real estate and leasehold improvements 1,991 531
----- ---
36,070 33,204
Less accumulated depreciation and
amortization ( 17,026) (13,497)
-------- -------
Property and equipment, net 19,044 19,707
Other investments 11,715 12,305
Goodwill, at cost, net of amortization 140,778 143,823
Other noncurrent assets 1,462 1,517
----- -----
$234,441 $224,894
======== ========
See accompanying notes to consolidated financial statements.
-4-
<PAGE>
PRIME MEDICAL SERVICES, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(continued)
($ in thousands)
September 30, December 31,
1998 1997
---- ----
LIABILITIES: (Unaudited)
Current liabilities:
Current portion of long-term debt $ 924 $ 11,138
Accounts payable 9,877 5,386
Accrued expenses 9,870 20,859
----- ------
Total current liabilities 20,671 37,383
Long-term debt, net of current portion 101,045 71,198
Deferred income taxes 4,953 4,877
----- -----
Total liabilities 126,669 113,458
Minority interest 21,148 19,372
STOCKHOLDERS' EQUITY:
Preferred stock, $.01 par value,
1,000,000 shares authorized;
none outstanding -- --
Common stock, $.01 par value,
40,000,000 shares authorized;
19,322,267 issued in 1998 and
19,306,267 issued in 1997 193 193
Capital in excess of par value 84,225 84,050
Accumulated earnings 14,111 7,821
Treasury stock, at cost, 1,260,200 shares (11,905) --
------- ------
Total stockholders' equity 86,624 92,064
------ ------
$234,441 $224,894
======== ========
See accompanying notes to consolidated financial statements.
-5-
<PAGE>
PRIME MEDICAL SERVICES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
($ in thousands)
Nine Months Ended September 30,
1998 1997
---- ----
CASH FLOWS FROM OPERATING ACTIVITIES:
Fee and other revenue collected $ 72,755 $ 67,273
Cash paid to employees, suppliers
of goods, and others (33,919) (23,900)
Interest received 1,150 502
Interest paid (7,001) (5,666)
Income taxes paid (5,676) (499)
------ ------
Net cash provided by
operating activities 27,309 37,710
------ ------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of lithotripter operations -- (15,335)
Purchase of equipment and
leasehold improvements (3,643) (1,667)
Distributions from investments 2,336 1,798
Purchase of investments (408) (311)
Other 293 (192)
------ ------
Net cash (used in)
investing activities (1,422) (15,707)
------ ------
CASH FLOWS FROM FINANCING ACTIVITIES:
Borrowings on notes payable 100,025 50,959
Payments on notes payable, exclusive of interest (80,392) (47,696)
Distributions to minority interest (24,892) (27,728)
Purchase of treasury stock (11,905) --
Contributions by minority interest -- 815
Exercise of stock options 70 343
------- -------
Net cash (used in)
financing activities (17,094) (23,307)
------- -------
NET INCREASE (DECREASE) IN CASH AND
CASH EQUIVALENTS 8,793 (1,304)
Cash and cash equivalents, beginning of period 23,770 20,096
------ ------
Cash and cash equivalents, end of period $ 32,563 $ 18,792
========== =========
See accompanying notes to consolidated financial statements
-6-
<PAGE>
PRIME MEDICAL SERVICES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
($ in thousands)
Nine Months Ended September 30,
1998 1997
---- ----
Reconciliation of net income to
cash provided by operating activities
Net income $ 6,290 $ 11,066
Adjustments to reconcile net income
to cash provided by
operating activities:
Minority interest in consolidated income 18,069 19,010
Depreciation and amortization 7,740 7,282
Provision (benefit) for
deferred income taxes (785) 882
Provision for uncollectible accounts -- 362
Equity in earnings of affiliates (1,977) (1,701)
Other 20 66
Changes in operating assets and
liabilities, net of effect of
purchase transactions:
Accounts receivable ( 2,032) (1,975)
Other receivables (1,192) 217
Other current assets (1,022) (320)
Accounts payable 4,491 (691)
Accrued expenses (2,293) 3,512
------ -----
Total adjustments 21,019 26,644
------ ------
Net cash provided by
operating activities $ 27,309 $ 37,710
========== ==========
See accompanying notes to consolidated financial statements
-7-
<PAGE>
PRIME MEDICAL SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1998
(Unaudited)
1. General:
- -- -------
The accompanying unaudited consolidated financial statements have been prepared
in conformity with the accounting principles stated in the audited financial
statements for the year ended December 31, 1997 and reflect all adjustments
which are, in the opinion of management, necessary for a fair statement of the
financial position as of September 30, 1998 and the results of operations for
the periods presented. The operating results for the interim periods are not
necessarily indicative of results for the full fiscal year.
The notes to consolidated financial statements appearing in the Company's Annual
Report on Form 10-K/A for the year ended December 31, 1997 filed with the
Securities and Exchange Commission should be read in conjunction with this
Quarterly Report on Form 10-Q. There have been no significant changes in the
information reported in those notes other than from normal business activities
of the Company.
2. Financing Activities and Charge to Operations:
- -- ----------------------------------------------
In March 1998, the Company completed an offering of an aggregate $100 million of
senior subordinated notes (the "Notes") due 2008. The issue price of the notes
was 99.50 with an 8.75% coupon. Interest is payable semiannually on April 1 and
October 1, beginning October 1, 1998. The financing costs associated with this
offering totaling $4,418,000 were expensed on the accompanying consolidated
statements of income. A portion of the proceeds from the offering were used to
pay off the Company's $77 million of term loans under its existing credit
facility.
The Company increased its senior revolving credit facility by $50 million to
$100 million. The interest rate on draws on this facility is based on LIBOR plus
a margin ranging from 100 to 200 basis points. No amounts have been drawn on the
revolver. Loan fees of $560,000 associated with the credit facility increase
were expensed in March 1998 on the accompanying consolidated statements of
income.
In March 1998, the Company recorded a write off of development costs totaling
$1,617,000 due to the uncertainty associated with the proposed Stark II
regulations issued in January 1998. These costs include development costs
associated with partnerships and certification of its manufacturing entity.
3. Earnings Per Share:
- -- -------------------
SFAS No. 128 was adopted by the Company in 1997. The earnings per share data for
the nine months and quarter ended September 30, 1997 has been restated to comply
with SFAS No. 128. Basic EPS is based on weighted average shares outstanding
without any dilutive effects considered. Diluted EPS reflects dilution from all
contingently issuable shares, including options. A reconciliation of such EPS
data is as follows:
-8-
<PAGE>
PRIME MEDICAL SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1998
(Unaudited)
(continued)
Nine Months Ended September 30:
Basic Diluted
earnings earnings
per share per share
--------- ---------
(in thousands,
except per share data)
1998
- ----
Net income applicable to common stock $ 6,290 $ 6,290
========= =========
Average number of shares outstanding 18,943 18,943
Average stock option shares -- 141
--------- ---------
Shares for EPS calculation 18,943 19,084
====== ======
Net income per share $ 0.33 $ 0.33
========= =========
1997
- ----
Net income applicable to common stock $ 11,066 $ 11,066
======== =========
Average number of shares outstanding 19,265 19,265
Average stock option shares -- 193
-------- ---------
Shares for EPS calculation 19,265 19,458
======== =========
Net income per share $ 0.57 $ 0.57
======== =========
Unexercised stock options to purchase 1,397,000 shares of the Company's common
stock as of September 30, 1998 were not included in the computation of diluted
EPS because the effect would be antidilutive. Unexercised stock options to
purchase 736,500 shares of the Company's common stock as of September 30, 1997
were not included in the computation of diluted EPS because the effect would be
antidilutive.
-9-
<PAGE>
PRIME MEDICAL SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1998
(Unaudited)
(continued)
Quarter Ended September 30:
Basic Diluted
earnings earnings
per share per share
--------- ---------
(in thousands,
except per share data)
1998
Net income applicable to common stock $ 3,941 $ 3,941
========= =========
Average number of shares outstanding 18,437 18,437
Average stock option shares -- 124
--------- ---------
Shares for EPS calculation 18,437 18,561
========= =========
Net income per share $ 0.21 $ 0.21
========= =========
1997
Net income applicable to common stock $ 4,520 $ 4,520
========= =========
Average number of shares outstanding 19,299 19,299
Average stock option shares -- 184
--------- ---------
Shares for EPS calculation 19,299 19,483
========= =========
Net income per share $ 0.23 $ 0.23
========= =========
Unexercised stock options to purchase 1,386,000 shares of the Company's common
stock as of September 30, 1998 were not included in the computation of diluted
EPS because the effect would be antidilutive. Unexercised stock options to
purchase 705,500 shares of the Company's common stock as of September 30, 1997
were not included in the computation of diluted EPS because the effect would be
antidilutive.
4. Condensed Financial Information Regarding Guarantor Subsidiaries:
- -- -----------------------------------------------------------------
Condensed consolidating financial information regarding the Company, Guarantor
Subsidiaries and Non-guarantor Subsidiaries as of and for the periods ended
September 30, 1998 and 1997 is presented below for purposes of complying with
the reporting requirements of the Guarantor Subsidiaries. Separate financial
statements and other disclosures concerning each Guarantor Subsidiary have not
been presented because management has determined that such information is not
material to investors. The Guarantor Subsidiaries are wholly-owned subsidiaries
of the Company who have fully and unconditionally guaranteed the Notes described
in Note 2 above.
-10-
<PAGE>
PRIME MEDICAL SERVICES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
(Unaudited)
Condensed Consolidating Statement of Income
Nine Months Ended September 30, 1998
------------------------------------
($ in thousands)
<TABLE>
<S> <C> <C> <C> <C> <C>
Prime Medical Guarantor Non-Guarantor Eliminating Consolidated
Services Inc. Subsidiaries Subsidiaries Entries Total
------------- ------------ ------------ ------- -----
Fee revenue:
Lithotripsy:
Fee revenues $ -- $ 16,473 $ 46,125 $ -- $ 62,598
Management fees -- 2,139 1,658 -- 3,797
Equity income 22,375 14,478 -- (34,876) 1,977
Manufacturing -- -- 7,474 -- 7,474
Prostatherapy -- -- 651 -- 651
Cardiac -- 263 -- -- 263
---------- ---------- ---------- ---------- ----------
22,375 33,353 55,908 (34,876) 76,760
Costs and expenses:
Cost of services and general and
administrative expenses:
Lithotripsy -- 2,604 14,852 -- 17,456
Manufacturing -- -- 6,150 -- 6,150
Prostatherapy -- -- 528 -- 528
Cardiac -- 197 -- -- 197
Corporate 149 3,830 -- -- 3,979
Nonrecurring restructuring /
development costs 1,617 -- -- -- 1,617
---------- ---------- ---------- ---------- ----------
1,766 6,631 21,530 -- 29,927
Depreciation and amortization 5 3,877 3,858 -- 7,740
---------- ---------- ---------- ---------- ----------
Operating income 20,604 22,845 30,520 (34,876) 39,093
---------- ---------- ---------- ---------- ----------
Other income (deductions):
Interest income 507 359 284 -- 1,150
Interest expense (6,259) (5) (162) -- (6,426)
Financing costs (4,982) -- -- -- (4,982)
Other, net (135) 319 1 -- 185
---------- ---------- ---------- ---------- ----------
Total other income(deductions) (10,869) 673 123 -- (10,073)
Income before provision for income
taxes and minority interest 9,735 23,518 30,643 (34,876) 29,020
Minority interest in consolidated
income -- -- -- 18,069 18,069
Provision for income taxes 3,445 1,143 73 -- 4,661
---------- ---------- ---------- ---------- ----------
Net income $ 6,290 $ 22,375 $ 30,570 $ (52,945) $ 6,290
========== ========== ========== ========== ==========
</TABLE>
-11-
<PAGE>
PRIME MEDICAL SERVICES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
(Unaudited)
Condensed Consolidating Statement of Income
Nine Months Ended September 30, 1997
------------------------------------
($ in thousands)
<TABLE>
<S> <C> <C> <C> <C> <C>
Prime Medical Guarantor Non-Guarantor Eliminating Consolidated
Services Inc. Subsidiaries Subsidiaries Entries Total
-------------- ------------ ------------- ----------- ------------
Fee Revenue:
Lithotripsy:
Fee revenues $ -- $ 15,329 $ 47,832 $ -- $ 63,161
Management fees -- 2,940 1,907 -- 4,847
Equity income 20,017 12,952 -- (31,293) 1,676
Manufacturing -- -- 401 -- 401
Cardiac and other -- 385 -- -- 385
---------- ---------- ---------- ---------- ----------
20,017 31,606 50,140 (31,293) 70,470
Cost and expenses:
Cost of services and general and
administrative expenses
Lithotripsy -- 3,584 15,201 -- 18,785
Manufacturing -- -- 345 -- 345
Cardiac and other -- 358 -- -- 358
Corporate 525 3,688 -- -- 4,213
---------- ---------- ---------- ---------- ----------
525 7,630 15,546 -- 23,701
Depreciation and amortization 5 2,827 4,450 -- 7,282
---------- ---------- ---------- ---------- ----------
Operating income 19,487 21,149 30,144 (31,293) 39,487
---------- ---------- ---------- ---------- ----------
Other income (deductions):
Interest income -- 217 290 -- 507
Interest expense (5,370) (44) (188) -- (5,602)
Financing costs -- (360) -- -- (360)
Other, net -- (34) 105 -- 71
---------- ---------- ---------- ---------- ----------
Total other income (deductions) (5,370) (221) 207 -- (5,384)
Income before provision for income
taxes and minority interest 14,117 20,928 30,351 (31,293) 34,103
Minority interest in consolidated income -- -- -- 19,010 19,010
Provision for income taxes 3,051 911 65 -- 4,027
---------- ---------- ---------- ---------- ----------
Net income $ 11,066 $ 20,017 $30,286 $ (50,303) $ 11,066
========== ========== ======= ========== ==========
</TABLE>
-12-
<PAGE>
PRIME MEDICAL SERVICES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
(Unaudited)
Condensed Consolidating Statement of Income
Three Months Ended September 30, 1998
-------------------------------------
($ in thousands)
<TABLE>
<S> <C> <C> <C> <C> <C>
Prime Medical Guarantor Non-Guarantor Eliminating Consolidated
Services Inc. Subsidiaries Subsidiaries Entries Total
-------------- ------------ ------------- ----------- ------------
Fee revenue:
Lithotripsy:
Fee revenues $ -- $ 5,866 $ 17,187 $ -- $ 23,053
Management fees -- 777 667 -- 1,444
Equity income 8,312 5,506 -- (13,091) 727
Manufacturing -- -- 3,313 -- 3,313
Prostatherapy -- -- 344 -- 344
Cardiac -- 55 -- -- 55
---------- ---------- ---------- ---------- ----------
8,312 12,204 21,511 (13,091) 28,936
Costs and expenses:
Cost of services and general and
administrative expenses:
Lithotripsy -- 1,136 5,146 -- 6,282
Manufacturing -- -- 2,993 -- 2,993
Prostatherapy -- -- 259 -- 259
Cardiac -- 49 -- -- 49
Corporate 74 1,254 -- -- 1,328
---------- ---------- ---------- ---------- ----------
74 2,439 8,398 -- 10,911
Depreciation and amortization 2 1,257 1,308 -- 2,567
---------- ---------- ---------- ---------- ----------
Operating income 8,236 8,508 11,805 (13,091) 15,458
Other income (deductions):
Interest income 254 233 77 -- 564
Interest expense (2,267) (2) (43) -- (2,312)
Other, net (138) (9) -- -- (147)
---------- ---------- ---------- ---------- ----------
Total other income (deductions) (2,151) 222 34 -- (1,895)
Income before provision for income
taxes and minority interest 6,085 8,730 11,839 (13,091) 13,563
Minority interest in consolidated
income -- -- -- 7,036 7,036
Provision for income taxes 2,144 418 24 -- 2,586
---------- ---------- ---------- ---------- ----------
Net income $ 3,941 $ 8,312 $ 11,815 $ (20,127) $ 3,941
========== ========== ========== ========== ========
</TABLE>
-13-
<PAGE>
PRIME MEDICAL SERVICES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
(Unaudited)
Condensed Consolidating Statement of Income
Three Months Ended September 30, 1997
($ in thousands)
<TABLE>
<S> <C> <C> <C> <C> <C>
Prime Medical Guarantor Non-Guarantor Eliminating Consolidated
Services Inc. Subsidiaries Subsidiaries Entries Total
-------------- ------------ ------------- ----------- ------------
Fee Revenue:
Lithotripsy:
Fee revenues $ -- $ 5,912 $ 17,517 $ -- $ 23,429
Management fees -- 1,071 631 -- 1,702
Equity income 7,983 5,138 -- (12,426) 695
Manufacturing -- -- 401 -- 401
Cardiac -- 134 -- -- 134
---------- ---------- ---------- ---------- ----------
7,983 12,255 18,549 (12,426) 26,361
Cost and expenses:
Cost of services and general and
administrative expenses
Lithotripsy -- 1,340 5,121 -- 6,461
Manufacturing -- -- 345 -- 345
Cardiac -- 196 -- -- 196
Corporate 44 1,331 -- -- 1,375
---------- ---------- ---------- ---------- ----------
44 2,867 5,466 -- 8,377
Depreciation and amortization 1 1,089 1,374 -- 2,464
---------- ---------- ---------- ---------- ----------
Operating income 7,938 8,299 11,709 (12,426) 15,520
---------- ---------- ---------- ---------- ----------
Other income (deductions):
Interest income -- 92 120 -- 212
Interest expense (1,871) 62 (50) -- (1,859)
Other, net -- (117) 35 -- (82)
---------- ---------- ---------- ---------- ----------
Total other income (deductions) (1,871) 37 105 -- (1,729)
Income before provision for income
taxes and minority interest 6,067 8,336 11,814 (12,426) 13,791
Minority interest in consolidated income -- -- -- 7,345 7,345
Provision for income taxes 1,547 353 26 -- 1,926
---------- ---------- ---------- ---------- ----------
Net income $ 4,520 $ 7,983 $ 11,788 $ (19,771) $ 4,520
========== ========== ========== ========== ==========
</TABLE>
-14-
<PAGE>
PRIME MEDICAL SERVICES, INC. AND SUBSIDIARIES
(Unaudited)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Condensed Consolidating Balance Sheet
($ in thousands) September 30, 1998
<TABLE>
<S> <C> <C> <C> <C> <C>
Prime Medical Guarantor Non-Guarantor Eliminating Consolidated
Services Inc. Subsidiaries Subsidiaries Entries Total
-------------- ------------ ------------- ----------- ------------
ASSETS:
Current Assets:
Cash $ 17,101 $ 7,477 $ 7,985 $ -- $ 32,563
Accounts receivable, net -- 4,613 16,806 -- 21,419
Other receivables -- 2,295 -- -- 2,295
Deferred income taxes 1,640 727 -- -- 2,367
Prepaid expenses and other current assets -- 882 1,916 -- 2,798
---------- ---------- ---------- ---------- ----------
Total current assets 18,741 15,994 26,707 -- 61,442
Property and equipment:
Equipment, furniture and fixtures -- 5,764 28,315 -- 34,079
Real estate and leasehold improvements -- 491 1,500 -- 1,991
---------- ---------- ---------- ---------- ----------
Less accumulated depreciation
and amortization -- (4,404) (12,622) -- (17,026)
---------- ---------- ---------- ---------- ----------
Property and equipment, net -- 1,851 17,193 -- 19,044
---------- ---------- ---------- ---------- ----------
Investment in subsidiaries and other
investments 173,882 26,103 -- (188,270) 11,715
Goodwill, at cost, net of amortization -- 140,778 -- -- 140,778
Other noncurrent assets 321 850 291 -- 1,462
---------- ---------- ---------- ---------- ----------
Total Assets $ 192,944 $ 185,576 $ 44,191 $ (188,270) $ 234,441
========== ========== ========== ========== ==========
LIABILITIES:
Current Liabilities:
Current portion of long-term debt $ -- $ -- $ 924 $ -- $ 924
Accounts payable 14 4,492 5,371 -- 9,877
Accrued expenses 4,839 3,823 1,208 -- 9,870
---------- ---------- ---------- ---------- ----------
Total current liabilities 4,853 8,315 7,503 -- 20,671
Long-term debt, net of current portion 100,000 162 883 -- 101,045
Deferred income taxes 1,467 3,486 -- -- 4,953
---------- ---------- ---------- ---------- ----------
Total liabilities 106,320 11,963 8,386 -- 126,669
Minority interest -- -- -- 21,148 21,148
STOCKHOLDERS' EQUITY:
Common stock 193 -- -- -- 193
Capital in excess of par value 84,225 -- -- -- 84,225
Retained earnings 14,111 -- -- -- 14,111
Treasury stock (11,905) -- -- -- (11,905)
Subsidiary net equity -- 173,613 35,805 (209,418) --
---------- ---------- ---------- ---------- ----------
Total stockholders' equity 86,624 173,613 35,805 (209,418) 86,624
---------- ---------- ---------- ---------- ----------
Total Liabilities and
stockholders' equity $ 192,944 $ 185,576 $ 44,191 $ (188,270) $ 234,441
========== ========== ========== ========== ==========
</TABLE>
-15-
<PAGE>
PRIME MEDICAL SERVICES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
(Unaudited)
Condensed Consolidating Statement of Cash Flows
Nine Months Ended September 30, 1998
($ in thousands)
<TABLE>
<S> <C> <C> <C> <C> <C>
Prime Medical Guarantor Non-Guarantor Eliminating Consolidated
Services Inc. Subsidiaries Subsidiaries Entries Total
-------------- ------------ ------------- ----------- ------------
Net cash (used) provided by
operating activities $ (15,563) $ 8,667 $ 34,205 $ -- $ 27,309
---------- ---------- ---------- ---------- ----------
Cash flows from investing activities:
Purchases of equipment and leasehold
improvements -- (670) (2,973) -- (3,643)
Distributions from subsidiaries 23,846 14,638 -- (38,484) --
Investments (408) 2,336 -- -- 1,928
Other 43 97 153 -- 293
---------- ---------- ---------- ---------- ----------
Net cash provided (used) by
investing activities 23,481 16,401 (2,820) (38,484) (1,422)
---------- ---------- ---------- ---------- ----------
Cash flows from financing activities:
Payments on notes payable,
exclusive of interest (79,000) (5) (1,387) -- (80,392)
Borrowings on notes payable 100,000 -- 25 -- 100,025
Distribution to minority interest -- -- -- (24,892) (24,892)
Purchase of treasury stock (11,905) -- -- -- (11,905)
Other 70 -- -- -- 70
Distributions to equity owners -- (23,846) (39,530) 63,376 --
---------- ---------- ---------- ---------- ----------
Net cash provided (used) by
financing activities 9,165 (23,851) (40,892) 38,484 (17,094)
---------- ---------- ---------- ---------- ----------
Net increase (decrease) in cash and
cash equivalents 17,083 1,217 (9,507) -- 8,793
Cash and cash equivalents at beginning
of period 18 6,260 17,492 -- 23,770
---------- ---------- ---------- ---------- ----------
Cash and cash equivalents at end of
period $ 17,101 $ 7,477 $ 7,985 $ -- $ 32,563
========== ========== ========== ========== ==========
</TABLE>
-16-
<PAGE>
PRIME MEDICAL SERVICES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
(Unaudited)
Condensed Consolidating Statement of Cash Flows
Nine Months Ended September 30, 1997
($ in thousands)
<TABLE>
<S> <C> <C> <C> <C> <C>
Prime Medical Guarantor Non-Guarantor Eliminating Consolidated
Services Inc. Subsidiaries Subsidiaries Entries Total
-------------- ------------ ------------- ----------- ------------
Net cash (used) provided by
operating activities $ (6,142) $ 10,250 $ 33,602 $ -- $ 37,710
---------- ---------- ---------- ---------- ----------
Cash flows from investing activities:
Purchase of lithotripter entities -- (15,335) -- -- (15,335)
Purchases of equipment and leasehold
improvements -- (284) (1,383) -- (1,667)
Distribution from investment in -- 1,798 -- -- 1,798
partnerships
Investments in partnerships -- (311) -- -- (311)
Distributions from subsidiaries 1,557 15,498 -- (17,055) --
Other -- (192) -- -- (192)
---------- ---------- ---------- ---------- ----------
Net cash used by investing
activities 1,557 1,174 (1,383) (17,055) (15,707)
Cash flows from financing activities:
Payments on notes payable, exclusive of (45,750) (607) (1,339) -- (47,696)
interest
Borrowings on notes payable 50,000 -- 959 -- 50,959
Distribution to minority interest -- -- -- (27,728) (27,728)
Exercise of stock option 343 -- -- -- 343
Contributions from minority interest -- -- 815 -- 815
Distributions to equity owners -- (1,557) (43,226) 44,783 --
---------- ---------- ---------- ---------- ----------
Net cash provided (used) by
financing activities 4,593 (2,164) (42,791) 17,055 (23,307)
---------- ---------- ---------- ---------- ----------
Net increase (decrease) in cash
and cash equivalents 8 9,260 (10,572) -- (1,304)
Cash and cash equivalents at beginning
of period 2 2,598 17,496 -- 20,096
---------- ---------- ---------- ---------- ----------
Cash and cash equivalents at end of
period $ 10 $ 11,858 $ 6,924 $ -- $ 18,792
========== =========== ======= ======== ==========
</TABLE>
-17-
<PAGE>
Management's Discussion and Analysis
of Financial Condition and
Results of Operations
Results of Operations
- ---------------------
Revenues
- --------
For the nine months ended September 30, 1998, total revenues increased
$6,290,000 (9%) as compared to the same period in 1997. Revenues from
manufacturing increased $7,073,000 due to the acquisition of a 75% interest in a
manufacturing entity in September 1997. Revenues from lithotripter operations
decreased by $1,312,000 (2%) primarily due to a decline in management fees
earned for managing a fixed site in California which has experienced a reduction
in revenues, and a decline in the average reimbursement per procedure. Revenues
from cardiac centers decreased $122,000 primarily due to two sold cardiac
centers.
For the three months ended September 30, 1998, total revenues increased
$2,575,000 (10%) as compared to the same period in 1997. Revenues from
manufacturing increased $2,912,000 due to the acquisition of a 75% interest in a
manufacturing entity in September 1997. Revenues from lithotripter operations
decreased by $602,000 (2%) primarily due to a decline in management fees and
average reimbursement per procedure as stated above. Revenues from cardiac
centers decreased $79,000 primarily due to two sold cardiac centers.
Expenses
- --------
For the nine months ended September 30, 1998, costs and expenses (excluding
depreciation and amortization) increased from 34% to 39% of revenues, or
$6,226,000 (26%) in absolute terms, primarily due to certain nonrecurring
restructuring/development costs of $1,617,000 and the lower margins experienced
by manufacturing compared to lithotripsy. Cost of services and general and
administrative expenses associated with manufacturing increased $5,805,000 due
to the acquisition discussed above. Cost of services associated with
lithotripter operations decreased $1,329,000 (7%) in absolute terms and
decreased from 27% to 26% of lithotripter revenues primarily due to cost
containment measures enacted. Cost of services associated with cardiac centers
decreased $161,000 (45%) primarily due to two sold cardiac centers. Corporate
expenses decreased from 6% to 5% of revenues as the Company was able to
successfully grow without proportionately adding overhead. Corporate expenses
decreased $234,000 (6%) primarily due to consolidation of functions and a
reduction in the amounts due under management incentive plans tied to the
performance of the Company.
For the three months ended September 30, 1998, costs and expenses (excluding
depreciation and amortization) increased from 32% to 38% of revenues, primarily
due to the lower margins experienced by manufacturing compared to lithotripsy,
and increased $2,534,000 (30%) in absolute terms, compared to the same period in
1997. Cost of services and general and administrative expenses associated with
manufacturing increased $2,648,000 due to the acquisition discussed above. Cost
of services associated with lithotripter operations decreased $179,000 (3%) in
absolute terms and were flat at 25% of lithotripter revenues. Cost of services
associated with cardiac centers decreased $147,000 (75%) primarily due to two
sold cardiac centers. Corporate expenses remained at 5% of revenues. Corporate
expenses decreased $47,000 (3%) primarily due to consolidation of functions and
a reduction in the amounts due under management incentive plans tied to the
performance of the Company.
-18-
<PAGE>
Other Income (Deductions)
- -------------------------
For the nine months ended September 30, 1998, other deductions increased
$4,689,000 compared to the same period in 1997, primarily due to financing costs
totaling $4,982,000 associated with the $100 million debt offering and the $50
million increase in the senior revolving credit facility. Interest expense
increased $824,000 (15%) due to the higher principal balances in 1998 related to
the $100 million debt offering, which was completed in March 1998. The increases
in expense discussed above were partially offset by a $643,000 increase in
interest income resulting from higher cash balances and other, net increased
$114,000 primarily due to a gain of $166,000 from the sale of 46,000 shares of
American Physicians Service Group, Inc. common stock.
For the three months ended September 30, 1998, other deductions increased
$166,000 compared to the same period in 1997, primarily due to an increase of
$453,000 in interest expense due to the higher principal balances in 1998
related to the $100 million debt offering, which closed in March 1998, and due
to the Company recognizing a loss related to a decline in the market value of an
investment of $137,000. These items were offset by a $352,000 increase in
interest income resulting from higher cash balances.
Minority Interest In Consolidated Income
- ----------------------------------------
Minority interest in consolidated income for the nine months ended September 30,
1998 decreased $941,000 compared to the same period in 1997, primarily due to a
decline in fee revenue in certain of the partnerships. Earnings before interest,
taxes, depreciation and amortization (EBITDA) attributable to minority interests
was $20,398,000 for the nine months ended September 30, 1998 compared to
$21,098,000 for the same period in 1997. EBITDA is not intended to represent net
income or cash flows from operating activities in accordance with generally
accepted accounting principles and should not be considered a measure of the
Company's profitability or liquidity.
Minority interest in consolidated income for the three months ended September
30, 1998 decreased $309,000 compared to the same period in 1997, primarily due
to a decline in fee revenue in certain of the partnerships. EBITDA attributable
to minority interests was $7,852,000 for the three months ended September 30,
1998 compared to $7,994,000 for the same period in 1997. EBITDA is not intended
to represent net income or cash flows from operating activities in accordance
with generally accepted accounting principles and should not be considered a
measure of the Company's profitability or liquidity.
Provision for income taxes
- --------------------------
Income tax expense for the nine months ended September 30, 1998 increased
$634,000, despite the reduction in pretax earnings, compared to the same period
in 1997 due primarily to the 1997 provision including the effect of a reduction
in the Company's valuation allowance related to net operating loss
carryforwards.
Income tax expense for the three months ended September 30, 1998 increased
$660,000 compared to the same period in 1997 due to the Company's Federal income
tax rate increasing to 35% in 1998, as compared to 24% for the same period in
1997, as the Company reduced the valuation allowance related to its net
operating loss carry forwards during 1997.
-19-
<PAGE>
Liquidity and Capital Resources
- -------------------------------
Cash was $32,563,000 and $23,770,000 at September 30, 1998 and December 31,
1997, respectively. Cash provided by operations for the nine months ended
September 30, 1998 was $27,309,000 compared to cash provided by operations for
the nine months ended September 30, 1997 in the amount of $37,710,000. The
decline was primarily attributable to financing costs and development costs
incurred in the quarter ended March 31, 1998 and an increase in income taxes
paid and interest paid.
Cash used in investing activities for the nine months ended September 30, 1998
was $1,422,000 compared to cash used in investing activities for the nine months
ended September 30, 1997 in the amount of $15,707,000. In 1997, the Company used
$15,335,000 to purchase (1) additional interests in 10 partnerships, (2) 100% of
the stock of a company that operates two lithotripsy units and (3) a 38.25%
interest in a lithotripter operation that operates one lithotripter.
Cash used in financing activities for the nine months ended September 30, 1998
was $17,094,000, primarily due to distributions to minority interests of
$24,892,000 and purchase of treasury stock of $11,905,000 offset by new
borrowings of $100,025,000 less payments on notes payable of $80,392,000. Cash
used in financing activities for the nine months ended September 30, 1997 was
$23,307,000, primarily due to distributions to minority interests of $27,728,000
offset by new borrowings of $50,959,000 less payments on notes payable of
$47,696,000.
In March 1998, the Company completed an offering of $100 million of senior
subordinated notes due 2008 (the "Notes") to qualified institutional buyers. A
portion of the net proceeds from the offering of approximately $96 million were
used to repay all of the outstanding indebtedness under the Company's bank
facility, and the remainder will be used for general corporate purposes,
including acquisitions. In April 1998, the Company increased its senior
revolving credit facility by $50 million to $100 million. Advances under the
revolver will be used to fund future acquisitions and to finance capital
expenditure and working capital needs of the Company. As of October 31, 1998,
the Company had no outstanding indebtedness under its senior revolving credit
facility.
In January 1998, the federal government published proposed regulations under the
"Stark II" provisions of the Social Security Act (the "Proposed Stark
Regulations"). The Company is currently evaluating its alternatives in light of
the Proposed Stark Regulations. While the Proposed Stark Regulations may have a
material adverse effect on the Company, the Company believes the changing
regulatory environment may benefit the Company by creating new lithotripsy
acquisition opportunities. The Company is reevaluating its historical model for
providing lithotripsy and thermotherapy services through operations which
include physician-investors and has delayed the organization of physician
partnerships that were in various stages of development.
The Company intends to increase the number of its lithotripsy operations
primarily through acquisitions. The Company believes that the fragmented nature
of the lithotripsy industry, combined with the operational challenges created by
increasing regulatory and business complexities, including Stark II, the Illegal
Remuneration Statute and similar state laws, will provide significant
lithotripsy acquisition opportunities. Where appropriate, the Company will seek
to increase its ownership interest in current lithotripsy operations by
purchasing interests of urologists and other investors who desire to divest due
to concerns over regulatory issues, to realize a return on their investment or
to retire. The Company intends to fund the purchase price for future
acquisitions using borrowings under its senior credit facility, proceeds from
the offering of the Notes and cash flow from operations. In addition, the
Company may use shares of its common stock in such acquisitions where
appropriate.
-20-
<PAGE>
Liquidity and Capital Resources (continued)
- -------------------------------------------
In November 1998, the Company announced an $10 million increase in its stock
repurchase program from $15.0 million to $25.0 million of common stock. From
time to time, the Company may purchase shares of its common stock where, in the
judgment of management, market valuations of its stock do not accurately reflect
the Company's past and projected results of operations. The Company intends to
fund any such purchases using available cash, cash flow from operations and
borrowings under its senior credit facility. The Company has purchased 1,465,000
shares of stock for a total of $13,494,000 as of October 31, 1998.
The Company's ability to make scheduled payments of principal of, or to pay the
interest on, or to refinance, its indebtedness, or to fund planned capital
expenditures will depend on its future performance, which, to a certain extent,
is subject to general economic, financial, competitive, legislative, regulatory
and other factors that are beyond its control. Based upon the current level of
operations and anticipated cost savings and revenue growth, management believes
that cash flow from operations and available cash, together with available
borrowings under its senior credit facility, will be adequate to meet the
Company's future liquidity needs for at least the next several years. However,
there can be no assurance that the Company's business will generate sufficient
cash flow from operations, that anticipated revenue growth and operating
improvements will be realized or that future borrowings will be available under
the senior credit facility in an amount sufficient to enable the Company to
service its indebtedness or to fund its other liquidity needs.
New Accounting Pronouncements
- -----------------------------
In June 1997, the FASB issued FASB No. 131, Disclosures about Segments of an
Enterprise and Related Information, which the Company is required to adopt for
annual periods beginning after December 15, 1997 and interim periods beginning
in fiscal year 1999. SFAS No. 131 establishes standards for the way that public
companies report information about operating segments in annual financial
statements and requires that those companies report information about segments
in interim financial reports issued to shareholders. The Company has not yet
completed its analysis of this statement and the impact on its financial
statements.
In March 1998, the Accounting Standards Executive Committee of the American
Institute of Certified Public Accountants issued Statement of Position ("SOP")
98-1, Accounting for the Costs of Computer Software Developed or Obtained for
Internal Use, which the Company is required to adopt for fiscal years beginning
after December 15, 1998. SOP 98-1 establishes guidance on the capitalization or
expensing of the costs of computer software developed or obtained for internal
use. The Company does not expect this statement to have a material impact on its
financial statements.
In April 1998, the Accounting Standards Executive Committee of the American
Institute of Certified Public Accountants issued SOP 98-5, Reporting on the
Costs of Start-Up Activities, which the Company is required to adopt for fiscal
years beginning after December 15, 1998. SOP 98-5 requires costs of start-up
activities and organization costs to be expensed as incurred. The Company does
not expect this statement to have a material impact on its financial statements.
Impact of Year 2000
- -------------------
The "Year 2000 " issue refers to the phenomenon whereby computer programs,
having been written using two digits rather than four to define the applicable
year, may erroneously recognize a date using "00" as the year 1900 rather than
the year 2000. This error could potentially result in a system failure or
miscalculations causing disruptions of operations, including, among other
things, a temporary inability to process transactions or engage in similar
normal business activities.
The Company is currently reviewing what effects, if any, the Year 2000 issue
will have on the operations of its business.
-21-
<PAGE>
Impact of Year 2000 (continued)
- -------------------------------
Presently, the Company's internal hardware systems include a PC Windows-based
network for its accounting and office software and a UNIX-based network for its
operations software. The Company is in the process of determining whether its
computer hardware is Year 2000 compliant. The Company's accounting software will
be updated in the fourth quarter of 1998 and the upgrade will result in the
accounting software being Year 2000 compliant. The Company has obtained written
notice that its operations software is Year 2000 compliant. This assessment is
anticipated to be completed by the end of the first quarter of 1999.
A review of the Company's lithotripters has determined that their operation is
not directly affected by the Year 2000 issue.
The Company could be adversely affected by third parties who are not Year 2000
compliant. The Company is surveying its banking relationships to determine if
the banks are expected to have any negative Year 2000 issues which could impact
the Company. The Company leases office space from various landlords and is
currently surveying whether there are any Year 2000 issues involving electrical,
gas and water service, elevators, phone systems and security systems. In
addition, the Company's mobile lithotripters rely on electricity and water, in
some cases provided by the hospitals and surgery centers that those
lithotripters service. The Company could be adversely affected by payment delays
caused by Year 2000 problems affecting reimbursements for lithotripsy services
from Medicare, Medicaid or Champus programs or other third party payors. The
Company plans to survey its hospital and surgery center clients to determine
whether any Year 2000 issues may arise from those facilities being unable to
provide electricity and water for the Company's lithotripters, or from payment
delays from the Government programs or other third party payors. The Company
will survey its larger customers to determine if those parties will be Year 2000
compliant in relation to their ability to process and pay bills for services
rendered by the Company. The Company has surveyed its current payroll processing
and third party benefits providers, who have stated that their systems are Year
2000 compliant. This assessment is anticipated to be completed by the end of the
first quarter of 1999.
The worst case scenario for the Company's operations would be if the Company was
unable to [1] obtain electricity for its billing and collection facility
resulting in hampering the Company's ability to schedule patients, process
invoices to its customers, and process collections on a timely basis, [2] obtain
electricity and water for its lithotripters, such that the units would be unable
to treat patients on the mobile lithotripter units and [3] receive payments from
customers due to the customers' inability to process billings or loss of the
Company's data by the customer. The Company will examine whether installing
power generators for its billing and collection facilities and on its mobile
lithotripter units is justified in light of these possibilities. With respect to
those customers that may lose data or have difficulty determining the amounts
due to the Company, the Company plans to generate paper copies of its billings
to have available in the event a customer cannot determine the amount due the
Company.
The worst case scenario for the Company's financial activities would be if the
Company's bank depositories were unable to process deposits and disbursements.
This would adversely affect the Company's vendors and employees. In addition, if
the Company's financial offices were unable to obtain electrical power, delays
in closing its books and records and preparing financial statements would be
experienced, possibly affecting its regulatory reporting to the Securities and
Exchange Commission and the Internal Revenue Service.
To date, the Company has not experienced significant costs associated with the
Year 2000 issue and does not expect significant costs to be incurred due to
correcting the Year 2000 issue. The Company is reviewing its current billing and
collecting software to determine if the Company will replace it prior to the
Year 2000. If the system is replaced, it is considered part of the ongoing
operations of the Company and not related to the Year 2000 issue.
-22-
<PAGE>
Forward-Looking Statements
- --------------------------
All past and future written or oral statements made by the Company or its
officers, directors, shareholders, agents, representatives or employees,
including without limitation, those statements contained in this Report on Form
10-Q, that are not purely historical are forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934, including statements regarding the Company's
expectation, hopes, intentions or strategies regarding the future.
Forward-looking statements may appear in this document or other documents,
reports, press releases, and written or oral presentations made by officers of
the Company to shareholders, analysts, news organizations or others. Readers
should not place undue reliance on forward-looking statements. All
forward-looking statements are based on information available to the Company and
the declarant at the time the forward-looking statement is made, and the Company
assumes no obligation to update any such forward- looking statements. It is
important to note that the Company's actual results could differ materially from
those described in such forward-looking statements. In addition to any risks and
uncertainties specifically identified in connection with such forward-looking
statements, the reader should consult the Company's reports on Form 10-K and
other filings under the Securities Act of 1933 and the Securities Exchange Act
of 1934, for factors that could cause actual results to differ materially from
those presented.
Forward-looking statements are necessarily based on various assumptions and
estimates and are inherently subject to various risks and uncertainties,
including risks and uncertainties relating to the possible invalidity of the
underlying assumptions and estimates and possible changes or developments in
social, economic, business, industry, market, legal and regulatory circumstances
and conditions and actions taken or omitted to be taken by third parties,
including customers, suppliers, business partners and competitors and
legislative, judicial and other governmental authorities and officials.
Assumptions related to the foregoing involve judgments with respect to, among
other things, future economic, regulatory, competitive and market conditions and
future business decisions, all of which are difficult or impossible to predict
accurately and many of which are beyond the control of the Company. Any of such
assumptions could be inaccurate and therefore, there can be no assurance that
any forward-looking statements by the Company or its officers, directors,
shareholders, agents, representatives or employees, including those
forward-looking statements contained in this Report on Form 10-Q will prove to
be accurate.
-23-
<PAGE>
PART II
OTHER INFORMATION
-24-
<PAGE>
Item 4. Submission of Matters to a Vote of Security Holders.
None
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits.
10.1 Third Amended and Restated Loan Agreement for $100,000,000 Revolving
Credit Loan dated April 20, 1998
12. Computation of ratio of earnings to fixed charges
27. Financial Data Schedule
(b) Current Reports on Form 8-K
None
-25-
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PRIME MEDICAL SERVICES, INC.
Date: November 13, 1998 By: /s/ Cheryl Williams
-----------------------
Cheryl Williams
Chief Financial Officer
-26-
PRIME MEDICAL SERVICES, INC.
CONFORMED
THIRD AMENDED AND RESTATED
LOAN AGREEMENT
$100,000,000.00 REVOLVING CREDIT LOAN
BANKBOSTON, N.A.
as Administrative Agent
NATIONSBANK OF TEXAS, N.A.,
as Documentation Agent
NATIONSBANC MONTGOMERY SECURITIES LLC
as Arranger and Syndication Agent
and
THE LENDERS NAMED HEREIN,
as Lenders
Dated as of April 20, 1998
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I -- DEFINITIONS.....................................................1
Section 1.1 Amendment and Restatement...........................1
Section 1.2 Definitions.........................................2
Section 1.3 Other Definitional Provisions......................18
ARTICLE II -- ADVANCES......................................................18
Section 2.1 Commitments........................................18
Section 2.2 Notes..............................................18
Section 2.3 Repayment of Advances..............................18
Section 2.4 Interest...........................................18
Section 2.5 Borrowing Procedure................................19
Section 2.6 Continuations; Conversions.........................19
Section 2.7 Use of Proceeds....................................20
Section 2.8 Fees...............................................20
ARTICLE III -- PAYMENTS.....................................................20
Section 3.1 Method of Payment..................................20
Section 3.2 Optional Prepayment................................21
Section 3.3 Mandatory Prepayments..............................21
Section 3.4 Pro Rata Treatment.................................21
Section 3.5 Non-Receipt of Funds by the Administrative Agent...21
Section 3.6 Withholding Taxes..................................22
Section 3.7 Withholding Tax Exemption..........................22
Section 3.8 Computation of Interest............................22
Section 3.9 Order of Application...............................23
ARTICLE IV -- YIELD PROTECTION AND ILLEGALITY...............................23
Section 4.1 Additional Costs...................................23
Section 4.2 Limitation on Eurodollar Advances..................24
Section 4.3 Illegality.........................................25
Section 4.4 Treatment of Eurodollar Advances...................25
Section 4.5 Compensation.......................................25
Section 4.6 Capital Adequacy...................................26
ARTICLE V -- SECURITY.......................................................26
Section 5.1 Collateral.........................................26
Section 5.2 Future Liens. .....................................28
Section 5.3 Release of Collateral..............................28
Section 5.4 Setoff.............................................28
ARTICLE VI -- CONDITIONS PRECEDENT..........................................29
Section 6.1 Initial Advance....................................29
Section 6.2 All Advances.......................................31
d-501795.7
LOAN AGREEMENT
i
<PAGE>
ARTICLE VII -- REPRESENTATIONS AND WARRANTIES...............................31
Section 7.1 Existence..........................................31
Section 7.2 Financial Statements...............................31
Section 7.3 Corporate Action: No Breach.......................32
Section 7.4 Operation of Business..............................32
Section 7.5 Litigation and Judgments...........................32
Section 7.6 Rights in Properties; Liens........................32
Section 7.7 Enforceability.....................................32
Section 7.8 Approvals..........................................33
Section 7.9 Debt...............................................33
Section 7.10 Taxes..............................................33
Section 7.11 Use of Proceeds; Margin Securities.................33
Section 7.12 ERISA..............................................33
Section 7.13 Disclosure.........................................33
Section 7.14 Subsidiaries; Partnerships.........................34
Section 7.15 Agreements.........................................34
Section 7.16 Compliance with Legal Requirements; Governmental
Authorizations.................................34
Section 7.17 Investment Company Act.............................35
Section 7.18 Public Utility Holding Company Act.................35
Section 7.19 Environmental Matters..............................35
Section 7.20 Year 2000 Compliance...............................35
ARTICLE VIII -- POSITIVE COVENANTS..........................................35
Section 8.1 Reporting Requirements.............................35
Section 8.2 Maintenance of Existence; Conduct of Business......38
Section 8.3 Maintenance of Properties..........................38
Section 8.4 Taxes and Claims...................................38
Section 8.5 Insurance..........................................38
Section 8.6 Inspection Rights..................................38
Section 8.7 Keeping Books and Records..........................39
Section 8.8 Compliance with Laws...............................39
Section 8.9 Compliance with Agreements.........................39
Section 8.10 Further Assurances.................................39
Section 8.11 ERISA..............................................39
Section 8.12 Information Relating to Proposed Acquisitions......39
Section 8.13 After-Acquired Subsidiaries........................39
Section 8.14 Syndication Cooperation............................39
ARTICLE IX -- NEGATIVE COVENANTS............................................40
Section 9.1 Debt...............................................40
Section 9.2 Limitation on Liens................................40
Section 9.3 Mergers, Etc.......................................41
Section 9.4 Restricted Payments................................41
Section 9.5 Investments........................................42
Section 9.6 Limitation on Issuance of Capital Stock............42
Section 9.7 Transactions With Affiliates.......................43
Section 9.8 Disposition of Assets..............................43
Section 9.9 Sale and Leaseback.................................43
Section 9.10 Prepayment of Debt.................................43
Section 9.11 Nature of Business.................................43
d-501795.7
LOAN AGREEMENT
ii
<PAGE>
Section 9.12 Environmental Protection...........................43
Section 9.13 Accounting.........................................44
Section 9.14 Amendment of Partnership and Management
Agreements......................................44
ARTICLE X -- FINANCIAL COVENANTS............................................44
Section 10.1 Total Net Debt to EBITDA...........................44
Section 10.2 Senior Net Debt To EBITDA Ratio....................44
Section 10.3 Debt Service Coverage Ratio........................44
Section 10.4 Consolidated Net Worth.............................45
ARTICLE XI -- DEFAULT.......................................................45
Section 11.1 Events of Default..................................45
Section 11.2 Remedies...........................................47
Section 11.3 Performance by the Administrative Agent............47
ARTICLE XII -- THE ADMINISTRATIVE AGENT.....................................48
Section 12.1 Appointment, Powers and Immunities.................48
Section 12.2 Rights of Administrative Agent as a Lender.........49
Section 12.3 Sharing of Payments, Etc...........................49
Section 12.4 Indemnification....................................50
Section 12.5 Independent Credit Decisions.......................50
Section 12.6 Several Commitments................................51
Section 12.7 Successor Administrative Agent.....................51
Section 12.8 Independent Contractor.............................51
ARTICLE XIII -- MISCELLANEOUS...............................................52
Section 13.1 Expenses...........................................52
Section 13.2 Indemnification....................................52
Section 13.3 No Duty............................................52
Section 13.4 No Fiduciary Relationship..........................53
Section 13.5 No Waiver; Cumulative Remedies.....................53
Section 13.6 Successors and Assigns.............................53
Section 13.7 Survival...........................................55
Section 13.8 ENTIRE AGREEMENT...................................55
Section 13.9 Amendments, Etc....................................55
Section 13.10 Maximum Interest Rate..............................56
Section 13.11 Notices............................................56
Section 13.12 Governing Law......................................56
Section 13.13 Counterparts.......................................57
Section 13.14 Severability.......................................57
Section 13.15 Headings...........................................57
Section 13.16 Construction.......................................57
Section 13.17 Independence of Covenants..........................57
Section 13.18 Confidentiality....................................57
Section 13.19 Renewal and Increase...............................58
Section 13.20 Waiver of Jury Trial...............................58
Section 13.21 Choice of Forum; Consent to Service of Process and
Jurisdiction...................................58
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INDEX TO EXHIBITS
Exhibit Description of Exhibit
A Advance Request Form
B Form of Assignment and Acceptance
C Form of Note
D Perfection Certificate
E Form of Opinion of Counsel for Borrower and the Guarantors
F Compliance Certificate
G Permitted Acquisition Certificate
H Permitted Passive Investment Certificate
I Permitted Other Business Acquisition Certificate
J Non-Borrower and Guarantor Acquisition Certificate
INDEX TO SCHEDULES
Schedule Description of Schedule
1 Commitments
2 Guarantors
3 Partnerships
7.5 Existing Litigation
7.9 Existing Debt
7.14.1 Capitalization of Subsidiaries
7.14.2 Partners
7.15 Agreements
7.16 Governmental Disclosures
7.19 Environmental Matters
9.2 Existing Liens
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THIRD AMENDED AND RESTATED LOAN AGREEMENT
THIS THIRD AMENDED AND RESTATED LOAN AGREEMENT (the "Agreement"), dated
as of April 20, 1998, is among PRIME MEDICAL SERVICES, INC., a Delaware
corporation ("Borrower"), each of the lenders or other lending institutions
which is or which may from time to time become a signatory hereto or any
successor or assignee thereof (collectively, the "Lenders" and individually, a
"Lender"), BANKBOSTON, N.A. ("BankBoston"), a national banking association, as
Administrative Agent for itself and the other Lenders (in such capacity,
together with its successors in such capacity, the "Administrative Agent") and
NATIONSBANK OF TEXAS, N.A. ("NationsBank"), a national banking association, as
Documentation Agent for itself and the other Lenders (in such capacity, together
with its successors in such capacity, the "Documentation Agent"), and
NATIONSBANC MONTGOMERY SECURITIES LLC, as Arranger and Syndication Agent (in
such capacity, together with its successors in such capacity, the "Arranger" and
"Syndication Agent").
R E C I T A L S
1. Reference is hereby made to that certain Loan Agreement dated as of
November 28, 1994, by and between Borrower, the Banks defined therein, and
BankBoston (then known as The First National Bank of Boston), as Agent for the
Banks defined therein, as amended by that certain First Amendment to Loan
Agreement dated as of August 17, 1995, as amended by the Amended and Restated
Loan Agreement dated as of April 26, 1996 among BankBoston, NationsBank, and
BankBoston, as Syndication Agent, as amended by the First Amendment to Amended
and Restated Loan Agreement dated as of June 14, 1996 among BankBoston,
NationsBank, and the other banks named therein, as further amended by the Second
Amended and Restated Loan Agreement dated as of March 31, 1997 among BankBoston,
NationsBank, Montgomery Securities LLC (then known as NationsBanc Capital
Markets, Inc.), and the lenders named therein, as amended and waived from time
to time (collectively, the "Original Credit Agreement").
2. The parties hereto desire to amend the Original Credit Agreement, to
provide for, among other things, (a) a $50,000,000.00 increase in the maximum
amount available under the Revolving Credit Commitment, (b) the addition and
deletion of certain lenders as parties thereto, and (c) modification and
amendment to certain other provisions therein, subject to the terms and
conditions set forth in this Agreement.
3. The Administrative Agent, the Documentation Agent, the Syndication
Agent, the Lenders and Borrower desire and have agreed to amend and restate the
Original Credit Agreement in its entirety as and pursuant to this Agreement.
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I -- DEFINITIONS
Section 1.1 Amendment and Restatement. This Agreement is in renewal,
extension, modification, increase, and restatement of the Original Credit
Agreement and constitutes and is hereby designated by Borrower as "Designated
Senior Debt" as defined in the Senior Subordinated Indenture.
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Section 1.2 Definitions. As used in this Agreement, the following
terms shall have the following meanings:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date hereof, by which Borrower or any
Guarantor directly or indirectly (a) acquires all or substantially all of the
assets of any Person, whether through purchase of assets, merger, or otherwise,
(b) acquires (in one transaction or as the most recent transaction in a series
of transactions) at least a majority (in number of votes) of the securities (or
similar ownership interests) of any Person, or (c) acquires (in one transaction
or as the most recent transaction in a series of transactions) at least a
majority of the general partnership or managing member interests of any Person;
or (d) acquires additional Partnership or other equity interests in any
Subsidiary.
"Additional Costs" has the meaning specified in Section 4.1.
"Adjusted Eurodollar Rate" means, for any Eurodollar Advance for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 0.01%) determined by the Administrative Agent to be equal to (a) the
Eurodollar Rate for such Eurodollar Advance for such Interest Period divided by
(b) 1.00 minus the Reserve Requirement for such Eurodollar Advance for such
Interest Period.
"Administrative Agent" has the meaning specified in the preamble.
"Advance" means each advance of funds by the Lenders or any of them to
Borrower pursuant to Section 2.5(a).
"Advance Request Form" means a certificate, in substantially the form
of Exhibit A, properly completed and signed by Borrower requesting an Advance.
"Affiliate" means, as to any Person, any other Person (a) that directly
or indirectly, through one or more intermediaries, Controls or is Controlled by,
or is under common Control with, such Person, (b) that directly or indirectly
beneficially owns or holds five percent (5%) or more of any class of voting
stock of such Person, or (c) five percent (5%) or more of the voting stock of
which is directly or indirectly beneficially owned or held by the Person in
question; provided, however, in no event shall the Agents or any Lender be
deemed an Affiliate of Borrower or any of its Subsidiaries.
"After-Acquired Subsidiary" has the meaning specified in Section 8.13.
"Agents" means the Administrative Agent, the Documentation Agent, and
the Syndication Agent.
"Agent" means any one of the Agents.
"Alternate Base Rate" means, at any time, the greater of (a) the
variable rate of interest established from time to time by the Administrative
Agent as its "base rate" and set by the Administrative Agent as a general
reference rate of interest charged by the Administrative Agent, and (b) the
Federal Funds Rate plus one-half of one percent (.5%). Borrower acknowledges
that the Administrative Agent may, from time to time, extend credit to other
borrowers at rates of interest varying from, and having no relationship to, such
general reference rate. Each change in the Alternate Base Rate shall become
effective without prior notice to Borrower automatically as of the opening of
business on the date of such change in the Alternate Base Rate.
"Alternate Base Rate Advances" means Advances that bear interest at
rates based upon the Alternate Base Rate.
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"Applicable Lending Office" means for each Lender and each Type of
Advance, the lending office of such Lender (or of an Affiliate of such Lender)
designated for such Type of Advance below its name on the signature pages hereof
or an Assignment and Acceptance, or such other office of such Lender (or of an
Affiliate of such Lender) as such Lender may from time to time specify to
Borrower and the Administrative Agent as the office by which its Advances of
such Type are to be made and maintained.
"Applicable Margin" means the interest margin over the Alternate Base
Rate or the Adjusted Eurodollar Rate, as the case may be, for Advances under the
Commitment (a) from the date hereof until the delivery of financial statements
and a compliance certificate for the period ending March 31, 1998, as required
hereunder, one-eighth of one percent (.125%) for Alternate Base Rate Advances,
and one and five-eighths percent (1.625%) for Eurodollar Advances; and (b)
thereafter, based on the Net Debt to EBITDA Ratio as of and for the most recent
four (4) quarter period ending on or before the date of determination, the
margin set forth opposite such ratio below:
Applicable Margin Applicable Margin
Net Debt to EBITDA Ratio Alternate Base Rate Eurodollar
Advances Advances
- ---------------------------------- ------------------------ -----------------
Less than 1.5 to 1.0 0.000% 1.000%
Less than 2.00 to 1.0 but greater 0.000% 1.375%
than or equal to 1.5 to 1.0
Less than 2.75 to 1.0 but greater .125% 1.625%
than or equal to 2.00 to 1.0
Greater than or equal to 2.75 to 1.0 .500% 2.00%
==================================== ============================ ============
The Net Debt to EBITDA Ratio shall be determined from the then most current of
either (a) the quarterly or annual financial statements and related compliance
certificate delivered pursuant to Section 8.1, or (b) the most recent Advance
Request Form for a Permitted Acquisition, calculating any adjustments to such
ratio necessitated as a result of the Permitted Acquisition for which such
Advance was made. The adjustment, if any, to the Applicable Margin shall be
effective commencing on the fifth (5th) Business Day after delivery of such
financial statements (and related compliance certificate) or the respective date
of Advance for a Permitted Acquisition, as the case may be. If Borrower fails at
any time to furnish to the Administrative Agent and the Lenders the financial
statements and related compliance certificate as required to be delivered
pursuant to Section 8.1, then the maximum Applicable Margin shall apply until
such time as such financial statements and compliance certificates are so
delivered.
"Applicable Rate" means: (a) during any period that an Advance is an
Alternate Base Rate Advance, the Alternate Base Rate plus the Applicable Margin;
and (b) during any period that an Advance is a Eurodollar Advance, the Adjusted
Eurodollar Rate plus the Applicable Margin.
"Applicable Unused Fee Percentage" means the per annum rate with
respect to the unused portion of the Commitments as follows: (a) from the date
hereof until delivery of financial statements and a compliance certificate for
the period ending March 31, 1998, as required hereunder, three-eighths of one
percent (.375%); and (b) thereafter, based on the Net Debt to EBITDA Ratio as of
and for the most recent four (4) quarter period ending on or before the date of
determination, the percentage set forth opposite such ratio below:
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Net Debt to EBITDA Ratio Applicable Unused
Fee Percentage
- ----------------------------------------------------- -------------------------
Less than 1.5 to 1.0 .250%
Less than 2.0 to 1.0 but greater than or .300%
equal to 1.5 to 1.0
- ----------------------------------------------------- -------------------------
Greater than or equal to 2.0 to 1.0 .375%
===================================================== =========================
The Applicable Unused Fee Percentage shall be adjusted, if necessary, at the
same time as adjustments to the Applicable Margin. If Borrower fails at any time
to furnish to the Administrative Agent and the Lenders the financial statements
and related compliance certificate as required to be delivered pursuant to
Section 8.1, then the maximum Applicable Unused Fee Percentage shall apply until
such time as such financial statements and compliance certificates are so
delivered.
"Arranger" has the meaning specified in the preamble.
"Assignee" has the meaning specified in Section 13.6.
"Assigning Lender" has the meaning specified in Section 13.6.
"Assignment and Acceptance" means an assignment and acceptance entered
into by an Assigning Lender and its Assignee and accepted by the Administrative
Agent pursuant to Section 13.6, in substantially the form of Exhibit B.
"BankBoston" has the meaning specified in the preamble.
"Basle Accord" means the proposals for risk-based capital framework
described by the Basle Committee on Banking Regulations and Supervisory
Practices in its paper entitled "International Convergence of Capital
Measurement and Capital Standards" dated July, 1988, as amended, supplemented
and otherwise modified and in effect from time to time, or any replacement
thereof.
"Borrower Security Agreement" means (a) the Borrower Security Agreement
dated as of April 26, 1996, executed by Borrower in favor of the Administrative
Agent for the benefit of the Lenders, as the same may be amended, supplemented,
or modified from time to time, including (b) the Consent, Confirmation and
Ratification of Borrower Security Agreement dated as of March 31, 1997, and (c)
the Second Consent, Confirmation and Ratification of Borrower Security Agreement
dated as of the date hereof, which Borrower Security Agreement is in renewal,
amendment, restatement and substitution of that certain Borrower Security
Agreement dated November 28, 1994, executed by Borrower in favor of the
Administrative Agent, for the benefit of the Lenders under the Original Credit
Agreement, as amended pursuant to that First Amendment to Borrower Security
Agreement dated as of August 17, 1995, and any other security agreement executed
from time to time by Borrower and delivered to the Agent for the benefit of the
Lenders, all as amended, renewed, restated, and substituted from time to time.
"Business Day" means (a) any day on which the Administrative Agent is
open for regular business, and (b) with respect to all borrowings, payments,
Conversions, Continuations, Interest Periods, and notices in connection with
Eurodollar Advances, any day which is a Business Day described in clause (a)
above and which is also a day on which dealings in Dollar deposits are carried
out in the London interbank market.
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"Capital Lease Obligations" means, as to any Person, the obligations of
such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) real and/or personal property, which obligations are
required to be classified and accounted for as a capital lease on a balance
sheet of such Person under GAAP. For purposes of this Agreement, the amount of
such Capital Lease Obligations shall be the capitalized amount thereof, as
determined in accordance with GAAP.
"Cash Equivalent" means any investments of the Companies which are
permitted by Section 9.5(a), and which mature within 180 days of any date of
determination, and which are unconditionally available for repayment of the
Obligations, upon liquidation.
"Change in Control" means a Change of Control as defined in the Senior
Subordinated Indenture.
"Code" means the Internal Revenue Code of 1986, as amended, and the
regulations promulgated and rulings issued thereunder.
"Collateral" has the meaning specified in Section 5.1.
"Commitment" means, as to each Lender as of any date, the obligation of
such Lender on such date to make Advances hereunder in an aggregate principal
amount at any time outstanding up to but not exceeding the amount shown on
Schedule 1 as its Commitment, as the same may be reduced pursuant to Section
2.1(b) or terminated pursuant to Section 2.1(b) or Section 11.2 and as the same
may be increased or decreased from time to time by further assignment pursuant
to Section 13.6. "Commitments" means the Commitments of all of the Lenders in
the original aggregate amount of $100,000,000.00.
"Companies" means Borrower and its Subsidiaries.
"Confidential Information" means any and all information relating to
the Companies, including, without limitation, information relating to each of
the Company's financial condition, business plans, management, earnings, assets,
liabilities, contracts, processes, products, research and development
activities, intellectual property, services, customers, suppliers, marketing and
sales. In addition, Confidential Information shall include any and all other
information marked or identified in writing by any of the Companies as
"Confidential" or "Confidential Information" and provided by each of the
Companies or its representatives to any of the Lenders or the Agents or obtained
by the Lenders or the Agents after an inspection pursuant to Section 8.6.
Notwithstanding the foregoing, "Confidential Information" shall not include:
(i) any information known to an Agent or a Lender prior to
disclosure by any of the Companies or its representatives, as
documented prior to such disclosure in such Agent's or Lender's written
records;
(ii) any information which an Agent or a Lender demonstrates
became available to it on a non-confidential basis from a source (other
than any of the Companies) who is not bound by a confidentiality
agreement with, or any other contractual, legal or fiduciary obligation
of confidentiality to, any of the Companies or any other party with
respect to such information;
(iii) any information which an Agent or a Lender demonstrates
is or becomes generally available to the public other than as a result
of a disclosure by it in breach of Section 13.18; and
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<PAGE>
(iv) any information which an Agent or a Lender demonstrates
was conceived of or developed by it or any of its employees without
access or reference, directly or indirectly, to the Confidential
Information.
"Consolidated Net Income" means, for any Person for any period, the
amount which, in conformity with GAAP, would be shown on a consolidated income
statement of such Person as net income for such period, after deduction of any
minority interests.
"Consolidated Net Worth" means, at any particular time, all amounts
which, in conformity with GAAP, would be included as stockholders' equity on a
consolidated balance sheet of the Companies.
"Continue," "Continuation," and "Continued" refers to the continuation
pursuant to Section 2.6 of a Eurodollar Advance from one Interest Period to the
next Interest Period.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities or other ownership interests, by
contract or otherwise. "Controlling" and "Controlled" have meanings correlative
thereto.
"Conversion" and "Converted" refers to a conversion pursuant to Section
2.6 of one Type of Advance into another Type of Advance.
"Debt" means as to any Person at any time (without duplication and
without duplication among the Companies): (a) all obligations of such Person for
borrowed money; (b) all obligations of such Person evidenced by bonds, notes,
debentures, or other similar instruments, including, without limitation, the
Senior Subordinated Notes; (c) all obligations of such Person to pay the
deferred purchase price of property or services, except trade accounts payable
of such Person arising in the ordinary course of business that are not past due
by more than ninety (90) days; (d) all Capital Lease Obligations of such Person;
(e) all indebtedness or other obligations of others of the types described in
this definition, if Guaranteed by such Person or for which such Person is liable
as a partner in any partnership or joint venturer in any joint venture; (f) all
obligations secured by a Lien existing on property owned by such Person, whether
or not the obligations secured thereby have been assumed by such Person or are
non-recourse to the credit of such Person; (g) all reimbursement obligations of
such Person (whether contingent or otherwise) in respect of letters of credit,
banker's acceptances, surety or other bonds and similar instruments; (h) all
obligations under any Financial Hedge, and (i) all liabilities of such Person in
respect of unfunded vested benefits under any Plan; provided, however, that the
term Debt shall not include endorsements of instruments for deposit or
collection in the ordinary course of business.
"Debt Service Coverage Ratio" means, as to the Companies for any
period, the ratio of (a) the sum of: (i) EBITDA for such period, minus (ii) the
aggregate amount of capital expenditures made during such period, minus (iii)
all cash tax payments, divided by (b) the sum of: (x) all cash interest payments
payable during such period in respect of all Debt of the Companies (without
deduction for any minority interests), plus (y) 1/7 of the outstanding principal
amount of the Loans as of any date of determination, all as determined on a
rolling four (4) quarter and consolidated basis in accordance with GAAP.
"Default" means an Event of Default or the occurrence of an event or
condition which with the giving of notice or the lapse of time or both would
become an Event of Default.
"Defaulting Lender" means any Lender that in Administrative Agent's
reasonable judgment has defaulted on any of its obligations under this
Agreement.
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"Default Rate" means the lesser of (a) the Maximum Rate, and (b) the
sum of the Alternate Base Rate in effect from day to day plus the Applicable
Margin plus two percent (2%).
"Delinquent State Tax Returns" has the meaning specified in Section
7.10.
"Documentation Agent" has the meaning specified in the preamble.
"Dollars" and "$" mean lawful money of the United States of America.
"EBITDA" means, for any Person for any period: (a) Consolidated Net
Income of such Person for such period, determined after deduction of any
minority interests, plus (b) all amounts deducted therefrom during such period,
in conformity with GAAP, for interest, taxes, depreciation and amortization,
provided that cash flow from Permitted Passive Investments shall only be
included in the calculation of EBITDA to the extent: (i) it has been actually
received by Borrower or a Guarantor, and (ii) it does not exceed fifteen percent
(15%) of total EBITDA for such period.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a Lender;
or (iii) any other Person approved by the Administrative Agent (which approval
shall not be unreasonably withheld or delayed by Administrative Agent) and,
unless an Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 13.6, Borrower, such approval
not to be unreasonably withheld or delayed by Borrower and such approval to be
deemed given by Borrower if no objection is received by the assigning Lender and
the Administrative Agent from Borrower within two (2) Business Days after notice
of such proposed assignment has been provided by the assigning Lender to
Borrower; provided, however, that neither Borrower nor an Affiliate of Borrower
shall qualify as an Eligible Assignee.
"Environmental Laws" means any and all federal, state, and local laws,
regulations, and requirements pertaining to health, safety, or the environment,
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. ss. 9601 et seq., the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. ss. 6901 et seq., the
Occupational Safety and Health Act, 29 U.S.C. ss. 651 et seq., the Clean Air
Act, 42 U.S.C. ss. 7401 et seq., the Clean Water Act, 33 U.S.C. ss. 1251 et
seq., and the Toxic Substances Control Act, 15 U.S.C. ss. 2601 et seq., as such
laws, regulations, and requirements may be amended or supplemented from time to
time.
"Environmental Liabilities" means, as to any Person, all liabilities,
obligations, responsibilities, Remedial Actions, losses, damages, punitive
damages, consequential damages, treble damages, costs, and expenses (including,
without limitation, all reasonable fees, disbursements and expenses of counsel,
expert and consulting fees and costs of investigation and feasibility studies),
fines, penalties, sanctions, and interest incurred as a result of any claim or
demand, by any Person, whether based in contract, tort, implied or express
warranty, strict liability, criminal or civil statute, including any
Environmental Law, permit, order or agreement with any Governmental Authority or
other Person, arising from environmental, health or safety conditions or the
Release or threatened Release of a Hazardous Material into the environment,
resulting from the past, present, or future operations of such Person or its
Affiliates.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations and published interpretations
thereunder.
"ERISA Affiliate" means any corporation or trade or business which is a
member of the same controlled group of corporations (within the meaning of
Section 414(b) of the Code) as Borrower or is under common control (within the
meaning of Section 414(c) of the Code) with Borrower.
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"Eurodollar Advances" means Advances the interest rates on which are
determined on the basis of the rates referred to in the definition of "Adjusted
Eurodollar Rate" in this Section 1.1.
"Eurodollar Rate" means, for any Eurodollar Advance for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as
the London interbank offered rate for deposits in Dollars at approximately 11:00
a.m. (London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period. If for any reason such
rate is not available, the term "Eurodollar Rate" shall mean, for any Eurodollar
Advance for any Interest Period therefor, the rate per annum (rounded upwards,
if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page
as the London interbank offered rate for deposits in Dollars at approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period, provided,
however, if more than one rate is specified on Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates.
"Event of Default" has the meaning specified in Section 11.1.
"Excepted Subsidiaries" means FastStart, Inc., a North Carolina
corporation, National Lithotripters Association, Inc. a North Carolina
corporation, and MedTech Investments, Inc., a North Carolina corporation.
"Exchange Notes" means those certain senior subordinated notes to be
issued in exchange for the originally issued Senior Subordinated Notes,
containing substantially the same terms as the original Senior Subordinated
Notes.
"Existing Permitted Passive Investments" means ownership by Borrower or
any Subsidiary of a 32.5% interest in Southern California Stone Center, LLC, a
California limited liability company and a 38.25% interest in TENN-GA Stone
Group Two, a Tennessee general partnership.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 0.01%) equal to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day, provided that (a) if the day for which such rate is to be determined is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if such rate is not so published on such next
succeeding Business Day, the Federal Funds Rate for any day shall be the average
rate charged to the Administrative Agent on such day on such transactions as
determined by the Administrative Agent.
"Financial Hedge" means either (a) a swap, collar, floor, cap, or other
contract which is intended to reduce or eliminate the risk of fluctuations in
interest rates, or (b) a foreign exchange, currency hedging, commodity hedging,
or other contract which is intended to reduce or eliminate the market risk of
holding currency or a commodity in either the cash or futures markets, which
Financial Hedge under either clause (a) or clause (b) is entered into by
Borrower with any Lender or an Affiliate of any Lender.
"GAAP" means generally accepted accounting principles, applied on a
consistent basis, as set forth in Opinions of the Accounting Principles Board of
the American Institute of Certified Public Accountants and/or in statements of
the Financial Accounting Standards Board and/or their respective successors and
which are applicable in the circumstances as of the date in question. Accounting
principles are applied on a "consistent basis" when the accounting principles
applied in a current period are comparable in all
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material respects to those accounting principles applied in a preceding period,
except for changes required by GAAP. In the event of a change in GAAP,
Administrative Agent and Borrower will thereafter negotiate in good faith to
revise any covenants of this Agreement affected thereby in order to make such
covenants consistent with GAAP then in effect.
"Governmental Authority" means any nation or government, any state or
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory, or administrative functions of or pertaining to
government.
"Governmental Authorization" shall mean any approval, consent, license,
permit, waiver, or other authorization issued, granted, given, or otherwise made
available by or under the authority of any Governmental Authority or pursuant to
any Legal Requirement.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (a) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise), or (b) entered into for the purpose of assuring in any
other manner the obligee of such Debt or other obligation of the payment thereof
or to protect the obligee against loss in respect thereof (in whole or in part),
provided that the term "Guarantee" shall not include endorsements for collection
or deposit in the ordinary course of business. The term "Guarantee" used as a
verb has a corresponding meaning.
"Guaranties" means, collectively, (a) the Guaranty Agreements, each
dated as of April 26, 1996, executed by certain Guarantors, (b) the Consent,
Confirmation and Ratification of Guaranty Agreements, dated as of March 31,
1997, executed by certain Guarantors and (c) the Second Consent, Confirmation
and Ratification of Guaranty Agreements dated as of the date hereof executed by
certain Guarantors, (d) the Guaranty Agreement dated as of March 31, 1997
executed by Prostatherapies, Inc.; and (e) Guaranty Agreements, each dated the
date hereof executed by each Excepted Subsidiary and Executive Medial
Enterprises, Inc., certain of which Guaranty Agreements are in renewal,
amendment, substitution and replacement of the Guaranty Agreements executed by
certain Guarantors under the Original Credit Agreement in favor of the Agent and
the Lenders under the Original Credit Agreement and shall also include any other
guaranty agreement from time to time executed by any Guarantor and delivered to
the Administrative Agent for the benefit of Lenders, as amended, restated,
renewed, and substituted from time to time. "Guaranty" means any one of the
Guaranties.
"Guarantors" means, collectively, all Wholly-Owned Subsidiaries of
Borrower, now owned or hereafter acquired or formed, including, without
limitation, the Subsidiaries listed on Schedule 2.
"Guarantor" means any one of the Guarantors.
"Guarantor Security Agreements" means (a) the Security Agreements, each
dated as of April 26, 1996, executed by certain Guarantors, (b) the Consent,
Confirmation and Ratification of Guarantor Security Agreements dated as of March
31, 1997, executed by certain Guarantors; (c) the Second Consent, Confirmation
and Ratification of Guarantor Security Agreement dated as of the date hereof,
executed by certain Guarantors, (d) the Security Agreement dated as of March 31,
1997, executed by Prostatherapies, Inc., and (e) the Guarantor Security
Agreements dated the date hereof executed by each Excepted Subsidiary and
Executive Medical Enterprises, Inc., each in favor of Administrative Agent for
the benefit of Lenders, certain of which Security Agreements are in renewal,
amendment, restatement and substitution of the Security Agreements executed by
certain Guarantors under the Original Credit Agreement in favor
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of the Administrative Agent, for the benefit of the Lenders under the Original
Credit Agreement, and shall also include any other security agreements from time
to time executed by any Guarantor and delivered to the Administrative Agent for
the benefit of Lenders, as amended, restated, renewed, and substituted from time
to time. "Guarantor Security Agreement" means any one of the Guarantor Security
Agreements.
"Hazardous Material" means any substance, product, waste, pollutant,
material, chemical, contaminant, constituent, or other material which is or
becomes listed, regulated, or addressed under any Environmental Law, including,
without limitation, asbestos, petroleum, and polychlorinated biphenyls.
"Immediately-available" means that any cash or Cash Equivalents are
capable of being liquidated (without premium, penalty, or restriction) within
180 days of any date of determination, are not subject to any Liens or claims of
third persons, and are unconditionally available for payment of the Obligations
upon liquidation.
"Interest Coverage Ratio" means, as to the Companies for any period,
(a) EBITDA for such period divided by (b) the aggregate amount of consolidated
interest expense for such period, all as determined in accordance with GAAP.
"Interest Period" means, with respect to any Eurodollar Advance, each
period commencing on the date such Advance is made or Converted from an Advance
of another Type or, in the case of each subsequent, successive Interest Period
applicable to a Eurodollar Advance, the last day of the next preceding Interest
Period with respect to such Advance, and ending on the numerically corresponding
day in the first (1st), second (2nd), third (3rd) or sixth (6th) calendar month
thereafter, as Borrower may select as provided in Section 2.5 or 2.6, except
that each such Interest Period which commences on the last Business Day of a
calendar month (or on any day for which there is no numerically corresponding
day in the appropriate subsequent calendar month) shall end on the last Business
Day of the appropriate subsequent calendar month. Notwithstanding the foregoing:
(a) each Interest Period which would otherwise end on a day which is not a
Business Day shall end on the next succeeding Business Day (or, if such
succeeding Business Day falls in the next succeeding calendar month, on the next
preceding Business Day); (b) any Interest Period which would otherwise extend
beyond the Termination Date shall end on the Termination Date; (c) no more than
six (6) Interest Periods shall be in effect at the same time; and (d) no
Interest Period shall have a duration of less than one (1) month and, if any
Interest Period would otherwise be a shorter period, such Advances shall not be
available hereunder.
"Issuance Proceeds" means the net cash proceeds of (i) any sale or
issuance of Borrower's capital stock, excluding any sale or issuance of capital
stock under Borrower's stock option plans, or (ii) the incurrence of any Debt of
the type described in subsections (a) and (b) of the definition of Debt (other
than the Senior Subordinated Notes), in each case to the extent permitted
hereunder.
"Legal Requirement" shall mean any federal, state, local, municipal,
foreign, international, multinational, or other administrative order,
constitution, law, ordinance, principle of common law, regulation, statute, or
treaty as in effect on the date hereof.
"Lender" and "Lenders" have the meanings specified in the preamble.
"Lien" means any lien, mortgage, security interest, tax lien, financing
statement, pledge, charge, hypothecation, assignment, preference, priority, or
other encumbrance of any kind or nature whatsoever (including, without
limitation, any conditional sale or title retention agreement), whether arising
by contract, operation of law, or otherwise.
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LOAN AGREEMENT
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"Litho" means Lithotripters, Inc., a North Carolina corporation.
"Loan" means all Advances with respect to the Commitment, evidenced by
the Notes.
"Loan Documents" means this Agreement, the Notes, the Guaranties, the
Borrower Security Agreement, the Guarantor Security Agreements, the Pledge
Agreements, any Financial Hedge, and all other instruments, documents, and
agreements executed and delivered pursuant to or in connection with this
Agreement, as such instruments, documents, and agreements may be amended,
modified, renewed, extended, or supplemented from time to time.
"Material Subsidiary" means, as of any date, (a) any Subsidiary which,
together with its Subsidiaries, accounts for three percent (3%) or more of the
Company's consolidated gross revenues or assets, or (b) any combination of
Subsidiaries which, together with their Subsidiaries, account for seven percent
(7%) or more of the Company's consolidated gross revenues or assets, in each
case on a consolidated basis (but without elimination of any minority interests)
as of and for the most recent fiscal quarter for which such information is
available. "Material Subsidiaries" means all of the Material Subsidiaries.
"Maximum Rate" means, at any time and with respect to any Lender, the
maximum rate of interest under applicable law that such Lender may charge
Borrower. The Maximum Rate shall be calculated in a manner that takes into
account any and all fees, payments, and other charges in respect of the Loan
Documents that constitute interest under applicable law. Each change in any
interest rate provided for herein based upon the Maximum Rate resulting from a
change in the Maximum Rate shall take effect without notice to Borrower at the
time of such change in the Maximum Rate.
"Multiemployer Plan" means a multiemployer plan as defined in Section
3(37) of ERISA to which contributions have been made by Borrower or any ERISA
Affiliate of Borrower and which is covered by Title IV of ERISA.
"NationsBank" has the meaning specified in the preamble.
"Net Debt" means, as of any date, the sum of: (a) outstanding Debt of
the Companies; less (b) the amount of any Immediately-available cash and Cash
Equivalents held by the Companies in excess of $8,000,000 in the aggregate; plus
(c) the amount of all cash and cash equivalents held by any Company for
distribution to any partners or other owners of equity interests (other than any
Company) in any Partnership.
"Net Debt to EBITDA Ratio" means, as of any date, the ratio of (a) the
aggregate amount of Net Debt (without deduction for any minority interests),
outstanding as of such date, to (b) EBITDA of the Companies, for the four (4)
fiscal quarter period ending on the date of determination.
"Note" means a revolving credit note executed by Borrower,
substantially in the form of Exhibit C, payable to each Lender in an amount
equal to such Lender's Commitment, as the same may be amended, supplemented,
modified or restated from time to time, evidencing the obligation of Borrower to
repay the Loan, and all renewals, modifications and extensions thereof. "Notes"
means all of the Notes of the Lenders.
"Obligated Party" means any Person who is or becomes party to any
agreement that guarantees or secures payment and performance of the Obligations
or any part thereof.
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LOAN AGREEMENT
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"Obligations" means all obligations, indebtedness, and liabilities of
Borrower to the Agents and the Lenders, or any of them, arising pursuant to any
of the Loan Documents, now existing or hereafter arising, whether direct,
indirect, related, unrelated, fixed, contingent, liquidated, unliquidated,
joint, several, or joint and several, and all interest accruing thereon and all
attorneys' fees and other expenses incurred in the enforcement or collection
thereof.
"Original Credit Agreement" has the meaning specified in the recitals.
"Partnerships" means the partnerships and limited liability companies
in which Borrower or any Subsidiary now owns or hereafter acquires general
and/or limited partnership interests or membership interests and the other
Persons in which Borrower or any Subsidiary now owns or hereafter acquires
ownership interests, including, without limitation, the partnerships and other
Persons listed on Schedule 3.
"Partnership" means any one of the Partnerships.
"Payment Date" means (a) with respect to Alternate Base Rate Advances
and the commitment fees payable pursuant to Section 2.8(a), the last Business
Day of each April, July, October and January, commencing April 30, 1998, and (b)
with respect to Eurodollar Advances, the last day of the respective Interest
Period therefor, provided that if any Interest Period is greater than three (3)
months, then accrued interest shall also be due and payable on the date that is
three (3) months after the commencement of such Interest Period.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to all or any of its functions under ERISA.
"Permitted Acquisition" means an Acquisition by Borrower or any of the
Guarantors with respect to which each of the following conditions shall have
been satisfied:
(a) the Acquisition by Borrower or such Guarantor is of a
business, assets, or Person (as applicable, the "Target") which is
engaged in substantially the same lithotripsy business as the
lithotripsy business conducted by Borrower or such Guarantor on the
date hereof, or any other business reasonably related thereto;
(b) as of the closing of such Acquisition, the Acquisition has
been approved and recommended by the board of directors or other
applicable governing body of the Target and the Person from which the
Target is to be acquired;
(c) prior to the closing of such Acquisition, the Target and
the Person from which the Target is to be acquired must be Solvent;
(d) as of the closing of such Acquisition, after giving effect
to such Acquisition, Borrower or the Guarantor that is the acquiring
party must be Solvent and the Companies, on a consolidated basis, must
be Solvent;
(e) as of the closing of such Acquisition, after giving effect
to such Acquisition, no Default shall exist or occur as a result of,
and after giving effect to, such Acquisition;
(f) the aggregate purchase price with respect to such
Acquisition does not exceed five (5) times EBITDA of the Target,
subject to adjustments acceptable to the Administrative Agent where
less than all of the business, assets or stock of the Target is
acquired, pursuant to the
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LOAN AGREEMENT
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Acquisition for the four (4) fiscal quarters ending on the most
recently ended fiscal period prior to the date of such Acquisition;
(g) the aggregate nonstock consideration for such Acquisition
does not exceed $20,000,000.00 (other than the Acquisition of
additional ownership interests in the Partnerships in which Borrower or
a Guarantor is, as if the date hereof, the general partner or managing
member) and the aggregate cash consideration for all Acquisitions
(other than the Acquisition of additional ownership interests of the
Partnerships in which Borrower or a Guarantor is, as of the date
hereof, the general partner or managing member) during the immediately
preceding twelve (12) month period (including such Acquisition) does
not exceed $40,000,000.00;
(h) not less than 15 Business Days prior to the closing of any
Acquisition, the Administrative Agent shall have received pro forma
financial statements of the Companies (as if the business, assets or
Person acquired had been acquired since the first (1st) day of the
period for which such pro forma financial statements are delivered and
had been managed and conducted in accordance with the Borrower's
standard business practices) for the prior four (4) fiscal quarters of
Borrower and the Companies;
(i) as of the closing of such Acquisition, Borrower or a
Guarantor shall Control the Target;
(j) if the Target is to be an After-Acquired Subsidiary, then
Borrower shall have complied with the terms and conditions set forth in
Section 8.13; and
(k) the Administrative Agent has received a certificate dated
on or immediately prior to the date of Acquisition, executed by the
President or a Vice President of Borrower confirming that all
representations and warranties set forth in the Loan Documents continue
to be true and correct in all material respects immediately prior to
and after giving effect to the Permitted Acquisition and the
transactions contemplated thereby, and setting forth the calculations
supporting compliance with the limitations prescribed herein.
"Permitted Other Business Acquisition" means an acquisition by Borrower
or any of the Guarantors with respect to which each of the following conditions
shall have been satisfied:
(a) the acquisition by Borrower or such Guarantor is of a
business, assets, or Person (as applicable, the "Target") which is
engaged in substantially the same physician practice management,
prostatherapy, or servicing tractor/trailers business as such
businesses are conducted by Borrower or any Company on the date hereof,
or any other business reasonably related thereto;
(b) as of the closing of such Permitted Other Business
Acquisition, the Permitted Other Business Acquisition has been approved
and recommended by the board of directors or other applicable governing
body of the Target and the Person from which the Target is to be
acquired;
(c) prior to the closing of such Permitted Other Business
Acquisition, the Target and the Person from which the Target is to be
acquired must be Solvent;
(d) as of the closing of such Permitted Other Business
Acquisition, after giving effect to such Permitted Other Business
Acquisition, Borrower or the Guarantor that is the acquiring party must
be Solvent and the Companies, on a consolidated basis, must be Solvent;
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LOAN AGREEMENT
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(e) as of the closing of such Permitted Other Business
Acquisition, after giving effect to such Permitted Other Business
Acquisition, no Default shall exist or occur as a result of, and after
giving effect to, such Permitted Other Business Acquisition;
(f) the aggregate purchase price with respect to such
Permitted Other Business Acquisition does not exceed five (5) times
EBITDA of the Target, subject to adjustments acceptable to the
Administrative Agent where less than all of the business, assets or
stock of the Target is acquired, pursuant to the Permitted Other
Business Acquisition for the four (4) fiscal quarters ending on the
most recently ended fiscal period prior to the date of such Permitted
Other Business Acquisition;
(g) the aggregate nonstock consideration for all Permitted
Other Business Acquisitions does not exceed $5,000,000.00;
(h) not less than 15 Business Days prior to the closing of any
Permitted Other Business Acquisition, the Administrative Agent shall
have received pro forma financial statements of the Companies (as if
the business, assets or Person acquired had been acquired since the
first (1st) day of the period for which such pro forma financial
statements are delivered and had been managed and conducted in
accordance with the Borrower's standard business practices) for the
prior four (4) fiscal quarters of Borrower and the Companies;
(i) if the Target is to be an After-Acquired Subsidiary, then
Borrower shall have complied with the terms and conditions set forth in
Section 8.13; and
(j) the Administrative Agent has received a certificate dated
on or immediately prior to the date of Permitted Other Business
Acquisition, executed by the President or a Vice President of Borrower
confirming that all representations and warranties set forth in the
Loan Documents continue to be true and correct in all material respects
immediately prior to and after giving effect to the Permitted Other
Business Acquisition and the transactions contemplated thereby, and
setting forth the calculations supporting compliance with the
limitations prescribed herein.
The loan described in Sections 9.1(h) and 9.2(h) hereof made by
Borrower shall not be included in the calculation of the aggregate nonstock
consideration for all Permitted Other Business Acquisitions. No repurchase or
redemption of Borrower's capital stock by Borrower or a Guarantor, whether
through issuance and performance of a put agreement, or otherwise shall be a
Permitted Other Business Acquisition.
"Permitted Passive Investment" means an acquisition by Borrower or any
of the Guarantors, in one transaction or in a series of transactions of
partnership, stock, or other interests of a Person ("Equity Interests") which is
not an Acquisition and does not permit Borrower or any Guarantor to Control such
Person, with respect to which each of the following conditions have been met:
(a) the acquisition by Borrower or such Guarantor is of Equity
Interests of a Person (the "Passive Target") which is engaged in
substantially the same lithotripsy business as the lithotripsy business
conducted by Borrower or such Guarantor on the date hereof, or any
other lithotripsy business reasonably related thereto;
(b) as of the closing of such Permitted Passive Investment,
the acquisition has been approved and recommended by the board of
directors or other applicable governing body of the Passive Target and
the Person from which the Equity Interests are to be acquired;
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LOAN AGREEMENT
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(c) prior to the closing of such acquisition, the Passive
Target and the Person from which the Equity Interests are to be
acquired must be Solvent;
(d) as of the closing of such Permitted Passive Investment,
after giving effect to such Permitted Passive Investment, Borrower or
the Guarantor that is the acquiring party must be Solvent and the
Companies, on a consolidated basis, must be Solvent;
(e) as of the closing of such Permitted Passive Investment,
after giving effect to such Permitted Passive Investment, no Default
shall exist or occur as a result of, and after giving effect to, such
Permitted Passive Investment;
(f) the aggregate acquisition price of any Permitted Passive
Investment, together with the original purchase price of all then
existing Permitted Passive Investments of Borrower and its Guarantors
(excluding, however, any prior Permitted Passive Investment which
Borrower or any Guarantor then Controls) as of the date of consummation
of the Permitted Passive Investment, does not exceed the lesser of (i)
twenty percent (20%) of Total Equity or (ii) $50,000,000;
(g) not less than 30 Business Days prior to the closing of any
Permitted Passive Investment, the Administrative Agent shall have
received a certificate setting forth compliance with condition (f), set
forth above; and
(h) the Administrative Agent has received a certificate dated
on or immediately prior to the date of the Permitted Passive
Investment, executed by the President or a Vice President of Borrower
confirming that all representations and warranties set forth in the
Loan Documents continue to be true and correct in all material respects
immediately prior to and after giving effect to the Permitted Passive
Investment and the transactions contemplated thereby, and setting forth
the calculations supporting compliance with the limitations prescribed
herein.
No repurchase or redemption of Borrower's capital stock by Borrower or a
Guarantor, whether through issuance and performance of a put agreement, or
otherwise, shall be a Permitted Passive Investment.
"Person" means any individual, corporation, business trust,
association, company, partnership, joint venture, Governmental Authority, or
other entity.
"Plan" means any employee benefit or other plan established or
maintained by Borrower or any ERISA Affiliate of Borrower and which is covered
by Title IV of ERISA.
"Pledge Agreements" means (a) the Pledge Agreements, each dated as of
April 26, 1996, executed by Borrower and each Subsidiary of Borrower that owned
general and/or limited partnership interests in the Partnerships in favor of the
Administrative Agent, for the benefit of the Lenders, as the same may be
amended, supplemented or modified from time to time, including (b) the Consent,
Confirmation and Ratification of Pledge and Security Agreements, dated as of
March 31, 1997, and (c) the Second Consent, Confirmation and Ratification of
Pledge and Security Agreements dated as of the date hereof, and shall also
include any other pledge agreement from time to time executed by any Person and
delivered to Administrative Agent for the benefit of Lenders, as amended,
restated, renewed, and substituted from time to time. "Pledge Agreement" means
any one of the Pledge Agreements.
"Pledgors" means each of the pledgors of partnership interests or Assigned
Rights (as defined in the applicable Pledge Agreement) pursuant to a Pledge
Agreement. "Pledgor" means any one of the Pledgors.
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LOAN AGREEMENT
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"Principal Office" means the principal office of the Administrative
Agent, presently located at 100 Federal Street, Boston, Massachusetts 02110.
"Prohibited Transaction" means any transaction set forth in Section 406
of ERISA or Section 4975 of the Code.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as the same may be amended or supplemented from time to
time.
"Regulatory Change" means, with respect to any Lender, any change after
the date of this Agreement in United States federal, state, or foreign laws or
regulations (including Regulation D) or the adoption or making after such date
of any interpretations, directives, or requests applying to a class of banks
including such Lender of or under any United States federal, state, or foreign
laws or regulations (whether or not having the force of law) by any court or
governmental or monetary authority charged with the interpretation or
administration thereof.
"Release" means, as to any Person, any release, spill, emission,
leaking, pumping, injection, deposit, disposal, disbursement, leaching, or
migration of Hazardous Materials into the indoor or outdoor environment or into
or out of property owned by such Person, including, without limitation, the
movement of Hazardous Materials through or in the air, soil, surface water,
ground water, or property.
"Remedial Action" means all actions required to (a) clean up, remove,
treat, or otherwise address Hazardous Materials in the indoor or outdoor
environment, (b) prevent the Release or threat of Release or minimize the
further Release of Hazardous Materials so that they do not migrate or endanger
or threaten to endanger public health or welfare or the indoor or outdoor
environment, or (c) perform pre-remedial studies and investigations and
post-remedial monitoring and care.
"Reportable Event" means any of the events set forth in Section 4043 of
ERISA.
"Required Lenders" means, as of any date, any combination of Lenders
(other than any Defaulting Lenders) who collectively hold sixty percent (60%) of
the sum of the Commitments (other than of any Defaulting Lenders), or if the
Commitments shall have been terminated, then of the aggregate unpaid principal
amount of the Notes (other than of any Defaulting Lenders).
"Reserve Requirement" means, for any Eurodollar Advance for any
Interest Period therefor, the average rate at which reserves (including any
marginal, supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D by each Lender on its portion of
such Advance against "Eurocurrency Liabilities" as such term is used in
Regulation D. Without limiting the effect of the foregoing, the Reserve
Requirement shall reflect any other reserves required to be maintained by a
Lender by reason of any Regulatory Change against (i) any category of
liabilities which includes deposits by reference to which the Adjusted
Eurodollar Rate is to be determined, or (ii) any category of extensions of
credit or other assets which include Eurodollar Advances.
"RICO" means the Racketeer Influenced and Corrupt Organization Act of
1970, as amended from time to time.
"Senior Net Debt" means, as of any date, all Net Debt of the Companies
which is not Subordinated Debt.
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LOAN AGREEMENT
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"Senior Net Debt to EBITDA Ratio" means, as of any date, the ratio of
(a) the aggregate amount of Senior Net Debt of the Companies (without deduction
for any minority interests), as of such date, to (b) EBITDA of the Companies,
for the four (4) fiscal quarter period ending on the date of determination
(including on a pro forma basis any Permitted Acquisition or Permitted Other
Business Acquisition).
"Senior Subordinated Indenture" means that certain Trust Indenture
dated as of March 24, 1998 between Borrower and State Street Bank and Trust
Company, as Trustee, and any trust indenture entered into in connection with the
Exchange Notes.
"Senior Subordinated Notes" means those certain $100,000,000 aggregate
principal amount Senior Subordinated Notes issued by Borrower pursuant to the
Senior Subordinated Indenture, due April 1, 2008, and the Exchange Notes, if
issued.
"Solvent" means, with respect to any Person, that on the date of
determination (a) the fair market value of its assets is greater than the total
amount of liabilities, including, without limitation, contingent liabilities of
such Person which would be required to be included on the balance sheet of such
Person or disclosed in the financial statements of such Person in accordance
with GAAP, (b) the present fair salable value of the assets of such Person is
not less than the amount that will be required to pay the probable liability of
such Person on its debts as they become absolute and matured, (c) such Person
does not intend to, and does believe that it will, incur debts or liabilities
beyond such Person's ability to pay as such debts and liabilities mature, and
(d) such Person is not engaged in business or transactions, and is not about to
engage in business or transactions, for which its assets would constitute an
unreasonably small capital.
"Subordinated Debt" means the Senior Subordinated Notes.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, association, or other business entity (a) of which securities or
other ownership interests representing more than fifty percent (50%) of the
equity or more than fifty percent (50%) of the ordinary voting power or more
than fifty percent (50%) of the general partnership interests or membership
interests are, at the time any determination is made, owned, Controlled or held
by such Person, or (b) that is, at the time any determination is made, otherwise
Controlled by one or more Subsidiaries of such Person or by such Person and one
or more Subsidiaries of such Person.
"Syndication Agent" has the meaning specified in the preamble.
"Termination Date" means 1:00 p.m. Boston, Massachusetts time on April
21, 2003, or such earlier date and time on which the Commitments terminate as
provided in this Agreement.
"Total Equity" means, at any particular time, the sum of: (a)
Consolidated Net Worth, plus (b) outstanding principal amount of Subordinated
Debt.
"Total Net Debt to EBITDA Ratio" means, as of any date, the ratio of
(a) the aggregate outstanding amount of Net Debt (without deduction for any
minority interests), as of such date, to (b) EBITDA of the Companies for the
four (4) fiscal quarter period ending on the date of determination (including on
a pro forma basis any Permitted Acquisition or any Permitted Other Business
Acquisition).
"Type" means any type of Advance (i.e., Alternate Base Rate Advance or
Eurodollar Advance).
"UCC" means the Uniform Commercial Code as in effect in the
Commonwealth of Massachusetts or other applicable jurisdiction, as amended.
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LOAN AGREEMENT
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"Wholly-Owned Subsidiaries" means, as of any date, all Subsidiaries
that are wholly-owned by Borrower or a wholly-owned Subsidiary of Borrower.
"Wholly-Owned Subsidiary" means any one of the Wholly-Owned Subsidiaries.
Section 1.3 Other Definitional Provisions. All definitions contained in
this Agreement are equally applicable to the singular and plural forms of the
terms defined. The words "hereof," "herein," and "hereunder" and words of
similar import referring to this Agreement refer to this Agreement as a whole
and not to any particular provision of this Agreement. Unless otherwise
specified, all Article, Section, Exhibit and Schedule references pertain to this
Agreement. All accounting terms not specifically defined herein shall be
construed in accordance with GAAP. All financial covenants and related
definitions relating to the Companies shall, unless otherwise indicated, be
determined after deduction of any minority interests, provided that all
references to "Debt" shall include all Debt without deduction for any minority
interests. Terms used herein that are defined in the UCC, unless otherwise
defined herein, shall have the meanings specified in the UCC.
ARTICLE II -- ADVANCES
Section 2.1 Commitments.
(a) Revolving Credit Commitments. Subject to the terms and conditions
of this Agreement, each Lender hereby severally agrees to make one or more
Advances to Borrower from time to time from the date hereof to the Termination
Date in an aggregate principal amount at any time outstanding up to but not
exceeding the amount of such Lender's Commitment as then in effect. Subject to
the foregoing limitations, and the other terms and provisions of this Agreement,
Borrower may borrow, repay, and reborrow hereunder the amount of the Commitments
by means of Eurodollar Advances or Alternate Base Rate Advances.
(b) Optional Reduction and Termination of Commitments. Borrower shall
have the right to terminate in whole or reduce in part the unused portion of the
Commitments upon at least three (3) Business Days' prior written notice (which
notice shall be irrevocable) to the Administrative Agent specifying the
effective date thereof, whether a termination or reduction is being made, and
the amount of any partial reduction, provided that each partial reduction shall
be in the amount of $1,000,000.00 or a greater integral multiple thereof and
Borrower shall simultaneously prepay the amount by which the unpaid principal
amount of the Notes exceeds the Commitments (after giving effect to such notice)
plus accrued and unpaid interest on the principal amount so prepaid. No portion
of the Commitments may be reinstated after it has been terminated or reduced.
Section 2.2 Notes. The obligation of Borrower to repay each Lender for
Advances made by such Lender pursuant to such Lender's Commitment, and all
interest thereon, shall be evidenced by a Note dated the date hereof, executed
by Borrower and payable to the order of such Lender in the original principal
amount of such Lender's Commitment.
Section 2.3 Repayment of Advances. Borrower shall repay the
outstanding principal amount of the Notes on the Termination Date.
Section 2.4 Interest. The unpaid principal amount of all Advances shall
bear interest at a varying rate per annum equal from day to day to the lesser of
(a) the Maximum Rate, or (b) the Applicable Rate. If at any time the Applicable
Rate for any Advance shall exceed the Maximum Rate, thereby causing the interest
accruing on such Advance to be limited to the Maximum Rate, then any
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subsequent reduction in the Applicable Rate for such Advance shall not reduce
the rate of interest on such Advance below the Maximum Rate until the aggregate
amount of interest accrued on such Advance equals the aggregate amount of
interest which would have accrued on such Advance if the Applicable Rate had at
all times been in effect. Accrued and unpaid interest on the Advances shall be
due and payable on each Payment Date and on the Termination Date.
Notwithstanding the foregoing, any outstanding principal of any Advance and (to
the fullest extent permitted by law) any other amount payable by Borrower under
this Agreement or any other Loan Document that is not paid in full when due
(whether at stated maturity, by acceleration, or otherwise) shall bear interest
at the Default Rate for the period from and including the due date thereof to
but excluding the date the same is paid in full. Interest payable at the Default
Rate shall be payable from time to time on demand.
Section 2.5 Borrowing Procedure.
(a) Loan. Borrower shall give the Administrative Agent notice by means
of an Advance Request Form of each requested Advance under the Commitments
hereunder at least three (3) Business Days before the requested date of each
Eurodollar Advance (and at least one (1) Business Day before the requested date
of each Alternate Base Rate Advance), specifying: (a) the requested date of such
Advance (which shall be a Business Day); (b) the amount of such Advance; and (c)
the duration of the Interest Period for such Advance (if a Eurodollar Advance).
The Administrative Agent at its option may accept telephonic requests for
Advances under the Commitments, provided that such acceptance shall not
constitute a waiver of the Administrative Agent's right to delivery of an
Advance Request Form in connection with subsequent Advances under the
Commitments. Any telephonic request for an Advance under the Commitments by
Borrower shall be promptly confirmed by submission of a properly completed
Advance Request Form to the Administrative Agent. Each Advance under the
Commitments shall be in a minimum principal amount of $1,000,000.00 or a greater
integral multiple thereof, provided that if such Advance equals the entire
remaining unfunded portion of the Commitments, it may be for any amount. The
aggregate principal amount of Eurodollar Advances having the same Interest
Period shall be at least equal to $2,500,000.00 or a greater integral multiple
of $500,000.00. All notices under this Section 2.5(a) shall be irrevocable and
shall be given not later than 11:00 a.m. Boston, Massachusetts time on the day
which is not less than the number of Business Days specified above for such
notice.
(b) Generally. The Administrative Agent shall promptly notify each
Lender of the contents of each Advance Request Form. Not later than 11:00 a.m.
Boston, Massachusetts time on the date specified for each Advance hereunder,
each Lender will make available to the Administrative Agent at the Principal
Office in immediately available funds, for the account of Borrower, its pro rata
share of each Advance. After the Administrative Agent's receipt of such funds
and subject to the other terms and conditions of this Agreement, the
Administrative Agent will make each Advance available to Borrower by depositing
the same, in immediately available funds, in a deposit account of Borrower
maintained at the Documentation Agent.
Section 2.6 Continuations; Conversions.
(a) Continuations. Borrower shall have the right to Continue Eurodollar
Advances by giving the Administrative Agent written notice specifying: (i) the
Continuation date; (ii) the amount of the Advance to be Continued; and (iii) the
duration of the Interest Period applicable thereto, which notice shall be
irrevocable and must be given by Borrower not later than 11:00 a.m. Boston,
Massachusetts time at least three (3) Business Days before each such
Continuation. The Administrative Agent shall promptly notify each Lender of the
contents of each such notice. If Borrower shall fail to give the Administrative
Agent the notice as specified above for Continuation of a Eurodollar Advance
prior to the end of the
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Interest Period applicable thereto, such Eurodollar Advance shall be
automatically Continued for a one (1) month Interest Period.
(b) Conversions. Borrower shall have the right to Convert an Alternate
Base Rate Advance at any time to a Eurodollar Advance by giving the
Administrative Agent written notice specifying: (i) the Conversion Date; (ii)
the amount of the Advance to be Converted; and (iii) the duration of the
Interest Period applicable thereto, which notice shall be irrevocable and must
be given by Borrower not later than 11:00 a.m. Boston, Massachusetts time at
least three (3) Business Days before each such Conversion. The Administrative
Agent shall promptly notify each Lender of the contents of each such notice.
(c) Default. After the occurrence and during the continuance of a
Default, no outstanding Advances may be Converted into, or Continued as, a
Eurodollar Advance.
Section 2.7 Use of Proceeds. The proceeds of Advances under the
Commitments shall be used by Borrower (i) for working capital, capital
expenditures, and other lawful corporate purposes, (ii) to finance Permitted
Acquisitions, Permitted Other Business Acquisitions, and Permitted Passive
Investments, (iii) to the extent permitted by this Agreement, to repurchase
outstanding capital stock of Borrower, and (iv) to make loans or capital
contributions to its Subsidiaries, the proceeds of which are used by each such
Subsidiary for one or more of the purposes permitted by subsections (i), (ii),
and (iii) of this Section 2.7.
Section 2.8 Fees.
(a) Commitment Fees. Borrower hereby agrees to pay to the
Administrative Agent, for the ratable account of each Lender having a
Commitment, a commitment fee on the daily average unused amount of such Lender's
Commitment for the period from and including the date of this Agreement to but
excluding the Termination Date, at the per annum rate equal to the Applicable
Unused Fee Percentage based on a 360-day year, as the case may be, and the
actual number of days elapsed. Accrued commitment fees shall be payable in
arrears on each Payment Date and on the Termination Date.
(b) Agents' Fees. Borrower hereby agrees to pay to the Agents for their
own respective accounts, the fees agreed to by Borrower and the Agents pursuant
to a side letter agreement with each Agent.
ARTICLE III -- PAYMENTS
Section 3.1 Method of Payment. All payments of principal, interest, and
other amounts to be paid by Borrower under this Agreement and the other Loan
Documents shall be paid to the Administrative Agent at the Principal Office for
the account of each Lender's Applicable Lending Office in Dollars and in
immediately available funds, without setoff, deduction, or counterclaim, not
later than 1:00 p.m. Boston, Massachusetts time on the date on which such
payment shall become due (each such payment made after such time on such due
date to be deemed to have been made on the next succeeding Business Day).
Borrower shall, at the time of making each such payment, specify to the
Administrative Agent the sums payable by Borrower under this Agreement and the
other Loan Documents to which such payment is to be applied (and in the event
that Borrower fails to so specify, or if an Event of Default has occurred and is
continuing, the Administrative Agent may apply such payment to the Obligations
in such order and manner as it may elect in its sole discretion, subject to
Section 3.4). Each payment received by the Administrative Agent under this
Agreement or any other Loan Document for the account of a Lender shall be paid
promptly to such Lender, in immediately available funds, for the account of such
Lender's Applicable Lending Office. Whenever any payment under this Agreement or
any other Loan
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Document shall be stated to be due on a day that is not a Business Day, such
payment may be made on the next succeeding Business Day, and such extension of
time shall in such case be included in the computation of the payment of
interest and commitment fee, as the case may be.
Section 3.2 Optional Prepayment. Borrower may, upon at least three (3)
Business Days' prior notice to the Administrative Agent, prepay the Notes in
whole or in part at any time or from time to time without premium or penalty but
with accrued interest to the date of prepayment on the amount so prepaid,
provided that (a) Eurodollar Advances prepaid on a day other than the last day
of the Interest Period for such Advances shall include the additional
compensation, if any, required by Section 4.5, and (b) each partial prepayment
shall be in the amount of the aggregate remaining outstanding principal amount
of the Eurodollar Advances or in the principal amount of $1,000,000.00 or a
greater integral multiple thereof. All notices under this Section 3.2 shall be
irrevocable and must be given by Borrower not later than 11:00 a.m. Boston,
Massachusetts time on the day which is not less than the number of Business Days
specified above for such notice. Optional prepayments shall be applied as set
forth in Section 3.9. Optional prepayments shall not reduce the Commitments
unless Borrower so elects pursuant to Section 2.1(b).
Section 3.3 Mandatory Prepayments.
(a) Asset Sales. Immediately upon the receipt of the proceeds
thereof, Borrower shall prepay the Notes in an amount equal to the net
proceeds of any sale, liquidation or disposition of any assets of any
Company (other than the Partnerships or the assets of the
Partnerships), where such net proceeds exceed $100,000.00.
(b) Sale or Issuance of Capital Stock or Debt. Immediately
upon the receipt of the proceeds thereof, Borrower shall prepay the
Notes in an amount equal to 100 percent (100%) of any Issuance
Proceeds.
(c) Application of Mandatory Prepayments. Any such mandatory
prepayments of the Notes shall be applied to the Notes on a pro rata
basis based upon the outstanding principal balances of such Notes as of
the date of payment. Any such prepayments shall not reduce the
Commitments.
Section 3.4 Pro Rata Treatment. Except to the extent otherwise provided
herein: (a) the making and Continuation of Advances under the Commitment shall
be made pro rata among the Lenders according to the amounts of their respective
Commitments; (b) each termination or reduction of the Commitments under Section
2.1(b) or otherwise shall be applied to the Commitments of the Lenders pro rata,
according to their respective unused Commitments; and (c) each payment and
prepayment of principal of or interest on Advances by Borrower shall be made to
the Administrative Agent for the account of the applicable Lenders in accordance
with Section 3.9.
Section 3.5 Non-Receipt of Funds by the Administrative Agent. Unless
the Administrative Agent shall have been notified by a Lender or Borrower (the
"Payor") prior to the date on which such Lender is to make payment to the
Administrative Agent of the proceeds of an Advance to be made by it hereunder or
Borrower is to make a payment to the Administrative Agent for the account of one
or more of the Lenders, as the case may be (such payment being herein called the
"Required Payment"), which notice shall be effective upon receipt, that the
Payor does not intend to make the Required Payment to the Administrative Agent,
the Administrative Agent may assume that the Required Payment has been made and
may, in reliance upon such assumption (but shall not be required to), make the
amount thereof available to the intended recipient on such date and, if the
Payor has not in fact made the Required
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Payment to the Administrative Agent, the recipient of such payment shall, on
demand, return to the Administrative Agent the amount made available to it
together with interest thereon in respect of the period commencing on the date
such amount was so made available by the Administrative Agent until the date the
Administrative Agent recovers such amount at a rate per annum equal to the
Federal Funds Rate for such period.
Section 3.6 Withholding Taxes. All payments by Borrower of principal of
and interest on the Advances and of all fees and other amounts payable under any
Loan Document are payable without deduction for or on account of any present or
future taxes, duties or other charges levied or imposed by the United States of
America or by the government of any jurisdiction outside the United States of
America or by any political subdivision or taxing authority of or in any of the
foregoing through withholding or deduction with respect to any such payments. If
any such taxes, duties or other charges are so levied or imposed, Borrower will
pay additional interest or will make additional payments in such amounts so that
every net payment of principal of and interest on the Advances and of all other
amounts payable by any of them under any Loan Document, after withholding or
deduction for or on account of any such present or future taxes, duties or other
charges, will not be less than the amount provided for herein or therein,
provided that Borrower shall have no obligation to pay such additional amounts
to any Lender to the extent that such taxes, duties, or other charges are levied
or imposed by reason of the failure of such Lender to comply with the provisions
of Section 3.7. Borrower shall furnish promptly to the Administrative Agent for
distribution to each affected Lender, as the case may be, official receipts
evidencing any such withholding or reduction.
Section 3.7 Withholding Tax Exemption. Each Lender that is not
incorporated under the laws of the United States of America or a state thereof
agrees that it will deliver to Borrower and the Administrative Agent two (2)
duly completed copies of United States Internal Revenue Service Form 1001 or
4224, certifying in either case that such Lender is entitled to receive payments
from Borrower under any Loan Document, without deduction or withholding of any
United States federal income taxes or (b) if such Lender is claiming exemption
from United States withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of "portfolio interest," a Form W-8, or any successor
form prescribed by the Internal Revenue Service, and a certificate representing
that such Lender is not a bank for purposes of Section 881(c) of the Code, is
not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Code) of the Borrower and is not a controlled foreign corporation related to the
Borrower (within the meaning of Section 864(d)(4) of the Code). Each Lender
which so delivers a W-8, Form 1001 or 4224 further undertakes to deliver to
Borrower and the Administrative Agent two (2) additional copies of such form (or
a successor form) on or before the date such form expires or becomes obsolete or
after the occurrence of any event requiring a change in the most recent form so
delivered by it, and such amendments thereto or extensions or renewals thereof
as may be reasonably requested by Borrower or the Administrative Agent, in each
case certifying that such Lender is entitled to receive payments from Borrower
under any Loan Document without deduction or withholding of any United States
federal income taxes, unless an event (including without limitation any change
in treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender advises Borrower and the Administrative
Agent that it is not capable of receiving such payments without any deduction or
withholding of United States federal income tax.
Section 3.8 Computation of Interest. Interest on all Advances and all
other amounts payable by Borrower hereunder shall be computed on the basis of a
year of 360 days, and actual days elapsed.
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Section 3.9 Order of Application.
(a) No Default. Prior to the occurrence of an Event of Default any
payment (whether voluntary or mandatory) of the Notes shall be applied to the
Notes on a pro rata basis based upon the outstanding principal balances of the
Notes as of the date of payment.
(b) After Default. After the occurrence and during the continuance of
an Event of Default, any payment or proceeds of Collateral shall be applied in
the following order: (i) to all fees and expenses for which Agents or Lenders
have not been paid or reimbursed in accordance with the Loan Documents (and if
such payment is less than all unpaid or unreimbursed fees and expenses, then the
payment shall be paid against unpaid and unreimbursed fees and expenses in the
order of incurrence or due date); (ii) to accrued interest on the Notes on a pro
rata basis, based upon the outstanding principal balances of the Notes as of the
date of payment; (iii) to the principal of the Notes and amounts due and owing
under any Financial Hedge on a pro rata basis, based upon the outstanding
principal balances of the Notes or obligation due and owing under any Financial
Hedge as of the date of payment; and (iv) to all other Obligations.
(c) Application to Advances. Subject to the foregoing, and so long as
no Event of Default has occurred and is continuing, payments of principal of any
Note shall be applied to such outstanding Alternate Base Rate Advances and
Eurodollar Advances under such Note as Borrower shall select; provided, however,
that Borrower shall select Alternate Base Rate Advances and Eurodollar Advances
to be repaid in a manner designated to minimize the funding loss required to be
paid pursuant to Section 4.5, if any, resulting from such payment; and provided
further that if Borrower shall fail to select the Alternate Base Rate Advances
and Eurodollar Advances to which such payments are to be applied, or if an Event
of Default has occurred and is continuing at the time of such payment, then the
Administrative Agent shall be entitled to apply the payment to such Advances in
the manner in which it shall deem appropriate in its sole discretion.
ARTICLE IV -- YIELD PROTECTION AND ILLEGALITY
Section 4.1 Additional Costs.
(a) Borrower hereby agrees to pay directly to each Lender from time to
time such amounts as such Lender may determine to be necessary to compensate it
for any costs incurred by such Lender which such Lender determines are
attributable to its making or maintaining any Eurodollar Advances hereunder or
its obligation to make any of such Advances hereunder, or any reduction in any
amount receivable by such Lender hereunder in respect of any such Advances or
such obligation (such increases in costs and reductions in amounts receivable
being herein called "Additional Costs"), resulting from any Regulatory Change
which:
(i) changes the basis of taxation of any amounts payable to
such Lender under this Agreement or its Notes in respect of any of such
Advances (other than (1) taxes imposed on the overall net income of
such Lender or its Applicable Lending Office for any of such Advances,
(2) franchise or similar taxes of such Lender, and (3) amounts withheld
pursuant to the last sentence of Section 3.7);
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(ii) imposes or modifies any reserve, special deposit, minimum
capital, capital ratio, or similar requirement relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities or commitments of, such Lender; or
(iii) imposes any other Additional Cost affecting this
Agreement or the Notes or any of such extensions, of credit or
liabilities or commitments.
Each Lender will notify Borrower of any event occurring after the date of this
Agreement which will entitle such Lender to compensation pursuant to this
Section 4.1(a) as promptly as practicable after it obtains knowledge thereof and
determines to request such compensation, and will designate a different
Applicable Lending Office for the Advances affected by such event if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the sole opinion of such Lender, violate any law, rule, or
regulation or be in any way disadvantageous to such Lender, provided that such
Lender shall have no obligation to so designate an Applicable Lending Office
located outside the United States of America. Each Lender will furnish Borrower
with a certificate setting forth the basis and the amount of each request of
such Lender for compensation under this Section 4.1(a). If any Lender requests
compensation from Borrower under this Section 4.1(a), Borrower may, by notice to
such Lender (with a copy to the Administrative Agent) suspend the obligation of
such Lender to make or Continue making Eurodollar Advances until the Regulatory
Change giving rise to such request ceases to be in effect (in which case such
Lender's Eurodollar Advances shall be Converted to Alternate Base Rate Advances
in accordance with the provisions of Section 4.4).
(b) Without limiting the effect of the foregoing provisions of this
Section 4.1, in the event that, by reason of any Regulatory Change, any Lender
either (i) incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits or other liabilities of
such Lender which includes deposits by reference to which the interest rate on
Eurodollar Advances is determined as provided in this Agreement or a category of
extensions of credit or other assets of such Lender which includes Eurodollar
Advances or (ii) becomes subject to restrictions on the amount of such a
category of liabilities or assets which it may hold, then, if such Lender so
elects by notice to Borrower (with a copy to the Administrative Agent), the
obligation of such Lender to make or Continue making Eurodollar Advances
hereunder shall be suspended until such Regulatory Change ceases to be in effect
(in which case such Lender's Eurodollar Advances shall be Converted to Alternate
Base Rate Advances in accordance with the provisions of Section 4.4).
(c) Determinations and allocations by any Lender for purposes of this
Section 4.1 of the effect of any Regulatory Change on its costs of maintaining
its obligations to make Advances or of making or maintaining Advances or on
amounts receivable by it in respect of Advances, and of the additional amounts
required to compensate such Lender in respect of any Additional Costs, shall be
conclusive, absent manifest error and provided that such determinations and
allocations are made on a reasonable basis.
Section 4.2 Limitation on Eurodollar Advances. Anything herein
to the contrary notwithstanding, if with respect to any Eurodollar Advance for
any Interest Period therefor:
(a) The Administrative Agent determines (which determination shall be
conclusive absent manifest error) that quotations of interest rates for the
relevant deposits referred to in the definition of "Eurodollar Rate" in Section
1.1 are not being provided in the relative amounts or for the relative
maturities for purposes of determining the rate of interest for such Advances as
provided in this Agreement; or
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(b) The Required Lenders determine (which determination shall be
conclusive absent manifest error) and notify the Administrative Agent that the
rate of interest referred to in the definition of "Eurodollar Rate" in Section
1.1 on the basis of which the rate of interest for such Advances for such
Interest Period is to be determined do not accurately reflect the cost to the
Lenders of making or maintaining such Advances for such Interest Period;
then the Administrative Agent shall give Borrower prompt notice thereof
specifying the relevant amounts or periods, and so long as such condition
remains in effect, the Lenders shall be under no obligation to make or Continue
additional Eurodollar Advances and Borrower shall, on the last day(s) of the
then-current Interest Period(s) for the outstanding Eurodollar Advances, prepay
such Eurodollar Advances or Convert them to Alternate Base Rate Advances in
accordance with Section 4.4.
Section 4.3 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to (a) honor its obligation to make Eurodollar
Advances hereunder, or (b) maintain Eurodollar Advances hereunder, then such
Lender shall promptly notify Borrower (with a copy to the Administrative Agent)
thereof and such Lender's obligation to make or maintain Eurodollar Advances
shall be suspended until such time as such Lender may again make and maintain
Eurodollar Advances (in which case such Lender's Eurodollar Advances shall be
Converted to Alternate Base Rate Advances in accordance with the provisions of
Section 4.4).
Section 4.4 Treatment of Eurodollar Advances. If the Eurodollar
Advances of any Lender are to be Converted pursuant to Section 4.1, 4.2 or 4.3,
such Lender's Eurodollar Advances shall be automatically Converted into
Alternate Base Rate Advances on the last day(s) of the then current Interest
Period(s) for the Eurodollar Advances (or, in the case of a Conversion required
by Section 4.1(b) or 4.3(b), on such earlier date as such Lender may specify to
Borrower with a copy to the Administrative Agent) and, unless and until such
Lender gives notice as provided below that the circumstances specified in
Section 4.1, 4.2 or 4.3 which gave rise to such Conversion no longer exist:
(a) To the extent that such Lender's Eurodollar Advances have been so
Converted, all payments and prepayments of principal which would otherwise be
applied to such Lender's Eurodollar Advances shall be applied instead to its
Alternate Base Rate Advances; and
(b) All Advances which would otherwise be made or Continued by such
Lender as Eurodollar Advances shall be made as or Converted into Alternate Base
Rate Advances.
If such Lender gives notice to Borrower (with a copy to the Administrative
Agent) that the circumstances specified in Section 4.1, 4.2 or Section 4.3 which
gave rise to the Conversion of such Lender's Eurodollar Advances pursuant to
this Section 4.4 no longer exist (which such Lender agrees to do promptly upon
such circumstances ceasing to exist) at a time when Advances are outstanding,
such Lender's Alternate Base Rate Advances shall be automatically Converted, on
the first day(s) of the next succeeding Interest Period(s) for such outstanding
Eurodollar Advances to the extent necessary so that, after giving effect
thereto, all Eurodollar Advances held by the Lenders holding the same are held
pro rata (as to principal amounts and Interest Periods) in accordance with their
respective Commitments.
Section 4.5 Compensation. Borrower shall pay to the Administrative
Agent, for the account of each Lender, upon the request of such Lender through
the Administrative Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost, or
expense incurred by it as a result of:
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(a) Any payment, prepayment or Conversion of a Eurodollar Advance for
any reason (including, without limitation, the acceleration of the outstanding
Advances pursuant to Section 11.2) on a date other than the last day of an
Interest Period for such Advance; or
(b) Any failure by Borrower for any reason (including, without
limitation, the failure of any conditions precedent specified in Article VI to
be satisfied) to borrow or prepay a Eurodollar Advance on the date for such
borrowing or prepayment, specified in the relevant notice of borrowing or
prepayment under this Agreement.
Such compensation shall not exceed the excess, if any, of (i) the amount of
interest which otherwise would have accrued on the principal amount so paid or
not borrowed for the period from the date of such payment or failure to borrow
to the last day of the Interest Period for such Advance (or, in the case of a
failure to borrow, the Interest Period for such Advance which would have
commenced on the date specified for such borrowing) at the applicable rate of
interest for such Advance provided for herein over (ii) the interest component
of the amount such Lender would have bid in the London interbank market for
Dollar deposits of leading banks and amounts comparable to such principal amount
and with maturities comparable to such period.
Section 4.6 Capital Adequacy. If after the date hereof, any Lender
shall have determined that the adoption or implementation of any applicable law,
rule, or regulation regarding capital adequacy (including, without limitation,
any law, rule, or regulation implementing the Basle Accord), or any change
therein, or any change in the interpretation or administration thereof by any
central bank or other Governmental Authority charged with the interpretation or
administration thereof, or compliance by such Lender (or its parent) with any
guideline, request, or directive regarding capital adequacy (whether or not
having the force of law) of any central bank or other Governmental Authority
(including, without limitation, any guideline or other requirement implementing
the Basle Accord), has or would have the effect of reducing the rate of return
on such Lender's (or its parent's) capital as a consequence of its obligations
hereunder or the transactions contemplated hereby to a level below that which
such Lender (or its parent) could have achieved but for such adoption,
implementation, change or compliance (taking into consideration such Lender's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, within ten (10) Business Days after demand
by such Lender (with a copy to the Administrative Agent), which demand shall be
delivered by such Lender to Borrower as promptly as practicable after such
Lender obtains knowledge of such reduction in its rate of return, Borrower shall
pay to such Lender such additional amount or amounts as will compensate such
Lender (or its parent) for such reduction. A certificate of such Lender claiming
compensation under this Section and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive, absent manifest error
and provided that the determination thereof is made on a reasonable basis. In
determining such amount or amounts, such Lender may use any reasonable averaging
and attribution methods.
ARTICLE V -- SECURITY
Section 5.1 Collateral. To secure the full and complete payment and
performance of the Obligations, Borrower shall execute and deliver or cause to
be executed and delivered the documents described below covering the property
and collateral described therein (which, together with any other property and
collateral which may now or hereafter secure the Obligations or any part
thereof, is sometimes herein called the "Collateral"):
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(a) Borrower Security Agreement. Borrower shall execute and deliver to
the Administrative Agent, for the benefit of the Lenders, the Consent,
Confirmation and Ratification of the Borrower Security Agreement.
(b) Guarantor Security Agreement. The existing Guarantors shall execute
and deliver to the Administrative Agent, for the benefit of the Lenders, the
Consent, Confirmation and Ratification of the Guarantor Security Agreements, and
the Excepted Subsidiaries and Executive Medical Enterprises, Inc. shall execute
and deliver to the Administrative Agent, for the benefit of the Lenders, a
Guarantor Security Agreement.
(c) Pledge Agreement. Pledgors shall execute and deliver to the
Administrative Agent, for the benefit of the Lenders, the Consent, Confirmation
and Ratification of the Pledge Agreements.
(d) Further Assurances. Borrower shall execute and cause to be executed
such further documents and instruments, including without limitation, Uniform
Commercial Code financing statements, as the Administrative Agent and the
Documentation Agent, in their sole discretion, deem necessary or desirable to
evidence and perfect the Administrative Agent's liens and security interests in
the Collateral.
(e) Description of Collateral. Collateral includes, without limitation,
the following assets of Borrower and Guarantors:
(i) All present and future accounts, contract rights, general
intangibles, chattel paper, documents, instruments, inventory,
equipment, and other goods, wherever located, now owned or hereafter
acquired.
(ii) All present and future issued and outstanding shares of
capital stock of, or partnership and membership interests, now owned or
hereafter acquired by Borrower or any Guarantor, including, without
limitation, all capital stock of, or partnership and membership
interests in, the Guarantors.
(iii) To the extent allowed by the respective partnership
agreements, certain partnership interests or economic interests in
partnership interests owned by Borrower and Guarantors.
(iv) All present and future automobiles, trucks, truck
tractors, trailers, semi-trailers, or other motor vehicles or rolling
stock now owned or hereafter acquired by Borrower or any Guarantor
(collectively, the "Vehicles").
(v) All present and future rights, awards, and judgments to
which Borrower or any Guarantor is entitled under any litigation now
existing or hereafter arising.
(vi) All present and future rights, titles, and interests of
Borrower or any Guarantor in and to all patents, patent applications,
patent right, service marks, trademarks, tradenames, trade secrets,
intellectual property, registrations, goodwill, copyrights, franchises,
licenses, permits, proprietary information, customer lists, designs,
and inventions.
(vii) All present and future books, records, data, plans,
manuals, computer software and computer programs of Borrower and
Guarantors.
(viii) All proceeds and products of the Collateral heretofore
described.
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Section 5.2 Future Liens. Promptly, and in any event within twenty-one
(21) days after (a) the acquisition of any assets (real, personal, tangible, or
intangible) by Borrower or any Guarantor or (b) the removal, termination, or
expiration of any prohibition upon the granting of a lien in any asset (real,
personal, tangible, or intangible) of any Borrower or any Guarantor (including,
without limitation, the granting of liens in all general and limited partnership
interests in which Borrower and Guarantors own 100% of the partnership
interests) (the "Additional Assets"), Borrower shall (or shall cause such other
Guarantor to) execute and deliver to Administrative Agent all further
instruments and documents (including, without limitation, certificates and
instruments representing shares of stock or evidencing Debt and any realty
appraisals as Administrative Agent may require with respect to any such
Additional Assets), and shall take all such further action that may be necessary
or desirable, or that Administrative Agent may reasonably request, to grant,
perfect, and protect liens in favor of Administrative Agent for the benefit of
Lenders in such Additional Assets, as security for the Obligations; it being
expressly understood that the granting of such additional security for the
Obligations is a material inducement to the execution and delivery of this
Agreement by each Lender. Upon satisfying the terms and conditions hereof, such
Additional Assets shall be included in the "Collateral" for all purposes under
the Loan Documents, and all references to the "Collateral" in the Loan Documents
shall include the Additional Assets.
Section 5.3 Release of Collateral. Upon any sale, transfer, or
disposition of Collateral which is expressly permitted pursuant to the Loan
Documents (or is otherwise authorized by Required Lenders or Lenders, as the
case may be), and upon ten (10) Business Days' prior written request by Borrower
(which request must be accompanied by true and correct copies of (a) all
documents of transfer or disposition, including any contract of sale, (b) a
preliminary closing statement and instructions to the title company, if any, and
(c) all requested release instruments, Administrative Agent shall (and is hereby
irrevocably authorized by the Lenders to) execute such documents as may be
necessary to evidence the release of liens granted to Administrative Agent for
the benefit of lenders pursuant hereto in such Collateral; provided that, (x) no
such release of Lien shall be granted if any Default or Event of Default has
occurred and is continuing, including, without limitation, the failure to make
certain mandatory prepayments in accordance with Section 3.3(a) in conjunction
with the sale and transfer of such Collateral; (y) Administrative Agent shall
not be required to execute any such document on terms which, in Administrative
Agent's opinion, would expose Administrative Agent to liability or create any
obligation or entail any consequence, other than the release of such Liens
without recourse or warranty; and (z) such release shall not in any manner
discharge, affect, or impair the Obligations, or liens upon or obligations of
Borrower or any Guarantor in respect of all interests retained by the Borrower
and Guarantors, including, without limitation, the proceeds of any sale, all of
which shall continue to constitute Collateral.
Section 5.4 Setoff. If an Event of Default shall have occurred and is
continuing, each Lender is hereby authorized at any time and from time to time,
without notice to Borrower (any such notice being hereby expressly waived by
Borrower), 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 Lender to or for the credit or the account of Borrower
against any and all of the obligations of Borrower now or hereafter existing
under this Agreement, such Lender's Notes, or any other Loan Document,
irrespective of whether or not the Administrative Agent or such Lender shall
have made any demand under this Agreement or such Lender's Notes or such other
Loan Document and although such obligations may be unmatured. Each Lender agrees
promptly to notify Borrower (with a copy to the Administrative Agent) after any
such setoff and application, provided that the failure to give such notice shall
not affect the validity of such setoff and application. The rights and remedies
of each Lender hereunder are in addition to other rights and remedies
(including, without limitation, other rights of setoff) which such Lender may
have.
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ARTICLE VI -- CONDITIONS PRECEDENT
Section 6.1 Initial Advance. The obligation of each Lender to make its
initial Advance is subject to the condition precedent that the Documentation
Agent shall have received on or before the day of such Advance all of the
following, each dated (unless otherwise indicated) the date hereof, in form and
substance satisfactory to the Documentation Agent:
(a) Resolutions. Resolutions of the Boards of Directors of Borrower and
each Guarantor certified by the Secretary or an Assistant Secretary of each of
them which authorize the execution, delivery, and performance by such Company of
this Agreement and/or the other Loan Documents to which such Company is or is to
be a party;
(b) Incumbency Certificate. A certificate of incumbency certified by
the Secretary or an Assistant Secretary of Borrower and each Guarantor
certifying the names of the officers of each such Company, authorized to sign
this Agreement and each of the other Loan Documents to which each such Company
is or is to be a party (including the certificates contemplated herein) together
with specimen signatures of such officers;
(c) Articles of Incorporation. The articles of incorporation of
Borrower and Litho certified, in the case of Borrower, by the Secretary of State
of Delaware, and, in the case of Litho, by the Secretary or an Assistant
Secretary of such Company;
(d) Bylaws. The bylaws of Borrower and Litho certified by the Secretary
or an Assistant Secretary of each such Company;
(e) Governmental Certificates. Certificates of the appropriate
government officials of the state of incorporation of Borrower and Litho as to
the existence and good standing of each of them;
(f) Notes. The Notes executed by Borrower;
(g) Borrower Security Agreement. The Second Consent, Confirmation
and Ratification of Borrower Security Agreement executed by Borrower;
(h) Guaranties. The Second Consent, Confirmation and Ratification
of Guaranty Agreement executed by the existing Guarantors, and Guaranty
Agreements executed by the Excepted Subsidiaries and Executive Medical
Enterprises, Inc.;
(i) Guarantor Security Agreement. The Second Consent,
Confirmation and Ratification of Guarantor Security Agreements executed by the
existing Guarantors, and Guarantor Security Agreements executed by the Excepted
Subsidiaries and Executive Medical Enterprises, Inc.;
(j) Pledge Agreements. The Second Consent, Confirmation and
Ratification of Pledge and Security Agreements executed by the Pledgors;
(k) Financing Statements. Uniform Commercial Code financing statements
executed by Borrower and each Guarantor and covering the Collateral, as
requested by Administrative Agent;
(l) Stock Certificates. Stock certificates evidencing all stock
pledged pursuant to the Borrower Security Agreement and each Guarantor Security
Agreement, as applicable, together with stock powers duly executed in blank;
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(m) Certificates of Title. Original certificates of title, together
with executed applications for title, for all vehicles used in connection with
the transportation of lithotripters pledged pursuant to the Borrower Security
Agreement and the Guarantor Security Agreements;
(n) Insurance Policies. Copies of all insurance policies required by
Section 8.5, together with loss payee endorsements in favor of the
Administrative Agent, for the benefit of the Lenders, with respect to all
insurance policies covering Collateral;
(o) UCC and Tax and Judgment Lien Searches. The results of Uniform
Commercial Code searches showing all financing statements and other documents or
instruments, and tax and judgment lien searches showing all tax and judgment
liens, on file against Borrower and Litho in such jurisdictions as the
Administrative Agent shall require, such searches to be as of a date no more
than twenty (20) days prior to the date of the initial Advance;
(p) Perfection Certificate. A Perfection Certificate, in
substantially the form of Exhibit D hereto, properly completed and signed by the
Chief Executive or Chief Financial Officer or Vice President-Finance of Borrower
and the Guarantors;
(q) Opinion of Counsel. Favorable opinions as to the matters set forth
in Exhibit E hereto of (i) Akin, Gump, Strauss, Hauer & Feld, L.L.P., Texas
legal counsel to Borrower and the Guarantors, (ii) Small, Craig & Werkenthin,
special Texas counsel to Borrower and the Guarantors, and (iii) Bingham Dana
LLP, special Massachusetts legal counsel to the Agents and the Lenders;
(r) Attorneys' Fees and Expenses. Evidence that the costs and expenses
(including attorneys' fees) referred to in Section 13.1, to the extent incurred,
shall have been paid in full by Borrower;
(s) Fees. Borrower shall have paid to the Agents for their own account,
the fees owed by Borrower to the Agents pursuant to the letter agreements of
even date herewith between Borrower and the Agents;
(t) Federal Reserve Board Form U-1. For the Administrative Agent a
properly completed Federal Reserve Board Form U-1 duly executed by each Company
pledging stock of another Company;
(u) Senior Subordinated Notes. Evidence that at least
$100,000,000 principal amount Senior Subordinated Notes have been issued;
(v) Delinquent State Tax Returns. All Delinquent State Tax Returns
shall have been filed and all taxes, penalties, interest, and fees relating
thereto shall have been paid in full, all as satisfactorily evidenced to the
Agents; and
(w) No Material Adverse Change. No material adverse change shall have
occurred since December 31, 1997 in the business, assets, operations, conditions
(financial or otherwise) or prospects of the Companies or in the facts and
information delivered to Lenders on or prior to the date of the initial Advance.
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Section 6.2 All Advances. The obligation of each Lender to make
any Advance (including the initial Advance) is subject to the following
additional conditions precedent:
(a) Advance Request Form. The Administrative Agent shall have
received, in accordance with Section 2.5, an Advance Request Form executed by an
authorized officer of Borrower;
(b) No Default. No Default shall have occurred and be continuing,
or would result from such Advance;
(c) Representations and Warranties. All of the representations and
warranties contained in Article VII hereof and in each of the other Loan
Documents shall be true and correct on and as of the date of such Advance with
the same force and effect as if such representations and warranties had been
made on and as of such date, except to the extent that such representations and
warranties speak to a specific date or the facts on which such representations
and warranties are based have been changed by transactions contemplated by the
Loan Documents; and
(d) Additional Documentation. The Administrative Agent shall have
received such additional approvals, opinions, or documents as are required by
the terms and provisions of this Agreement or any other Loan Document.
ARTICLE VII -- REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement,
Borrower hereby represents and warrants to the Agents and the Lenders that:
Section 7.1 Existence.
(a) Corporate Existence. Each of the Companies (other than the Excepted
Subsidiaries and the Partnerships): (a) is a corporation duly organized, validly
existing, and in good standing under the laws of the jurisdiction of its
incorporation; (b) has all requisite corporate power and authority to own its
assets and carry on its business as now being or as proposed to be conducted;
and (c) is qualified to do business in all jurisdictions in which the nature of
its business makes such qualification necessary and where failure to so qualify
would have a material adverse effect on the business, condition (financial or
otherwise), operations, or properties of the Companies taken as a whole,
Borrower, or any Material Subsidiary. Each Company (other than the Excepted
Subsidiaries) has the corporate power and authority to execute, deliver, and
perform its obligations under this Agreement and the other Loan Documents to
which it is or may become a party.
(b) Partnership Existence. Each of the Partnerships: (a) is a general
partnership, limited partnership or limited liability company, as appropriate,
duly organized, validly existing, and in good standing under the laws of the
jurisdiction of its formation; (b) has all requisite partnership power and
authority or company power and authority, as appropriate, to own its assets and
carry on its business as now being or as proposed to be conducted; and (c) is
qualified to do business in all jurisdictions in which the nature of its
business makes such qualification necessary and where failure to so qualify
would have a material adverse effect on the business, condition (financial or
otherwise), operations, or properties of the Companies taken as a whole,
Borrower, or any Material Subsidiary.
Section 7.2 Financial Statements. Borrower has delivered to the
Administrative Agent audited consolidated financial statements of the Companies
as of and for the fiscal year ended
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December 31, 1997, and unaudited consolidated financial statements of Borrower
for the one (1) month period ended January 31, 1998. Such financial statements
have been prepared in accordance with GAAP, and fairly present, on a
consolidated basis, the financial condition of the Companies and Litho and the
Partnerships, as appropriate, as of the respective dates indicated therein and
the results of operations for the respective periods indicated therein. There
has been no material adverse change in the business, condition (financial or
otherwise), operations, or properties of the Companies taken as a whole,
Borrower, or any Material Subsidiary since the effective date of the most recent
financial statements referred to in this Section.
Section 7.3 Corporate Action: No Breach. The execution, delivery, and
performance by each Company of this Agreement and the other Loan Documents to
which such Company is or may become a party and compliance with the terms and
provisions hereof and thereof have been duly authorized by all requisite
corporate action (or, if such Company is a partnership, then partnership action)
on the part of such Company and do not and will not (a) violate or conflict
with, or result in a breach of, or require any consent under (i) the articles of
incorporation or bylaws of such Company (or, if such Company is a partnership,
then the partnership agreement of such Company), (ii) any material applicable
law, rule, or regulation or any material order, writ, injunction, or decree of
any Governmental Authority or arbitrator, or (iii) any material agreement or
instrument to which such Company is a party or by which such Company or any of
its property is bound or subject (other than agreements and instruments relating
to Debt which will be paid off with the proceeds of the initial Advance), or (b)
constitute a material default under any such agreement or instrument (other than
agreements and instruments relating to Debt which will be paid off with the
proceeds of the initial Advance), or result in the creation or imposition of any
Lien (except as provided in Article V) upon any of the revenues or assets of any
of the Companies.
Section 7.4 Operation of Business. Each of the Companies (other than
the Excepted Subsidiaries) possesses all licenses, permits, franchises, patents,
copyrights, trademarks, and tradenames, or rights thereto, necessary to conduct
their respective businesses substantially as now conducted and as presently
proposed to be conducted. None of the Companies is in violation of any valid
rights of others with respect to any of the foregoing (except where the failure
to do so would not have a material adverse effect on the business, condition
(financial or otherwise), operations or properties of the Companies taken as a
whole, Borrower, or any Material Subsidiary).
Section 7.5 Litigation and Judgments. As of the date hereof, except as
disclosed on Schedule 7.5 hereto, there is no action, suit, investigation, or
proceeding before or by any Governmental Authority or arbitrator pending, or to
the knowledge of Borrower, threatened against or affecting any of the Companies,
that would, if adversely determined, have a material adverse effect on the
business, condition (financial or otherwise), operations or properties of the
Companies taken as a whole, Borrower, or any Material Subsidiary or the ability
of Borrower to pay and perform the Obligations. There are no outstanding
judgments against any Company.
Section 7.6 Rights in Properties; Liens. Each of the Companies has good
and indefeasible title to or valid leasehold interests in their respective
material properties and assets, real and personal, including the properties,
assets, and leasehold interests reflected in the financial statements described
in Section 7.2, and none of the properties, assets, or leasehold interests of
any Company is subject to any Lien, except as permitted by Section 9.2.
Section 7.7 Enforceability. This Agreement constitutes, and the other
Loan Documents to which Borrower is a party, when delivered, shall constitute
the legal, valid, and binding obligations of Borrower, enforceable against
Borrower in accordance with their respective terms, except as limited by
bankruptcy, insolvency, or other laws of general application relating to the
enforcement of creditors' rights.
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The Loan Documents to which each Guarantor is a party, when delivered, shall
constitute the legal, valid, and binding obligations of such Guarantor,
enforceable against such Guarantor in accordance with their respective terms,
except as limited by bankruptcy, insolvency, or other laws of general
application relating to the enforcement of creditors' rights.
Section 7.8 Approvals. No authorization, approval, or consent of, and
no filing or registration with, any Governmental Authority or third party is or
will be necessary for the execution, delivery, or performance by Borrower or any
Guarantor of this Agreement and the other Loan Documents to which Borrower or
any Guarantor is or may become a party or for the validity or enforceability
thereof.
Section 7.9 Debt. As of the date hereof, the Companies have no Debt, except
as disclosed on Schedule 7.9.
Section 7.10 Taxes. The Companies (other than the Excepted
Subsidiaries) have filed or extended all tax returns (federal, state, and local)
required to be filed, including all income, franchise, employment, property, and
sales tax returns, and have paid all of their respective liabilities for taxes,
assessments, governmental charges, and other levies that are due and payable
other than certain state tax returns required to be filed on or before the date
hereof (the "Delinquent State Tax Returns"). Except as previously disclosed to
the Administrative Agent in writing, no Company knows of any pending
investigation of any of them by any taxing authority or of any pending but
unassessed tax liability of any of them, except relating to the Excepted
Subsidiaries.
Section 7.11 Use of Proceeds; Margin Securities. No Company is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulations G, T, U, or X of the Board of Governors of the Federal
Reserve System), and no part of the proceeds of any Advance will be used to
purchase or carry any margin stock or to extend credit to others for the purpose
of purchasing or carrying margin stock, except for purchases of Borrower's
capital stock permitted by Section 9.4 hereof.
Section 7.12 ERISA. The Companies are in compliance in all material
respects with all applicable provisions of ERISA. Neither a Reportable Event nor
a Prohibited Transaction has occurred and is continuing with respect to any
Plan. No notice of intent to terminate a Plan has been filed, nor has any Plan
been terminated. No circumstances exist which constitute grounds entitling the
PBGC to institute proceedings to terminate, or appoint a trustee to administer,
a Plan, nor has the PBGC instituted any such proceedings. None of the Companies
nor any ERISA Affiliate has completely or partially withdrawn from a
Multi-employer Plan. The Companies and each ERISA Affiliate have met their
minimum funding requirements under ERISA with respect to all of their Plans, and
the present value of all vested benefits under each Plan does not exceed the
fair market value of all Plan assets allocable to such benefits, as determined
on the most recent valuation, date of the Plan and in accordance with ERISA.
None of the Companies nor any ERISA Affiliate has incurred any liability to the
PBGC under ERISA.
Section 7.13 Disclosure. All factual information (taken as a whole)
furnished by or on behalf of Borrower in writing to any Agent or any Lender
(including, without limitation, all factual information contained in the Loan
Documents) for purposes of or in connection with this Agreement, the other Loan
Documents or any transaction contemplated herein or therein is, and all other
such factual information (taken as a whole) hereafter furnished by or on behalf
of Borrower in writing will be, true and accurate in all material respects on
the date as of which such factual information is dated or certified and is not
(and such factual information (taken as a whole) hereafter furnished will not
be) incomplete by omitting
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to state any facts necessary to make such factual information (taken as a whole)
not misleading in any material respect at such time in light of the
circumstances under which such factual information was provided.
Section 7.14 Subsidiaries; Partnerships. Each of the Guarantors is a
direct or indirect wholly-owned Subsidiary of Borrower, and as of the date
hereof, together with the Partnerships listed on Schedule 3, constitute all of
the Subsidiaries of Borrower. Schedule 7.14.1, as the same may be amended from
time to time to reflect transactions permitted by this Agreement, sets forth the
outstanding shares of capital stock (or other ownership interests) and the name
of each shareholder of each of the Subsidiaries of Borrower. All of the
outstanding capital stock of Borrower and each of its Subsidiaries has been
validly issued, is fully paid, and is nonassessable. Schedule 7.14.2, as the
same may be amended from time to time to reflect transactions permitted by this
Agreement, sets forth the outstanding partnership interests of the Partnerships
owned by each of the Companies.
Section 7.15 Agreements. Except for the Senior Subordinated Indenture,
the Senior Subordinated Notes, and as set forth on Schedule 7.15, none of the
Companies is a party to any indenture, loan, or credit agreement, or to any
lease or other agreement or instrument, or subject to any charter or corporate
restriction which could reasonably be expected to have a material adverse effect
on the business, condition (financial or otherwise), operations or properties of
the Companies taken as a whole, Borrower, or any Material Subsidiary or the
ability of Borrower or any Guarantor to pay and perform its obligations under
the Loan Documents to which it is a party. None of the Companies is in default
in any material respect in the performance, observance, or fulfillment of any of
the obligations, covenants, or conditions contained in any agreement or
instrument to which it is a party, which default, in the aggregate with all such
other defaults, would have a material adverse affect on the business, condition
(financial or otherwise), operations or properties of the Companies taken as a
whole, Borrower, or any Material Subsidiary.
Section 7.16 Compliance with Legal Requirements; Governmental
Authorizations.
(a) Except for the Excepted Subsidiaries and as set forth in Schedule
7.16.1: (i) each Company is in compliance in all material respects with each
Legal Requirement that is or was applicable to it or to the conduct or operation
of its business or the ownership or use of any of its assets; and (ii) no
Company has received any notice or other communication from any Governmental
Authority or other Person of any event or circumstance which could constitute a
violation of, or failure to comply with, any Legal Requirement.
(b) Except for the Excepted Subsidiaries and as set forth in Schedule
7.16: (i) each Company is in material compliance with all of the terms and
requirements of each Governmental Authorization held by such Company; (ii) no
Company has received any notice or other communication from any Governmental
Authority or other Person of, any event or circumstance which could constitute a
violation of, or failure to comply with, any term or requirement of any
Governmental Authorization, or of any actual or potential revocation,
withdrawal, cancellation or termination of, or material modification to, any
Governmental Authorization; (iii) all applications required to have been filed
for the renewal of any required Governmental Authorizations have been duly filed
on a timely basis with the appropriate Governmental Authorities, and all other
filings required to have been made with respect to such Governmental
Authorizations have been duly made on a timely basis with the appropriate
Governmental Authorities; (iv) all Governmental Authorizations of the Companies
are transferable to the Companies; (v) upon consummation of the transactions
contemplated hereby, the Companies will lawfully hold all such Governmental
Authorizations; and (vi) none of such Governmental Authorizations will terminate
upon consummation of the transactions contemplated hereby. Except for the
Excepted Subsidiaries and as set
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forth on Schedule 7.16, each of the Companies possesses the necessary
Governmental Authorizations (i) necessary to permit each Company to lawfully
conduct and operate its respective business in the manner it currently conducts
and operates such business and to permit such Company to own and use its assets
in the manner in which it currently owns and uses such assets, and (ii)
necessary to permit each Company, upon the consummation of the transactions
contemplated hereby, to lawfully conduct and operate its business and to permit
each Company to own and use its assets, where the failure to have such
Governmental Authorization would have a material adverse effect on the business,
condition (financial or otherwise), operations or properties of the Companies
taken as a whole, Borrower, or any Material Subsidiary.
Section 7.17 Investment Company Act. No Company is an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
Section 7.18 Public Utility Holding Company Act. No Company is a
"holding company" or a "subsidiary company" of a "holding company" or an
"affiliate" of a "holding company" or a "public utility" within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
Section 7.19 Environmental Matters. Except as disclosed on
Schedule 7.19, as the same may be amended from time to time, hereto:
(a) Each of the Companies and all of their respective properties,
assets, and operations are in compliance in all material respects with all
Environmental Laws. No Company is aware of, nor have any of them received notice
of, any past, present, or future conditions, events, activities, practices, or
incidents which may interfere with or prevent the material compliance or
continued material compliance of any Company with all material Environmental
Laws; and
(b) The Companies have obtained all material permits, licenses and
authorizations that are required under applicable Environmental Laws, and all
such permits are in good standing and each Company is in compliance is all
material respects with all of the terms and conditions of such permits.
Section 7.20 Year 2000 Compliance. Borrower represents that it is aware
of the possible impact of the year 2000 problem (that is, the risk that computer
applications may not be able to properly perform date-sensitive functions after
December 31, 1999) upon its computer applications and on-going business.
Borrower represents that any corrective action necessary will be taken and that
the year 2000 problem will not result in a material adverse change in the
Companies' business condition (financial or otherwise), operations, properties
or prospects, or ability to repay the Obligations.
ARTICLE VIII -- POSITIVE COVENANTS
Borrower hereby covenants and agrees that, as long as the Obligations
or any part thereof are outstanding or any Lender has any Commitment hereunder,
Borrower will perform and observe each of the following positive covenants:
Section 8.1 Reporting Requirements. Borrower will furnish to the
Administrative Agent and each Lender:
(a) Annual Financial Statements. As soon as available, and in any event
within ninety-five (95) days after the end of each fiscal year of Borrower,
beginning with the fiscal year ending December 31, 1998, a copy of the annual
audit report of the Companies for such fiscal year containing,
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on a consolidated basis, balance sheets and statements of income, retained
earnings, and cash flow as at the end of such fiscal year and for the twelve
(12)-month period then ended, in each case setting forth in comparative form the
figures for the preceding fiscal year, audited by independent certified public
accountants of recognized standing, and accompanied by an opinion of such
independent certified public accountants stating that such report has been
prepared in accordance with GAAP;
(b) Monthly Financial Statements. As soon as available, and in any
event within forty (40) days after the end of each month of each fiscal year of
Borrower, a copy of an unaudited financial report of the Companies as of the end
of such month and for the portion of the fiscal year then ended, containing, on
a consolidated basis, balance sheets and statements of income and retained
earnings, in each case setting forth in comparative form the figures for the
corresponding period of the preceding fiscal year, certified by the chief
financial officer of Borrower to have been prepared in accordance with GAAP and
to fairly and accurately present (subject to year-end audit adjustments) the
financial condition and results of operations of the Companies, on a
consolidated basis, at the date and for the periods indicated therein;
(c) Quarterly Financial Statements. As soon as available, and in any
event within forty-five (45) days after the end of each quarter of each fiscal
year of Borrower, a copy of an unaudited financial report of the Companies as of
the end of such quarter and for the portion of the fiscal year then ended,
containing, on a consolidated basis, balance sheets and statements of income,
retained earnings, and cash flow, in each case setting forth in comparative form
the figures for the corresponding period of the preceding fiscal year, certified
by the chief financial officer of Borrower to have been prepared in accordance
with GAAP and to fairly and accurately present (subject to year-end audit
adjustments) the financial condition and results of operations of the Companies,
on a consolidated basis, at the date and for the periods indicated therein;
(d) Compliance Certificate. Concurrently with the delivery of each of
the financial statements referred to in Section 8.1(a) and within forty-five
(45) days after the end of each of the first three (3) fiscal quarters of each
fiscal year of Borrower, a certificate of the chief executive or chief financial
officer of Borrower, in substantially the form of Exhibit F, (i) stating that to
such officer's knowledge, no Default has occurred and is continuing, or if a
Default has occurred and is continuing, a statement as to the nature thereof and
the action that is proposed to be taken with respect thereto, and (ii) showing
in reasonable detail the calculations demonstrating compliance with Article X;
(e) Accounts Receivable Aging Report. As soon as available and in any
event within forty (40) days after the end of each month, an aged listing of the
accounts receivable of each of Borrower and its Subsidiaries as of the end of
such month in a form reasonably satisfactory to the Administrative Agent;
(f) Business Plan and Budget. As soon as available and in any event by
December 31 of each year, a copy of the annual budget and business plan of
Borrower and its Subsidiaries for the upcoming fiscal year, together with
details of the assumptions, if any, underlying such budget and business plan;
(g) Management Letters. Promptly upon receipt thereof, a copy of any
management letter or written report submitted to any Company by independent
certified public accountants with respect to the business, condition (financial
or otherwise), operations, or properties of any Company;
(h) Notice of Litigation. Promptly after the commencement thereof,
notice of all actions, suits, and proceedings before any Governmental Authority
or arbitrator affecting Borrower or any of its Subsidiaries which, if determined
adversely to Borrower or any such Subsidiary, could have a material
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adverse effect on the business, condition (financial or otherwise), options, or
properties of Borrower, any Subsidiary or the Companies (taken as a whole);
(i) Notice of Default. As soon as possible and in any event within five
(5) days after Borrower knows of the occurrence of each Default, a written
notice setting forth the details of such Default and the action that Borrower
has taken and proposes to take with respect thereto;
(j) ERISA Reports. Promptly after the filing or receipt thereof, copies
of all reports, including annual reports, and notices which any Company files
with or receives from the PBGC or the U.S. Department of Labor under ERISA; and
as soon as possible and in any event within five (5) days after any Company
knows or has reason to know that any Reportable Event or Prohibited Transaction
has occurred with respect to any Plan or that the PBGC, or any Company has
instituted or will institute proceedings under Title IV of ERISA to terminate
any Plan, a certificate of the chief financial officer of Borrower setting forth
the details as to such Reportable Event or Prohibited Transaction or Plan
termination and the action that Borrower proposes to take with respect thereto;
(k) Reports to Other Creditors. Promptly after the furnishing thereof,
copies of any statement or report furnished by Borrower or any of its
Subsidiaries to any other creditor to which any Company owes $250,000.00 or more
or to the trustee under the Senior Subordinated Indenture, pursuant to the terms
of any indenture, loan, or credit or similar agreement and not otherwise
required to be furnished to the Administrative Agent and the Lenders pursuant to
any other clause of this Section;
(l) Proxy Statements, Etc. As soon as available, one (1) copy of each
financial statement, report, notice or proxy statement sent by Borrower to its
stockholders generally and one (1) copy of each regular, periodic or special
report, registration statement, or prospectus filed by Borrower with any
securities exchange or the Securities and Exchange Commission or any successor
agency including, without limitation, all Forms 10-K, 10-Q and 8-K and all other
periodic reports required to be filed under the Securities Exchange Act of 1934
and the rules and regulations promulgated thereunder;
(m) Partnership Lists. As soon as available, and in any event (a)
within thirty (30) days after the Administrative Agent requests such information
from Borrower, a list of the names and addresses of each partner or member of
each of the Partnerships;
(n) Governmental Authorizations. Upon the request of the Administrative
Agent, but not more often than one (1) time during each fiscal year of Borrower,
a complete and accurate list of each Governmental Authorization held by each of
Companies or that otherwise relate to the business of, or to any of the assets
owned or used by, each of the Companies;
(o) Partnership Actions. Promptly after the incurrence thereof, notice
of any Partnership's (i) incurrence of Debt, (ii) change in accounting treatment
or reporting practices (which change shall not affect any reporting requirements
set forth herein or the Loan Documents), except as permitted by GAAP and
disclosed to the Administrative Agent, (iii) change in tax reporting treatment,
except as permitted by law, (iv) amendment of any partnership agreement,
regulations, or management agreement between such Partnership and any Company
and copies of any such amendment certified by an officer of Borrower as being
true and correct, and (v) change in its insurance; and
(p) General Information. Promptly, such other information concerning
Borrower or any of its Subsidiaries as the Administrative Agent or any Lender
may from time to time reasonably request.
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Section 8.2 Maintenance of Existence; Conduct of Business. Borrower
will preserve and maintain its corporate existence and all of its leases,
privileges, licenses, permits, franchises, qualifications, and rights that are
necessary or desirable in the ordinary conduct of its business. Borrower will
cause each of its Subsidiaries other than the Excepted Subsidiaries, to preserve
and maintain its corporate, partnership or other similar existence and all of
its leases, privileges, licenses, permits, franchises, qualifications and rights
that are necessary or desirable in the ordinary conduct of its business, except,
in each case, where failure to do so would not have a material adverse effect on
the business, condition (financial or otherwise), operations or properties of
the Companies taken as a whole, Borrower, or any Material Subsidiary. Borrower
will conduct, and will cause each of its Subsidiaries to conduct, its business
in an orderly and efficient manner in accordance with good business practices.
Section 8.3 Maintenance of Properties. Borrower will maintain, keep,
and preserve, and cause each of its Subsidiaries to maintain, keep, and
preserve, all of its properties (tangible and intangible) necessary or useful in
the proper conduct of its business in good working order and condition, except,
in each case, as permitted by Section 9.8 or 9.9 or where the failure to do so
would not have a material adverse effect on the business, condition (financial
or otherwise), operations or properties of the Companies taken as a whole,
Borrower, or any Material Subsidiary.
Section 8.4 Taxes and Claims. Borrower will pay or discharge, and will
cause each of its Subsidiaries other than the Excepted Subsidiaries, to pay or
discharge, at or before maturity or before becoming delinquent (a) all material
taxes, levies, assessments, and governmental charges imposed on it or its income
or profits or any of its material property, and (b) all material lawful claims
for labor, material, and supplies, which, if unpaid, might become a Lien upon
any of its property; provided, however, that no Company shall be required to pay
or discharge any tax, levy, assessment, or governmental charge which is being
contested in good faith by appropriate proceedings diligently pursued, and for
which adequate reserves have been established; and provided further that all
Delinquent State Tax Returns will be filed and all taxes, penalties, interest,
and fees relating thereto shall be paid in full on or before May 31, 1998.
Section 8.5 Insurance. Borrower will maintain, and will cause each of
its Subsidiaries to maintain (except in the case of the Partnerships, in which
case Borrower shall maintain for the Partnerships), insurance with financially
sound and reputable insurance companies in such amounts and covering such risks
as is usually carried by corporations engaged in similar businesses and owning
similar properties in the same general areas in which the Companies operate,
consistent with past practices of the Companies and to the extent available on
commercially reasonable terms, provided that in any event Borrower will maintain
and cause each of its Subsidiaries (except in the case of the Partnerships, in
which case Borrower shall maintain for the Partnerships) to maintain workmen's
compensation insurance, property insurance, comprehensive general liability
insurance, professional liability insurance, and business interruption insurance
reasonably satisfactory to the Lenders. Each insurance policy covering
Collateral shall name the Administrative Agent as loss payee, for the benefit of
the Lenders, as its interests may appear and shall provide that such policy will
not be canceled or reduced without thirty (30) days' prior written notice to the
Administrative Agent. Borrower will annually provide the Administrative Agent
with all certificates of insurance evidencing all policies of insurance of
Borrower and its Subsidiaries.
Section 8.6 Inspection Rights. At any reasonable time and from time to
time after reasonable notice to Borrower, Borrower will permit, and will cause
each of its Subsidiaries to permit, representatives of the Administrative Agent
and each Lender to examine, copy, and make extracts from its books and records,
to visit and inspect its properties, and to discuss its business, operations,
and financial condition with its officers, and independent certified public
accountants. Prior to removing any such copies or extracts from a Company's
premises, such Company's representatives shall be provided a reasonable
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opportunity to review such information and mark or identify it as "confidential"
or "confidential information" as reasonably deemed appropriate by such Company.
Section 8.7 Keeping Books and Records. Borrower will maintain, and will
cause each of its Subsidiaries to maintain, proper books of record and account
in which full, true, and correct entries in conformity with GAAP shall be made
of all dealings and transactions in relation to its business and activities.
Section 8.8 Compliance with Laws. Borrower will comply, and will cause
each of its Subsidiaries to comply, in all material respects with all material
applicable laws, rules, regulations, orders, and decrees of any Governmental
Authority or arbitrator.
Section 8.9 Compliance with Agreements. Borrower will comply, and will
cause each of its Subsidiaries to comply, in all material respects with all
agreements, contracts, and instruments binding on it or affecting its properties
or business, except where the failure to do so would not have a material adverse
effect on the business, condition (financial or otherwise), operations or
properties of the Companies taken as a whole, Borrower, or any Material
Subsidiary.
Section 8.10 Further Assurances. Borrower will (a), and will cause each
of its Subsidiaries (other than the Partnerships) to, execute and deliver such
further agreements and instruments and take such further action as may be
reasonably requested by the Administrative Agent to carry out the provisions and
purposes of this Agreement and the other Loan Documents and, (b) and will cause
each of its Subsidiaries (including the Partnerships) to, create, preserve, and
perfect the Liens of the Administrative Agent, for the benefit of the Lenders,
in the Collateral.
Section 8.11 ERISA. Borrower will comply, and will cause each of its
Subsidiaries to comply, with all minimum funding requirements, and all other
material requirements, of ERISA, if applicable, so as not to give rise to any
liability thereunder.
Section 8.12 Information Relating to Proposed Acquisitions. Borrower
will use its best efforts to keep the Administrative Agent and the Lenders
informed of the relevant information and status of and will share with the
Administrative Agent and the Lenders and provide copies to the extent possible,
of all material due diligence information relating to any proposed Acquisition
with respect to which Borrower or any Subsidiary enters into a letter of intent
or acquisition agreement, during the term of this Agreement.
Section 8.13 After-Acquired Subsidiaries. Concurrently upon the
formation or Acquisition by Borrower or any Guarantor of any Wholly-Owned
Subsidiary after the date hereof (pursuant to a Permitted Acquisition or
otherwise) (an "After-Acquired Subsidiary"), Borrower shall cause the After-
Acquired Subsidiary to deliver articles of incorporation, bylaws, and
resolutions (or other corresponding constituent documents) and such opinions as
the Administrative Agent shall require and to execute a Guaranty, Guarantor
Security Agreement, and Pledge Agreement (if applicable), as shall be required
by the Administrative Agent to create first priority Liens in favor of the
Administrative Agent, for the benefit of the Lenders, in such After-Acquired
Subsidiary's assets, to secure the Obligations.
Section 8.14 Syndication Cooperation. Borrower acknowledges that the
Agents intend promptly to commence to syndicate the Commitments of the Lenders
in accordance with the provisions of Section 13.6. Borrower agrees to actively
assist Agents and their Affiliates in achieving a syndication that is
satisfactory to Agents and Borrower and in preparing information requested by
Agents in connection with arranging and syndication of the Commitments of the
Lenders and to take such other
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action deemed necessary by Agents or their Affiliates, including the holding of
a formal presentation to prospective Lenders to achieve a successful syndication
of the Commitments by Agents. The syndication efforts will be accomplished by a
variety of means, including the preparation of a confidential information
memorandum and other marketing materials, direct contact during the syndication
between senior management (including, but not limited to, the chief executive
officer, the chief financial officer and treasurer of Borrower) and advisors and
Affiliates of Borrower and the proposed syndicate Lenders.
ARTICLE IX -- NEGATIVE COVENANTS
Borrower hereby covenants and agrees that, as long as the Obligations
or any part thereof are outstanding or any Lender has any Commitment hereunder,
Borrower will perform and observe the following negative covenants:
Section 9.1 Debt. Borrower will not incur, create, assume, or permit to
exist, nor permit any of its Subsidiaries (other than the Partnerships) to
incur, create, assume, or permit to exist, any Debt, except:
(a) Debt owed to the Agents and the Lenders pursuant to the Loan
Documents;
(b) Existing Debt described on Schedule 7.9 hereto;
(c) The Exchange Notes and guaranties thereof by any Wholly-Owned
Subsidiary;
(d) Debt owed to Borrower or to any Wholly-Owned Subsidiary;
(e) Debt in an aggregate principal amount not to exceed $500,000.00 at
any time outstanding the proceeds of which are used by the Companies to purchase
equipment, other than lithotripters;
(f) Any Company's obligations as general partner of a Partnership for
the Debt of such Partnership;
(g) Any Company's Guarantee of Debt of any Partnership, if such Company
is a general partner of such Partnership;
(h) Debt not exceeding $1,750,000 in outstanding principal amount
incurred by AK Associates, LLC in connection with the acquisition and
improvement of real estate; and
(i) Any Financial Hedge.
Section 9.2 Limitation on Liens. Borrower will not incur, create,
assume, or permit to exist, nor permit any of its Subsidiaries (other than the
Partnerships) to incur, create, assume, or permit to exist, any Lien upon any of
their respective properties, assets, or revenues, whether now owned or hereafter
acquired, except:
(a) Liens disclosed on Schedule 9.2;
(b) Purchase money Liens securing Debt permitted by Section 9.1(d) and
(e);
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(c) Liens in favor of the Administrative Agent, for the benefit of the
Lenders or the counter- party under any Financial Hedge;
(d) Encumbrances consisting of minor easements, zoning restrictions, or
other restrictions on the use of real property that do not (individually or in
the aggregate) materially affect the value of the assets encumbered thereby or
materially impair the ability of Borrower or any of its Subsidiaries to use such
assets in their respective businesses, and none of which is violated in any
material respect by existing or proposed structures or land use;
(e) Liens for taxes, assessments, or other governmental charges which
are not delinquent or which are being contested in good faith and for which
adequate reserves have been established;
(f) Liens of mechanics, materialmen, warehousemen, carriers, or other
similar statutory Liens securing obligations that are not yet due and are
incurred in the ordinary course of business;
(g) Liens resulting from good faith deposits to secure payments of
workmen's compensation or other social security programs or to secure the
performance of tenders, statutory obligations, surety and appeal bonds, bids,
contracts (other than for payment of Debt), or leases made in the ordinary
course of business; and
(h) Lien on real property and improvements of AK Associates, LLC
securing Debt described in Section 9.1(h) above.
Section 9.3 Mergers, Etc. Except upon the prior written consent of the
Required Lenders, neither Borrower nor any Guarantor will become a party to a
merger or consolidation, except: (a) any of Texas Litho, Inc., R.R. Litho, Inc.,
Ohio Litho, Inc., Prime Diagnostic Services, Inc., Prime Diagnostic Corp. of
Florida, Prime Practice Management, Inc., Prime Cardiac Rehabilitation Services,
Inc., Prime Lithotripsy Services, Inc., Alabama Renal Stone Institute, Inc., and
Prime Kidney Stone Treatment, Inc. may merge or consolidate into Prime Medical
Operating, Inc., so long as (w) Prime Medical Operating, Inc. is the surviving
entity, (x) no Default or Event of Default exists or would exist as the result
of such merger or consolidation, (y) no partnership agreement to which any such
Guarantor is a party would be breached by such merger or consolidation, and (z)
Borrower and the applicable Guarantors give Administrative Agent at least 15
Business Days prior written notice of any proposed merger or consolidation and
execute and deliver any Guaranty Agreement, Guarantor Security Agreement, Pledge
Agreement, Uniform Commercial Code financing statements, corporate
documentation, and opinions of counsel as required by the Administrative Agent
to create or continue first priority Liens in favor of the Administrative Agent,
for the benefit of the Lenders, in the assets of the surviving entity to secure
the Obligations, and (b) in connection with any Permitted Acquisition or
Permitted Other Business Acquisition so long as Borrower or a Guarantor is the
surviving entity. Borrower will not, and will not permit any of its Subsidiaries
(other than the Partnerships) to, wind-up, dissolve or liquidate itself, except
as permitted in subsection (a) above. Except as permitted by this Agreement,
Borrower will not, and will not permit any of its Subsidiaries to, make any
Acquisition other than a Permitted Acquisition, Permitted Other Business
Acquisition, or Permitted Passive Investments. Except as otherwise permitted by
this Agreement, Borrower will not, and will not permit any of its Subsidiaries
to, form, incorporate, acquire or make any investment in any Subsidiary, except
(a) the Subsidiaries listed on Schedule 7.14.1, (b) Subsidiaries acquired or
formed through a Permitted Acquisition, Permitted Other Business Acquisition, or
Permitted Passive Investment, and (c) Wholly-Owned Subsidiaries formed in
accordance with Section 8.13.
Section 9.4 Restricted Payments. Borrower will not declare or
pay any dividends or make any other payment or distribution (whether in cash,
property, or obligations) on account of its capital
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stock, or redeem, purchase, retire, or otherwise acquire any of its capital
stock, or permit any of its Subsidiaries to purchase or otherwise acquire any
capital stock of Borrower, or set apart any money for a sinking or other
analogous fund for any dividend or other distribution on its capital stock or
for any redemption, purchase, retirement, or other acquisition of any of its
capital stock; provided, however, that, from the date hereof through and
including the Termination Date, Borrower may redeem or retire and/or the
Companies may purchase shares of Borrower's capital stock, whether through
issuance and performance of a put agreement, or otherwise, for an aggregate
consideration of no more than $15,000,000, provided that upon completion of such
purchases or redemptions no Default or Event of Default would exist or be
continuing.
Section 9.5 Investments. Borrower will not make, nor permit any of its
Subsidiaries to make, any advance, loan, extension of credit, or capital
contribution to or investment in, or purchase or own, or permit any of its
Subsidiaries to purchase or own, any stock, bonds, notes, debentures, or other
securities of, any Person, except:
(a) The Companies, or any of them, may purchase (i) readily marketable
direct obligations of the United States of America or any agency thereof with
maturities of one year or less from the date of acquisition, (ii) fully insured
certificates of deposit with maturities of one year or less from the date of
acquisition issued by any commercial bank operating in the United States of
America having capital and surplus in excess of $1,000,000,000, and (iii)
commercial paper of a domestic issuer if at the time of purchase such paper is
rated in one (1) of the two (2) highest rating categories of Standard and Poor's
Rating Group, a division of McGraw Hill, Inc., a New York corporation, or
Moody's Investors Service, Inc.;
(b) The Companies, or any of them, may make loans to officers,
directors and employees of any of them provided such loans are made in the
ordinary course of business, and are in an aggregate principal amount of not
more than $200,000.00 at any time outstanding;
(c) Borrower may continue to hold capital stock of American Physicians
Service Group, Inc. held by Borrower on the date hereof;
(d) The Borrower and Guarantors may create new Subsidiaries, hold stock
in Subsidiaries and themselves, and engage in the transactions permitted by
Section 9.3 hereof, provided that Borrower complies with Section 8.13;
(e) Existing Permitted Passive Investments;
(f) Permitted Acquisitions, Permitted Other Business Acquisitions, and
Permitted Passive Investments; provided however, that Permitted Acquisitions,
Permitted Other Business Acquisitions, and Permitted Passive Investments made by
Companies other than the Borrower or a Guarantor shall not in the aggregate for
all such Companies exceed the lesser of: (a) $3,000,000.00; and (ii) 3% of Total
Equity;
(g) Borrower may make a loan to AK Associates, LLC described in Section
9.1(h) and Section 9.2(h) above; and
(h) Any Financial Hedge.
Section 9.6 Limitation on Issuance of Capital Stock. Borrower will not
permit any of its Subsidiaries to at any time issue, sell, assign, or otherwise
dispose of (a) any of its capital stock or other ownership interests, (b) any
securities exchangeable for or convertible into or carrying any rights to
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acquire any of its capital stock or other ownership interests, or (c) any
option, warrant, or other right to acquire any of its capital stock or other
ownership interests; provided, however, that any Subsidiary of Borrower may
issue, sell, assign or otherwise dispose of its capital stock or other ownership
interests, or securities exchangeable for its capital stock or other ownership
interests, to Borrower or any other Wholly- Owned Subsidiary.
Section 9.7 Transactions With Affiliates. Borrower will not enter into,
and will not permit any of its Subsidiaries to enter into, any transaction,
including, without limitation, the purchase, sale, or exchange of property or
the rendering of any service, with any Affiliate of Borrower or any Subsidiary
of Borrower, except in the ordinary course of Borrower's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to Borrower or
such Subsidiary than would be obtained in a comparable arm's-length transaction
with a Person not an Affiliate of Borrower or such Subsidiary. No Company shall
make any loan, advance, investment, or transfer any assets to any Excepted
Subsidiary, so long as such Excepted Subsidiary is not in good standing where
incorporated.
Section 9.8 Disposition of Assets. Borrower will not sell, lease,
assign, transfer, or otherwise dispose of any of its assets, nor permit any of
its Subsidiaries (other than the Partnerships) to do so with any of their
respective assets, except (subject to the mandatory prepayments required by
Section 3.3) (a) inter-Company transfers between Borrower and a Wholly-Owned
Subsidiary or between Wholly-Owned Subsidiaries, (b) dispositions of assets,
other than lithotripters, in the ordinary course of business for consideration
of up to an aggregate amount of $500,000.00 during the term of this Agreement,
(and the Administrative Agent agrees to execute and deliver releases of Liens in
connection with such dispositions), (c) dispositions by any Company of assets
used in connection with cardiac rehabilitation or diagnostic imaging, and (d)
dispositions of any tangible assets that are worn or obsolete, provided that
such tangible assets are replaced by assets of similar character where the
replacement of such asset is necessary or appropriate for the continued conduct
of such Company's business as presently conducted.
Section 9.9 Sale and Leaseback. Borrower will not enter into, nor
permit any of its Subsidiaries (other than the Partnerships) to enter into, any
arrangement with any Person (other than another Company) pursuant to which it
leases from such Person equipment used in lithotripsy operations that has been
or is to be sold or transferred, directly or indirectly, by it to such Person;
provided, however, that the Companies may enter into any arrangement with any
Person pursuant to which it leases from such Person real or personal property
not used in lithotripsy operations that has been or is to be sold or
transferred, directly or indirectly, by it to such Person, in an aggregate
amount of up to but not to exceed $500,000.00 during the term of this Agreement.
Section 9.10 Prepayment of Debt. Borrower will not prepay, nor permit
any of its Subsidiaries to prepay, any Debt except the Obligations, or redeem
the Senior Subordinated Notes other than a redemption of a portion of the Senior
Subordinated Notes pursuant to Section 3.07 of the Senior Subordinated
Indenture, so long as after giving effect thereto, no Default or Event of
Default would exist.
Section 9.11 Nature of Business. Borrower will not, and will not permit
any of its Subsidiaries (other than the Partnerships) to, engage in any business
other than the businesses in which they are engaged on the date hereof or
businesses which are reasonably related thereto; provided, however, that
Borrower will not and will not permit any of its Subsidiaries (other than the
Partnerships) not already in the business of providing non-medical management
services to cardiac rehabilitation or diagnostic imaging operations, to engage
in either such business.
Section 9.12 Environmental Protection. Borrower will not, and
will not permit any of its Subsidiaries to, conduct any activity or use any of
their respective properties or assets in any manner that
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could reasonably be expected to violate any Environmental Law or create any
Environmental Liabilities for which Borrower or any of its Subsidiaries would be
responsible.
Section 9.13 Accounting. Borrower will not, and will not permit any of
its Subsidiaries (other than the Partnerships) to, change its fiscal year or
make any change (a) in accounting treatment or reporting practices, except as
permitted by GAAP and disclosed to the Administrative Agent, or (b) in tax
reporting treatment, except as permitted by law.
Section 9.14 Amendment of Partnership and Management Agreements.
Borrower will not, and will not permit any of its Subsidiaries to, amend any
partnership agreements, regulations, or articles of any of the Partnerships or
any management agreements between any Company and any of the Partnerships, if
such amendment could reasonably be expected to have a material adverse effect on
the business, condition (financial or otherwise), operations, or properties of
the Companies taken as a whole, Borrower, or any Material Subsidiary.
ARTICLE X -- FINANCIAL COVENANTS
Borrower hereby covenants and agrees that, as long as the Obligations
or any part thereof are outstanding or any Lender has any Commitment hereunder,
Borrower will perform and observe the following financial covenants:
Section 10.1 Total Net Debt to EBITDA. Borrower will not permit the
Total Net Debt to EBITDA Ratio, determined as of the last day of each fiscal
quarter of the Companies and for the four (4) fiscal quarter period then ending,
to exceed the ratio set forth opposite such period below:
Period Ratio
- ------------------------------------------------------------------ ------------
January 1, 1998 through December 31, 2000 3.50 to 1.0
January 1, 2001 through December 31, 2001 3.25 to 1.0
January 1, 2002 and thereafter 3.00 to 1.0
================================================================== ============
Section 10.2 Senior Net Debt To EBITDA Ratio. Borrower will not permit
the Senior Net Debt to EBITDA Ratio as of the last day of each fiscal quarter of
Borrower to exceed the ratio set forth opposite such dates below:
Period Ratio
- ------------------------------------------------------------------ ------------
January 1, 1998 through December 31, 2000 2.50 to 1.0
January 1, 2001 through December 31, 2001 2.25 to 1.0
January 1, 2002 and thereafter 2.00 to 1.0
================================================================== ============
Section 10.3 Debt Service Coverage Ratio. Borrower will not permit the
Debt Service Coverage Ratio as of the last day of each fiscal quarter of
Borrower to be less than the ratio set forth opposite such dates below:
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Period Ratio
- ------------------------------------------------------------------ ------------
January 1, 1998 through December 31, 2000 1.50 to 1.0
January 1, 2001 through December 31, 2001 1.60 to 1.0
January 1, 2002 and thereafter 1.75 to 1.0
================================================================== ============
Section 10.4 Consolidated Net Worth. Borrower shall not permit, as of
the last day of each fiscal quarter of Borrower, its Consolidated Net Worth to
be less than $92,064,000, such amount to be (a) increased on June 30, 1998 by an
amount equal to one hundred percent (100%) of the increase in net worth arising
from any Acquisition or equity issuance during the six (6) month period ending
such date, and beginning with the fiscal quarter ending September 30, 1998,
shall be increased on the last day of each successive fiscal quarter of Borrower
by an amount equal to one hundred percent (100%) of the increase in net worth
arising from any Acquisition or equity issuance during such fiscal quarter, (b)
increased on June 30, 1998 by an amount equal to seventy-five percent (75%) of
positive Consolidated Net Income for the six (6) month period ending such date,
and shall be increased on the last day of each successive fiscal quarter of
Borrower beginning September 30, 1998, by an amount equal to seventy-five
percent (75%) of positive Consolidated Net Income for such fiscal quarter; and
(c) decreased on any date by the amount of capital stock of Borrower repurchased
or retired by Borrower or any Subsidiary, not exceeding $15,000,000 in the
aggregate.
ARTICLE XI -- DEFAULT
Section 11.1 Events of Default. Each of the following shall be
deemed an "Event of Default":
(a) Borrower shall fail to pay when due any amount of principal
under any Note.
(b) Borrower shall fail to pay to the Administrative Agent or any
Lender (through the Administrative Agent), any interest on the Advances, any
fees due hereunder or under any other Loan Document, or any other part of the
Obligations which does not constitute principal under the Notes, and such
failure shall continue for three (3) Business Days after such payment became
due.
(c) Any representation or warranty made or deemed made by Borrower or
any Obligated Party (or any of their respective officers) in any Loan Document
or in any certificate, report, notice, or financial statement furnished at any
time in connection with this Agreement shall be false, misleading, or erroneous
in any material respect when made or deemed to have been made and the effect
thereof shall not have been cured within ten (10) Business Days after notice
thereof to Borrower by the Administrative Agent or any Lender (through the
Administrative Agent).
(d) Borrower shall fail to perform, observe, or comply with any
covenant, agreement, or term contained in Article X; or Borrower or any
Obligated Party shall fail to perform, observe, or comply with any covenant,
agreement or term contained in Section 8.1 (a), (b), (c) or (d), or Article IX
and such failure shall continue for a period of three (3) Business Days after
notice thereof to Borrower by the Administrative Agent or any Lender (through
the Administrative Agent); or Borrower or any Obligated Party shall fail to
perform, observe br comply with any other covenant, agreement, or term contained
in this Agreement or any other Loan Document (other than covenants to pay the
Obligations) and such failure shall continue for a period of ten (10) Business
Days after notice thereof to Borrower by the Administrative Agent or any Lender
(through the Administrative Agent).
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(e) Any Company shall commence a voluntary proceeding seeking
liquidation, reorganization, or other relief with respect to itself or its debts
under any bankruptcy, insolvency, or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator, custodian,
or other similar official of it or a substantial part of its property or shall
consent to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced against it or
shall make a general assignment for the benefit of creditors or shall generally
fail to pay its debts as they become due or shall take any corporate action to
authorize any of the foregoing.
(f) An involuntary proceeding shall be commenced against any Company
seeking liquidation, reorganization, or other relief with respect to it or its
debts under any bankruptcy, insolvency, or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official for it or a substantial part of its property, and
either such involuntary proceeding shall remain undismissed and unstayed for a
period of forty-five (45) days or an order for relief is entered.
(g) Any Company shall fail to discharge within a period of forty-five
(45) days after the commencement thereof any attachment, sequestration, or
similar proceeding or proceedings, including without limitation any order of
forfeiture, seizure or divestiture (whether under RICO or otherwise) involving
an aggregate amount in excess of Five Hundred Thousand and 00/100 Dollars
($500,000.00) against any of its assets or properties.
(h) A final judgment or judgments for the payment of money in excess of
Five Hundred Thousand and 00/100 Dollars ($500,000.00) in the aggregate shall be
rendered by a court or courts against any Company and the same shall not be
discharged (or provision shall not be made for such discharge), or a stay of
execution thereof shall not be procured, within forty-five (45) days from the
date of entry thereof and such Company shall not, within said period of
forty-five (45) days, or such longer period during which execution of the same
shall have been stayed, appeal therefrom and cause the execution thereof to be
stayed during such appeal.
(i) Any Company shall fail to pay when due any principal of or interest
on the Senior Subordinated Notes or on any other Debt in an aggregate principal
amount of Five Hundred Thousand and 00/100 Dollars ($500,000.00) or more (other
than the Obligations), or the maturity of the Senior Subordinated Notes or any
such Debt shall have been accelerated, or the Senior Subordinated Notes (except
in connection with the exchange thereof for the Exchange Notes) or any such Debt
shall have been required to be prepaid prior to the stated maturity thereof, or
any event shall have occurred that permits (or, with the giving of notice or the
lapse of time or both, would permit) any holder or holders of the Senior
Subordinated Notes or such Debt or any Person acting on behalf of such holder or
holders to accelerate the maturity thereof or require any such prepayment.
(j) This Agreement or any other Loan Document shall cease to be in full
force and effect or shall be declared null and void or the validity or
enforceability thereof shall be contested or challenged by Borrower, any
Subsidiary of Borrower, any Obligated Party or any of their respective
shareholders, or Borrower or any Obligated Party shall deny that it has any
further liability or obligation under any of the Loan Documents, or any Lien or
security interest created by the Loan Documents shall for any reason cease to be
a valid, first priority perfected security interest in and Lien upon any of the
Collateral purported to be covered thereby.
(k) Any of the following events shall occur or exist with respect to
Borrower or any ERISA Affiliate: (i) any Prohibited Transaction involving any
Plan; (ii) any Reportable Event with respect to any
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Plan; (iii) the filing under Section 4041 of ERISA of a notice of intent to
terminate any Plan or the termination of any Plan; (iv) any event or
circumstance that might constitute grounds entitling the PBGC to institute
proceedings under Section 4042 of ERISA for the termination of, or for the
appointment of a trustee to administer, any Plan, or the institution by the PBGC
of any such proceedings; or (v) complete or partial withdrawal under Section
4201 or 4204 of ERISA from a Multi-employer Plan or the reorganization,
insolvency, or termination of any Multi-employer Plan; and in each case above,
such event or condition, together with all other events or conditions, if any,
have subjected or could in the reasonable opinion of the Required Lenders
subject Borrower, or any of its Subsidiaries, to any tax, penalty, or other
liability to a Plan, a Multi-employer Plan, the PBGC, or otherwise (or any
combination thereof) which in the aggregate exceed or could reasonably be
expected to exceed Five Hundred Thousand and 00/100 Dollars ($500,000.00).
(l) Any Change in Control shall occur.
Section 11.2 Remedies. If any Event of Default shall occur and be
continuing, the Administrative Agent may (and if directed by the Required
Lenders, shall) do any one or more of the following:
(a) Acceleration. Declare all outstanding principal of and
accrued and unpaid interest on the Notes and all other obligations of
Borrower under the Loan Documents immediately due and payable, and the
same shall thereupon become immediately due and payable, without
notice, demand, presentment, notice of dishonor, notice of
acceleration, notice of intent to accelerate, protest, or other
formalities of any kind, all of which are hereby expressly waived by
Borrower;
(b) Termination of Commitments. Terminate the
Commitments without notice to Borrower;
(c) Judgment. Reduce any claim to judgment;
(d) Foreclosure. Foreclose or otherwise enforce any Lien
granted to the Administrative Agent for the benefit of itself and the
Lenders to secure payment and performance of the Obligations in
accordance with the terms of the Loan Documents; and
(e) Rights. Exercise any and all rights and remedies afforded
by the laws of the Commonwealth of Massachusetts or any other
jurisdiction, by any of the Loan Documents, by equity, or otherwise;
provided, however, that upon the occurrence of an Event of Default under
subsection (e) or (f) of Section 11.1, the Commitments of all of the Lenders
shall automatically terminate, and the outstanding principal of and accrued and
unpaid interest on the Notes and all other obligations of Borrower under the
Loan Documents shall thereupon become immediately due and payable without
notice, demand, presentment, notice of dishonor, notice of acceleration, notice
of intent to accelerate, protest, or other formalities of any kind, all of which
are hereby expressly waived by Borrower.
Section 11.3 Performance by the Administrative Agent. If Borrower shall
fail to perform any covenant or agreement in accordance with the terms of the
Loan Documents, the Administrative Agent may, at the direction of the Required
Lenders, perform or attempt to perform such covenant or agreement on behalf of
Borrower. In such event, Borrower shall, at the request of the Administrative
Agent, promptly pay any amount expended by the Administrative Agent or the
Lenders in connection with such performance or attempted performance to the
Administrative Agent at the Principal Office, together with
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interest thereon at the Default Rate from and including the date of such
expenditure to but excluding the date such expenditure is paid in full.
Notwithstanding the foregoing, it is expressly agreed that neither the
Administrative Agent nor any Lender shall have any liability or responsibility
for the performance of any obligation of Borrower under this Agreement or any of
the other Loan Documents.
ARTICLE XII -- THE ADMINISTRATIVE AGENT
Section 12.1 Appointment, Powers and Immunities. In order to expedite
the various transactions contemplated by this agreement, the Lenders hereby
irrevocably appoint and authorize BankBoston to act as their Administrative
Agent hereunder and under each of the other Loan Documents. BankBoston consents
to such appointment and agrees to perform the duties of the Administrative Agent
as specified herein. The Lenders authorize and direct the Administrative Agent
to take such action in their name and on their behalf under the terms and
provisions of the Loan Documents and to exercise such rights and powers
thereunder as are specifically delegated to or required of the Administrative
Agent for the Lenders, together with such rights and powers as are reasonably
incidental thereto. The Administrative Agent is hereby expressly authorized to
act as the Administrative Agent on behalf of itself and the other Lenders:
(a) To receive on behalf of each of the Lenders any payment of
principal, interest, fees or other amounts paid pursuant to this
Agreement and the Notes and to distribute to each Lender its pro rata
share of all payments so received as provided in this Agreement;
(b) To receive all documents and items to be furnished
under the Loan Documents;
(c) To act as nominee for and on behalf of the Lenders in
and under the Loan Documents;
(d) To arrange for the means whereby the funds of the Lenders
are to be made available to Borrower;
(e) To distribute to the Lenders information, requests,
notices, payments, prepayments, documents and other items received from
Borrower, the other Obligated Parties, and other Persons;
(f) To execute and deliver to Borrower, the other Obligated
Parties, and other Persons, all requests, demands, approvals, notices,
and consents received from the Lenders;
(g) To the extent permitted by the Loan Documents, to exercise
on behalf of each Lender all rights and remedies of the Lenders upon
the occurrence of any Event of Default;
(h) To accept, execute, and deliver the Security Agreement and
any other security documents as the secured party; and
(i) To take such other actions as may be requested by the
Required Lenders.
Neither the Administrative Agent nor any of its Affiliates, officers,
directors, employees, attorneys, or agents shall be liable to any Lender for any
action taken or omitted to be taken by any of them hereunder or otherwise in
connection with this Agreement or any of the other Loan Documents (INCLUDING ANY
ACTION TAKEN OR OMITTED TO BE TAKEN BY SUCH PARTIES
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NEGLIGENTLY), but excluding such actions or omissions arising from such parties'
own gross negligence or willful misconduct. Without limiting the generality of
the preceding sentence, the Administrative Agent: (i) may treat the payee of any
Note as the holder thereof until the Administrative Agent receives written
notice of the assignment or transfer thereof signed by such payee and in form
satisfactory to the Administrative Agent; (ii) shall have no duties or
responsibilities except those expressly set forth in this Agreement and the
other Loan Documents, and shall not by reason of this Agreement or any other
Loan Document be a trustee or fiduciary for any Lender; (iii) shall not be
required to initiate any litigation or collection proceedings hereunder or under
any other Loan Document except to the extent requested by the Required Lenders;
(iv) shall not be responsible to the Lenders for any recitals, statements,
representations or warranties contained in this Agreement or any other Loan
Document, or any certificate or other document referred to or provided for in,
or received by any of them under, this Agreement or any other Loan Document, or
for the value, validity, effectiveness, enforceability, or sufficiency of this
Agreement or any other Loan Document or any other document referred to or
provided for herein or therein or for any failure by any Person to perform any
of its obligations hereunder or thereunder; (v) may consult with legal counsel
(including counsel for Borrower), independent public accountants, and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants, or experts; 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 believed by it to be genuine and signed or sent by the
proper party or parties. As to any matters not expressly provided for by this
Agreement, the Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, here under in accordance with instructions
signed by the Required Lenders, and such instructions of the Required Lenders
and any action taken or failure to act pursuant thereto shall be binding on all
of the Lenders; provided, however, that the Administrative Agent shall not be
required to take any action which exposes the Administrative Agent to personal
liability or which is contrary to this Agreement or any other Loan Document or
applicable law.
Section 12.2 Rights of Administrative Agent as a Lender. With respect
to its Commitment, the Advances made by it and the Note issued to it, BankBoston
in its capacity as a Lender hereunder shall have the same rights and powers
hereunder as any other Lender and may exercise the same as though it were not
acting as the Administrative Agent, and the term "Lender" or "Lenders" shall,
unless the context otherwise indicates, include the Administrative Agent in its
individual capacity. The Administrative Agent and its Affiliates may (without
having to account therefor to any Lender) accept deposits from, lend money to,
act as trustee under indentures of, provide merchant banking services to, and
generally engage in any kind of business with Borrower, any Subsidiary of
Borrower, any other Obligated Party, and any other Person who may do business
with or own securities of Borrower or any other Obligated Party, all as if it
were not acting as the Administrative Agent and without any duty to account
therefor to the Lenders.
Section 12.3 Sharing of Payments, Etc. If any Lender shall obtain any
payment of any principal of or interest on any Advance made by it under this
Agreement or payment of any other obligation under the Loan Documents then owed
by Borrower or any other Obligated Party to such Lender, whether voluntary,
involuntary, through the exercise of any right of setoff, lender's lien,
counterclaim or similar right, or otherwise, in excess of its pro rata share,
such Lender shall promptly purchase from the other Lenders participations in the
Advances held by them hereunder in such amounts, and make such other adjustments
from time to time as shall be necessary to cause such purchasing Lender to share
the excess payment ratably with each of the other Lenders in accordance with its
pro rata portion thereof. To such end, all of the Lenders shall make appropriate
adjustments among themselves (by the resale of participations sold or otherwise)
if all or any portion of such excess payment is thereafter rescinded or must
otherwise be restored. Borrower agrees, to the fullest extent it may effectively
do so under applicable law, that any Lender so purchasing a participation in the
Advances made by the other
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Lenders may exercise all rights of setoff, lender's lien, counterclaim, or
similar rights with respect to such participation as fully as if such Lender
were a direct holder of Advances to Borrower in the amount of such
participation. Nothing contained herein shall require any Lender to exercise any
such right or shall affect the right of any Lender to exercise, and retain the
benefits of exercising, any such right with respect to any other indebtedness or
obligation of Borrower.
Section 12.4 Indemnification. THE LENDERS HEREBY AGREE TO INDEMNIFY THE
AGENTS FROM AND HOLD THE AGENTS HARMLESS AGAINST (TO THE EXTENT NOT REIMBURSED
UNDER SECTIONS 13.1 AND 13.2, BUT WITHOUT LIMITING THE OBLIGATIONS OF BORROWER
UNDER SECTIONS 13.1 AND 13.2), RATABLY IN ACCORDANCE WITH THEIR RESPECTIVE
COMMITMENTS, ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES,
ACTIONS, JUDGMENTS, DEFICIENCIES, SUITS, COSTS, EXPENSES (INCLUDING ATTORNEYS'
FEES), AND DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED
ON, INCURRED BY, OR ASSERTED AGAINST ANY AGENT IN ANY WAY RELATING TO OR ARISING
OUT OF ANY OF THE LOAN DOCUMENTS OR ANY ACTION TAKEN OR OMITTED TO BE TAKEN BY
ANY AGENT UNDER OR IN RESPECT OF ANY OF THE LOAN DOCUMENTS INCLUDING ANY PORTION
OF THE FOREGOING TO THE EXTENT CAUSED BY THE ANY AGENT'S SOLE OR CONTRIBUTORY
NEGLIGENCE; PROVIDED, FURTHER, THAT NO LENDER SHALL BE LIABLE FOR ANY PORTION OF
THE FOREGOING TO THE EXTENT CAUSED BY ANY AGENT'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT. WITHOUT LIMITATION OF THE FOREGOING, IT IS THE EXPRESS INTENTION OF
THE LENDERS THAT THE AGENTS SHALL BE INDEMNIFIED HEREUNDER FROM AND HELD
HARMLESS AGAINST ALL OF SUCH LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES,
PENALTIES, ACTIONS, JUDGMENTS, DEFICIENCIES, SUITS, COSTS, EXPENSES (INCLUDING
ATTORNEYS' FEES), AND DISBURSEMENTS OF ANY KIND OR NATURE DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RESULTING FROM THE SOLE OR CONTRIBUTORY NEGLIGENCE OF THE
AGENTS. WITHOUT LIMITING ANY OTHER PROVISION OF THIS SECTION, EACH LENDER AGREES
TO REIMBURSE EACH AGENT PROMPTLY UPON DEMAND FOR ITS PRO RATA SHARE (CALCULATED
ON THE BASIS OF THE COMMITMENTS) OF ANY AND ALL OUT-OF-POCKET EXPENSES
(INCLUDING ATTORNEYS' FEES) INCURRED BY THE AGENTS IN CONNECTION WITH THE
PREPARATION, EXECUTION, DELIVERY, ADMINISTRATION, MODIFICATION, AMENDMENT OR
ENFORCEMENT (WHETHER THROUGH NEGOTIATIONS, LEGAL PROCEEDINGS, OR OTHERWISE) OF,
OR LEGAL ADVICE IN RESPECT OF RIGHTS OR RESPONSIBILITIES UNDER, THE LOAN
DOCUMENTS, TO THE EXTENT THAT SUCH AGENT IS NOT REIMBURSED FOR SUCH EXPENSES BY
BORROWER.
Section 12.5 Independent Credit Decisions. Each Lender agrees that it
has independently and without reliance on any Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of Borrower and decision to enter into this Agreement and
that it will, independently and without reliance upon any Agent or any other
Lender, and based upon such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or any of the other Loan
Documents. The Administrative Agent shall not be required to keep itself
informed as to the performance or observance by Borrower or any Obligated Party
of this Agreement or any other Loan Document or to inspect the properties or
books of Borrower or any Obligated Party. Except for notices, reports and other
documents and information expressly required to be furnished to the Lenders by
the Administrative Agent hereunder or under the other Loan Documents, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other financial information
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concerning the affairs, financial condition or business of Borrower or any
Obligated Party (or any of their Affiliates) which may come into the possession
of the Administrative Agent or any of its Affiliates.
Section 12.6 Several Commitments. The Commitments and other obligations
of the Lenders under this Agreement are several. The default by any Lender in
making an Advance in accordance with its Commitment shall not relieve the other
Lenders of their obligations under this Agreement. In the event of any default
by any Lender in making any Advance, each nondefaulting Lender shall be
obligated to make its Advance but shall not be obligated to advance the amount
which the defaulting Lender was required to advance hereunder. In no event shall
any Lender be required to advance an amount or amounts which shall in the
aggregate exceed such Lender's Commitment. No Lender shall be responsible for
any act or omission of any other Lender.
Section 12.7 Successor Administrative Agent. Subject to the appointment
and acceptance of a successor Administrative Agent as provided below, the
Administrative Agent may resign at any time by giving notice thereof to the
Lenders and Borrower and the Administrative Agent may be removed at any time
with or without cause by the Required Lenders. Upon any such resignation or
removal, the Required Lenders will have the right to appoint a successor
Administrative Agent from among the remaining Lenders. If no successor
Administrative Agent shall have been so appointed by the Required Lenders and
shall have accepted such appointment within thirty (30) days after the retiring
Administrative Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Lenders, appoint a successor Administrative Agent,
which shall be a commercial bank organized under the laws of the United States
of America or any State thereof and having combined capital and surplus of at
least One Billion Dollars ($1,000,000,000). Upon the acceptance of its
appointment as successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all rights, powers,
privileges, immunities, and duties of the resigning or removed Administrative
Agent, and the resigning or removed Administrative Agent shall be discharged
from its duties and obligations under this Agreement and the other Loan
Documents. After any Administrative Agent's resignation or removal as
Administrative Agent, the provisions of this Article XII shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by
it while it was the Administrative Agent.
Section 12.8 Independent Contractor.
(a) The relationship between each Agent and each of the Lenders is that
of an independent contractor. The use of the term "Agent" is for convenience
only and is used to describe, as a form of convention, the independent
contractual relationship between each Agent and each of the Lenders. Nothing
contained in this Agreement or the other Loan Documents shall be construed to
create an agency, trust or other fiduciary relationship between any Agent and
any of the Lenders.
(b) As an independent contractor empowered by the Lenders to exercise
certain rights and perform certain duties and responsibilities hereunder and
under the other Loan Documents, the Administrative Agent is nevertheless a
"representative" of the Lenders, as that term is defined in Article 1 of the
Uniform Commercial Code, for purposes of actions for the benefit of the Lenders
and the Administrative Agent with respect to all collateral security and
guaranties contemplated by the Loan Documents. Such actions include the
designation of the Administration Agent as "secured party," "mortgagee" or the
like on all financing statements and other documents and instruments, whether
recorded or otherwise, relating to the attachment, perfection, priority or
enforcement of any security interests, mortgages or deeds of trust in collateral
security intended to secure the payment or performance of any of the
Obligations, all for the benefit of the Lenders and the Administrative Agent.
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ARTICLE XIII -- MISCELLANEOUS
Section 13.1 Expenses. Borrower hereby agrees to pay on demand: (a) all
reasonable costs and expenses of the Agents in connection with the preparation,
negotiation, syndication, execution, and delivery of this Agreement and the
other Loan Documents including, without limitation, the legal fees and
reasonable expenses of legal counsel for the Agents; (b) all reasonable costs
and expenses of the Agents in connection with any and all amendments,
modifications, renewals, extensions and supplements of any of the Loan
Documents; (c) all reasonable costs and expenses of the Agents and the Lenders
in connection with any Default, including any work-outs, amendments to any Loan
Documents, or negotiations related thereto, and the enforcement of this
Agreement or any other Loan Document, including, without limitation, the fees
and expenses of legal counsel and professional advisors for the Agents and the
Lenders; (d) all transfer, stamp, documentary, or other similar taxes,
assessments, or charges levied by any Governmental Authority in respect of this
Agreement or any of the other Loan Documents; (e) all costs, expenses,
assessments, and other charges incurred in connection with any filing,
registration, recording, or perfection of any security interest or Lien
contemplated by this Agreement or any other Loan Document; and (f) all other
reasonable costs and expenses incurred by the Agents in connection with this
Agreement or any other Loan Document, including, without limitation, all costs,
expenses, and other charges incurred in connection with obtaining any mortgagee
title insurance policy, survey, audit, appraisal in respect of the Collateral,
and other out-of-pocket costs and expenses.
Section 13.2 Indemnification. BORROWER SHALL INDEMNIFY THE AGENTS AND
EACH LENDER AND EACH AFFILIATE THEREOF AND THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES, ATTORNEYS, AND AGENTS FROM, AND HOLD EACH OF THEM HARMLESS AGAINST,
ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES, PENALTIES, JUDGMENTS,
DISBURSEMENTS, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) TO
WHICH ANY OF THEM MAY BECOME SUBJECT WHICH DIRECTLY OR INDIRECTLY ARISE FROM OR
RELATE TO (A) THE NEGOTIATION, EXECUTION, DELIVERY, PERFORMANCE, ADMINISTRATION,
OR ENFORCEMENT OF ANY OF THE LOAN DOCUMENTS, (B) ANY OF THE TRANSACTIONS
CONTEMPLATED BY THE LOAN DOCUMENTS, (C) ANY BREACH BY BORROWER OF ANY
REPRESENTATION, WARRANTY, COVENANT, OR OTHER AGREEMENT CONTAINED IN ANY OF THE
LOAN DOCUMENTS, (D) THE PRESENCE, RELEASE, THREATENED RELEASE, DISPOSAL,
REMOVAL, OR CLEANUP OF ANY HAZARDOUS MATERIAL LOCATED ON, ABOUT, WITHIN, OR
AFFECTING ANY OF THE PROPERTIES OR ASSETS OF BORROWER OR ANY SUBSIDIARY OF
BORROWER, OR (E) ANY INVESTIGATION, LITIGATION, OR OTHER PROCEEDING, INCLUDING,
WITHOUT LIMITATION, ANY THREATENED INVESTIGATION, LITIGATION, OR OTHER
PROCEEDING RELATING TO ANY OF THE FOREGOING. WITHOUT LIMITING THE FOREGOING,
THIS INDEMNITY SHALL APPLY TO ANY LOSS, LIABILITY, OBLIGATION, DAMAGE, PENALTY,
JUDGMENT, CLAIM, DEFICIENCY OR EXPENSE ARISING OUT OF THE SOLE OR CONCURRENT
NEGLIGENCE OF ANY AGENT OR ANY LENDER, BUT AS TO ANY AGENT OR LENDER SHALL
EXCLUDE ANY LOSS, LIABILITY, OBLIGATION, DAMAGE, PENALTY, JUDGMENT, CLAIM,
DEFICIENCY OR EXPENSE ARISING BY REASON OF THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF SUCH AGENT OR LENDER.
Section 13.3 No Duty. All attorneys, accountants, appraisers, and other
professional Persons and consultants retained by the Agents and the Lenders
shall have the right to act exclusively in the interest of the Agents and the
Lenders and shall have no duty of disclosure, duty of loyalty, duty of care, or
other duty or obligation of any type or nature whatsoever to Borrower, any
shareholder or Subsidiary of Borrower or any other Person.
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Section 13.4 No Fiduciary Relationship. The relationship between
Borrower and each Lender is solely that of debtor and creditor, and none of the
Agents nor any of the Lenders has any fiduciary or other special relationship
with Borrower, and no term or condition of any of the Loan Documents shall be
construed so as to deem the relationship between Borrower and any Lender to be
other than that of debtor and creditor.
Section 13.5 No Waiver; Cumulative Remedies. No failure on the part of
the Agents or any Lender to exercise and no delay in exercising, and no course
of dealing with respect to, any right, power, or privilege under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power, or privilege under this Agreement preclude any other or
further exercise thereof or the exercise of any other right, power, or
privilege. The rights and remedies provided for in this Agreement and the other
Loan Documents are cumulative and not exclusive of any rights and remedies
provided by law.
Section 13.6 Successors and Assigns.
(a) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns. Borrower may not
assign or transfer any of its rights or obligations hereunder without the prior
written consent of the Administrative Agent and all of the Lenders. Any Lender
may sell participations to one or more banks or other institutions in or to all
or a portion of its rights and obligations under this Agreement and the other
Loan Documents (including, without limitation, all or a portion of its
Commitments and the Advances owing to it); provided, however, that (i) such
Lender's obligations under this Agreement and the other Loan Documents
(including, without limitation, its Commitments) shall remain unchanged, (ii)
such Lender shall remain solely responsible to Borrower for the performance of
such obligations, (iii) such Lender shall remain the holder of its Notes for all
purposes of this Agreement, (iv) Borrower shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents, and (v) such
Lender shall not sell a participation that conveys to the participant the right
to vote or give or withhold consents under this Agreement or any other Loan
Document, other than the right to vote upon or consent to (A) any increase of
such Lender's Commitments, (B) any reduction of the principal amount of, or
interest to be paid on, the Advances of such Lender, (C) any reduction of any
commitment fee or other amount payable to such Lender under any Loan Document,
or (D) any postponement of any date for the payment of any amount payable in
respect of the Advances of such Lender.
(b) Borrower and each of the Lenders agree that any Lender (an
"Assigning Lender") may at any time assign to one or more Eligible Assignees
all, or a portion of all, of its rights and obligations under this Agreement and
the other Loan Documents (including, without limitation, its Commitment and
Advances) (each an "Assignee"); provided, however, that (i) except in the case
of an assignment of all of a Lender's rights and obligations under this
Agreement and the other Loan Documents, or as otherwise acceptable to Borrower
and the Administrative Agent the amount of the Commitments of the assigning
Lender being assigned pursuant to each assignment (determined as of the date of
the Assignment and Acceptance with respect to such assignment) shall in no event
be less than $5,000,000.00, and (ii) the parties to each such assignment shall
execute and deliver to the Administrative Agent for its acceptance and recording
in the Register (as defined below), an Assignment and Acceptance, together with
the Note subject to such assignment, and a processing and recordation fee of
$3,500.00. Upon such execution, delivery, acceptance, and recording, from and
after the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five (5) Business Days after the execution
thereof, or, if so specified in such Assignment and Acceptance, the date of
acceptance thereof by the Administrative Agent, (x) the assignee thereunder
shall be a party hereto as a "Lender" and, to the extent that rights and
d-501795.7
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<PAGE>
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and under the
Loan Documents and (y) the Lender that is an assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights and be released from
its obligations under this Agreement and the other Loan Documents (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of a
Lender's rights and obligations under the Loan Documents, such Lender shall
cease to be a party thereto). The provisions of Article IV and Section 13.2
shall continue with respect to such Assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the
Assigning Lender and its Assignee 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 Lender makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties, or
representations made in or in connection with the Loan Documents or the
execution, legality, validity, and enforceability, genuineness, sufficiency, or
value of the Loan Documents or any other instrument or document furnished
pursuant thereto; (ii) such Assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition of
Borrower or any Obligated Party or the performance or observance by Borrower or
any Obligated Party of its obligations under the Loan Documents; (iii) the
Assignee confirms that it has received copies of the Loan Documents, together
with copies of the financial statements referred to in Section 7.2 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)
the Assignee will, independently and without reliance upon the Administrative
Agent or such assignor 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;
(v) the Assignee confirms that it is an Eligible Assignee; (vi) the Assignee
appoints and authorizes the Administrative Agent to take such action as
Administrative Agent on its behalf and exercise such powers under the Loan
Documents as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; and (vii) the
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 Lender.
(d) The Administrative Agent shall maintain at its Principal Office 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 Lenders and the
Commitment of, and principal amount of the Advances owing to, each Lender from
time to time (the "Register"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and Borrower, the
Administrative Agent, and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes under the Loan
Documents. The Register shall be available for inspection by Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and Assignee representing that it is an Eligible Assignee (or
other assignee permitted hereunder), together with any Note subject to such
assignment, the Administrative Agent shall, if such Assignment and Acceptance
has been completed and is in substantially the form of Exhibit B, (i) accept
such Assignment and Acceptance, (ii) record the information contained therein in
the Register, and (iii) give prompt written notice thereof to Borrower. Within
five (5) Business Days after its receipt of such notice, Borrower, at its
expense, shall execute and deliver to the Administrative Agent in exchange for
the surrendered Note a new Note to the order of such Eligible Assignee (or other
assignee permitted hereunder) in an amount equal to the portion of the
Commitments assumed by it pursuant to such Assignment and Acceptance and, if the
Assigning Lender has retained a portion of the Commitments, a new Note to the
order of the
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Assigning Lender in an amount equal to the portion of the Commitments retained
by it hereunder (each such promissory note shall constitute a "Note" for
purposes of the Loan Documents). Such new Notes shall be in an aggregate
principal amount of the surrendered Note, shall be dated the effective date of
such Assignment and Acceptance, and shall otherwise be in substantially the form
of Exhibit C.
(f) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section, disclose to
the Assignee or participant or proposed Assignee or participant, any information
relating to Borrower or any Subsidiary of Borrower furnished to such, Lender by
or on behalf of Borrower or any of its Subsidiaries.
(g) Notwithstanding any other term of this Agreement to the contrary,
any Lender may (without requesting the consent of either the Administrative
Agent or Borrower) pledge its Notes to a Federal Reserve Bank in support of
borrowings made by such Lender from such Federal Reserve Bank.
(h) Notwithstanding any other term of this Agreement to the contrary,
any Lender may assign all, or a portion of all, of its rights and obligations
under this Agreement and the other Loan Documents (including, without
limitation, its Commitment and Advances) to an Affiliate of such Lender or any
other Lender provided that:
(i) such assignor Lender has obtained the written consent of
the Administrative Agent (which consent shall not be unreasonably
delayed or withheld) if the effect of such assignment or delegation
shall entitle such Affiliate or other Lender to claim compensation from
Borrower pursuant to Article IV; and
(ii) in every other case, such assignor Lender has furnished
notice to, but not obtained the consent of, the Administrative Agent.
Section 13.7 Survival. All representations and warranties made in this
Agreement or any other Loan Document or in any document, statement, or
certificate furnished in connection with this Agreement shall survive the
execution and delivery of this Agreement and the other Loan Documents until the
Obligations have been paid and performed in full, and no investigation by the
Administrative Agent or any Lender or any closing shall affect the
representations and warranties or the right of the Administrative Agent or any
Lender to rely upon them. Without prejudice to the survival of any other
obligation of Borrower hereunder, the obligations of Borrower under Article IV
and Sections 13.1 and 13.2 shall survive repayment of the Notes and termination
of the Commitments. The obligations of the Administrative Agent and the Lenders
under Section 13.18 shall survive repayment of the Notes and termination of the
Commitments.
Section 13.8 ENTIRE AGREEMENT. THIS AGREEMENT, THE NOTES, AND THE OTHER
LOAN DOCUMENTS REFERRED TO HEREIN EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE
PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE
SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE
PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.
Section 13.9 Amendments, Etc. No amendment or waiver of any provision
of this Agreement, the Notes, or any other Loan Document to which Borrower is a
party, nor any consent to any departure by Borrower therefrom, shall in any
event be effective unless the same shall be agreed or consented to
d-501795.7
LOAN AGREEMENT
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<PAGE>
by the Required Lenders and Borrower, and each such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, that no amendment, waiver, or consent shall, unless in writing
and signed by all of the Lenders and Borrower, do any of the following: (a)
increase Commitments of the Lenders or subject the Lenders to any additional
obligations; (b) reduce the principal of, or interest on, the Notes or any fees
or other amounts payable to the Lenders, (but not the Administrative Agent)
hereunder; (c) alter the allocation among Lenders of, or postpone any date fixed
for any payment or prepayment (whether or not mandatory) of principal of, or
interest on, the Notes or any fees or other amounts payable to the
Administrative Agent or the Lenders hereunder; (d) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Notes or the
number of Lenders which shall be required for the Lenders or any of them to take
any action under this Agreement; (e) change any provision contained in this
Section 13.9; or (f) release any material Guarantor or any material portion of
the Collateral, except in accordance with the relevant Loan Document.
Notwithstanding anything to the contrary contained in this Section, no
amendment, waiver, or consent shall be made with respect to Article XII without
the prior written consent of the Administrative Agent.
Section 13.10 Maximum Interest Rate. No provision of this Agreement or
of any other Loan Document shall require the payment or the collection of
interest in excess of the maximum amount permitted by applicable law. If any
excess of interest in such respect is hereby provided for, or shall be
adjudicated to be so provided, in any Loan Document or otherwise in connection
with this loan transaction, the provisions of this Section shall govern and
prevail and neither Borrower nor the sureties, guarantors, successors, or
assigns of Borrower shall be obligated to pay the excess amount of such interest
or any other excess sum paid for the use, forbearance, or detention of sums
loaned pursuant hereto. In the event any Lender ever receives, collects, or
applies as interest any such sum, such amount which would be in excess of the
maximum amount permitted by applicable law shall be applied as a payment and
reduction of the principal of the indebtedness evidenced by the Notes; and, if
the principal of the Notes has been paid in full, any remaining excess shall
forthwith be paid to Borrower. In determining whether or not the interest paid
or payable exceeds the Maximum Rate, Borrower and each Lender shall, to the
extent permitted by applicable law, (a) characterize any non-principal payment
as an expense, fee, or premium rather than as interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and
spread in equal or unequal parts the total amount of interest throughout the
entire contemplated term of the indebtedness evidenced by the Notes so that
interest for the entire term does not exceed the Maximum Rate.
Section 13.11 Notices. All notices and other communications provided
for in this Agreement and the other Loan Documents to which Borrower is a party
shall be given or made by telecopy or in writing and telecopied, mailed by
certified mail return receipt requested, or delivered to the intended recipient
at the "Address for Notices" specified below its name on the signature pages
hereof-, or, as to any party at such other address as shall be designated by
such party in a notice to each other party given in accordance with this
Section. Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given when transmitted by telecopy, subject to
telephone confirmation of receipt, or when personally delivered or, in the case
of a mailed notice, when duly deposited in the mails, in each case given or
addressed as aforesaid; provided, however, notices to the Administrative Agent
pursuant to Article II shall not be effective until received by the
Administrative Agent.
Section 13.12 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND
THE APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
d-501795.7
LOAN AGREEMENT
56
<PAGE>
Section 13.13 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 13.14 Severability. Any provision of this Agreement held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Agreement and the effect thereof shall be
confined to the provision held to be invalid or illegal.
Section 13.15 Headings. The headings, captions, and arrangements used in
this Agreement are for convenience only and shall not affect the interpretation
of this Agreement.
Section 13.16 Construction. Borrower, the Administrative Agent, and
each Lender acknowledges that each of them has had the benefit of legal counsel
of its own choice and has been afforded an opportunity to review this Agreement
and the other Loan Documents with its legal counsel.
Section 13.17 Independence of Covenants. All covenants hereunder shall
be given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitations of, another covenant shall
not avoid the occurrence of a Default if such action is taken or such condition
exists.
Section 13.18 Confidentiality.
(a) The Agents and each Lender (each, a "Lending Party") agrees to keep
confidential any Confidential Information; provided that nothing herein shall
prevent any Lending Party from disclosing such information (a) to any other
Lending Party or any Affiliate of any Lending Party, or any officer, director,
employee, agent, or advisor of any Lending Party or any Affiliate of any Lending
Party, (b) to any other Person if reasonably incidental to the administration of
the credit facility provided herein, (c) as required by any law, rule, or
regulation, (d) upon the order of any court or administrative agency, (e) upon
the request or demand of any regulatory agency or authority, (f) in connection
with any litigation to which such Lending Party may be a party, (g) to the
extent necessary in connection with the exercise of any remedy under this
Agreement or any other Loan Document, and (h) subject to provisions
substantially similar to those contained in this Section, to any actual or
proposed participant or Assignee. Furthermore, and notwithstanding the
foregoing, no Lending Party shall provide any Confidential Information to any
officer, director, employee, agent or advisor of any Affiliate of a Lending
Party if such officer, director, employee, agent or advisor's position involves
the ability to transact trades in, or solicit or accept orders for the purchase
or sale of, the common stock of Borrower.
(b) The Lending Parties are aware that the United States securities
laws prohibit any Person who has received material, non-public information such
as is the subject of this Section 13.18 from an issuer from purchasing or
selling the securities of such issuer or from communicating such information to
any other Person under circumstances in which it is reasonably foreseeable that
such Person is likely to purchase or sell such securities.
(c) The Companies and the Lending Parties agree that monetary damages
would not be a sufficient remedy for any breach of this Section 13.18 by the
Lending Parties and that, in addition to all other remedies, the Companies shall
be entitled to specific performance and injunction or other equitable relief as
a remedy for any such breach.
(d) The restrictions and obligations of this Section 13.18 shall
survive the repayment of the Obligations and shall continue to bind the Lending
Parties.
d-501795.7
LOAN AGREEMENT
57
<PAGE>
Section 13.19 Renewal and Increase. The Loan is in renewal, extension,
modification, restatement, increase and amendment of the Original Credit
Agreement and the loan documents executed in connection therewith, and all liens
and security interests securing payment thereof.
Section 13.20 Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, BORROWER HEREBY IRREVOCABLY AND EXPRESSLY WAIVES ALL RIGHT TO A
TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON
CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY OR THE ACTIONS OF ANY AGENT
OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION, OR ENFORCEMENT THEREOF.
Section 13.21 Choice of Forum; Consent to Service of Process and
Jurisdiction. Any suit, action or proceeding against Borrower with respect to
this Agreement or the Loan Documents, or any judgment entered by any court in
respect thereof, may be brought in the courts of the Commonwealth of
Massachusetts, County of Suffolk, or in the United States courts located in the
Commonwealth of Massachusetts as the Administrative Agent shall, at the
direction of the Required Lenders elect in their sole discretion, and Borrower
irrevocably submits to the non-exclusive jurisdiction of such courts for the
purpose of any suit, action or proceeding. Borrower irrevocably consents to the
service of process in any suit, action or proceeding in said court by the
mailing thereof by the Administrative Agent by registered or certified mail,
postage prepaid to Borrower's address shown opposite its name on the signature
pages hereof. Nothing herein or in any of the other Loan Documents shall affect
the right of the Administrative Agent to serve process in any other manner
permitted by law or shall limit the right of the Administrative Agent to bring
any action or proceeding against Borrower or with respect to any of its property
in courts in other jurisdictions. Borrower irrevocably waives any objections
which it may now or hereafter have to laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the other Loan
Documents brought in the courts located in the Commonwealth of Massachusetts,
County of Suffolk, and hereby further irrevocably waives any claim that any such
suit, action or proceeding brought in any such court has been brought in any
inconvenient forum. Any action or proceeding by Borrower against the
Administrative Agent or any Lender shall be brought only in a court located in
Suffolk County, Massachusetts.
REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES FOLLOW.
d-501795.7
LOAN AGREEMENT
58
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
BORROWER:
PRIME MEDICAL SERVICES, INC.
By:/s/ Cheryl Williams
Cheryl Williams
Vice President - Finance
Address for Notices:
1301 Capital of Texas Highway
Suite C-300
Austin, Texas 78746
Attention: President
Fax No.: (512) 328-8510
Telephone No.: (512) 328-2892
Third Amended and Restated Loan Agreement
Signature Page
<PAGE>
BANKBOSTON:
BANKBOSTON, N.A.,
as Administration Agent, and a Lender
By: /s/ Walter J. Marullo
Walter J. Marullo
Vice President
Address for Notices:
100 Federal Street, MS 01-08-06
P.O. Box 2016
Boston, Massachusetts 02106
Attention: Walter J. Marullo, Vice President
Fax No.: (617) 434-0392
Telephone No.: (617) 434-2318
Lending Office for Base Rate Advances:
100 Federal Street
P. 0. Box 2016
Boston, MA 02106
Lending Office for Eurodollar Advances:
100 Federal Street
P.O. Box 2016
Boston, MA 02106
Third Amended and Restated Loan Agreement
Signature Page
<PAGE>
NATIONSBANK:
NATIONSBANK OF TEXAS, N.A.,
as Documentation Agent and a Lender
By: /s/ Teena E. Belcik
Teena E. Belcik
Vice President
Address for Notices:
515 Congress Avenue, 11th Fl
Post Office Box 908
Austin, Texas 78701-0908
Attention: Teena Belcik
Fax No.: (512) 397-2052
Telephone No.: (512) 397-2841
Lending Office for Base Rate Advances:
515 Congress Avenue, 11th Floor
Post Office Box 908
Austin, TX 78701-0908
Lending Office for Eurodollar Advances:
515 Congress Avenue, 11th Floor
Post Office Box 908
Austin, TX 78701-0908
Third Amended and Restated Loan Agreement
Signature Page
<PAGE>
NATIONSBANC MONTGOMERY SECURITIES
LLC, as Arranger and Syndication Agent
By: /s/ Gary L. Kahn
Gary L. Kahn
Senior Vice President
Address for Notices:
901 Main Street, 66th Floor
Post Office Box 831000
Dallas, Texas 75283-1000
Attention: Gary L. Kahn
Fax No.: (214) 508-2881
Telephone No.: (214) 508-3507
Third Amended and Restated Loan Agreement
Signature Page
<PAGE>
BANK ONE, TEXAS, N.A.,
as Lender
By: /s/ Edward W. Lick, Jr.
Name: Edward W. Lick, Jr.
Title: Vice President
Address for Notices:
221 West 6th Street, Suite 200
Austin, Texas 78701
Attention: Ed Lick
Fax No.: (512) 479-1565
Telephone No.: (512) 479-5730
Lending Office for Base Rate Advances:
Bank One, Austin
221 West 6th Street, Suite 200
Austin, TX 78701
Lending Office for Eurodollar Advances:
Bank One, Austin
221 West 6th Street, Suite 200
Austin, TX 78701
Third Amended and Restated Loan Agreement
Signature Page
<PAGE>
CREDIT LYONNAIS NEW YORK BRANCH
as Lender
By: /s/ John Oberle
Name: John Oberle
Title: Vice President
Address for Notices:
1301 Avenue of the Americas
New York, New York 10019-6022
Attention: John Oberle
Fax No.: (212) 261-3440
Telephone No.: (212) 261-7344
Lending Office for Base Rate Advances:
Credit Lyonnais New York Branch
1301 Avenue of the Americas
New York, NY 10019-6022
Lending Office for Eurodollar Advances:
Credit Lyonnais New York Branch
1301 Avenue of the Americas
New York, NY 10019-6022
Third Amended and Restated Loan Agreement
Signature Page
<PAGE>
LEET NATIONAL BANK,
as Lender
By: /s/ Ginger Stolzenthaler
Name: Ginger Stolzenthaler
Title: Senior Vice President
Address for Notices:
One Federal Street
Mail Stop: MA OF D07B
Boston, Massachusetts 02110
Attention: Ginger Stolzenthaler
Fax No.: (617) 346-4699
Telephone No.: (617) 346-4618
Lending Office for Base Rate Advances:
Fleet National Bank
One Federal Street
Mail Stop: MA OF D07B
Boston, MA 02110
Lending Office for Eurodollar Advances:
Fleet National Bank
One Federal Street
Mail Stop: MA OF D07B
Boston, MA 02110
Third Amended and Restated Loan Agreement
Signature Page
<PAGE>
IMPERIAL BANK,
as Lender
By: /s/ Margo Gravin
Name: Margo Gravin
Title: Senior Vice President
Address for Notices:
226 Airport Parkway
San Jose, California 95110
Attention: Kelly Davis
Fax No.: (408) 451-8586
Telephone No.: (408) 451-8589
Lending Office for Base Rate Advances:
Imperial Bank
226 Airport Parkway
San Jose, CA 95110
Lending Office for Eurodollar Advances:
Imperial Bank
226 Airport Parkway
San Jose, CA 95110
Third Amended and Restated Loan Agreement
Signature Page
<PAGE>
LASALLE NATIONAL BANK,
as Lender
By: /s/ David G. Killpack
Name: David G. Killpack
Title: Vice President
Address for Notices:
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Jody Staszeky
Fax No.: (312) 904-6457
Telephone No.: (312) 904-5416
Lending Office for Base Rate Advances:
LaSalle National Bank
135 South LaSalle Street
Chicago, IL 60603
Lending Office for Eurodollar Advances:
LaSalle National Bank
135 South LaSalle Street
Chicago, IL 60603
Third Amended and Restated Loan Agreement
Signature Page
<PAGE>
COOPERATIEVE CENTRALE RAIFFEISEN -
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH,
RABOBANK, as Lender
By: /s/ J. David Thomas
Name: J. David Thomas
Title: Vice President
By: /s/ W. Pieter C. Kodde
Name: W. Pieter C. Kodde
Title: Vice President
Address for Notices:
245 Park Avenue
New York, New York 10167
Attention: Corporate Services Department
Fax. No.: (212) 818-0233
Telephone No.: (212) 916-7800
cc: 13355 Noel Road
Suite 1000
Dallas, TX 75240-6645
Attention: J. David Thomas
Fax No.: (972) 419-6315
Telephone No.: (972) 419-5266
Lending Office for Base Rate Advances:
Cooperatieve Centrale Raiffeisen -
Boerenleenbank B.A., "Rabobank
Nederland", New York Branch, Rabobank
245 Park Avenue
New York, NY 10167
Lending Office for Eurodollar Advances:
Cooperatieve Centrale Raiffeisen -
Boerenleenbank B.A., "Rabobank
Nederland", New York Branch, Rabobank
245 Park Avenue
New York, NY 10167
Third Amended and Restated Loan Agreement
Signature Page
<PAGE>
EXHIBIT A
ADVANCE REQUEST FORM
TO: BankBoston, N.A., as Administrative Agent
100 Federal Street, MS 01-08-06
P.O. Box 2016
Boston, Massachusetts 02106
Attention: Walter J. Marullo
Ladies and Gentlemen:
The undersigned is an officer of Prime Medical Services, Inc. ("Borrower"), and
is authorized to make and deliver this certificate pursuant to that certain
Third Amended and Restated Loan Agreement dated as of April , 1998, among
Borrower, BankBoston, N.A., as Administrative Agent (the "Administrative
Agent"), and the Lenders named therein (as the same may be amended, supplemented
or modified from time to time, the "Loan Agreement"). Capitalized terms used and
not otherwise defined herein shall have the same meanings as set forth in the
Loan Agreement. In accordance with the Loan Agreement, Borrower hereby (check
whichever is applicable):
1. Requests that the Lenders make a Eurodollar Advance
under the Commitments in the manner set forth in item
(c) below for the following Interest Period:
One (1) month
Two (2) months
Three (3) months
Six (6) months
2. Requests that the Lenders make an Alternate Rate
Advance in the amount set forth in item (c) below.
In connection with the foregoing and pursuant to the terms and provisions of the
Loan Agreement, the undersigned hereby certifies to the Administrative Agent and
the Lenders that the following statements are true and correct:
(i) The representation and warranties contained in Article VII of
the Loan Agreement and in each of the other Loan Documents are
true and correct on and as of the date hereof with the same
force and effect as if made on and as of such date, except to
the extent that such representations and warranties speak to a
specific date or the facts on which such representations and
warranties are based have been changed by transactions
permitted by the Loan Documents.
(ii) No Default has occurred and is continuing or would result from
the Advance requested hereunder.
d-502322.6 EXHIBITS
- i -
<PAGE>
(iii) The amount of the Advance requested hereunder, when added to
all outstanding Advances, will not exceed the Commitments.
(iv) All information supplied below is true, correct, and complete as
of the date hereof.
(v) If the proceeds of the requested Advance are to be used to
finance a Permitted Acquisition, then the information set
forth on Schedule 1 attached hereto is true, correct, and
complete as of the date hereof.
(a) Outstanding principal amount of Advances under the Credit
Commitments $
(b) Net Availability for Advances:
[The amount of the Commitments minus outstanding Advances
under the Commitments] $
(c) Amount of Requested Advance $
BORROWER:
PRIME MEDICAL SERVICES, INC.
By:
Name:
Title:
Date of Requested Advance: ____________________________
[Insert date of Requested Advance]
d-502322.6 EXHIBITS
- ii -
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated ,
Reference is hereby made to that certain Third Amended and Restated
Loan Agreement dated as of April , 1998 (as the same may be amended,
supplemented or modified from time to time, the "Loan Agreement"), among PRIME
MEDICAL SERVICES, INC., a Delaware corporation ("Borrower"), each of the Lenders
or other lending institutions which are or may from time to time become
signatories thereto (the "Lenders"), and BANKBOSTON, N.A., as Administrative
Agent for itself and the other Lenders (in such capacity, the "Administrative
Agent"). Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to such terms in the Loan Agreement.
(the "Assignor")
and (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, without
recourse, and the Assignee hereby purchases and assumes from the Assignor as of
the Effective Date (as defined in Section 4 below), the following (the "Assigned
Interest"): [check and complete, as appropriate]
|_| A % interest in the Commitment of the Assignor and of the
outstanding principal amount owed to the Assignor in respect
of its Advances under its Commitment, together with all of the
rights and obligations of the Assignor relating to such
Assigned Interest under the Loan Agreement and the other Loan
Documents.
|_| 100% of all of the Assignor's rights and obligations under the
Loan Agreement and the other Loan Documents, including without
limitation, 100% of the Assignor's interest in its Commitment
and 100% of the total outstanding principal amount owed to the
Assignor.
2. The Assignor: (i) represents that as of the date hereof, its
Commitment is $ and the outstanding principal of its Advances, if any, under its
Commitment is $ (all as unreduced by any assignments which have not yet become
effective); (ii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Loan Agreement or any other Loan Document or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Loan Agreement or any other Loan Document, other than that it is
the legal and beneficial owner of the interest being assigned by it hereunder
and that such interest is free and clear of any adverse claim; (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower, any Guarantor or any other Obligated Party
or the performance or observance by the Borrower, any guarantor or any other
Obligated Party of any of their obligations under the Agreement or any other
Loan Document; and (iv) attaches the Note held by Assignor and requests that the
Administrative Agent exchange such Note for new Notes payable to the order of
(A) Assignee in an amount equal to the Commitments assumed by the Assignee
pursuant hereto, and (B) the Assignor in an amount equal to the Commitments, if
any, retained by the Assignor under the Loan Agreement, respectively, as
specified above.
d-502322.6
EXHIBITS
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3. The Assignee: (i) represents and warrants that it is legally
authorized to enter in this Assignment and Acceptance; (ii) confirms that it has
received a copy of the Loan Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 8.1 thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (iii) agrees
that it will, independently and without reliance upon the Administrative Agent,
the Assignor, or any other Lender and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Loan Agreement and the other Loan
Documents; (iv) confirms that it is eligible to be an Assignee: (v) appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under the Loan Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all the obligations which by the terms of the Loan Agreement
and the other Loan Documents are required to be performed by it as a Lender; [;
and (vii) attaches the forms prescribed by the Internal Revenue Service of the
United States certifying as to the Assignee's exemption from United States
withholding taxes with respect to all payments to be made to the Assignee under
the Loan Documents or such other documents as are necessary to indicate that all
such payments are subject to such tax at a rate reduced by an applicable tax
treaty].1
4. The effective date for this Assignment and Acceptance shall be ,
(the "Effective Date").2 Following the execution of this Assignment and
Acceptance, it will be delivered to the Administrative Agent for acceptance and
recording by the Administrative Agent.
5. Upon such acceptance and recording, from and after the Effective
Date, (i) the Assignee shall be a party to the Loan Agreement and, to the extent
provided in this Assignment and Acceptance, shall have the rights and
obligations of a Lender thereunder and under the other Loan Documents and (ii)
the Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Loan
Agreement and the other Loan Documents.
6. Upon such acceptance and recording, from and after the Effective
Date, the Administrative Agent shall make all payments in respect of the
interest assigned hereby (including payments of principal, interest, fees, and
other amounts) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments for periods prior to the Effective Date by
the Administrative Agent or with respect to the making of this assignment
directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the Commonwealth of Massachusetts and applicable
laws of the United States of America.
[NAME OF ASSIGNOR],
By:
Name:
Title:
- --------
1 If the Assignee is organized under the laws of a jurisdiction outside
the United States. 2 Such date shall be at least five (5) Business Days
after the execution of this Assignment and
Acceptance and delivery thereof to the Administrative Agent.
d-502322.6 EXHIBITS
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<PAGE>
[NAME OF ASSIGNEE],
By:
Name:
Title:
ACCEPTED BY:
BANKBOSTON, N.A., as Administrative Agent
By:
Name:
Title:
Date:
CONSENTED TO BY BORROWER (if applicable):
PRIME MEDICAL SERVICES, INC.
By:
Name:
Title:
Date:
d-502322.6 EXHIBITS
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<PAGE>
EXHIBIT C
FORM OF NOTE
$ Boston, Massachusetts April , 1998
----------------- -
FOR VALUE RECEIVED, the undersigned, PRIME MEDICAL SERVICES, INC., a
Delaware corporation ("Maker"), hereby promises to pay to the order of
("Payee"), at the offices of BankBoston, N.A., as Administrative Agent (together
with any successor as provided in the Agreement, hereinbelow defined, the
"Administrative Agent") at 100 Federal Street, Boston, Massachusetts, on April ,
2003, in lawful money of the United States of America, the principal sum of
DOLLARS ($ ), or so much thereof as may be advanced and outstanding hereunder
together with the interest on the outstanding principal balance from day to day
remaining, as herein specified.
This Note has been executed and delivered by Maker pursuant to the
terms of that certain Third Amended and Restated Loan Agreement of even date
herewith among Maker, Payee, the Administrative Agent, NationsBank of Texas,
N.A., as Documentation Agent, and each of the other Lenders which is or may
become a party thereto or any successor or assignee thereof (as the same may be
amended, supplemented or modified from time to time, the "Agreement") and is one
of the Notes described therein. Capitalized terms used and not otherwise defined
herein shall have the same meanings as set forth in the Agreement.
Reference is hereby made to the Agreement for provisions affecting this
Note, including, without limitation, provisions regarding payments, prepayments
(optional and mandatory), Events of Default and the Administrative Agent's and
Payee's right as a result of the occurrence thereof.
The outstanding principal balance hereof shall bear interest prior to
maturity at a varying rate per annum which shall from day to day be equal to the
lesser of (a) the Maximum Rate, or (b) the Applicable Rate in effect from day to
day, each such change in the rate of interest charged hereunder to become
effective, without notice to Maker, on the effective date of each change in the
Applicable Rate or the Maximum Rate, as the case may be; provided, however, if
at any time the Applicable Rate shall exceed the Maximum Rate, thereby causing
the interest rate hereon to be limited to the Maximum Rate, then any subsequent
reduction in the Applicable Rate shall not reduce the rate of interest hereon
below the Maximum Rate until the total amount of interest accrued hereon equals
the amount of interest which would have accrued hereon if the Applicable Rate
had at all times been in effect. Accrued and unpaid interest on this Note shall
be due and payable on each Payment Date and on the Termination Date. All
past-due principal and interest shall bear interest as the Default Rate.
Notwithstanding anything to the contrary contained herein, no
provisions of this Note shall require the payment or permit the collection of
interest in excess of the Maximum Rate. If and excess of interest in such
respect is herein provided for, or shall be adjudicated to be so provided, in
this Note or otherwise in connection with this loan transaction, the provisions
of this paragraph shall govern and prevail, and neither Maker nor the sureties,
guarantors, successors or assigns of Maker shall be obligated to pay the excess
amount of such interest, or any other excess sum paid for the use, forbearance
or detention of sums loaned pursuant hereto. If for any reason interest in
excess of the Maximum Rate shall be deemed
d-502322.6 EXHIBITS
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<PAGE>
charged, required or permitted by any court of competent jurisdiction, any such
excess shall be applied as a payment and reduction of the principal of
indebtedness evidenced by this Note; and, if the principal amount hereof has
been paid in full, any remaining excess shall forthwith be paid to Maker. In
determining whether or not the interest paid or payable exceeds the Maximum
Rate, Maker, the Administrative Agent and Payee shall, to the extent permitted
by applicable law, (i) characterize any non- principal payment as an expense,
fee, or premium rather than as interest, (ii) exclude voluntary prepayments and
the effects thereof, and (iii) amortize, prorate, allocate, and spread in equal
or unequal parts the total amount of interest throughout the entire contemplated
term of the indebtedness evidenced by this Note so that the interest for the
entire term does not exceed the Maximum Rate.
Upon the occurrence of an Event of Default, the Administrative Agent
may (and if directed by the Required Lenders, shall) declare the entire unpaid
principal of and accrued interest on this Note immediately due and payable
without notice, demand or presentment, all of which are hereby waived, and upon
such declaration, the same shall become and shall be immediately due and
payable, and the Administrative Agent shall have the right to foreclose or
otherwise enforce all Liens or security interests securing payment hereof, or
any part hereof, and offset against this Note any sum or sums owed by the
Administrative Agent, Payee or the holder hereof to Maker. Failure of the
Administrative Agent, Payee or the holder hereof to exercise this option shall
not constitute a waiver of the right to exercise the same upon the occurrence of
a subsequent Event of Default.
If the Administrative Agent, Payee or the holder hereof expends any
effort in any attempt to enforce payment of all or any part or installment of
any sum due the holder hereunder, or if this Note is placed in the hands of an
attorney for collection, or if it is collected through any legal proceedings,
Maker agrees to pay all costs, expenses, and fees incurred by the Administrative
Agent, or the holder, including reasonable attorneys' fees.
This Note shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts and the applicable laws of the United
States of America.
Except as provided in the Agreement, Maker and each surety, guarantor,
endorser, and other party ever liable for payment of any sums of money payable
on this Note jointly and severally waive notice, presentment, demand for
payment, protest, notice of protest and non-payment or dishonor, notice of
acceleration, notice of intent to accelerate, notice of intent to demand,
diligence in collecting, grace, and all other formalities of any kind, and
consent to all extensions without notice for any period or periods of time and
partial payments, before or after maturity, and any impairment of any Collateral
securing this Note, all without prejudice to the Administrative Agent, Payee or
the holder. The Administrative Agent, Payee and the holder shall similarly have
the right to deal in any way, at any time, with one or more of the foregoing
parties without notice to any other party, and to grant any such party any
extensions of time for payment of any of said indebtedness, or to release or
substitute part or all of the Collateral securing this Note, or to grant any
other indulgences or forbearances whatsoever, without notice to any other party
and without in any way affecting the personal liability of any party hereunder.
Maker hereby authorizes the Administrative Agent, Payee and the holder
hereof to endorse on the Schedule attached to this Note or any continuation
thereof or to record in their internal records all Advances made to Maker
hereunder and all payments made on account of the principal thereof, which
endorsements or recordings shall be prima facie evidence as to the outstanding
principal amount of this Note; provided, however, any failure by the
Administrative Agent, Payee or the holder hereof to make any such endorsement or
recording shall not limit or otherwise affect the obligations of Maker under the
Agreement or this Note.
d-502322.6 EXHIBITS
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<PAGE>
[This Note, together with all the other Notes issued on the date hereof
are given in renewal, amendment, increase and restatement, but not
extinguishment, of the Revolving Credit Notes issued under the Second Amended
and Restated Loan Agreement dated as of March 31, 1997 among Maker, NationsBank,
the Administrative Agent, and each of the other lenders party thereto, which
were given in renewal, amendment, increase, and restatement, but not
extinguishment, of the Revolving Credit Notes issued under the Amended and
Restated Loan Agreement dated as of April 26, 1996 among Maker, NationsBank,
Administrative Agent, and each of the lenders party thereto, which were given in
renewal, amendment, increase, and restatement, but not extinguishment of the
Revolving Credit Notes issued under the Loan Agreement dated as of November 28,
1994 among Maker, Administrative Agent and the banks named therein.]
PRIME MEDICAL SERVICES, INC.
By:
Cheryl Williams
Vice President-Finance
EXHIBITS
- iii -
<PAGE>
SCHEDULE
Date Advance Principal Payment Balance
d-502322.6
EXHIBITS
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<PAGE>
EXHIBIT D
PERFECTION CERTIFICATE
The undersigned is an officer of PRIME MEDICAL SERVICES, INC., a
Delaware corporation ("Borrower"), and is authorized to make and deliver this
certificate. Borrower hereby certifies, with reference to that certain Borrower
Security Agreement (herein so called) dated as of April 26, 1996 between
Borrower and The First National Bank of Boston (now known as BankBoston, N.A.),
as Administrative Agent ("Agent") for itself and certain other Lenders (the
"Lenders"), as amended and those certain Guarantor Security Agreements (herein
so called) certain of which are dated as of April 26, 1996, September 30, 1997,
and the date hereof, respectively between the Guarantors (as defined in that
certain Third Amended and Restated Loan Agreement of even date herewith among
Borrower, the Administrative Agent and the Lenders), as amended and the
Administrative Agent (the Borrower Security Agreement and the Guarantor Security
Agreements being herein referred to collectively as the "Security Agreements")
(capitalized terms used and not otherwise defined herein shall have the same
meanings as set forth in the Security Agreements), to the Administrative Agent
and each Lender as follows:
1. Names.
(a) There have been no changes since April 26, 1996 in the
exact corporate name of Borrower and each Guarantor as such name
appears on each such company's Certificate of Incorporation or Articles
of Incorporation is:
(b) The following is a list of all other names (including
trade names or similar appellations) used by Borrower and each
Guarantor, or any other business or organization to which any such
company has succeeded, now or at any time since April 26, 1996:
d-502322.6
EXHIBITS
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<PAGE>
2. Current Locations.
(a) Any change of the chief executive office of Borrower and
each Guarantor since April 26, 1996 is at the address indicated for
each such company below:
Debtor:
Mailing Address:
County:
State:
Debtor:
Mailing Address:
County:
State:
(b) The following are all other new locations since April 26, 1996 in
the United States of America at which Borrower or any Guarantor maintains any
books or records relating to any of the Collateral consisting of accounts,
contract rights, chattel paper, general intangibles or mobile goods:
Debtor:
Mailing Address: [Complete for Borrower and each Guarantor]
County:
State:
(c) The following are the names and addresses of all persons or
entities other than Borrower and each Guarantor, such as lessees or consignees,
which since April 26, 1996 have possession or are intended to have possession of
any of the Collateral consisting of chattel paper, inventory or equipment:
Name:
Mailing Address:
County:
State:
d-502322.6
EXHIBITS
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<PAGE>
3. Capitalization. Any changes in the capitalization of each of the
Subsidiaries of Borrower since April 26, 1996 is as set forth below:
[Complete for each Subsidiary]
4. Partnership Interests. Changes in the partnership interests acquired
by Borrower since April 26, 1996 and the Subsidiaries of Borrower and
information regarding each Partnership is set forth below:
5. Unusual Transactions. Except as set forth in Schedule 1 attached
hereto, all of the Collateral has been originated by the applicable company in
the ordinary course of such company's business or consists of goods which have
been acquired by such company in the ordinary course from a person in the
business of selling goods of that kind.
EXECUTED as of April , 1998.
Cheryl Williams
Chief Financial Officer
d-502322.6
EXHIBITS
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<PAGE>
EXHIBIT E
FORM OF OPINION OF COUNSEL FOR BORROWER AND GUARANTORS
1. Borrower is a Delaware corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, and has
all corporate power and authority required to own its property and carry on its
business as presently conducted and proposed to be conducted. Borrower is duly
qualified or licensed to do business in each jurisdiction where the nature of
the business in which it is engaged makes such qualification or licensing
necessary including, without limitation, the States of
.3
2. Borrower has the corporate power and requisite authority to execute,
deliver and carry out the terms and provisions of the Loan Documents, and all
other documents and instruments delivered pursuant to the terms of such Loan
Documents, and has taken all corporate action necessary to duly authorize (i)
the execution, delivery and performance by Borrower of the terms and provisions
of the Loan Documents, and (ii) the performance by Borrower of its obligations
under the Loan Documents.
3. Each Guarantor has the corporate power and requisite authority to
execute, deliver and carry out the terms and provisions of the Loan Documents to
which it is a party, and all other documents and instruments delivered pursuant
to the terms of such Loan Documents, and has taken all corporate action
necessary to duly authorize (i) the execution, delivery and performance by such
Guarantor of the terms and provisions of the Loan Documents to which it is a
party, and (ii) the performance by such Guarantor of its obligations under the
Loan Documents to which it is a party.
4. Neither the execution and delivery by Borrower of the Loan
Documents, nor the performance by Borrower of its obligations thereunder, nor
compliance by Borrower with the terms and provisions thereof, will (a)
contravene any provision of law, statute, rule or regulation of the State of
Texas (or any political subdivision thereof) or the United States of America, to
which Borrower is subject, or conflict with, or result in any breach of, any
material agreement, mortgage, indenture, deed of trust or other instrument known
to us to which Borrower may be subject, including, without limitation, the
agreements set forth on Exhibit A attached hereto, or result in the creation of
any mortgage, lien, pledge or encumbrance in respect of any property of Borrower
(other than liens in your favor), (b) contravene any judgment, decree, license,
order or permit known to us to be applicable to Borrower, (c) violate any
provision of the certificate of incorporation or bylaws of Borrower, or (d)
violate or cause a result under any partnership agreement of any Partnership. To
the best of our knowledge, after reasonable inquiry, no consent, approval,
authorization or order of any governmental or public body or authority, or of
any third party, is required in connection with the execution, delivery and
performance by Borrower of the Loan Documents or the borrowing and repayment of
money by Borrower thereunder.
5. Neither the execution and delivery by the Guarantors of the Loan
Documents, nor the performance by Guarantors of their respective obligations
thereunder, nor compliance by Guarantors with the terms and provisions thereof,
will (a) contravene any provision of law, statute, rule or regulation of the
State of Texas (or any political subdivision thereof) or the United States of
America, to which any Guarantor is subject, or conflict with, or result in any
breach of, any material agreement, mortgage, indenture, deed of trust or other
instrument known to us to which any Guarantor may be subject, including, without
limitation, the agreements set forth on Exhibit A attached hereto, or result in
the creation of any mortgage, lien, pledge or encumbrance in respect of any
property of any Guarantor (other than liens in your favor), (b) contravene any
judgment, decree, license, order or permit known to us to be applicable to any
Guarantor, (c) violate any provision of the certificate of incorporation or
bylaws of
- --------
3 Include a corresponding opinion for each Guarantor and each
Partnership.
d-502322.6
EXHIBITS
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<PAGE>
any Guarantor, or (d) violate or cause a default under any partnership agreement
of any Partnership. To the best of our knowledge, after reasonable inquiry, no
consent, approval, authorization or order of any governmental or public body or
authority, or of any third party, is required in connection with the execution,
delivery and performance by Guarantors of the Loan Documents or the borrowing
and repayment of money by Guarantors thereunder.
6. ________________, __________________ of Borrower is authorized
to execute the Loan Documents on behalf of Borrower.4
7. The Loan Documents to which Borrower is a party have been duly
executed, presented and delivered by Borrower and constitute the legal and
binding obligations of Borrower, enforceable in accordance with their respective
terms.
8. The Loan Documents to which each Guarantor is a party have been duly
executed, presented and delivered by such Guarantor and constitute the legal and
binding obligations of such Guarantor, enforceable in accordance with their
respective terms.
9. To the best of our knowledge, there are no legal or arbitral
actions, suits or proceedings pending or threatened against Borrower, any
Guarantor or any Partnership which, if adversely determined, would have a
material adverse effect on the financial condition, operations, properties,
assets or business of any of Borrower, Guarantors or the Partnerships or on the
transactions contemplated in the Loan Documents.
10. The Security Agreements and the Pledge Agreements create in favor
of the Administrative Agent, for the benefit of the Lenders, a valid lien and
security interest, which attaches to the Collateral.
11. Upon the filing of the Financing Statements in the Office of the
Secretary of State of ___________ and in the Real Property Records of the
__________ County, ___________________, the liens and security interests created
by the Security Agreements shall constitute perfected, first priority liens and
security interests in the Collateral.
12. ______________'s authorized capitalization consists of shares of
common stock, $ par value per share, of which shares are issued and outstanding.
The outstanding shares have been authorized and validly issued and are fully
paid and nonassessable.5
13. Assuming that the Administrative Agent takes and keeps possession
of the Pledged Shares under the Security Agreements, all actions have been taken
to create and to perfect the security interest of the Administrative Agent, for
the benefit of the Lenders, in the Pledged Shares.
14. Borrower is not an "investment company" or a company "controlled"
by an "investment company," within the meaning of the Investment Company Act of
1940, as amended.
15. A Texas court, in a case properly presented, would uphold the
Massachusetts choice of law provisions in the Loan Documents.
16. The Loan, as evidenced by the Loan Documents, is not usurious.
- --------
4 Similar opinion for each Guarantor. 5 Similar opinion for each
Guarantor.
d-502322.6
EXHIBITS
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EXHIBIT F
FORM OF COMPLIANCE CERTIFICATE
TO: BankBoston, N.A., as Administrative Agent
and each of the Lenders party to the
Loan Agreement (hereinbelow defined)
100 Federal Street, MS 01-08-06
Boston, Massachusetts 02106
Attention: Walter J. Marullo
Ladies and Gentlemen:
The undersigned is the of PRIME MEDICAL SERVICES, INC. ("Borrower"),
and is authorized to make and deliver this certificate pursuant to that certain
Third Amended and Restated Loan Agreement (the "Loan Agreement") dated as of
April , 1998, among Borrower, each of the Lenders or other lending institutions
which is or may from time to time become a signatory thereto (collectively, the
"Lenders" and individually, a "Lender"), and BankBoston, N.A., as Administrative
Agent for itself and the other Lenders (together with its successors in such
capacity, the "Administrative Agent"). Capitalized terms used and not otherwise
defined herein shall have the same meanings as set forth in the Loan Agreement.
This certificate is being delivered as of , [insert the end of the most
recent reporting period required by Section 8.1(c) of the Loan Agreement (the
"Report Date") pursuant to Section 8.1(c) of the Loan Agreement. All of the
calculations set forth on Exhibit A hereto are as of the Report Date and have
been made pursuant to the terms of the Loan Agreement.
The undersigned, as an authorized officer of Borrower, hereby certifies
to the Administrative Agent and the Lenders that:
1. Defaults. No Default has occurred and is continuing, or if a Default
has occurred, Exhibit B attached hereto describes the nature thereof and the
steps taken or to be taken by Borrower to remedy such Default.
2. Representations. The representations and warranties contained in the
Loan Agreement and each of the other Loan Documents are true and correct on and
as of the date hereof with the same force and effect as if made on and as of the
date hereof, except to the extent that such representations and warranties speak
to a specific date or the facts on which such representations and warranties are
based have been changed by transactions permitted by the Loan Documents.
3. Calculations. Attached hereto as schedules are the calculations
supporting the computations set forth in Exhibit A hereto. All information
contained in Exhibit A and on the attached schedules is true and correct.
4. GAAP Financial Statements. The unaudited financial statements
attached hereto, if any, were prepared in accordance with GAAP and fairly
represent (subject to year-end audit adjustments) the financial conditions and
results of operations of the Companies on a consolidated or consolidating, as
the case may be, basis as of the date and for the periods indicated therein.
d-502322.6
EXHIBITS
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IN WITNESS WHEREOF, the undersigned has executed this Compliance
Certificate effective this day of , .
By:
Name:
Title:
d-502322.6
EXHIBITS
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<PAGE>
EXHIBIT A
TO
COMPLIANCE CERTIFICATE
CALCULATIONS
A. Total Net Debt to EBITDA.
1. Aggregate Debt of the Companies $
2. Aggregate Cash and Cash Equivalents of the Companies $
3. Base Amount of Cash $8,000,000.
4. Cash Held for Distribution to Limited Partners
5. Excess Cash [2 - (3 +4)], never <0
6. Net Debt of the Companies [1-5], never <0
7. EBITDA of the Companies (From EBITDA
Calculation below)
8. Ratio of Total Net Debt to EBITDA (6/7)
9. Maximum Permitted 1
- --------
1 Maximum permitted for the following periods:
Period Ratio
January 1, 1998 through December 31, 2000 3.50 to 1.0
January 1, 2001 through December 31, 2001 3.25 to 1.0
January 1, 2002 and thereafter 3.00 to 1.0
======================================================== =======================
d-502322.6
EXHIBITS
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<PAGE>
B. Senior Net Debt to EBITDA Ratio.
1. Aggregate Debt of the Companies $
2. Subordinated Debt of the Companies $
3. Aggregate Senior Debt of the Companies (1 - 2)
4. Aggregate Cash and Cash Equivalents of the Companies
5. Base Amount of Cash $8,000,000
6. Cash Held for Distribution to Limited Partners
7. Excess Cash [4 - (5 + 6)], never <0
8. Senior Net Debt of the Companies [1 - 5], never <0
9. EBITDA of the Companies (From EBITDA
Calculation below)
10. Ratio of Senior Net Debt to EBITDA ( 8/ 9)
11. Maximum Permitted2
- --------
2 Minimum required for the following periods:
Period Ratio
January 1, 1998 through December 31, 2000 2.50 to 1.0
January 1, 2001 through December 31, 2001 2.25 to 1.0
January 1, 2002 and thereafter 2.00 to 1.0
===================================================== =========================
d-502322.6
EXHIBITS
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<PAGE>
C. Total Debt Service Coverage Ratio.
1. EBITDA (from calculation below) $
2. Less: Capital Expenditures $
3. Less: Cash Taxes $
4. EBITDA less Capital Expenditures and
Cash Taxes (1 - (2 + 3)) $
5. Total Interest Expense $
6. 1/7 of Outstanding Principal Amount of Loans $
7. Total Debt Service (5 + 6) $
8. Ratio of EBITDA to Total Debt Service (4 / 7)
9. Minimum Required 3
- --------
3 Minimum Required for the following periods:
Period Ratio
As of the last day of each fiscal quarter of 1.50 to 1.0
Borrower thereafter, commencing January 31, 1998
through December 31, 2000, in
each case for the four (4) fiscal quarters then ended
- ----------------------------------------------------- -------------------------
As of the last day of each fiscal quarter of 1.60 to 1.0
Borrower thereafter from January 1, 2001
through December 31, 2001
As of the last day of each fiscal quarter 1.75 to 1.0
commencing January 1, 2002
===================================================== =========================
d-502322.6
EXHIBITS
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D. Consolidated Net Worth.
1. Consolidated Net Worth $
2. Required Minimum:
a. Base Minimum ($ ) $
--------------------
b. Plus: Beginning June 30, 1998, an amount $ equal to
one hundred percent (100%) of the increase in net
worth arising from any acquisition or equity issuance
during such fiscal quarter (or in the case of June
30, 1998, the last two fiscal quarters)
c. Plus: Beginning June 30, 1998, an amount $
equal to seventy-five percent (75%) of
Consolidated Net Income for each fiscal
quarter (or in the case of June 30, 1998,
the last two fiscal quarters)
d. Less: Any stock repurchases by Borrower $
of its capital stock, not exceeding
$15,000,000.00
Total Required Minimum: $
d-502322.6
EXHIBITS
- iv -
<PAGE>
E. EBITDA Calculation
1. EBITDA From Financial Statements
2. EBITDA From Permitted Acquisitions
Generated Prior to Respective Acquisition Dates
3. Actual EBITDA from Permitted Passive
Investments
4. Maximum Allowable EBITDA from Permitted Passive Investments
(15% of (1))
5. Lesser of 3 and 4 ______________
6. Total Allowable Proforma Historical EBITDA (1 + 2 + 5)
d-502322.6 EXHIBITS
- v -
<PAGE>
F. Changes in Permitted Passive Investments.
Permitted Passive Investments which during the last fiscal quarter
ceased being Permitted Passive Investments:
1. Name of Permitted Passive Investments:
2. Date Borrower or Guarantors first Controlled such entities:
3. Description of how Control was obtained:
d-502322.6
EXHIBITS
- vi -
<PAGE>
EXHIBIT G
PERMITTED ACQUISITION CERTIFICATION
Borrower hereby to the Administrative Agent and Lenders that:
1. The name of the Person, or from which the business or assets to be,
acquired is .
-----------
2. The proposed Acquisition by Borrower or its Guarantor is of a business,
assets or Person which is engaged in substantially the same lithotripsy
business as the lithotripsy business conducted by Borrower or such
Guarantor, or any other lithotripsy business reasonably related
thereto.
3 The Acquisition has been approved and recommended by the board of
directors or other applicable governing body of the Person to be
acquired or from which such business or assets are to be acquired.
4. After giving effect to such Acquisition, Borrower or the Guarantor that
is the acquiring party is Solvent and the Companies, on a consolidated
basis, are Solvent.
5. After giving effect to such Acquisition, no Default shall exist or
occur as a result of, and after giving effect to, such Acquisition.
6. If such Acquisition is a merger, Borrower or the Guarantor that is the
acquiring party will be the surviving entity after giving effect to
such merger;
7. (a) The aggregate purchase price with respect to such Acquisition
is $ ;
------------------------------
(b) The EBITDA of the Person acquired (for the four (4) fiscal
quarters ending on the most recently ended fiscal period prior
to the date of the Acquisition) times five (5) is $ ; and
(c) The excess of (b) over (a) is $ .
-------------
8. The aggregate consideration for such Acquisition does not exceed
$20,000,000.00, and the aggregate cash consideration for all
Acquisitions during the immediately preceding twelve (12) month period
does not exceed $40,000,000.00.
9. After giving effect to the Acquisition:
(a) The aggregate Net Debt of the Companies (including any
Advances under the Commitments) will be $ .
(b) The EBITDA of the Companies (including EBITDA for the Person,
assets or business acquired pursuant to the Acquisition) for
the four (4) fiscal quarters ending on the closing of the
Acquisition is $ .
(c) Applicable number pursuant to the definition of "Permitted
Acquisition" times (b) = $ .
(d) Borrower or a Guarantor shall Control the Target.
d-502322.6
EXHIBITS
- i -
<PAGE>
EXHIBIT H
PERMITTED PASSIVE INVESTMENT CERTIFICATE
Borrower hereby to the Administrative Agent and Lenders that:
1. The name of the Person, or from which the business or assets to be,
acquired is .
-------------------------
2. The proposed Permitted Passive Investment by Borrower or a Guarantor is
of Equity Interests of a Person which is engaged in substantially the
same lithotripsy business as the business conducted by Borrower or such
Guarantor, or any other lithotripsy business reasonably related
thereto.
3 The Permitted Passive Investment has been approved and recommended by
the board of directors or other applicable governing body of the Person
whose Equity Interests to be acquired, if required by law or governing
documents.
4. After giving effect to such Permitted Passive Investment, Borrower or
the Guarantor that is the acquiring party is Solvent and the Companies,
on a consolidated basis, are Solvent.
5. After giving effect to such Permitted Passive Investment, no Default
shall exist or occur as a result of, and after giving effect to, such
Permitted Passive Investment.
6. (a) The aggregate purchase price with respect to such Permitted
Passive Investment is
$ ;
(b) Original Purchase Price of all other existing Permitted
Passive Investments is
$ ;
(c) Aggregate Permitted Passive Investment (a plus b) is
$ .
-------------------------
7. (a) Total Equity is: $ ;
------------------------
(b) Amount of Permitted Passive Investments (the lesser of 20% of
(a) or $50,000,000) is
$ .
--------------------
8. Amount of remaining Permitted Passive Investments (7(b) minus 6(c) is
$ ).
--------------------
For purposes of the calculations hereunder any Permitted Passive Investment
which as of the date of this Certificate is Controlled by Borrower or a
Guarantor shall not be treated as a Permitted Passive Investment.
d-502322.6
EXHIBITS
- i -
<PAGE>
EXHIBIT I
PERMITTED OTHER BUSINESS ACQUISITION CERTIFICATION
Borrower hereby to the Administrative Agent and Lenders that:
1. The name of the Person, or from which the business or assets to be,
acquired is .
-------------------------
2. The proposed Permitted Other Business Acquisition by Borrower or a
Guarantor is of a business, assets or Person which is engaged in
substantially the same physician practice management, prostatherapy, or
trailer/tractor servicing business as such businesses are conducted by
Borrower or such Guarantor, or any other physician practice management,
prostatherapy, or trailer/tractor servicing business reasonably related
thereto.
3 The Permitted Other Business Acquisition has been approved and
recommended by the board of directors or other applicable governing
body of the Person to be acquired or from which such business or assets
are to be acquired.
4. After giving effect to such Permitted Other Business Acquisition,
Borrower or the Guarantor that is the acquiring party is Solvent and
the Companies, on a consolidated basis, are Solvent.
5. After giving effect to such Permitted Other Business Acquisition, no
Default shall exist or occur as a result of, and after giving effect
to, such Permitted Other Business Acquisition.
6. If such Permitted Other Business Acquisition is a merger, Borrower or
the Guarantor that is the acquiring party will be the surviving entity
after giving effect to such merger;
7. (a) The aggregate purchase price with respect to such Permitted
Other Business Acquisition
is $ ;
(b) The EBITDA of the Person acquired (for the four (4) fiscal
quarters ending on the most recently ended fiscal period prior
to the date of the Acquisition) times five (5) is $ ; and
(c) The excess of (b) over (a) is $ .
-------------
8. The aggregate consideration for all Permitted Other Business
Acquisition(s) does not exceed $5,000,000.00.
SCHEDULES
- i -
<PAGE>
EXHIBIT J
PERMITTED NON-BORROWER OR NON-GUARANTOR ACQUISITION CERTIFICATION
Borrower hereby to the Administrative Agent and Lenders that:
1. The name of the Person, or from which the business or assets to be,
acquired is .
-------------------------
2. The proposed Permitted Acquisition, Permitted Other Business
Acquisition, or Permitted Passive Investment (the "Other Company
Acquisition") by a Company (other than Borrower or a Guarantor) ("Other
Company") is of a business, assets or Person which is engaged in
substantially the same lithotripsy, physician practice management,
prostatherapy, or trailer/tractor servicing business as such businesses
are conducted by any Company, or any other lithotripsy, physician
practice management, prostatherapy, or trailer/tractor service business
reasonably related thereto.
3 The Other Company Acquisition has been approved and recommended by the
board of directors or other applicable governing body of the Person to
be acquired or from which such business or assets are to be acquired.
4. After giving effect to such Other Company Acquisition, Other Company
that is the acquiring party is Solvent and the Companies, on a
consolidated basis, are Solvent.
5. After giving effect to such Acquisition, no Default shall exist or
occur as a result of, and after giving effect to, such Other Company
Acquisition.
6. If such Other Company Acquisition is a merger, Other Company that is
the acquiring party will be the surviving entity after giving effect to
such merger;
7. (a) The aggregate purchase price with respect to such Other
Company Acquisition is
$ ;
(b) The EBITDA of the Person acquired (for the four (4) fiscal
quarters ending on the most recently ended fiscal period prior
to the date of the Acquisition) times five (5) is $ ; and
(c) The excess of (b) over (a) is $ .
-------------
8. The aggregate consideration for all Other Company Acquisitions does not
exceed the lesser of: (a) $3,000,000.00; and (b) 3% of the Total
Equity.
d-502322.6
SCHEDULES
- ii -
<PAGE>
SCHEDULE 1
COMMITMENTS AND WIRING INFORMATION
Administrative Agent
BankBoston, N.A.
100 Federal Street, MS 01-08-06
P.O. Box 2016
Boston, Massachusetts 02106
Attention: Walter J. Marullo
Fax No.: (617) 434-0819
Telephone No.: (617) 434-2318
Wiring Instructions:
Bank Boston, N.A.
ABA # 011-000-390
Reference: Prime Medical Services, Inc.
Attention: HT & ENV SVCS. ADM 50, 60
Account # 540-99647
Lender Commitment
- --------------------------------------------------------------------------------
BankBoston, N.A. $20,000,000.00
100 Federal Street, MS 01-08-06
P.O. Box 2016
Boston, Massachusetts 02106
Attention: Walter J. Marullo
Fax No.: (617) 434-0819
Telephone No.: (617) 434-2318
Wiring Instructions:
Bank Boston, N.A.
ABA # 011-000-390
Reference: Prime Medical Services, Inc.
Attention: HT & ENV SVCS. ADM 50, 60
Account # 540-99647
NationsBank of Texas, N.A. $20,000,000.00
515 Congress Avenue, 11th Floor
Austin, Texas 78701
Attention: Teena E. Belcik
Fax No.: (512) 397-2052
Telephone No.: (512) 397-2841
Wiring Instructions:
NationsBank of Texas, N.A.
1401 Elm Street
Dallas, Texas 75202
Credit Account No. 0180019828
ABA # 111000025
Reference: Prime Medical Services, Inc.
Attention: Teena E. Belcik
- --------------------------------------------------------------------------------
d-502322.6
SCHEDULES
- iii -
<PAGE>
100 Federal Street, MS 01-08-06
P.O. Box 2016
Boston, Massachusetts 02106
Attention: Walter J. Marullo
Fax No.: (617) 434-0819
Telephone No.: (617) 434-2318
Wiring Instructions:
iring Instructions:
Bank Boston, N.A.
ABA # 011-000-390
Reference: Prime Medical Services, Inc.
Attention: HT & ENV SVCS. ADM 50, 60
Account # 540-99647
Lender Commitment
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Bank One, Texas, N.A. $10,000,000.00
221 West 6th Street, Suite 200
Austin, TX 78701
Attention: Ed Lick
Fax No.: (512) 479-1565
Telephone No.: (512) 479-5730
Wiring Instructions:
Bank One, Texas, N.A.
ABA # 111000614
Acct: 0749905618
Reference: Prime Medical Services, Inc.
Loan Acct #: 1517169342
Attention: Lora Roberts
Telephone No.: (817) 884-4399
- --------------------------------------------------------------------------------
Credit Lyonnais New York Branch $10,000,000.00
1301 Avenue of the Americas
New York, NY 10019-6022
Attention: John Oberle
Fax No.: (212) 261-3440
Telephone No.: (212) 261-7344
Wiring Instructions:
Credit Lyonnais New York Branch
ABA # 0260-0807-3
Reference: Prime Medical Services
Loan Acct #: 01-88179-3701
Attention: Loan Servicing
Telephone No.: (212) 261-7313
------------------------
Fleet National Bank $10,000,000.00
One Federal Street
Mail Stop: MA OF DO7B
Boston, MA 02110
Attention: Ginger Stolzenthaler
Fax No.: (617) 346-4689
Telephone No.: (617) 346-4618
Wiring Instructions:
Fleet National Bank
ABA # 011000138
Reference: Prime Medical Svs.
Loan Acct #: G/L 1510351-03156
Attn:
Telephone No.: (617) 346-5490
------------------------
d-502322.6
SCHEDULES
- iv -
<PAGE>
100 Federal Street, MS 01-08-06
P.O. Box 2016
Boston, Massachusetts 02106
Attention: Walter J. Marullo
Fax No.: (617) 434-0819
Telephone No.: (617) 434-2318
Wiring Instructions:
iring Instructions:
Bank Boston, N.A.
ABA # 011-000-390
Reference: Prime Medical Services, Inc.
Attention: HT & ENV SVCS. ADM 50, 60
Account # 540-99647
Lender Commitment
- --------------------------------------------------------------------------------
----------------------
Imperial Bank $10,000,000.00
226 Airport Parkway
San Jose, CA 95110
Attention: Kelly Davis
Fax No.: (408) 451-8586
Telephone No.: (408) 451-8589
Wiring Instructions:
Imperial Bank
9920 South La Cienga Blvd.
Inglewood, CA 90301
Attn: Santa Clara Valley Regional Office
Routing # 122201444
Account Name to Credit: Prime Medical
Account Number to Credit: 717 015211
-----------------------------------------------------------
LaSalle National Bank $10,000,000.00
135 South LaSalle Street
Chicago, IL 60603
Attention: Jody Staszeky
Fax No.: (312) 904-6457
Telephone No.: (312) 904-5416
Wiring Instructions:
LaSalle National Bank
135 S. LaSalle Street
Chicago, IL 60603
ABA # 071000505
Credit Account No.: 1378018-7300
Attention: Pam Seitz
Telephone No.: (312) 904-8113
-----------------------------------------------
d-502322.6
SCHEDULES
- v -
<PAGE>
100 Federal Street, MS 01-08-06
P.O. Box 2016
Boston, Massachusetts 02106
Attention: Walter J. Marullo
Fax No.: (617) 434-0819
Telephone No.: (617) 434-2318
Wiring Instructions:
iring Instructions:
Bank Boston, N.A.
ABA # 011-000-390
Reference: Prime Medical Services, Inc.
Attention: HT & ENV SVCS. ADM 50, 60
Account # 540-99647
Lender Commitment
- --------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Cooperatieve Centrale Raiffeisen- $10,000,000.00
Boerenleenbank B.A. "Rabobank Nederland,"
New York Branch, Rabobank
245 Park Avenue
New York, NY 10167
Attention: Corporate Services Department
Fax No.: (212) 818-0233
Telephone No.: (212) 916-7800
With a Carbon Copy to:
Cooperatieve Centrale Raiffeisen-
Boerenleenbank B.A. "Rabobank Nederland,"
13355 Noel Road
Suite 1000
Dallas, TX 75240-6645
Attention: J. David Thomas
Fax No.: (972) 419-6315
Telephone No.: (972) 419-5266
Wiring Instructions:
Bank of New York for account of Rabobank
Nederland
ABA No.: 021000018
Name of Account: Rabobank Nederland
Account Number: 8026002533
Attention: Corporate Services
For further credit to: Prime Medical Services
- --------------------------------------------------------------------------------
d-502322.6
SCHEDULES
- vi -
<PAGE>
SCHEDULE 2
LIST OF GUARANTORS
1. Prime Medical Operating, Inc., a Delaware corporation
2. Prime Management, Inc., a Nevada Corporation
3. Prime Cardiac Rehabilitation Services, Inc., a Delaware corporation
4. Prime Diagnostic Services, Inc., a Delaware corporation
5. Prime Lithotripsy Services, Inc., a New York corporation
6. Prime Kidney Stone Treatment, Inc., a New Jersey corporation
7. Prime Diagnostic Corp. of Florida, a Delaware corporation
8. Prime Lithotripter Operations, Inc., a New York corporation
9. Prime Practice Management, Inc., a New York corporation
10. Texas Litho, Inc., a Delaware corporation
11. R.R. Litho, Inc., a Texas corporation
12. Ohio Litho, Inc., a Delaware corporation
13. Alabama Renal Stone Institute, Inc., an Alabama corporation
14. Sun Medical Technologies, Inc., a California corporation
15. Sun Acquisition, Inc., a California corporation
16. Lithotripters, Inc., a North Carolina corporation
17. Prime Medical Management, L.P., a Delaware limited partnership
18. Prostatherapies, Inc., a Delaware corporation
19. FastStart, Inc., a North Carolina corporation
20. National Lithotripters Association, Inc., a North Carolina corporation
21. MedTech Investments, Inc. a North Carolina corporation
22. Executive Medical Enterprises, Inc., a Delaware corporation
d-502322.6
SCHEDULES
- i -
<PAGE>
SCHEDULE 3
LIST OF PARTNERSHIPS
1. Metro Atlanta Stonebusters, G.P.
2. Shasta Diagnostic Medical Group, J.V.
3. Southern California Stone Center, L.L.C.
4. Kidney Stone of South Florida, L.C.
5. Texas ESWL/Laser Lithotripter, Ltd.
6. Ohio Mobile Lithotripter, Ltd.
7. Ohio Mobile Lithotripter II, Ltd.
8. ARKLATX Mobile Lithotripter Limited
9. Northern California Kidney Stone Center, Ltd.
10. Mobile Kidney Stone Centers, Ltd.
11. Northern California Lithotripsy Associates
12. Lithotripsy Institute of Northern California
13. California I Prostatherapy, L.P.
14. North Carolina Prostatherapy, L.P. 1
15. AK Associates, L.L.C.
16. Great Lakes Lithotripsy Partnership, L.P.
17. Fayetteville Lithotripters Limited Partnership - Arizona I
18. Fayetteville Lithotripters Limited Partnership - Arkansas I
19. California Lithotripter Limited Partnership II, L.P.
20. Florida Lithotripters Limited Partnership I
21. Indiana Lithotripters Limited Partnership I
22. Louisiana Lithotripters Investment Limited Partnership
23. Fayetteville Lithotripters Limited Partnership - Louisiana I
24. Montana Lithotripters Limited Partnership I
25. Pacific Medical Limited Partnership
26. San Diego Lithotripters Limited Partnership
27. Fayetteville Lithotripters Limited Partnership - South Carolina I
28. Fayetteville Lithotripters Limited Partnership - South Carolina II
29. Tennessee Lithotripters Limited Partnership
30. Texas Lithotripsy Limited Partnership I L.P.
31. Texas Lithotripsy Limited Partnership II L.P.
32. Texas Lithotripsy Limited Partnership IV L.P.
33. Texas Lithotripsy Limited Partnership V L.P.
34. Fayetteville Lithotripters Limited Partnership - Utah I
35. Fayetteville Lithotripters Limited Partnership - Virginia I
36. California Lithotripters Limited Partnership III, L.P.
37. Las Vegas Lithotripters Limited Partnership
38. Mountain Lithotripsy Limited Partnership - I
39. Texas Lithotripsy Limited Partnership III L.P.
40. Pacific Lithotripsy
41. Mountain Lithotripsy
42. Texas Lithotripsy Limited Partnership VI, L.P.
43. TENN-GA Stone Group Two, G.P.
44. Carolina Lithotripsy
45. California Lithotripsy Joint Venture
46. Texas Lithotripsy Joint Venture, L.L.C.
d-502322.6
SCHEDULES
- i -
<PAGE>
SCHEDULE 7.5
EXISTING LITIGATION
ROBERT E. COMPTON and BRUCE DUNN, vs. ROBERT DALE, M.D., INC., a California
professional corporation; ROBERT DALE; KERSTEN KRAFT, M.D., INC., a California
professional corporation; KERSTEN KRAFT, SAM JOHNSON; DONALD MARUSKA; NORTHERN
CALIFORNIA KIDNEY STONE CENTER, LTD., a California limited partnership; MOBILE
KIDNEY STONE CENTERS OF CALIFORNIA, LTD., a California limited partnership; SUN
MEDICAL TECHNOLOGIES, INC., a California corporation; PRIME MEDICAL SERVICES,
INC., a Texas corporation; MOBILE KIDNEY STONE CENTERS, INC., a California
corporation; HEALTH ADVANTAGE VENTURES, a California corporation; HEALTH
DIMENSIONS, INC., a California corporation; and DOES 1 through 200, Inclusive,
filed in the Superior Court of the State of California, County of Santa Cruz,
No. 133464 (Partners Derivative Action-Corporations Code ss.15702).
d-502322.6
SCHEDULES
- i -
<PAGE>
SCHEDULE 7.9
EXISTING DEBT
1. Promissory Note dated December 15, 1994, issued by Mobile Kidney Stone
Centers of California, Ltd. I to Imperial Bank in the amount of
$400,000.00.
Current Balance $200,000.00
2. Promissory Note dated August 5, 1991, issued by Texas Litho, Inc., to
Texas ESWL/Laser Lithotripter, Ltd., in the amount of $15,000.00.
Current Balance $15,000.00
3. Promissory Note dated August 1, 1991, issued by Ohio Litho, Inc., to
Ohio Mobile Lithotripter, Ltd., in the amount of $10,000.00.
Current Balance $10,000.00
4. Promissory Note dated December 17, 1990, issued by R.R. Litho, Inc., to
ARKLATX Mobile Lithotripter, Limited, in the amount of $10,000.00.
Current Balance $10,000.00
5. Promissory Note dated December 31, 1995, issued by Ohio Litho, Inc., to
Ohio Mobile Lithotripter II, Ltd., in the amount of $30,000.00.
Current Balance $30,000.00
6. Equipment Lease dated July 28, 1993 between Copelco Leasing Corp. and
Sun Medical Technology, Inc., in the amount of $28,097.00.
Current Balance $4,886.85
7. Promissory Note dated February 6, 1996, issued by Fayetteville
Lithotripters Limited Partnership - Arizona I, to First Citizens Bank
in the amount of $1,500,000.00.
Current Balance $408,111.43
8. Promissory Note dated August 26, 1996, issued by Mountain Lithotripsy
Limited Partnership I, to First Citizens Bank in the amount of
$1,459,706.25.
Current Balance $823,746.26
9. Promissory Note dated April 16, 1996, issued by Florida Limited
Partnership I, to First Citizens Bank in the amount of $1,435,000.00.
Current Balance $194,547.78
10. Promissory Note dated November 14, 1995, issued by Fayetteville
Lithotripters Limited Partnership - South Carolina I, to First Citizens
Bank in the amount of $600,000.00.
Current Balance $16,944.11
11. Promissory Note dated December 29, 1995, issued by R.R. Litho, Inc., to
ARKLATX Mobile Lithotripter, L.P., in the amount of $66,000.00.
Current Balance $66,000.00
12. Promissory Note dated December 31, 1996, issued by Ohio Litho Inc., to
Ohio Mobile Lithotripter, Ltd., in the amount of $30,890.00.
d-502322.6
SCHEDULES
- i -
<PAGE>
Current Balance $30,890.00
13. Promissory Note dated May 1, 1997, issued by Pacific Medical L.P., to
First Citizens Bank in the amount of $1,652,014.00.
Current Balance $1,225,490.05
14. All sums due pursuant to the Senior Subordinated Notes and the
guaranties thereof.
15. All sums due pursuant to outstanding earn-out obligations, including
sums payable to (a) AK Associates, L.L.C.; (b) TENN-GA Stone Group Two,
G.P.; and (c) Executive Medical Enterprises, Inc.
d-502322.6
SCHEDULES
- ii -
<PAGE>
SCHEDULE 7.14.1
CAPITALIZATION OF SUBSIDIARIES
Company Name Class/Series Par Value Authorized Outstanding
- --------------------------------------------------------------------------------
Subsidiaries 100% Owned
by Prime Medical
----------------
Services, Inc.
Prime Medical
Operating, Inc. Common $.05 10,000 1,000
Texas Litho, Inc. Common $.01 1,000 1,000
R.R. Litho, Inc. Common $.01 100,000 1,000
Ohio Litho, Inc. Common $.01 1,000 1,000
Lithotripters, Inc. Common no par 100,000 40,000
FastStart, Inc. Common no par 100,000 10,000
National Lithotripters
Association, Inc. Common no par 100,000 100
Prostatherapies, Inc. Common no par 1,000 100
Executive Medical
Enterprises, Inc. Common no par 1,000 246
MedTech Investments,
Inc. Common $.01 11,000 5,375
Subsidiaries 100% Owned
by Prime Medical
- -----------------------
Operating, Inc.
Prime Management, Inc. Common $1.00 1,000 1,000
Prime Cardiac
Rehabilitation
Services, Inc. Common no par 100 50
Prime Diagnostic
Services, Inc. Common no par 100 100
Prime Lithotripsy
Services, Inc. Common no par 200 60
Prime Diagnostic Corp.
of Florida Common no par 100 100
Prime Lithotripter
Operations, Inc. Common no par 200 200
Prime Practice
Management, Inc. Common $.01 1,000 100
Sun Medical
Technologies, Inc. Common no par 37,751,525 5,385,313
Preferred-A no par 3,853,475 3,853,475
Preferred-B no par 18,395,000 12,703,265
Subsidiaries 100% Owned by
Prime Lithotripsy
Services, Inc.
--------------
Prime Kidney Stone
Treatment, Inc. Common no par 1,000 1,000
Alabama Renal Stone
Institute, Inc. Common $1.00 1,000 1,000
Subsidiaries 100% Owned
by Sun Medical
Technologies, Inc.
------------------
Sun Acquisition, Inc. Common no par 10,000,000 100,000
d-502322.6
SCHEDULES
- i -
<PAGE>
SCHEDULE 7.14.2
LIST OF PARTNERSHIP INTERESTS
OWNED BY COMPANIES
%
1. Metro Atlanta Stonebusters, G.P. 60.00
2. Shasta Diagnostic Medical Group, J.V. 50.00
3. Southern California Stone Center, L.L.C. 32.50
4. Kidney Stone of South Florida L.C. 70.00
5. Texas ESWL/Laser Lithotripter, Ltd. 19.57
6. Ohio Mobile Lithotripter, Ltd. 18.7
7. Ohio Mobile Lithotripter II, Ltd. 27.33
8. ARKLATX Mobile Lithotripter Limited 19.552
9. Northern California Kidney Stone Center, Ltd. 38.1
10. Mobile Kidney Stone Centers, Ltd. 50.50
11. Northern California Lithotripsy Associates 50.05
12. Lithotripsy Institute of Northern California 50.05
13. Fayetteville Lithotripters Limited Partnership - Arizona I 34.41
14. Fayetteville Lithotripters Limited Partnership - Arkansas I 40.66
15. California Lithotripters Limited Partnership II, L.P. 20.00
16. Florida Lithotripters Limited Partnership I 22.15
17. Indiana Lithotripters Limited Partnership I 26.699
18. Louisiana Lithotripters Investment Limited Partnership 10.43
19. Fayetteville Lithotripters Limited Partnership - Louisiana I 27.4483
20. Montana Lithotripters Limited Partnership I 54.00
21. Pacific Medical Limited Partnership 41.00
22. San Diego Lithotripters Limited Partnership 29.329
23. Fayetteville Lithotripters Limited Partnership -
South Carolina I 39.5
24. Fayetteville Lithotripters Limited Partnership -
South Carolina II 32.33
25. Tennessee Lithotripters Limited Partnership 33.00
26. Texas Lithotripsy Limited Partnership I L.P. 46.50
27. Texas Lithotripsy Limited Partnership II L.P. 46.00
28. Texas Lithotripsy Limited Partnership IV L.P. 50.00
29. Texas Lithotripsy Limited Partnership V L.P. 45.91
30. Fayetteville Lithotripters Limited Partnership - Utah I 34.41
31. Fayetteville Lithotripters Limited Partnership - Virginia I 37.959
32. California Lithotripters Limited Partnership III, L.P. 17.71
33. Las Vegas Lithotripters Limited Partnership 28.00
34. Mountain Lithotripsy Limited Partnership - I 44.00
d-502322.6
SCHEDULES
- i -
<PAGE>
%
35. Texas Lithotripsy Limited Partnership III L.P.1 55.458
36. Pacific Lithotripsy, G.P. 90.91
37. Mountain Lithotripsy, G.P. 80.00
38. AK Associates, LLC 75.00
39. California I Prostatheraphy, L.P. 25.875
40. North Carolina Prostatherapy, LP 26.75
41. Great Lakes Lithotripsy Partnership, L.P. 20.00
42. Texas Lithotripsy Limited Partnership VI, L.P. 34.50
43. California Lithotripsy Joint Venture2 19.58
44. Texas Lithotripsy Joint Venture, L.L.C.2 47.07
45. TENN-GA Stone Group Two, G.P. 38.25
46. Carolina Lithotripsy 4.74
----------------
--------------------------------------------------------------
1 Includes Companies' G.P. and L.P. interests.
2 Includes Companies' direct/indirect ownership interests.
d-502322.6
SCHEDULES
- ii -
<PAGE>
SCHEDULE 7.15
AGREEMENTS
See Schedule 7.9.
d-502322.6
SCHEDULES
- i -
<PAGE>
SCHEDULE 7.16
COMPLIANCE WITH LEGAL REQUIREMENTS;
GOVERNMENTAL AUTHORIZATIONS
1. Prime Kidney Stone Treatment, Inc. ("PKST"), a subsidiary of the
Company, currently provides mobile lithotripsy equipment at four hospitals in
Illinois. Lithotripters are regulated by the Illinois Health Facilities Planning
Board ("Board"), which requires the issuance of a certificate of need ("CON") or
a written exemption before initiating lithotripsy services or purchasing a
lithotripter. PKST currently provides lithotripsy equipment at the four
hospitals pursuant to contracts it obtained in its acquisition of Fazio
Consulting, Inc., in 1994. Fazio Consulting had purchased the contracts from
Executive Medical Enterprises, Inc., in 1993. To the best knowledge of PKST,
Executive Medical Enterprises was authorized to provide lithotripsy equipment at
the four hospitals pursuant to exemptions which are granted by the Board in 1988
and 1990.
In 1997, a number of CON regulatory issues came to light. The following
have been identified:
(a) Although PKST believes that Executive Medical Enterprises was
initially authorized to provide lithotripsy equipment pursuant
to exemptions granted by the Board, PKST has no written
evidence that such exemptions were granted. PKST's belief that
exemptions were issued may be incorrect, and PKST may be
providing lithotripsy equipment at the four hospitals without
a CON or an exemption.
(b) PKST was not a party to the original exemptions which it
believes were issued by the Board. Therefore, it is not
certain as to the scope of the exemptions. The Board's
issuance of the exemptions may have been conditioned on terms
of which PKST is not aware. These terms may have been violated
by Executive Medical Enterprises, Fazio Consulting or PKST. If
violations have occurred, the exemptions may no longer be
valid.
(c) PKST has not given notice to the Board or received the Board's
consent regarding the acquisition of the hospital lithotripsy
equipment contracts in 1994 from Fazio Consulting. Under
Illinois CON law, the consent of the Board is necessary in
such transactions. To the best knowledge of PKST, Fazio
Consulting did not give notice to the Board or receive its
consent regarding the acquisition of the hospital lithotripsy
equipment contracts from Executive Medical Enterprises in
1993. PKST must obtain the consent of the Board to these
changes, and such consent may not be granted.
If the Board determines that PKST is providing lithotripsy equipment at
the four hospitals without a valid CON or exemption, or if it determines that
conditions to the CONs or exemptions have been violated, or if it determines
that PKST or Fazio Consulting has acted wrongfully by not obtaining the consent
of the Board regarding the acquisition of the hospital lithotripsy equipment
contracts, then the Board may prevent PKST from continuing to provide
lithotripsy equipment at the four hospitals. In addition, the Board may fine
PKST in an amount up to $10,000 per hospital, for a potential exposure of
$40,000. PKST has hired health care counsel in Illinois to work with it in
addressing these issues.
d-502322.6
SCHEDULES
- i -
<PAGE>
2. Fast Start, Inc., a North Carolina corporation - The corporation is not
in good standing due to failure to timely file its state franchise tax
report.
3. MedTech Investments, Inc., a North Carolina corporation - The
corporation is not in good standing due to failure to timely file its
state franchise tax report.
4. National Lithotripters Association, Inc., a North Carolina corporation
- The entity is a non-profit corporation which, by law, may be
proscribed from guaranteeing or securing the debt of other individuals
or entities.
d-502322.6
SCHEDULES
- ii -
<PAGE>
SCHEDULE 7.19
ENVIRONMENTAL MATTERS
NONE.
d-502322.6
SCHEDULES
- i -
<PAGE>
SCHEDULE 9.2
LIENS
<TABLE>
<S> <C> <C> <C> <C> <C>
DATE AND
TIME DESCRIPTION
NAME LOCATION SECURED PARTY FILE NO. OF FILING OF COLLATERAL
- ---- -------- ------------- -------- --------- -------------
Fayetteville Lithotripters Cumberland County First-Citizens Bank & Trust 001613 February 15, 1996 All accounts receivable,
Limited Partnership North Carolina P.O. Box 27568 at 9:00 a.m. 1 Siemens Lithostar
Arizona I Register of Deeds Raleigh, NC 27611 extracorporeal shock-wave
lithotripter and
Calumet Coach Lithostar
S/N 4005
Fayetteville Lithotripters North Carolina First-Citizens Bank & Trust 1309915 February 15, 1996 All accounts receivable,
Limited Partnership Secretary of State Company at 8:00 a.m. 1 Siemens Lithostar
Arizona I P.O. Box 27568 extracorporeal shock-wave
Raleigh, NC 27611 lithotripter and Calumet
Coach Lithostar S/N 4005
Fayetteville Lithotripters Cumberland County, First-Citizens Bank & Trust 010956 November 14, 1995 All accounts receivable
Limited Partnership North Carolina Company and 1 Lithostar
South Carolina I Register of Deeds P.O. Box 27568 extracorporeal shock-wave
Raleigh, NC 27611 lithotripter
Fayetteville Lithotripters North Carolina First-Citizens Bank & Trust 1281907 November 15, 1995 All accounts receivable
Limited Partnership Secretary of State Company at 8:00 a.m. and 1 Lithostar
South Carolina I P.O. Box 27568 extracorporeal
Raleigh, NC 27611 shock-wave lithotripter
Florida Lithotripters Florida Secretary First-Citizens Bank & Trust 950000078107 April 18,1995 All accounts receivable
Partnership I of State Company at 8:00 a.m.
P.O. Box 27568
Raleigh, NC 27611
Lithotripters, Inc. North Carolina First-Citizens Bank & Trust 1294590 December 28, 1995 1 Lithostar S/N 1187
Secretary of State Company at 8:00 a.m. and Calumet Coach VIN
P.O. Box 27568 44KFB648XKW217061
Raleigh NC 27611
Mountain Lithotripsy Colorado Secretary First-Citizens Bank & Trust 952045460 June 15, 1995 1 1995 Western Star
Limited Partnership I of State Company at 12:37 p.m. tractor-trailer
P.O. Box 789 VIN2WKPDCJH8SK936895
Fayetteville, NC 28302 with Siemens Medical
Systems, Inc. Lithostar
extracorporeal shock-
with Siemens Medical
Systems, Inc. Lithostar
extracorporeal shock-
wave lithotripter S/N
04004 and all accounts
receivable
</TABLE>
SCHEDULE
- i -
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
DATE AND
TIME DESCRIPTION
NAME LOCATION SECURED PARTY FILE NO. OF FILING OF COLLATERAL
- ---- -------- ------------- -------- --------- -------------
Mountain Lithotripsy Cumberland County, First-Citizens Bank & Trust 005722 June 14, 1995 1 1995 Western Star
Limited Partnership I North Carolina Company tractor-trailer VIN
Register of Deeds P.O. Box 789 2WKPDCJH8SK936895
Fayetteville, NC 28302 with Siemens Medical
Systems, Inc. Lithostar
extracorporeal shock-
wave lithotripter S/N
04004 and all accounts
receivable
Mountain Lithotripsy Nebraska Secretary of First-Citizens Bank & Trust 659814 June 14, 1995 1 1995 Western Star
Limited Partnership I State Company at 10:09 a.m. tractor-trailer
P.O. Box 789 VIN2WKPDCJH8SK936895 with
Fayetteville, NC 28302 Siemens Medical Systems,
Inc. Lithostar
extracorporeal shock-wave
lithotripter S/N 04004
and all accounts
receivable
Mountain Lithotripsy North Carolina First-Citizens Bank & Trust 1235086 June 15, 1995 1 1995 Western Star
Limited Partnership I Secretary of State Company at 8:00 a.m. tractor-trailer VIN
P.O. Box 789 2WKPDCJH8SK936895 with
Fayetteville, NC 28302 Siemens Medical Systems,
Inc. Lithostar
extracorporeal shock-wave
lithotripter S/N 04004
and all accounts
receivable
Prime Diagnostic Corp. Texas Secretary Copelco Leasing Corporation 93-154508 Aug. 9, 1993 1 Alpha III System 160
of Florida of State 1700 Suckle Highway Diagnostic Mammography
Pennsauken, NJ 08110 System S/N A31916
Prime Diagnostic Corp. Texas Secretary U.S. Concord, Inc. 92-163143 Aug. 17, 1992 1 Toshiba America Medical
of Florida of State 40 Richards Avenue at 8:00 a.m. Systems Model SSA-270A
Norwalk, CT 06856 Ultrasound System with
Spectral and Color
Doppler including all
parts, accessories and
attachments
Prime Lithotripter Alabama Secretary Alabama Lithotripsy 94-33480 Sept. 6, 1994 Brother fax machine,
Operations, Inc. of State Associates, Inc. at 2:30 p.m. Panasonic telephone, desk
2055 E South Boulevard, with return, computer
Suite 507 work station, 2 metal
Montgomery, AL 36116 shelves, wooden shelf,
metal file cabinet,
telephone number lease
agreements, accounts
receivable, prepaid
maintenance, all
governmental licenses
listed in Sch 3.6, and
all contract rights
listed in Sch 3.12
d-502322.6
SCHEDULE
- ii -
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
DATE AND
TIME DESCRIPTION
NAME LOCATION SECURED PARTY FILE NO. OF FILING OF COLLATERAL
- ---- -------- ------------- -------- --------- -------------
Prime Lithotripter Texas Secretary Alabama Lithotripsy 94-174429 Sept. 6, 1994 Brother fax machine,
Operations, Inc. of State Associates, Inc. at 8:00 a.m. Panasonic telephone, desk
2055 E. South Boulevard with return, computer
Suite 507 work station, 2 metal
Montgomery, AL 36116 shelves, wooden shelf,
metal file cabinet,
telephone number lease
agreements, accounts
receivable, prepaid
insurance, prepaid
maintenance,
all governmental licenses
listed Sch 3.6, and all
contract rights listed in
Sch 3.12
Prime Lithotripter Alabama Secretary Baptist Medical Center 94-33113 Sept. 2, 1994 Mon-A Therm Monitor, CO2
Operations, Inc. of State Montclair at 11:57 p.m. Monitor, Anesthesia Unit,
3500 Blue Lake Drive Monitor - Dinamap 8100,
Birmingham, AL 35243 Curix Auto Processor,
Lithotripter Unit,
I.R.I.S. Unit, Personal
Computer, Printer -
Thermal, NEC Monitor, and
Lithotripsy Trailer
Sun Medical California Secretary Copelco Leasing Corporation 93162570 Aug. 9, 1993 1 Versyss computerized
Technologies, Inc. of State 1700 Suckle Highway at 8:00 a.m. billing system with
Pennsauken, NJ 08110 hardware and software
</TABLE>
EXHIBIT 12
----------
PRIME MEDICAL SERVICES, INC. AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1998 AND 1997
(Unaudited)
Nine Months Ended
September 30,
1998 1997
---- ----
Income before income taxes and
after minority interest $10,951 $ 15,093
Undistributed equity income (41) (181)
Minority interest income of
subsidiaries with fixed charges 2,831 4,459
----- -----
Adjusted earnings 13,741 19,371
====== ======
Interest on debt 6,426 5,602
Debt issuance costs 4,982 360
----- ---
Total fixed charges 11,408 5,962
------ -----
Total available earnings
before fixed charges 25,149 25,333
====== ======
Ratio 2.2 4.2
=== ===
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted
from the September 30, 1998 Form 10-Q and is qualified in its
entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 3-MOS 9-MOS
<FISCAL-YEAR-END> DEC-31-1998 DEC-31-1998
<PERIOD-START> JUL-01-1998 JAN-01-1998
<PERIOD-END> SEP-30-1998 SEP-30-1998
<CASH> 32,563 32,563
<SECURITIES> 0 0
<RECEIVABLES> 21,419 21,419
<ALLOWANCES> 658 658
<INVENTORY> 0 0
<CURRENT-ASSETS> 61,442 61,442
<PP&E> 36,070 36,070
<DEPRECIATION> 17,026 17,026
<TOTAL-ASSETS> 234,441 234,441
<CURRENT-LIABILITIES> 20,671 20,671
<BONDS> 0 0
0 0
0 0
<COMMON> 193 193
<OTHER-SE> 86,431 86,431
<TOTAL-LIABILITY-AND-EQUITY> 234,441 234,441
<SALES> 0 0
<TOTAL-REVENUES> 28,936 76,760
<CGS> 0 0
<TOTAL-COSTS> 10,911 29,927
<OTHER-EXPENSES> 2,567 7,740
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 2,312 6,426
<INCOME-PRETAX> 6,527 10,951
<INCOME-TAX> 2,586 4,661
<INCOME-CONTINUING> 3,941 6,290
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> 3,941 6,290
<EPS-PRIMARY> 0.21 0.33
<EPS-DILUTED> 0.21 0.33
<FN>
NOTE: Due to the change in computing EPS per FASB No. 128, the tags per the
FDS schedule will correspond to FASB No. 128 as follows:
FDS tag FASB No. 128
EPS - Primary EPS - Basic
EPS - Diluted EPS - Diluted
</FN>
</TABLE>
