[CONFORMED COPY]
$2,800,000,000
CREDIT AGREEMENT
dated as of
January 30, 1997
among
▇▇▇▇▇ Healthcare Corporation
The Lenders, Managing Agents and Co-Agents Party Hereto
The Swingline Bank Party Hereto
The Bank of New York
The Bank of Nova Scotia
as Documentation Agents
Bank of America National Trust and Savings Association
as Syndication Agent
and
▇▇▇▇▇▇ Guaranty Trust Company of New York
as Administrative Agent
--------------------
Arranged by:
▇.▇. ▇▇▇▇▇▇ Securities Inc.
as Arranger
BancAmerica Securities, Inc.
BNY Capital Markets, Inc.
The Bank of Nova Scotia
as Co-Arrangers
TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS
SECTION 1.01. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS . . . . . . . . . . . . . .21
ARTICLE 2
THE CREDITS
SECTION 2.01. SYNDICATED BORROWINGS . . . . . . . . . . . . . . . . . . . . .22
SECTION 2.02. NOTICE OF SYNDICATED BORROWING. . . . . . . . . . . . . . . . .22
SECTION 2.03. MONEY MARKET BORROWINGS . . . . . . . . . . . . . . . . . . . .23
SECTION 2.04. NOTICE TO LENDERS; FUNDING OF LOANS . . . . . . . . . . . . . .27
SECTION 2.05. NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
SECTION 2.06. MATURITY OF LOANS . . . . . . . . . . . . . . . . . . . . . . .29
SECTION 2.07. OPTIONAL PREPAYMENTS OF SYNDICATED LOANS. . . . . . . . . . . .29
SECTION 2.08. NOTICE OF SYNDICATED PREPAYMENT . . . . . . . . . . . . . . . .29
SECTION 2.09. INTEREST RATES. . . . . . . . . . . . . . . . . . . . . . . . .30
SECTION 2.10. METHOD OF ELECTING INTEREST RATES . . . . . . . . . . . . . . .32
SECTION 2.11. FEES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
SECTION 2.12. TERMINATION OR REDUCTION OF COMMITMENTS . . . . . . . . . . . .34
SECTION 2.13. GENERAL PROVISIONS AS TO PAYMENTS . . . . . . . . . . . . . . .34
SECTION 2.14. FUNDING LOSSES. . . . . . . . . . . . . . . . . . . . . . . . .35
SECTION 2.15. COMPUTATION OF INTEREST AND FEES. . . . . . . . . . . . . . . .35
SECTION 2.16. SWINGLINE LOANS . . . . . . . . . . . . . . . . . . . . . . . .36
SECTION 2.17. LETTERS OF CREDIT . . . . . . . . . . . . . . . . . . . . . . .38
ARTICLE 3
CONDITIONS
SECTION 3.01. CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
SECTION 3.02. TERMINATION OF EXISTING COMMITMENTS . . . . . . . . . . . . . .48
SECTION 3.03. BORROWINGS AND ISSUANCES OR EXTENSIONS OF LETTERS OF CREDIT . .48
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The Table of Contents is not a part of this Agreement
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. CORPORATE EXISTENCE AND POWER . . . . . . . . . . . . . . . . .49
SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION. . . . . . . . . . . .50
SECTION 4.03. BINDING EFFECT. . . . . . . . . . . . . . . . . . . . . . . . .50
SECTION 4.04. FINANCIAL INFORMATION . . . . . . . . . . . . . . . . . . . . .50
SECTION 4.05. LITIGATION. . . . . . . . . . . . . . . . . . . . . . . . . . .51
SECTION 4.06. COMPLIANCE WITH ERISA . . . . . . . . . . . . . . . . . . . . .51
SECTION 4.07. COMPLIANCE WITH LAWS. . . . . . . . . . . . . . . . . . . . . .52
SECTION 4.08. ENVIRONMENTAL MATTERS . . . . . . . . . . . . . . . . . . . . .52
SECTION 4.09. TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53
SECTION 4.10. MATERIAL SUBSIDIARIES . . . . . . . . . . . . . . . . . . . . .53
SECTION 4.11. CERTAIN LAWS NOT APPLICABLE . . . . . . . . . . . . . . . . . .53
SECTION 4.12. FULL DISCLOSURE . . . . . . . . . . . . . . . . . . . . . . . .53
SECTION 4.13. CERTAIN DOCUMENTS . . . . . . . . . . . . . . . . . . . . . . .53
SECTION 4.14. LEGALITY OF ACQUISITION . . . . . . . . . . . . . . . . . . . .54
ARTICLE 5
COVENANTS
SECTION 5.01. INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . .54
SECTION 5.02. MAINTENANCE OF PROPERTY; INSURANCE. . . . . . . . . . . . . . .57
SECTION 5.03. CONDUCT OF BUSINESS, MAINTENANCE OF EXISTENCE . . . . . . . . .57
SECTION 5.04. COMPLIANCE WITH LAWS. . . . . . . . . . . . . . . . . . . . . .57
SECTION 5.05. INSPECTION OF PROPERTY, BOOKS AND RECORDS . . . . . . . . . . .58
SECTION 5.06. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS . . . . . . . . . .58
SECTION 5.07. NEGATIVE PLEDGE . . . . . . . . . . . . . . . . . . . . . . . .59
SECTION 5.08. DEBT OF SUBSIDIARIES. . . . . . . . . . . . . . . . . . . . . .61
SECTION 5.09. DEBT RATIO. . . . . . . . . . . . . . . . . . . . . . . . . . .62
SECTION 5.10. CONSOLIDATED NET WORTH. . . . . . . . . . . . . . . . . . . . .62
SECTION 5.11. FIXED CHARGE RATIO. . . . . . . . . . . . . . . . . . . . . . .62
SECTION 5.12. RESTRICTED PAYMENTS . . . . . . . . . . . . . . . . . . . . . .62
SECTION 5.13. RESTRICTION ON INVESTMENTS. . . . . . . . . . . . . . . . . . .63
SECTION 5.14. RESTRICTIONS ON INCLUDED EQUITY AFFILIATES. . . . . . . . . . .63
SECTION 5.15. RESTRICTION ON PREPAYING SUBORDINATED DEBT. . . . . . . . . . .64
SECTION 5.16. TRANSACTIONS WITH AFFILIATES. . . . . . . . . . . . . . . . . .65
SECTION 5.17. SENIOR STATUS . . . . . . . . . . . . . . . . . . . . . . . . .65
SECTION 5.18. PAYMENT OF DIVIDENDS BY MATERIAL SUBSIDIARIES . . . . . . . . .65
SECTION 5.19. RETIREMENT OF ORNDA DEBT . . . . . . . . . . . . . . . . . . . .65
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SECTION 5.20. USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . .65
ARTICLE 6
DEFAULTS
SECTION 6.01. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . .66
SECTION 6.02. NOTICE OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . .69
SECTION 6.03. CASH COVER. . . . . . . . . . . . . . . . . . . . . . . . . . .69
ARTICLE 7
THE AGENTS
SECTION 7.01. APPOINTMENT AND AUTHORIZATION . . . . . . . . . . . . . . . . .69
SECTION 7.02. AGENTS AND AFFILIATES . . . . . . . . . . . . . . . . . . . . .70
SECTION 7.03. ACTION BY THE ADMINISTRATIVE AGENT. . . . . . . . . . . . . . .70
SECTION 7.04. CONSULTATION WITH EXPERTS . . . . . . . . . . . . . . . . . . .70
SECTION 7.05. LIABILITY OF THE AGENTS . . . . . . . . . . . . . . . . . . . .70
SECTION 7.06. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . .71
SECTION 7.07. CREDIT DECISION . . . . . . . . . . . . . . . . . . . . . . . .71
SECTION 7.08. SUCCESSOR ADMINISTRATIVE AGENT. . . . . . . . . . . . . . . . .71
SECTION 7.09. FEES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72
SECTION 7.10. OTHER AGENTS. . . . . . . . . . . . . . . . . . . . . . . . . .72
ARTICLE 8
CHANGE IN CIRCUMSTANCE
SECTION 8.01. BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR UNFAIR. . . .72
SECTION 8.02. ILLEGALITY. . . . . . . . . . . . . . . . . . . . . . . . . . .73
SECTION 8.03. INCREASED COST AND REDUCED RETURN . . . . . . . . . . . . . . .73
SECTION 8.04. TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75
SECTION 8.05. BASE RATE LOANS SUBSTITUTED FOR AFFECTED EURO-DOLLAR LOANS. . .77
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . .78
SECTION 9.02. NO WAIVERS. . . . . . . . . . . . . . . . . . . . . . . . . . .78
SECTION 9.03. EXPENSES; INDEMNIFICATION . . . . . . . . . . . . . . . . . . .78
SECTION 9.04. SHARING OF SET-OFFS . . . . . . . . . . . . . . . . . . . . . .79
iii
SECTION 9.05. AMENDMENTS AND WAIVERS. . . . . . . . . . . . . . . . . . . . .80
SECTION 9.06. SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . . . . . .81
SECTION 9.07. NO RELIANCE ON MARGIN STOCK AS COLLATERAL . . . . . . . . . . .83
SECTION 9.08. CONFIDENTIALITY . . . . . . . . . . . . . . . . . . . . . . . .83
SECTION 9.09. WAIVER OF JURY TRIAL. . . . . . . . . . . . . . . . . . . . . .83
SECTION 9.10. GOVERNING LAW; SUBMISSION TO JURISDICTION . . . . . . . . . . .84
SECTION 9.11. COUNTERPARTS; INTEGRATION . . . . . . . . . . . . . . . . . . .84
Commitment Schedule
Pricing Schedule
Schedule 4.05 -- Pending Litigation
Exhibit A -- Note
Exhibit B -- Money Market Request
Exhibit C -- Money Market Invitation
Exhibit D -- Money Market Quote
Exhibit E -- Swingline Note
Exhibit F -- Senior Officer's Closing Certificate
Exhibit G -- Opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Special Counsel
for the Borrower
Exhibit H -- Opinion of ▇▇▇▇▇ ▇▇▇▇▇, General Counsel for the Borrower
Exhibit I -- Opinion of Special Counsel for the Administrative Agent
Exhibit J -- Assignment and Assumption Agreement
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CREDIT AGREEMENT
AGREEMENT dated as of January 30, 1997 among ▇▇▇▇▇ HEALTHCARE
CORPORATION, the LENDERS, MANAGING AGENTS, CO-AGENTS and SWINGLINE BANK party
hereto, THE BANK OF NEW YORK and THE BANK OF NOVA SCOTIA, as Documentation
Agents, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
Syndication Agent, and ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as
Administrative Agent.
WHEREAS, terms used in these recitals have the meanings assigned to
them in Section 1.01;
WHEREAS, the Borrower has agreed to acquire OrNda and its Subsidiaries
pursuant to the Merger Agreement;
WHEREAS, in connection with such Acquisition, the Borrower desires
to purchase, redeem or otherwise refinance some, but not all, of the
outstanding Debt of the Borrower, OrNda and their respective Subsidiaries;
WHEREAS, the Borrower desires to have available to it a credit
facility in the aggregate amount of $2,800,000,000 pursuant to which it may
(i) borrow to purchase, redeem or otherwise refinance such outstanding Debt,
(ii) borrow for the general corporate purposes (including working capital
needs) of the Borrower and its Subsidiaries after the Acquisition is
consummated and (iii) obtain Letters of Credit to meet the needs of the
Borrower and its Subsidiaries after the Acquisition is consummated; and
WHEREAS, this Agreement is intended by the Borrower to replace the
Borrower's Existing Credit Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. DEFINITIONS. The following terms, as used herein, have
the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.03.
"Acquisition" means the acquisition of OrNda and its Subsidiaries
by the Borrower as described in the Merger Agreement. "Adjusted EBITDA"
means, for any period of four consecutive Fiscal Quarters, Consolidated
EBITDA for such period adjusted as follows:
(i) by deducting, to the extent included in such Consolidated
EBITDA, the Borrower's Pro Rata Share of each Equity Affiliate's net
income for such period; and
(ii) by adding back, with respect to each Equity Affiliate that
is an Included Equity Affiliate on the Date of Determination, an amount
equal to the lesser of:
(x) the Borrower's Pro Rata Share of the sum of (A) such
Included Equity Affiliate's net income for such period plus (B) to
the extent deducted in determining such net income, its interest
expense, income taxes, depreciation and amortization, or
(y) the sum of (A) all dividends and other distributions
paid in cash by such Included Equity Affiliate during such period
to the Borrower and its Subsidiaries and (B) the Borrower's Pro Rata
Share of such Included Equity Affiliate's interest expense for such
period.
"Adjusted Interest Expense" means, for any period of four
consecutive Fiscal Quarters, the sum of (i) Consolidated Interest Expense for
such period and (ii) with respect to each Equity Affiliate that is an
Included Equity Affiliate at the end of such period, an amount equal to the
Borrower's Pro Rata Share of such Included Equity Affiliate's interest
expense for such period.
"Adjusted London Interbank Offered Rate" has the meaning set forth
in Section 2.09(b).
"Adjusted Rental Expense" means, for any period of four consecutive
Fiscal Quarters, the sum of (i) Consolidated Rental Expense for such period
and (ii) with respect to each Equity Affiliate that is an Included Equity
Affiliate at the end of such period, an amount equal to the Borrower's Pro
Rata Share of such Included Equity Affiliate's rental expense for such period.
2
"Adjusted Total Debt" means at any time, without duplication, the
sum of (i) the consolidated Debt of the Borrower and its Subsidiaries PLUS
(ii) the Borrower's Pro Rata Share of the Debt of each Included Equity
Affiliate MINUS (iii) the lesser of (x) the outstanding principal amount of
the Borrower's 6% Exchangeable Subordinated Notes due 2005 or (y) the
aggregate market value of the shares of common stock of Vencor, Inc. for
which such outstanding notes are exchangeable.
"Administrative Agent" means ▇▇▇▇▇▇ Guaranty Trust Company of New
York, in its capacity as Administrative Agent for the Lenders hereunder, and
its successors in such capacity.
"Administrative Questionnaire" means, with respect to each Lender,
an administrative questionnaire in the form prepared by the Administrative
Agent and submitted to the Administrative Agent (with a copy to the Borrower)
duly completed by such Lender.
"Affiliate" means, with respect to any Person, (i) any Person that
directly, or indirectly through one or more intermediaries, controls such
Person (a "Controlling Person") or (ii) any Person which is controlled by or
is under common control with a Controlling Person. As used herein, the term
"control" means possession, directly or indirectly, of the power to direct or
cause the direction of the management of a Person by voting securities, by
contract or otherwise.
"Agents" means the Administrative Agent, the Documentation Agents
and the Syndication Agent, and "Agent" means any one of them. "Aggregate
Investment in Equity Affiliates" has the meaning set forth in Section 5.13(a).
"Aggregate LC Exposure" means at any time the sum, without
duplication, of (i) the aggregate amount that is (or may thereafter become)
available for drawing under all Letters of Credit outstanding at such time
and (ii) the aggregate unpaid amount of all LC Reimbursement Obligations
outstanding at such time.
"Applicable Lending Office" means, with respect to any Lender, (i)
in the case of its Base Rate Loans and its participations in Letters of
Credit, its Domestic Lending Office, (ii) in the case of its Euro-Dollar
Loans, its Euro-Dollar Lending Office and (iii) in the case of its Money
Market Loans, its Money Market Lending Office.
3
"Arranger" means ▇.▇. ▇▇▇▇▇▇ Securities Inc.
"Assignee" has the meaning set forth in Section 9.06(c).
"Availability Period" means the period from and including the
Closing Date to but excluding the Termination Date.
"Base Rate" means, for any day, a rate per annum equal to the
higher of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus
the Federal Funds Rate for such day. "Base Rate Borrowing" means a borrowing
of Base Rate Loans pursuant to Section 2.01 or 2.16(h).
"Base Rate Loan" means a Syndicated Loan which bears interest at
the Base Rate (or any higher rate determined pursuant to Section 2.09(a))
pursuant to the applicable Notice of Syndicated Borrowing or Notice of
Interest Rate Election or the provisions of Section 2.16(h) or Article 8.
"Borrower" means ▇▇▇▇▇ Healthcare Corporation, a Nevada
corporation, and its successors.
"Borrower's Existing Credit Agreement" means the $1,550,000,000
Credit Agreement dated as of March 1, 1996 among the Borrower, the Lenders
and Managing Agents party thereto, Bank of America National Trust and Savings
Association as Documentation Agent, The Bank of New York as Syndication Agent
and ▇▇▇▇▇▇ Guaranty Trust Company of New York as Administrative Agent, as in
effect immediately before the Closing Date.
"Borrower's Pro Rata Share" means:
(i) with respect to the Debt of any Included Equity Affiliate
at any date, a percentage of such Debt equal to the percentage of such
Equity Affiliate's net income (or net loss) to be included in
determining, in accordance with GAAP, the consolidated net income of
the Borrower and its Subsidiaries for periods after such date
(assuming no change in any relevant ownership interests); and
(ii) with respect to the net income, interest expense, rental
expense, income taxes, depreciation, amortization and other non-cash
charges (if similar to depreciation and amortization) of any Equity
Affiliate for any period of four consecutive Fiscal Quarters, a
percentage
4
thereof equal to the percentage of such Equity Affiliate's net income
(or net loss) for such period included in determining, on a Pro Forma
Basis, the consolidated net income of the Borrower and its
Subsidiaries for such period.
"Borrowing" means a Syndicated Borrowing, a Money Market Borrowing
or a Swingline Borrowing.
"Closing Date" means the date on which all the conditions set forth in
Section 3.01 have been satisfied (or waived in accordance with Section 9.05).
"Co-Agents" means the Lenders designated as Co-Agents on the
signature pages hereof, in their respective capacities as Co-Agents in
connection with the credit facility provided hereunder.
"Co-Arrangers" means BancAmerica Securities, Inc., BNY Capital
Markets, Inc. and The Bank of Nova Scotia.
"Combined Companies" means the Borrower and its Subsidiaries and
OrNda and its Subsidiaries.
"Commitment" means (i) with respect to any Lender listed on the
Commitment Schedule, the amount set forth opposite its name on the Commitment
Schedule as its Commitment or (ii) with respect to any Assignee, the amount
of the transferor Lender's Commitment assigned to such Assignee pursuant to
Section 9.06(c), in each case as such amount may be reduced from time to time
pursuant to Section 2.12 or changed as result of an assignment pursuant to
Section 9.06(c). The term "Commitment" does not include the Swingline
Commitment.
"Commitment Percentage" means, with respect to any Lender at any
time, the percentage which the amount of such Lender's Commitment at such
time represents of the aggregate amount of all the Lenders' Commitments at
such time. At any time after the Commitments shall have terminated, the term
"Commitment Percentage" shall refer to a Lender's Commitment Percentage
immediately before such termination, adjusted to reflect any subsequent
assignments pursuant to Section 9.06(c).
"Commitment Schedule" means the Commitment Schedule attached hereto.
5
"Consolidated EBITDA" means, for any period of four consecutive
Fiscal Quarters, the sum of (i) the consolidated net income of the Borrower
and its Subsidiaries for such period plus (ii) to the extent deducted in
determining such consolidated net income, the sum of (A) interest expense,
(B) income taxes and (C) depreciation, amortization and other similar
non-cash charges, all determined on a Pro Forma Basis; PROVIDED that
Consolidated EBITDA shall be calculated so as to exclude the effect of (x)
any gain or loss that is classified as extraordinary in accordance with GAAP
and (y) any gain or loss from any sale or other disposition of any Healthcare
Facility, any Healthcare Business or any Equity Interest in any Person.
"Consolidated Interest Expense" means, for any period of four
consecutive Fiscal Quarters, the consolidated interest expense of the
Borrower and its Subsidiaries for such period, determined on a Pro Forma
Basis.
"Consolidated Net Worth" means, at any time, the consolidated
stockholders' equity of the Borrower and its Subsidiaries at such time.
"Consolidated Rental Expense" means, for any period of four
consecutive Fiscal Quarters, the consolidated rental expense of the Borrower
and its Subsidiaries for such period, determined on a Pro Forma Basis.
"Continuing Director" means (i) any individual who is a director of
the Borrower on the date of this Agreement and (ii) any individual who
becomes a director of the Borrower after the date of this Agreement and is
elected or nominated for election as a director of the Borrower by a majority
of the individuals who were Continuing Directors immediately before such
election or nomination.
"Credit Exposure" means, with respect to any Lender at any time,
(i) the amount of its Commitment at such time or (ii) if its Commitment shall
have terminated, an amount equal to the sum of the aggregate outstanding
principal amount of its Loans plus its LC Exposure at such time plus any
participation in Swingline Loans held by it pursuant to Section 2.16(h).
"Date of Determination", when used with respect to determining any
amount for any period of four consecutive Fiscal Quarters, means (i) the last
day of such period, if such amount is being determined for purposes of
Section 5.11 or the Pricing Schedule, or (ii) the day as of which the debt
ratio is being determined, if such amount is being determined for purposes of
Section 5.09.
6
"Debt" of any Person means at any date, without duplication, (i)
all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar
instruments, (iii) all obligations of such Person to pay the deferred
purchase price of property or services, except trade accounts payable arising
in the ordinary course of business and deferred compensation payable to
members of management of such Person, (iv) all obligations of such Person as
lessee which are capitalized in accordance with GAAP and (v) all Guarantees
by such Person of obligations of other Persons of the types described in the
foregoing clauses (i) through (iv), inclusive (any such Guarantee to be
included in any calculation of the amount of such Person's Debt at an amount
equal to the principal amount guaranteed thereby). If such Person Guarantees
Debt of another Person by causing a letter of credit to be issued in support
thereof, the "Debt" of such Person includes (without duplication) such
Person's obligation to reimburse the issuing bank for drawings (including any
future drawings) in respect of principal under such letter of credit.
"Default" means any condition or event which constitutes an Event
of Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default. "Domestic Business Day"
means any day except a Saturday, Sunday or other day on which commercial
banks in New York City are authorized by law to close.
"Domestic Lending Office" means, as to each Lender, its office
located at its address set forth in its Administrative Questionnaire (or
identified in its Administrative Questionnaire as its Domestic Lending
Office) or such other office as such Lender may hereafter designate as its
Domestic Lending Office by notice to the Borrower and the Administrative
Agent.
"Environmental Laws" means any and all federal, state and local
statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating
to the environment, the effect of the environment on human health or to
emissions, discharges or releases of pollutants, contaminants, Hazardous
Substances or wastes into the environment including, without limitation,
ambient air, surface water, ground water or land, or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, Hazardous Substances or
wastes or the clean-up or other remediation thereof.
7
"Equity Affiliate" means, at any date, a Person in which the
Borrower or a Subsidiary has an Equity Interest that would be accounted for
on the equity method in the Borrower's consolidated financial statements if
such statements were prepared as of such date. If such Person has any
consolidated subsidiaries, the term "Equity Affiliate" shall mean such Person
and its consolidated subsidiaries, and all amounts to be determined for
purposes of this Agreement with respect to such Equity Affiliate shall be
determined with respect to such Person and its consolidated subsidiaries on a
consolidated basis. For any period prior to the Closing Date, the term
"Equity Affiliate" includes any affiliate of OrNda that is an Equity
Affiliate immediately after the Closing Date.
"Equity Interest" means (i) in the case of a corporation, any
shares of its capital stock, (ii) in the case of a partnership, any
partnership interest (whether general or limited), (iii) in the case of any
other business entity, any participation or other interest in the equity or
profits thereof or (iv) any warrant, option or other right to acquire any
Equity Interest described in the foregoing clauses (i), (ii) and (iii), other
than a right to convert a debt security into, or exchange a debt security
for, any such Equity Interest.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, or any successor statute.
"ERISA Group" means the Borrower, its Subsidiaries and all members
of a controlled group of corporations and all trades or businesses (whether
or not incorporated) under common control which, together with the Borrower
or any Subsidiary, are treated as a single employer under Section 414 of the
Internal Revenue Code.
"Euro-Dollar Borrowing" means a borrowing pursuant to Section 2.01
of Euro-Dollar Loans having the same initial Interest Period. "Euro-Dollar
Business Day" means any Domestic Business Day on which commercial banks are
open for international business (including dealings in dollar deposits) in
London.
"Euro-Dollar Lending Office" means, as to each Lender, its office,
branch or Affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or Affiliate of such
Lender as it may hereafter designate as its Euro-Dollar Lending Office by
notice to the Borrower and the Administrative Agent.
8
"Euro-Dollar Loan" means a Syndicated Loan which bears interest at
a Euro-Dollar Rate pursuant to the applicable Notice of Syndicated Borrowing
or Notice of Interest Rate Election.
"Euro-Dollar Margin" means a rate per annum determined in
accordance with the Pricing Schedule.
"Euro-Dollar Rate" means a rate of interest determined pursuant to
Section 2.09(b) or (c) on the basis of an Adjusted London Interbank Offered
Rate.
"Euro-Dollar Reference Banks" means the principal London offices of
▇▇▇▇▇▇ Guaranty Trust Company of New York, Bank of America National Trust and
Savings Association, The Bank of New York and The Bank of Nova Scotia.
"Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.09(b).
"Events of Default" has the meaning set forth in Section 6.01.
"Evergreen Letter of Credit" means a Letter of Credit that is
automatically extended unless the relevant LC Issuing Bank gives notice to
the beneficiary thereof stating that such Letter of Credit will not be
extended.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Facility Fee Rate" means a rate per annum determined in accordance
with the Pricing Schedule.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New York on the
Domestic Business Day next succeeding such day, PROVIDED that (i) if such day
is not a Domestic Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Domestic Business Day as
so published on the next succeeding Domestic Business Day, and (ii) if no
such rate is so published on such next succeeding Domestic Business Day, the
Federal Funds Rate for such day shall be the average rate quoted to ▇▇▇▇▇▇
Guaranty Trust Company of New York on such day on such transactions as
determined by the Administrative Agent.
9
"Financial Obligations" of any Person means at any date, without
duplication:
(i) Debt of such Person,
(ii) all obligations of such Person to reimburse any bank or
other Person in respect of amounts paid under a letter of credit or
similar instrument or to make any payment pursuant to a Hedging
Obligation,
(iii) all Debt that is secured by a Lien on any asset of such
Person but is not otherwise an obligation of such Person, PROVIDED that
the amount of any Financial Obligation described in this clause (iii)
shall be deemed to be equal to the lesser of the amount of the relevant
Debt or the book value of the asset or assets of such Person securing
such Debt, and
(iv) all Guarantees by such Person of Financial Obligations of
other Persons of the types described in clauses (i) and (ii) of this
definition.
"Financing Documents" means this Agreement (including the Schedules and
Exhibits hereto), the Notes and the Swingline Note, and "Financing Document"
means any one of them.
"Fiscal Quarter" means a fiscal quarter of the Borrower.
"Fiscal Year" means a fiscal year of the Borrower.
"GAAP" means at any time generally accepted accounting principles as
then in effect in the United States, applied on a basis consistent (except
for changes with which the Borrower's independent public accountants have
concurred) with the most recent audited consolidated financial statements of
the Borrower and its Subsidiaries theretofore delivered to the Lenders.
"Group of Loans" means at any time a group of Syndicated Loans
consisting of (i) all Syndicated Loans which are Base Rate Loans at such time
or (ii) all Syndicated Loans which are Euro-Dollar Loans having the same
Interest Period at such time; PROVIDED that, if a Loan of any particular
Lender is converted to or made as a Base Rate Loan pursuant to Section 8.02
or 8.05, such Loan shall be included in the same Group or Groups of Loans
from time to time as it would have been in if it had not been so converted or
made.
10
"Guarantee" by any Person means any obligation, contingent or otherwise,
of such Person directly or indirectly guaranteeing any Debt or other payment
obligation of any other Person, including without limiting the generality of
the foregoing, any obligation, direct or indirect, contingent or otherwise,
of such Person (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other payment obligation (whether
arising by virtue of partnership arrangements, by agreement to keep-well, to
purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such Debt or
other payment obligation of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part), PROVIDED that the term
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Hazardous Substances" means any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives,
by-products and other hydrocarbons, or any substance having any constituent
elements displaying any of the foregoing characteristics.
"Healthcare Business" means any going concern healthcare business or any
other going concern business that is related or ancillary to one or more
Healthcare Facilities or healthcare businesses.
"Healthcare Facility" means a hospital, outpatient clinic, long-term
care facility, medical office building or other comparable facility that is
used or useful in providing healthcare services.
"Hedging Obligation" means, with respect to any Person, any obligation
of such Person under (i) any interest rate swap agreement, interest rate cap
agreement or interest rate collar agreement, (ii) any foreign exchange
contract or currency swap agreement or (iii) any other agreement or
arrangement of a type designed to protect a Person against fluctuations in
interest rates or currency exchange rates.
"Included Equity Affiliate" means, at any time, an Equity Affiliate that
the Borrower has theretofore designated, by written notice to the
Administrative Agent and the Lenders, as an Included Equity Affiliate for
purposes of this Agreement; PROVIDED that at such time the Borrower or a
Subsidiary has the right to receive distributions of substantially all of the
Borrower's Pro Rata Share of such Equity Affiliate's net income for future
periods free of any restriction except a restriction that the Borrower or
such Subsidiary may agree to after such time.
11
The Borrower may revoke any such designation by written notice to the
Administrative Agent and the Lenders at any time.
"Indemnitee" has the meaning set forth in Section 9.03(b).
"Interest Period" means: (1) with respect to each Euro-Dollar Loan, the
period commencing on the date of borrowing specified in the applicable Notice
of Syndicated Borrowing or on the date specified in an applicable Notice of
Interest Rate Election and ending one, two, three or six months thereafter,
as the Borrower may elect in the applicable notice; PROVIDED that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case such Interest Period
shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date;
(2) with respect to each Money Market LIBOR Borrowing, the period
commencing on the date of such Borrowing and ending such whole number of
months thereafter as the Borrower may elect in accordance with Section 2.03;
PROVIDED that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case such Interest Period
shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
12
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date; and
(3) with respect to each Money Market Absolute Rate Borrowing, the
period commencing on the date of such Borrowing and ending such number of
days thereafter (but not less than 7 days) as the Borrower may elect in
accordance with Section 2.03; PROVIDED that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"Investment" means, with respect to any Person, any investment by such
Person in any other Person (including an Affiliate) in the form of loans,
capital contributions (excluding commission, travel and similar advances to
officers and employees made in the ordinary course of business), purchases or
other acquisitions for consideration of Debt, Equity Interests or other
securities and all other items that are or would be classified as investments
on a balance sheet prepared in accordance with GAAP.
"Investment Grade Rating" means a rating of senior long-term unsecured
debt securities of the Borrower without any third party credit support as
(i) BBB- or higher by S&P and (ii) Baa3 or higher by Moody's.
"LC Exposure" means, with respect to any Lender at any time, an amount
equal to its Commitment Percentage of the Aggregate LC Exposure at such time.
"LC Fee Rate" means a rate per annum determined in accordance with the
Pricing Schedule.
"LC Indemnitees" has the meaning set forth in Section 2.17(m).
"LC Issuing Bank" has the meaning set forth in Section 2.17(a).
13
"LC Office" means, with respect to any LC Issuing Bank, the office at
which it books any Letter of Credit issued by it.
"LC Payment Date" has the meaning set forth in Section 2.17(i).
"LC Reimbursement Due Date" has the meaning set forth in Section 2.17(j).
"LC Reimbursement Obligations" means, at any time, all obligations of
the Borrower to reimburse the LC Issuing Banks for amounts paid by the LC
Issuing Banks in respect of drawings under Letters of Credit, including any
portion of any such obligation to which a Lender has become subrogated
pursuant to Section 2.17(k).
"Lender" means each lender listed on the Commitment Schedule, each
Assignee which becomes a Lender pursuant to Section 9.06(c), and their
respective successors. The term "Lender" does not include the Swingline Bank
in its capacity as such.
"Lending Parties" means the Lenders, the LC Issuing Banks, the Managing
Agents, the Co-Agents, the Swingline Bank and the Agents.
"Letter of Credit" means a letter credit issued hereunder by an LC
Issuing Bank.
"LIBOR Auction" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the London Interbank Offered Rate
pursuant to Section 2.03.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has substantially the same practical effect as
a security interest, in respect of such asset. For purposes of this
Agreement, the Borrower or any Subsidiary shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement relating to such asset.
"Loan" means a Syndicated Loan or a Money Market Loan and "Loans" means
both of the foregoing. The term "Loan" does not include a Swingline Loan.
14
"London Interbank Offered Rate" has the meaning set forth in Section
2.09(b).
"Managing Agents" means the Lenders designated as Managing Agents on the
signature pages hereof, in their respective capacities as Managing Agents in
connection with the credit facility provided hereunder.
"Material Adverse Effect" means a material adverse effect on the
business, operations, properties, financial condition or prospects of the
Combined Companies, considered as a whole.
"Material Financial Obligations" means non-contingent Financial
Obligations (other than the Notes, the Swingline Note and the LC
Reimbursement Obligations) of the Borrower and/or one or more Subsidiaries,
arising in one or more related transactions, in an aggregate principal or
face amount exceeding $35,000,000; PROVIDED that, for purposes of this
definition and clause (g) of Section 6.01, (i) contingent obligations of the
Borrower or any Subsidiary to reimburse a bank or other Person for amounts
not yet drawn under a letter of credit or similar instrument shall be deemed
to be non-contingent (and to have been accelerated) if they are required to
be prepaid or cash collateralized as a result of a default under the relevant
reimbursement agreement and (ii) contingent obligations of the Borrower or
any Subsidiary under any Hedging Obligation shall be deemed to be
non-contingent (and to have been accelerated) if such Hedging Obligation is
terminated by reason of a default by the Borrower or any Subsidiary.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $35,000,000.
"Material Subsidiary" means any Subsidiary of the Borrower, except (i) a
Subsidiary that is not actively engaged in business and has assets of less
than $15,000,000 and liabilities of less than $15,000,000 or (ii) a
Subsidiary that is actively engaged in business and has assets of less than
$10,000,000 and liabilities of less than $10,000,000.
"Merger Agreement" means the Agreement and Plan of Merger dated as of
October 16, 1996 among the Borrower, OrNda and OHC Acquisition Co., a
wholly-owned subsidiary of the Borrower, as amended as of November 22, 1996.
"Metrocrest Reimbursement Agreement" means the Letter of Credit and
Reimbursement Agreement dated as of November 1, 1994 among the Borrower, the
banks party thereto, and The Bank of New York, as Issuing Bank and Agent
thereunder, as amended from time to time.
15
"Money Market Absolute Rate" has the meaning set forth in Section
2.03(d).
"Money Market Absolute Rate Loan" means a loan made or to be made by a
Lender pursuant to an Absolute Rate Auction.
"Money Market Borrowing" means a borrowing of Money Market Loans
pursuant to a LIBOR Auction or an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Lender, its Domestic
Lending Office or such other office, branch or Affiliate of such Lender as it
may hereafter designate as its Money Market Lending Office by notice to the
Borrower and the Administrative Agent; PROVIDED that any Lender may from time
to time by notice to the Borrower and the Administrative Agent designate
separate Money Market Lending Offices for its Money Market LIBOR Loans, on
the one hand, and its Money Market Absolute Rate Loans, on the other hand, in
which case all references herein to the Money Market Lending Office of such
Lender shall be deemed to refer to either or both of such offices, as the
context may require.
"Money Market LIBOR Loan" means a loan made or to be made by a Lender
pursuant to a LIBOR Auction (including such a loan bearing interest at the
Base Rate pursuant to Section 8.01(a)).
"Money Market Loan" means a Money Market LIBOR Loan or a Money Market
Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section 2.03(d).
"Money Market Quote" means an offer by a Lender to make a Money Market
Loan in accordance with Section 2.03.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group
during such five year period.
"New Public Debt" means $1,300,000,000 of senior notes and $700,000,000
of senior subordinated notes of the Borrower to be issued and sold
16
in an underwritten public offering as described in the New Public Debt
Prospectus.
"New Public Debt Prospectus" means the prospectus covering the offering
and sale of the New Public Debt, as filed with the SEC pursuant to SEC Rule
424(b) on January 27, 1997.
"Non-Recourse Purchase Money Debt" of any Person means Debt incurred to
finance additions to its property, plant and equipment (or to refinance Debt
incurred for such purpose); PROVIDED that the lender or other obligee of such
Debt has no recourse (except for breach of representations, warranties and/or
covenants customary in asset-based financing) to assets of such Person, the
Borrower or any Subsidiary other than the assets financed or refinanced by
such Debt and cash flows attributable to such assets.
"Notes" means promissory notes of the Borrower, substantially in the
form of Exhibit A hereto, issued hereunder to evidence the obligation of the
Borrower to repay the Loans (other than the Swingline Loans), and "Note"
means any one of such promissory notes.
"Notice of Borrowing" means a Notice of Syndicated Borrowing (as defined
in Section 2.02), a Notice of Money Market Borrowing (as defined in Section
2.03(f)) or a Notice of Swingline Borrowing (as defined in Section 2.16(b)).
"Notice of Interest Rate Election" has the meaning set forth in Section
2.10.
"OrNda" means OrNda HealthCorp, a Delaware corporation.
"OrNda's Existing Credit Agreement" means the Amended and Restated
Credit, Security, Guaranty and Pledge Agreement dated as of October 27, 1995
among OrNda, OrNda Hospital Corporation (formerly known as Summit Hospital
Corporation), AHM Acquisition Co., Inc., the Guarantors named therein, the
Lenders named therein and the Agents named therein, as amended from time to
time.
"OrNda Tender Offers" means tender offers and consent solicitations to
purchase for cash any and all of OrNda's 12.25% Senior Subordinated Notes due
2002 and 11.375% Senior Subordinated Notes due 2004 as described in the New
Public Debt Prospectus under the heading "Related Transactions -- The
Refinancing".
17
"Outstanding Committed Amount" means, with respect to any Lender at any
time, the sum of (i) the outstanding principal amount of each of its
Syndicated Loans, (ii) each outstanding participation in Swingline Loans (if
any) held by it pursuant to Section 2.16(h) and (iii) its LC Exposure, all
determined at such time after giving effect to any prior assignments by or to
such Lender pursuant to Section 9.06(c).
"Parent" means, with respect to any Lender, any Person controlling such
Lender.
"Participant" has the meaning set forth in Section 9.06(b).
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person
which was at such time a member of the ERISA Group for employees of any
Person which was at such time a member of the ERISA Group.
"Pricing Level" has the meaning set forth in the Pricing Schedule.
"Pricing Schedule" means the Pricing Schedule attached hereto.
"Prime Rate" means the rate of interest publicly announced by ▇▇▇▇▇▇
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"Pro Forma Basis", when used with respect to determining any amount for
any period of four consecutive Fiscal Quarters, means that if, at any time
after such period began and on or before the Date of Determination, the
Borrower or any of its Subsidiaries acquired or disposed of (i) an Equity
Interest in a Person that is (or by reason of such acquisition becomes) a
Subsidiary or an Equity Affiliate or (ii) a Healthcare Facility or Healthcare
Business, such amount shall be determined (to the extent practicable) as if
such Equity Interest, Healthcare Facility or Healthcare Business had been
acquired or disposed of at the beginning of such period (and as if the
consideration therefor had been given or received and
18
any related incurrence or repayment of Debt had occurred at such time);
PROVIDED that, in the case of the Borrower's acquisition of OrNda, such
amount shall be determined on the basis of the same assumptions, and after
giving effect to the same transactions and events as of the same dates, as
were used in preparing the pro forma financial information included in the
New Public Debt Prospectus under the heading "Pro Forma Financial
Information", except that the retirement of the debt subject to the OrNda
Tender Offers shall be given such effect only if (and to the extent that)
such debt has been acquired by the Borrower or one of its Subsidiaries, or
otherwise retired, on or before the Date of Determination.
"Rate Period" has the meaning set forth in the Pricing Schedule.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Lenders" means at any time Lenders having more than 50% of the
aggregate amount of the Credit Exposures at such time. "Restricted Asset
Transfer" means any sale or other transfer by the Borrower or any Subsidiary
(or by OrNda or any of its Subsidiaries after November 30, 1996) of any
Healthcare Facility, any Healthcare Business or any Equity Interest in any
Person (including, without limitation, any such transfer accomplished by
means of a merger or consolidation), except:
(i) a sale or other transfer to the Borrower or a Subsidiary;
(ii) a transfer accomplished by means of a merger or
consolidation of the Borrower permitted by Section 5.06(a);
(iii) a sale or other transfer of assets that were held for sale
as of November 30, 1996;
(iv) any issuance or sale by the Borrower of Equity Interests in
the Borrower;
(v) any sale or other transfer of Equity Interests in Vencor,
Inc., pursuant to the provisions of the Borrower's 6% Exchangeable
Subordinated Notes due 2005 or otherwise;
(vi) a sale or other transfer of Equity Interests in any Person
that is neither a Subsidiary nor an Equity Affiliate; and
19
(vii) any sale or other transfer of assets to an Equity Affiliate.
"S&P" means Standard & Poor's Ratings Services.
"SEC" means the United States Securities and Exchange Commission.
"Senior Officer of the Borrower" means an Executive Vice President, a
Senior Vice President or the Treasurer of the Borrower.
"Subsidiary" means, as to any Person at any date, any corporation or
other entity the accounts of which would be consolidated with those of such
Person in its consolidated financial statements if such statements were
prepared as of such date in accordance with GAAP. Unless otherwise
specified,
"Subsidiary" means a Subsidiary of the Borrower.
"Swingline Availability Period" means the period from and including the
Closing Date to but excluding the Swingline Maturity Date.
"Swingline Bank" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, in its
capacity as the Swingline Bank under the swingline facility described in
Section 2.16, and its successors in such capacity.
"Swingline Borrowing" means a borrowing of a Swingline Loan pursuant to
Section 2.16(a).
"Swingline Commitment" means the obligation of the Swingline Bank to
make Swingline Loans to the Borrower in aggregate principal amount at any one
time outstanding not to exceed $10,000,000.
"Swingline Loan" means a loan made by the Swingline Bank pursuant to
Section 2.16(a).
"Swingline Maturity Date" means the day that is 30 days before the
Termination Date.
"Swingline Note" has the meaning set forth in Section 2.16(d).
"Syndicated Borrowing" means a Base Rate Borrowing pursuant to Section
2.01 or Section 2.16(h) or a Euro-Dollar Borrowing pursuant to Section 2.01.
20
"Syndicated Loan" means a loan made pursuant to Section 2.01 or
Section 2.16(h); PROVIDED that, if any such loan or loans (or portions
thereof) are combined or subdivided pursuant to a Notice of Interest Rate
Election, the term "Syndicated Loan" shall refer to the combined principal
amount resulting from such combination or to each of the separate principal
amounts resulting from such subdivision, as the case may be.
"Termination Date" means January 31, 2002 or, if such day is not a
Euro-Dollar Business Day, the next preceding Euro-Dollar Business Day.
"Unfunded Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP as in effect from time to time; PROVIDED that, if the
Borrower notifies the Administrative Agent that the Borrower wishes to amend
any provision hereof to eliminate the effect of any change in GAAP on the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders wish to amend any provision hereof for
such purpose), then such provision shall be applied on the basis of GAAP as
in effect immediately before the relevant change in GAAP became effective,
until either such notice is withdrawn or such provision is amended in a
manner satisfactory to the Borrower and the Required Lenders.
21
ARTICLE 2
THE CREDITS
SECTION 2.01 SYNDICATED BORROWINGS. Each Lender severally agrees,
on the terms and conditions set forth in this Agreement, to make loans to the
Borrower pursuant to this Section from time to time during the Availability
Period; PROVIDED that, immediately after each such loan is made, such Lender's
Outstanding Committed Amount shall not exceed its Commitment. Each borrowing
under this Section shall be a Syndicated Borrowing made from the several Lenders
ratably in proportion to their respective Commitments. Each such Syndicated
Borrowing shall be in an aggregate amount of $10,000,000 or any larger multiple
of $1,000,000; PROVIDED that (i) any such Syndicated Borrowing may be in the
aggregate amount of the unused Commitments and (ii) if such Syndicated Borrowing
is made on the Swingline Maturity Date, such Syndicated Borrowing may be in the
aggregate amount of the Swingline Loans outstanding on such date. Within the
foregoing limits, the Borrower may borrow under this Section, repay, or to the
extent permitted by Section 2.07, prepay Syndicated Loans and reborrow at any
time during the Availability Period under this Section.
SECTION 2.01. NOTICE OF SYNDICATED BORROWING. The Borrower shall give
the Administrative Agent notice (a "Notice of Syndicated Borrowing") not later
than (x) 11:00 A.M. (New York City time) on the date of each Base Rate Borrowing
and (y) 1:00 P.M. (New York City time) on the third Euro-Dollar Business Day
before each Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a
Domestic Business Day in the case of a Base Rate
Borrowing or a Euro-Dollar Business Day in the case of
a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether such Borrowing is to be a Base Rate
Borrowing or a Euro-Dollar Borrowing, and
(iv) in the case of a Euro-Dollar Borrowing, the
duration of the initial Interest Period applicable thereto.
Each Interest Period specified in a Notice of Syndicated Borrowing shall
comply with the provisions of the definition of Interest Period.
22
SECTION 2.03. MONEY MARKET BORROWINGS
(a) THE MONEY MARKET OPTION. At any time during the Availability
Period, the Borrower may, as set forth in this Section, request the Lenders
to make offers to make Money Market Loans to the Borrower; PROVIDED that,
immediately after any such Money Market Loans are made and any Loans to be
repaid substantially concurrently therewith are repaid:
(i) if the Borrower has an Investment Grade
Rating, the aggregate outstanding principal amount of
the Money Market Loans shall be limited only by Section
3.03(c);
(ii) if the Borrower does not have an Investment
Grade Rating, but its senior long-term unsecured debt
securities without any third-party credit support are
rated BB+ or higher by S&P and Ba1 or higher by
Moody's, the aggregate outstanding principal amount of
the Money Market Loans shall not exceed the lesser of
(x) the amount permitted by Section 3.03(c) or
(y) $500,000,000;
(iii) if the Borrower's senior long-term unsecured
debt securities without any third-party credit support
are not rated BB+ or higher by S&P and Ba1 or higher by
Moody's, but are rated BB or higher by S&P and Ba2 or
higher by Moody's, the aggregate outstanding principal
amount of the Money Market Loans shall not exceed the
lesser of (x) the amount permitted by Section 3.03(c)
or (y) $250,000,000; and
(iv) if the Borrower's senior long-term unsecured
debt securities without any third-party credit support
are not rated BB or higher by S&P and Ba2 or higher by
▇▇▇▇▇'▇, the Borrower may not request or accept any
offers to make Money Market Loans.
The Lenders may, but shall have no obligation to, make such offers and the
Borrower may, but shall have no obligation to, accept any such offers in the
manner set forth in this Section.
(b) MONEY MARKET QUOTE REQUEST. When the Borrower wishes to
request offers to make Money Market Loans under this Section, it shall
transmit to the Administrative Agent by telex or facsimile transmission a
Money Market Quote Request substantially in the form of Exhibit B hereto so
as to be received no later than 1:00 P.M. (New York City time) on (x) the
fifth Euro-Dollar Business Day prior to the date of Borrowing proposed
therein, in the case of a LIBOR Auction or (y) the Domestic Business Day next
preceding the date of Borrowing proposed
23
therein, in the case of an Absolute Rate Auction (or, in either case, such
other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and shall have notified to the Lenders not later than the
date of the Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be
a Euro-Dollar Business Day in the case of a LIBOR
Auction or a Domestic Business Day in the case of an
Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which
shall be $10,000,000 or a larger multiple of $1,000,000;
(iii) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of
Interest Period, and
(iv) whether the Money Market Quotes requested are
to set forth a Money Market Margin or a Money Market
Absolute Rate.
The Borrower may request offers to make Money Market Loans or more than one
Interest Period in a single Money Market Quote Request. No Money Market
Quote Request shall be given within five Euro-Dollar Business Days (or such
other number of days as the Borrower and the Administrative Agent may agree)
of any other Money Market Quote Request.
(c) INVITATION FOR MONEY MARKET QUOTES. Promptly upon receipt of
a Money Market Quote Request, the Administrative Agent shall send to the
Lenders by telex or facsimile transmission an Invitation for Money Market
Quotes substantially in the form of Exhibit C hereto, which shall constitute
an invitation by the Borrower to each Lender to submit Money Market Quotes
offering to make the Money Market Loans to which such Money Market Quote
Request relates in accordance with this Section.
(d) SUBMISSION AND CONTENTS OF MONEY MARKET QUOTES. (i) Each
Lender may submit a Money Market Quote containing an offer or offers to make
Money Market Loans in response to any Invitation for Money Market Quotes.
Each Money Market Quote must comply with the requirements of this subsection
(d) and must be submitted to the Administrative Agent by telex or facsimile
transmission at its offices specified in or pursuant to Section 9.01 not
later than (x) 2:00 P.M. (New York City time) on the fourth Euro-Dollar
Business Day prior to the proposed date of Borrowing, in the case of a LIBOR
Auction or (y) 10:00 A.M. (New York City time) on the proposed date of
Borrowing, in the case of an
24
Absolute Rate Auction (or, in either case, such other time or date as the
Borrower and the Administrative Agent shall have mutually agreed and shall
have notified to the Lenders not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate Auction for which
such change is to be effective); PROVIDED that Money Market Quotes submitted
by the Administrative Agent (or any affiliate of the Administrative Agent) in
the capacity of a Lender may be submitted, and may only be submitted, if the
Administrative Agent or such affiliate notifies the Borrower of the terms of
the offer or offers contained therein not later than (x) one hour prior to
the deadline for the other Lenders, in the case of a LIBOR Auction or (y) 15
minutes prior to the deadline for the other Lenders, in the case of an
Absolute Rate Auction. Subject to Articles 3 and 6, any Money Market Quote
so made shall be irrevocable except with the written consent of the
Administrative Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall be substantially in the form of
Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan
for which each such offer is being made, which
principal amount (w) may be greater than or
less than the Commitment of the quoting
Lender, (x) must be $10,000,000 or a larger
multiple of $1,000,000, (y) may not exceed the
principal amount of Money Market Loans for
which offers were requested and (z) may be
subject to an aggregate limitation as to the
principal amount of Money Market Loans for
which offers being made by such quoting Lender
may be accepted,
(C) in the case of a LIBOR Auction, the margin
above or below the applicable London Interbank
Offered Rate (the "Money Market Margin")
offered for each such Money Market Loan,
expressed as a percentage (specified to the
nearest 1/10,000th of 1%) to be added to or
subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the
rate of interest per annum (specified to the
nearest 1/10,000th of 1%) (the "Money Market
Absolute Rate") offered for each such Money
Market Loan, and
(E) the identity of the quoting Lender.
25
A Money Market Quote may set forth up to five separate offers by the quoting
Lender with respect to each Interest Period specified in the related
Invitation for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with
Exhibit D hereto or does not specify all of
the information required by subsection
(d)(ii);
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to
those set forth in the applicable Invitation
for Money Market Quotes; or
(D) arrives after the time set forth in subsection
(d)(i).
(e) NOTICE TO BORROWER. The Administrative Agent shall promptly
notify the Borrower of the terms of (x) any Money Market Quote submitted by a
Lender that is in accordance with subsection (d) and (y) any Money Market
Quote that amends, modifies or is otherwise inconsistent with a previous
Money Market Quote submitted by such Lender with respect to the same Money
Market Quote Request. Any such subsequent Money Market Quote shall be
disregarded by the Administrative Agent unless such subsequent Money Market
Quote is submitted solely to correct a manifest error in such former Money
Market Quote. The Administrative Agent's notice to the Borrower shall
specify (A) the aggregate principal amount of Money Market Loans for which
offers have been received for each Interest Period specified in the related
Money Market Quote Request, (B) the respective principal amounts and Money
Market Margins or Money Market Absolute Rates, as the case may be, so offered
and (C) if applicable, limitations on the aggregate principal amount of Money
Market Loans for which offers in any single Money Market Quote may be
accepted.
(f) ACCEPTANCE AND NOTICE BY BORROWER. Not later than (x) 1:00
P.M. (New York City time) on the third Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) 11:00 A.M.
(New York City time) on the proposed date of Borrowing, in the case of an
Absolute Rate Auction (or, in either case, such other time or date as the
Borrower and the Administrative Agent shall have mutually agreed and shall
have notified to the Lenders not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate Auction for which
such change is to be effective), the Borrower shall notify the Administrative
Agent of its acceptance or
26
non-acceptance of the offers so notified to it pursuant to subsection (e).
In the case of acceptance, such notice (a "Notice of Money Market Borrowing")
shall specify the aggregate principal amount of offers for each Interest
Period that are accepted. Subject to the applicable limitation in subsection
(a) of this Section, the Borrower may accept any Money Market Quote in whole
or in part; PROVIDED that:
(i) the aggregate principal amount of each Money
Market Borrowing may not exceed the applicable amount
set forth in the related Money Market Quote Request,
(ii) the principal amount of each Money Market
Borrowing must be $10,000,000 or a larger multiple of $1,000,000,
(iii) acceptance of offers may only be made on the
basis of ascending Money Market Margins or Money Market
Absolute Rates, as the case may be, and
(iv) the Borrower may not accept any offer that is
described in subsection (d)(iii) or that otherwise
fails to comply with the requirements of this Agreement.
(g) ALLOCATION BY ADMINISTRATIVE AGENT. If offers are made by two
or more Lenders with the same Money Market Margins or Money Market Absolute
Rates, as the case may be, for a greater aggregate principal amount than the
amount in respect of which such offers are accepted for the related Interest
Period, the principal amount of Money Market Loans in respect of which such
offers are accepted shall be allocated by the Administrative Agent among such
Lenders as nearly as possible (in multiples of $1,000,000, as the
Administrative Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determinations by the Administrative Agent
of the amounts of Money Market Loans shall be conclusive in the absence of
manifest error.
SECTION 2.04. NOTICE TO LENDERS; FUNDING OF LOANS. (a) Upon
receipt of a Notice of Syndicated Borrowing or a Notice of Money Market
Borrowing, the Administrative Agent shall promptly notify each Lender
participating in such Borrowing of the contents of such Notice of Borrowing
and such Lender's share of such Borrowing. Such Notice of Borrowing shall
not thereafter be revocable by the Borrower.
(b) Not later than 1:00 P.M. (New York City time) on the date of
each such Borrowing, each Lender participating therein shall make available
its share of such Borrowing, in Federal or other funds immediately available
in New York
27
City, to the Administrative Agent at its address referred to in Section 9.01.
Unless the Administrative Agent determines that any applicable condition
specified in Article 3 has not been satisfied, the Administrative Agent shall
(i) apply the funds so received from the Lenders to repay all Swingline Loans
(if any) then outstanding, together with interest accrued thereon, and (ii)
make the remainder of such funds available to the Borrower at the
Administrative Agent's aforesaid address.
(c) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any such Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (b) of this Section and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made its share of such Borrowing available to the Administrative
Agent, such Lender and the Borrower severally agree to repay to the
Administrative Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the
Administrative Agent, at (i) in the case of the Borrower, a rate per annum
equal to the higher of the Federal Funds Rate and the interest rate
applicable to such Borrowing pursuant to Section 2.09 and (ii) in the case of
such Lender, the Federal Funds Rate. If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Loan included in such Borrowing for purposes of this
Agreement. If the Borrower shall repay such corresponding amount, such
repayment shall not affect any rights the Borrower may have against any
defaulting Lender.
SECTION 2.05. NOTES. (a) The Borrower's obligation to repay the
Loans of each Lender shall be evidenced by a single Note payable to the order
of such Lender for the account of its Applicable Lending Office.
(b) Each Lender may, by notice to the Borrower and the Administrative
Agent, request that its Base Rate Loans, its Euro-Dollar Loans or its Money
Market Loans be evidenced by a separate Note. Each such Note shall be
substantially in the form of Exhibit A hereto, with appropriate modifications
to reflect the fact that it evidences solely the relevant type of Loans.
Each reference in this Agreement to a "Note" or the "Notes" of such Lender
shall be deemed to refer to and include any or all of such Notes, as the
context may require.
28
(c) Upon receipt of each Lender's Note pursuant to Section
3.01(b), the Administrative Agent shall forward such Note to such Lender.
Each Lender shall record the date, amount and type of each Loan made by it
and the date and amount of each payment of principal made with respect
thereto, and may, if such Lender so elects in connection with any transfer or
enforcement of its Note, endorse on the schedule forming a part thereof
appropriate notations to evidence the foregoing information with respect to
each such Loan evidenced thereby then outstanding; PROVIDED that the failure
of any Lender to make any such recordation or endorsement shall not affect
the obligations of the Borrower under this Agreement or the Notes. Each
Lender is hereby irrevocably authorized by the Borrower so to endorse its
Note and to attach to and make a part of its Note a continuation of any such
schedule as and when required.
SECTION 2.06. MATURITY OF LOANS. (a) Each Syndicated Loan shall
mature, and the principal amount thereof shall be due and payable, on the
Termination Date.
(b) Each Money Market Loan shall mature, and the principal amount
thereof shall be due and payable, on the last day of the Interest Period
applicable thereto.
SECTION 2.07. OPTIONAL PREPAYMENTS OF SYNDICATED LOANS. The
Borrower may at its option, by Notice of Syndicated Prepayment given in
accordance with Section 2.08, prepay any Group of Loans (subject, in the case
of a Group of Euro-Dollar Loans, to Section 2.14), in each case in whole at
any time, or from time to time in part in amounts aggregating at least
$10,000,000, by paying the principal amount to be prepaid together with
interest accrued thereon to the date of prepayment. Each such optional
prepayment shall be applied to prepay ratably the Loans of the several
Lenders included in such Group of Loans.
SECTION 2.08. NOTICE OF SYNDICATED PREPAYMENT. (a) The Borrower
shall give the Administrative Agent notice (a "Notice of Syndicated
Prepayment") not later than (x) 11:00 A.M. (New York City time) on the date
of each prepayment of Base Rate Loans and (y) 1:00 P.M. (New York City time)
on the third Euro-Dollar Business Day before each prepayment of Euro-Dollar
Loans, specifying:
(i) the date of such prepayment, which shall be a Domestic
Business Day in the case of a prepayment of Base Rate Loans or a
Euro-Dollar Business Day in the case of a prepayment of
Euro-Dollar Loans,
29
(ii) the aggregate amount of such prepayment, and
(iii) the Group or Groups of Loans to which such
prepayment is to be applied.
If the Borrower fails to specify the Group or Groups of Loans to which any
such prepayment is to be applied, such Group or Groups of Loans shall be
selected by the Administrative Agent. Each repayment or prepayment of
Syndicated Loans shall be applied ratably to the Loans included in the Group
or Groups of Loans selected by the Borrower or the Administrative Agent, as
the case may be.
(b) Upon receipt of a Notice of Syndicated Prepayment, the
Administrative Agent shall promptly notify each relevant Lender of the
contents thereof and of such Lender's ratable share of such prepayment and
such Notice of Syndicated Prepayment shall not thereafter be revocable by the
Borrower.
SECTION 2.09. INTEREST RATES. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from and
including the date such Loan is made to but excluding the date it becomes
due, at a rate per annum equal to the Base Rate for such day. Such interest
shall be payable in arrears on the last Domestic Business Day of each Fiscal
Quarter and, with respect to the principal amount of any Base Rate Loan
converted to a Euro-Dollar Loan, on the date such amount is so converted.
Any overdue principal of or interest on any Base Rate Loan shall bear
interest, payable on demand, for each day until paid at a rate per annum
equal to the sum of 2% plus the Base Rate for such day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during each Interest Period applicable
thereto, at a rate per annum equal to the sum of the Euro-Dollar Margin for
such day plus the Adjusted London Interbank Offered Rate applicable to such
Interest Period. Such interest shall be payable for each Interest Period on
the last day thereof and, if such Interest Period is longer than three
months, three months after the first day thereof.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained
(rounded upward, if necessary, to the next higher 1/100 of 1%) by dividing
(i) the applicable London Interbank Offered Rate by (ii) 1.00 minus the
Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Interest
Period means the average (rounded upward, if necessary, to the next higher
1/16 of 1%) of the respective rates per annum at which deposits in dollars
are offered to each
30
of the Euro-Dollar Reference Banks in the London interbank market at
approximately 11:00 A.M. (London time) two Euro-Dollar Business Days before
the first day of such Interest Period in an amount approximately equal to the
principal amount of the Euro-Dollar Loan of such Euro-Dollar Reference Bank
to which such Interest Period is to apply and for a period of time comparable
to such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars
in respect of "Eurocurrency liabilities" (or in respect of any other category
of liabilities which includes deposits by reference to which the interest
rate on Euro-Dollar Loans is determined or any category of extensions of
credit or other assets which includes loans by a non-United States office of
any Lender to United States residents).
(c) Any overdue principal of or interest on any Euro-Dollar Loan shall
bear interest, payable on demand, for each day until paid, at a rate per
annum equal to the higher of (i) the sum of 2% plus the Euro-Dollar Margin
for such day plus the quotient obtained (rounded upward, if necessary, to the
next higher 1/100 of 1%) by dividing (x) the average (rounded upward, if
necessary, to the next higher 1/16 of 1%) of the respective rates per annum
at which one day (or, if such amount due remains unpaid more than three
Euro-Dollar Business Days, then for such other period of time not longer than
six months as the Administrative Agent may select) deposits in dollars in an
amount approximately equal to such overdue payment due to each of the
Euro-Dollar Reference Banks are offered to such Euro-Dollar Reference Bank in
the London interbank market for the applicable period determined as provided
above by (y) 1.00 minus the Euro-Dollar Reserve Percentage (or, if the
circumstances described in clause (a) or (b) of Section 8.01 shall exist, at
a rate per annum equal to the sum of 2% plus the Base Rate for such day) and
(ii) the sum of 2% plus the Euro-Dollar Margin for such day plus the Adjusted
London Interbank Offered Rate applicable to such Loan at the date such
payment was due.
(d) Each Euro-Dollar Reference Bank agrees to use its best efforts to
furnish quotations to the Administrative Agent as contemplated hereby. If
any Euro-Dollar Reference Bank does not furnish a timely quotation, the
Administrative Agent shall determine the relevant interest rate on the basis
of the quotation or quotations furnished by the remaining Euro-Dollar
Reference Bank
31
or Banks or, if none of such quotations is available on a timely basis, the
provisions of Section 8.01 shall apply.
(e) Subject to Section 8.01(a), each Money Market LIBOR Loan shall bear
interest on the outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the sum of the London
Interbank Offered Rate for such Interest Period (determined in accordance
with Section 2.09(b) as if the related Money Market LIBOR Borrowing were a
Syndicated Euro-Dollar Borrowing) plus (or minus) the Money Market Margin
quoted by the Lender making such Loan in accordance with Section 2.03. Each
Money Market Absolute Rate Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable thereto, at a
rate per annum equal to the Money Market Absolute Rate quoted by the Lender
making such Loan in accordance with Section 2.03. Such interest shall be
payable for each Interest Period on the last day thereof and, if such
Interest Period is longer than three months, at intervals of three months
after the first day thereof. Any overdue principal of or interest on any
Money Market Loan shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 2% plus the Base Rate for such
day.
SECTION 2.10. METHOD OF ELECTING INTEREST RATES. (a) The Loans
included in each Syndicated Borrowing shall bear interest initially at the
type of rate specified by the Borrower in the applicable Notice of Syndicated
Borrowing. Thereafter, the Borrower may from time to time elect to change or
continue the type of interest rate borne by each Group of Loans (subject in
each case to the provisions of Article 8), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect to
convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business
Day; and
(ii) if such Loans are Euro-Dollar Loans, the Borrower may elect
to convert such Loans to Base Rate Loans or elect to continue such Loans
as Euro-Dollar Loans for an additional Interest Period, in each case
effective on the last day of the then current Interest Period
applicable to such Loans.
Each such election shall be made by delivering a notice (a "Notice of
Interest Rate Election") to the Administrative Agent at least three
Euro-Dollar Business Days before the conversion or continuation selected in
such notice is to be effective. A Notice of Interest Rate Election may, if
it so specifies, apply to only a portion of the aggregate principal amount of
the relevant Group of Loans; PROVIDED that (i)
32
such portion is allocated ratably among the Loans comprising such Group and
(ii) the portion to which such Notice applies, and the remaining portion to
which it does not apply, are each $10,000,000 or any larger multiple of
$1,000,000.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to
which such notice applies;
(ii) the date on which the conversion or continuation
selected in such notice is to be effective, which shall comply
with the applicable clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be converted
to Euro-Dollar Loans, the duration of the initial Interest Period
applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans
for an additional Interest Period, the duration of such additional
Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Administrative Agent shall
promptly notify each Lender of the contents thereof and such notice shall not
thereafter be revocable by the Borrower. If the Borrower fails to deliver a
timely Notice of Interest Rate Election to the Administrative Agent for any
Group of Euro-Dollar Loans, such Loans shall be converted to Base Rate Loans
on the last day of the then current Interest Period applicable thereto.
SECTION 2.11. FEES. The Borrower shall pay to the Administrative
Agent, for the account of the Lenders ratably in proportion to their Credit
Exposures, a facility fee calculated for each day at the Facility Fee Rate
(determined for such day as provided in the Pricing Schedule) on the
aggregate amount of the Credit Exposures on such day. Such facility fee
shall accrue from and including the Closing Date to but excluding the date on
which the Credit Exposures are reduced to zero and shall be payable quarterly
on each March 31, June 30, September 30 and December 31 and on the date on
which the Credit Exposures are reduced to zero.
33
Section 2.12. TERMINATION OR REDUCTION OF COMMITMENTS. The Borrower may,
upon at least three Domestic Business Days' notice to the Administrative Agent,
(i) terminate the Commitments at any time, if there are no Syndicated Loans,
Swingline Loans or LC Exposures outstanding at such time, or (ii) ratably
reduce from time to time by an aggregate amount of $10,000,000 or any multiple
of $1,000,000 in excess thereof, the aggregate amount of the Commitments in
excess of the sum of the aggregate outstanding principal amount of all
Syndicated Loans and Swingline Loans and the Aggregate LC Exposure at such
time. Unless previously terminated, the Commitments shall terminate at the
close of business on the Termination Date.
Section 2.13. GENERAL PROVISIONS AS TO PAYMENTS. (a) The Borrower shall
make each payment of principal of, and interest on, the Loans and LC
Reimbursement Obligations, and of fees hereunder (other than fees payable
directly to the LC Issuing Banks), not later than 12:00 Noon (New York City
time) on the date when due, in Federal or other funds immediately available in
New York City, to the Administrative Agent at its address referred to in
Section 9.01. The Administrative Agent will promptly distribute to each Lender
its ratable share (if any) of each such payment received by the Administrative
Agent for the account of the Lenders. Whenever any payment of principal of, or
interest on, Base Rate Loans, Swingline Loans or LC Reimbursement Obligations
or any payment of fees shall be due on a day which is not a Domestic Business
Day, the date for payment thereof shall be extended to the next succeeding
Domestic Business Day. Whenever any payment of principal of, or interest on,
Euro-Dollar Loans shall be due on a day which is not a Euro-Dollar Business
Day, the date for payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case the date for payment thereof shall be the next
preceding Euro-Dollar Business Day. Whenever any payment of principal of, or
interest on, Money Market Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day. If the date for any payment of
principal is extended by operation of law or otherwise, interest thereon shall
be payable for such extended time.
(b) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to any Lenders hereunder
that the Borrower will not make such payment in full, the Administrative Agent
may assume that the Borrower has made such payment in full to the
Administrative Agent on such date and the Administrative Agent may, in reliance
upon such assumption, cause to be distributed to each Lender on such date an
amount equal to the amount then due such Lender. If and to the extent that the
Borrower shall not have so made such payment, each Lender shall repay to the
34
Administrative Agent forthwith on demand the amount so distributed to such
Lender together with interest thereon, for each day from the date such amount
is distributed to such Lender until the date such Lender repays such amount to
the Administrative Agent, at the Federal Funds Rate.
Section 2.14. FUNDING LOSSES. If the Borrower makes any payment of
principal with respect to any Euro-Dollar Loan or any Euro-Dollar Loan is
converted to a Base Rate Loan (pursuant to Article 2, 6 or 8 or otherwise) on
any day other than the last day of an Interest Period applicable thereto, or
the last day of an applicable period fixed pursuant to Section 2.09(c), or the
Borrower fails to borrow or prepay or convert any Euro-Dollar Loans after
notice has been given to any Lender in accordance with Section 2.04(a) or
2.10(c), the Borrower shall reimburse each Lender within 15 days after demand
for any resulting loss or expense incurred by it (or by an existing or
prospective Participant in the related Loan), including (without limitation)
any loss incurred in obtaining, liquidating or employing deposits from third
parties, but excluding loss of margin for the period after any such payment or
conversion or failure to borrow or prepay or convert, PROVIDED that such Lender
shall have delivered to the Borrower a certificate setting forth in reasonable
detail the amount of such loss or expense and the method of calculation
thereof, which certificate shall be conclusive in the absence of manifest error.
Section 2.15. COMPUTATION OF INTEREST AND FEES. (a) Interest based on the
Prime Rate hereunder shall be computed on the basis of a year of 365 days (or
366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
(b) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder and each Facility Fee Rate and LC Fee Rate
applicable hereunder. The Administrative Agent shall give prompt notice to the
Borrower and the relevant Lenders of each interest rate, Facility Fee Rate and
LC Fee Rate so determined, and its determination thereof shall be conclusive in
the absence of manifest error; PROVIDED that, if the Administrative Agent makes
such determinations for any Rate Period on the basis of an estimated Pricing
Level set forth in a certificate delivered by the Borrower pursuant to Section
5.01(e) and subsequently determines (or receives a certificate pursuant to
Section 5.01(e) establishing) that a higher Pricing Level applies during such
Rate Period, the Administrative Agent shall promptly notify the Borrower and
the Lenders of such higher Pricing Level and, within two Domestic Business Days
after receiving such notice, the Borrower shall pay to the Administrative
Agent, for the accounts
35
of the relevant Lenders, the additional interest and additional facility fees
and letter of credit fees that should have been paid prior to such time by
reason of the applicability of such higher Pricing Level. If the
Administrative Agent makes such determinations on the basis of a Pricing Level
estimated by the Borrower and subsequently determines (or receives a
certificate pursuant to Section 5.01(e) establishing) that a lower Pricing
Level applied during the relevant Rate Period, no adjustment shall be made for
any resulting overpayments of interest or facility fees theretofore made by the
Borrower on the basis of the higher Pricing Level estimated by it.
Section 2.16. SWINGLINE LOANS. (a) SWINGLINE COMMITMENT. The Swingline
Bank agrees, on the terms and conditions set forth in this Agreement, to make
loans to the Borrower pursuant to this Section from time to time during the
Swingline Availability Period; PROVIDED that, immediately after each such loan
is made, the aggregate outstanding principal amount of such loans shall not
exceed the Swingline Commitment. Each loan under this Section shall be in a
principal amount of at least $1,000,000 and shall bear interest for each day at
the Base Rate for such day. Within the foregoing limits, the Borrower may
borrow under this Section, repay Swingline Loans and reborrow at any time
during the Swingline Availability Period under this Section.
(b) NOTICE OF SWINGLINE BORROWING. The Borrower shall give the Swingline
Bank notice (a "Notice of Swingline Borrowing") not later than 2:00 P.M. (New
York City time) on the date of each Swingline Borrowing, specifying (i) the
date of such Borrowing, which shall be a Domestic Business Day, and (ii) the
amount of such Borrowing.
(c) FUNDING OF SWINGLINE LOANS. Not later than 3:00 P.M. (New York City
time) on the date of each Swingline Borrowing, the Swingline Bank shall, unless
the Swingline Bank determines that any applicable condition specified in
Article 3 has not been satisfied, make available the amount of such Swingline
Borrowing, in Federal or other funds immediately available in New York City, to
the Borrower at the Swingline Bank's address referred to in Section 9.01.
(d) SWINGLINE NOTE. The Borrower's obligation to repay the Swingline
Loans shall be evidenced by a single Note substantially in form of Exhibit E
hereto (the "Swingline Note").
(e) OPTIONAL PREPAYMENT OF SWINGLINE LOANS. The Borrower may prepay the
Swingline Loans in whole at any time, or from time to time in part in a
principal amount of at least $1,000,000, by giving notice of such prepayment to
the Swingline Bank not later than 12:00 Noon (New York City time) on the date
36
of prepayment and paying the principal amount to be prepaid, together with
interest accrued thereon to the date of prepayment, to the Swingline Bank at
its address referred to in Section 9.01, in Federal or other funds immediately
available in New York City, not later than 3:00 P.M. (New York City time) on
the date of prepayment.
(f) MANDATORY PREPAYMENT OF SWINGLINE LOANS. On the date of each
Borrowing pursuant to Section 2.01 or 2.03, the Borrower shall prepay all
Swingline Loans then outstanding, together with interest accrued thereon to the
date of prepayment.
(g) MATURITY OF SWINGLINE LOANS. All Swingline Loans outstanding on the
Swingline Maturity Date shall be due and payable on such date, together with
interest accrued thereon to such date.
(h) REFUNDING UNPAID SWINGLINE LOANS. If (i) the Swingline Loans are not
paid in full on the Swingline Maturity Date or (ii) the Swingline Loans become
immediately due and payable pursuant to Section 6.01, the Swingline Bank (or
the Administrative Agent on its behalf) may, by notice to the Lenders
(including the Swingline Bank, in its capacity as a Lender), require each
Lender to pay to the Swingline Bank an amount equal to such Lender's Commitment
Percentage of the aggregate unpaid principal amount of the Swingline Loans then
outstanding. Such notice shall specify the date on which such payments are to
be made, which shall be the first Domestic Business Day after such notice is
given. Not later than 12:00 Noon (New York City time) on the date so
specified, each Lender shall pay the amount so notified to it to the Swingline
Bank at its address referred to in Section 9.01, in Federal or other funds
immediately available in New York City. The amount so paid by each Lender
shall constitute a Base Rate Loan to the Borrower; PROVIDED that, if the
Lenders are prevented from making such Base Rate Loans to the Borrower by the
provisions of the United States Bankruptcy Code or otherwise, the amount so
paid by each Lender shall constitute a purchase by it of a participation in the
unpaid principal amount of the Swingline Loans (and interest accruing thereon
after the date of such payment). Each Lender's obligation to make such payment
to the Swingline Bank under this subsection (h) shall be absolute and
unconditional and shall not be affected by any circumstance, including, without
limitation, (i) any set-off, counterclaim, recoupment, defense or other right
which such Lender or any other Person may have against the Swingline Bank or
the Borrower, (ii) the occurrence or continuance of a Default or an Event of
Default or the termination of the Commitments, (iii) any adverse change in the
condition (financial or otherwise) of the Borrower or any other Person, (iv)
any breach of this Agreement by the Borrower or any other party hereto or (v)
any other circumstance, happening or
37
event whatsoever, whether or not similar to any of the foregoing; PROVIDED that
no Lender shall be obligated to make any payment to the Swingline Bank under
this subsection (h) with respect to a Swingline Loan made by the Swingline Bank
at a time when it knew that a Default had occurred and was continuing.
(i) TERMINATION OF SWINGLINE COMMITMENT. The Borrower may, upon at least
three Domestic Business Days' notice to the Administrative Agent, terminate the
Swingline Commitment at any time, if no Swingline Loans are outstanding at such
time. Unless previously terminated, the Swingline Commitment shall terminate
at the close of business on the Swingline Maturity Date.
Section 2.17. LETTERS OF CREDIT. (a) LC ISSUING BANKS. The Borrower may,
at any time, request any Lender to issue one or more letters of credit
hereunder. Any Lender may, but shall not be obligated to, agree to issue such
letters of credit. If any Lender so agrees, it shall send notice to the
Administrative Agent confirming its agreement, whereupon such Lender shall
become an "LC Issuing Bank" for the purposes hereof.
(b) ISSUANCE. Each LC Issuing Bank agrees, on the terms and conditions
set forth in this Agreement, to issue at the request of the Borrower the
Letters of Credit that such LC Issuing Bank has agreed with the Borrower to
issue; PROVIDED that (i) no Letter of Credit shall be issued after the date
that is thirty days before the Termination Date and (ii) immediately after each
such Letter of Credit is issued and participations therein are sold to the
Lenders as provided in this subsection:
(A) the Aggregate LC Exposure shall not exceed $250,000,000
and
(B) in the case of each Lender, its Outstanding Committed Amount
shall not exceed its Commitment.
Whenever an LC Issuing Bank issues a Letter of Credit hereunder, such LC
Issuing Bank shall be deemed, without further action by any party hereto, to
have sold to each Lender (including such LC Issuing Bank in its capacity as a
Lender), and each Lender shall be deemed, without further action by any party
hereto, to have purchased from such LC Issuing Bank, a participation in such
Letter of Credit, on the terms specified in this Section, equal to such
Lender's Commitment Percentage thereof.
(c) NOTICE OF PROPOSED ISSUANCE. With respect to each Letter of Credit,
the Borrower shall give the relevant LC Issuing Bank and the Administrative
38
Agent at least three Domestic Business Days' prior notice (i) specifying the
date such Letter of Credit is to be issued and (ii) describing the proposed
terms of such Letter of Credit and the nature of the transactions to be
supported thereby. Promptly after it receives such notice, the Administrative
Agent shall notify each Lender of the contents thereof.
(d) CONDITIONS TO ISSUANCE. No LC Issuing Bank shall issue any Letter of
Credit unless:
(i) such Letter of Credit shall be satisfactory in form and
substance to such LC Issuing Bank,
(ii) the Borrower shall have executed and delivered such other
instruments and agreements relating to such Letter of Credit as such LC
Issuing Bank shall have reasonably requested,
(iii) such LC Issuing Bank shall have confirmed with the
Administrative Agent on the date of such issuance that the limitations
specified in clauses (A) and (B) of subsection (b)(ii) of this Section
will not be exceeded immediately after such Letter of Credit is issued
and
(iv) such LC Issuing Bank shall not have been notified in writing
by the Borrower, the Administrative Agent or the Required Lenders that any
condition specified in clause (c), (d) or (e) of Section 3.03 is not
satisfied at the time such Letter of Credit is to be issued.
(e) NOTICE OF ACTUAL ISSUANCE. Promptly after it issues any Letter of
Credit, the relevant LC Issuing Bank shall notify the Administrative Agent of
the date, face amount, beneficiary or beneficiaries and expiry date of such
Letter of Credit. Promptly after it receives such notice, the Administrative
Agent shall notify each Lender of the contents thereof and the amount of such
Lender's participation in such Letter of Credit. Promptly after it issues any
Letter of Credit, the relevant LC Issuing Bank shall send a copy of such Letter
of Credit to the Administrative Agent.
(f) EXPIRY DATES. No Letter of Credit shall have an expiry date later
than the fifth Domestic Business Day before the Termination Date. Subject to
the preceding sentence, each Letter of Credit, when issued hereunder, shall
expire on or before the first anniversary of the date of such issuance;
PROVIDED that the expiry date of any Letter of Credit may be extended from time
to time (i) at the Borrower's request or (ii) in the case of an Evergreen
Letter of Credit, automatically, in each case so long as such extension is for
a period not exceeding
39
one year and is granted (or the last day on which notice can be given to
prevent such extension occurs) no earlier than three months before the then
existing expiry date thereof.
(g) NOTICE OF PROPOSED EXTENSIONS OF EXPIRY DATES. The relevant LC
Issuing Bank shall give the Administrative Agent at least three Domestic
Business Days' notice before such LC Issuing Bank extends (or allows an
automatic extension of) the expiry date of any Letter of Credit issued by it.
Such notice shall identify such Letter of Credit, the date on which it is to be
extended (or the last day on which notice can be given to prevent such
extension) and the date to which it is to be extended. Promptly after it
receives such notice, the Administrative Agent shall notify each Lender of the
contents thereof. No LC Issuing Bank shall extend (or allow the extension of)
the expiry date of any Letter of Credit if:
(i) such extension does not comply with subsection (f) of this
Section or
(ii) such LC Issuing Bank shall have been notified by the
Administrative Agent or the Required Lenders that any condition specified
in clause (c), (d) or (e) of Section 3.03 is not satisfied at the time of
such proposed extension.
If any Letter of Credit is not extended after notice of a proposed extension
thereof has been given to the Lenders, the relevant LC Issuing Bank shall
promptly notify the Administrative Agent of such failure to extend. Promptly
after it receives such notice, the Administrative Agent shall notify each
Lender thereof.
(h) FEES. The Borrower shall pay to the Administrative Agent, for the
account of the Lenders ratably in proportion to their Commitment Percentages, a
letter of credit fee for each day at the LC Fee Rate for such day on the
aggregate amount available for drawing (whether or not conditions for drawing
have been satisfied) under all Letters of Credit outstanding at the close of
business on such day. Such letter of credit fee shall be payable with respect
to each Letter of Credit in arrears on the last Domestic Business Day of each
calendar quarter and on the Termination Date. The Borrower shall pay to each LC
Issuing Bank fronting fees and other charges in the amounts and at the times
agreed between the Borrower and such LC Issuing Bank. The LC Issuing Banks
shall furnish to the Administrative Agent upon request such information as the
Administrative Agent shall require in order to calculate the amount of any fee
payable for the account of Lenders under this subsection (h).
40
(i) DRAWINGS. If an LC Issuing Bank receives a demand for payment under
any Letter of Credit issued by it and determines that such demand should be
honored, such LC Issuing Bank shall (i) promptly notify the Borrower and the
Administrative Agent as to the amount to be paid by such LC Issuing Bank as a
result of such demand and the date of such payment (an "LC Payment Date") and
(ii) make such payment in accordance with the terms of such Letter of Credit.
(j) REIMBURSEMENT BY THE BORROWER. (A) If any amount is drawn under any
Letter of Credit, the Borrower irrevocably and unconditionally agrees to
reimburse the relevant LC Issuing Bank for such amount, together with
any and all reasonable charges and expenses which such LC Issuing Bank
may pay or incur relative to such drawing. Such reimbursement shall be
due and payable on the relevant LC Payment Date or the date on which
such LC Issuing Bank notifies the Borrower of such drawing, whichever
is later; PROVIDED that, if such notice is given after 10:00 A.M. (New
York City time) on the later of such dates, such reimbursement shall be
due and payable on the next following Domestic Business Day (the date on
which it is due and payable being an "LC Reimbursement Due Date").
(B) In addition, the Borrower agrees to pay, on the applicable LC
Reimbursement Due Date, interest on each amount drawn under a Letter of
Credit, for each day from and including the date such amount is drawn to
but excluding such LC Reimbursement Due Date, at the Base Rate for such
day. The Borrower also agrees to pay, on demand, interest on any overdue
amount (including any overdue interest) payable under this subsection (j),
for each day from and including the date when such amount becomes due
to but excluding the date such amount is paid in full, at a rate per
annum equal to the sum of 2% plus the Base Rate for such day.
(C) Each payment by the Borrower pursuant to this subsection (j) shall
be made to the relevant LC Issuing Bank in Federal or other funds
immediately available to it at its address referred to in Section 9.01.
(k) PAYMENTS BY LENDERS. (A) If the Borrower fails to pay any LC
Reimbursement Obligation in full when due, the relevant LC Issuing Bank
may notify the Administrative Agent of the unreimbursed amount and
request that the Lenders reimburse such LC Issuing Bank for their
respective Commitment Percentages thereof. Promptly after it receives any
such notice, the Administrative Agent shall notify each Lender of the
unreimbursed amount and such Lender's Commitment Percentage thereof.
41
Upon receiving such notice from the Administrative Agent, each Lender
shall make available to such LC Issuing Bank, at its address referred to
in Section 9.01, an amount equal to such Lender's Commitment Percentage
of such unreimbursed amount, in Federal or other funds immediately
available to such LC Issuing Bank, by 3:00 P.M. (New York City time)
(i) on the date such Lender receives such notice if it is received at or
before 12:00 Noon (New York City time) on such day or (ii) on the next
Domestic Business Day if such notice is received after 12:00 Noon
(New York City time) on the date of receipt, in each case together with
interest on such amount for each day from and including the relevant LC
Payment Date to but excluding the day such payment is due from such
Lender at the Federal Funds Rate for such day. Upon payment in full
thereof, such Lender shall be subrogated to the rights of such LC Issuing
Bank against the Borrower to the extent of such Lender's Commitment
Percentage of the related LC Reimbursement Obligation (including interest
accrued thereon).
(B) If any Lender fails to pay when due any amount to be paid by it
pursuant to clause (A) of this subsection, interest shall accrue on such
Lender's obligation to make such payment, for each day from and including
the date such payment became due to but excluding the date such Lender
makes such payment, at a rate per annum equal to (x) for each day from the
day such payment is due to the third succeeding Domestic Business Day,
inclusive, the Federal Funds Rate for such day and (y) for each day
thereafter the sum of 2% plus the Base Rate for such day.
(C) If the Borrower shall reimburse any LC Issuing Bank for any
drawing with respect to which any Lender shall have made funds available
to such LC Issuing Bank in accordance with clause (A) of this subsection,
such LC Issuing Bank shall promptly upon receipt of such reimbursement
distribute to such Lender its Commitment Percentage thereof, including
interest, to the extent received by such LC Issuing Bank.
(l) EXCULPATORY PROVISIONS. The Borrower's obligations under this Section
shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against any LC Issuing Bank, any Lender, any
beneficiary of any Letter of Credit or any other Person. The Borrower assumes
all risks of the acts or omissions of any beneficiary of any Letter of Credit
with respect to the use of such Letter of Credit by such beneficiary. None of
the LC Issuing Banks (in the absence of its own gross negligence or willful
misconduct), the Lenders and their respective officers, directors, employees
and agents shall be responsible for, and the obligations of each Lender to make
payments to each LC Issuing Bank
42
and of the Borrower to reimburse each LC Issuing Bank for drawings pursuant to
this Section (other than obligations resulting solely from the gross negligence
or willful misconduct of the relevant LC Issuing Bank) shall not be excused or
affected by, among other things, (i) the use which may be made of any Letter of
Credit or any acts or omissions of any beneficiary or transferee in connection
therewith; (ii) the validity, sufficiency or genuineness of documents presented
under any Letter of Credit or of any endorsements thereon, even if such
documents should in fact prove to be in any or all respects invalid,
insufficient, fraudulent or forged; (iii) payment by any LC Issuing Bank
against presentation of documents to it which do not comply with the terms of
the relevant Letter of Credit or (iv) any dispute between or among the
Borrower, any beneficiary of any Letter of Credit or any other Person or any
claims or defenses whatsoever of the Borrower or any other Person against any
beneficiary of any Letter of Credit. No LC Issuing Bank shall be liable for
any error, omission, interruption or delay in transmission, dispatch or
delivery of any message or advice, however transmitted, in connection with any
Letter of Credit. Any action taken or omitted by any LC Issuing Bank or any
Lender in connection with any Letter of Credit and the related drafts and
documents, if done without willful misconduct or gross negligence, shall be
binding upon the Borrower and shall not place any LC Issuing Bank or any Bank
under any liability to the Borrower.
(m) INDEMNIFICATION BY BORROWER. The Borrower agrees to indemnify and
hold harmless each Lender, each LC Issuing Bank and the Administrative Agent
(collectively, the "LC Indemnitees") from and against any and all claims,
damages, losses, liabilities, reasonable costs and reasonable expenses
(including, without limitation, the reasonable fees and disbursements of
counsel) which such LC Indemnitee may incur (or which may be claimed against
such LC Indemnitee by any Person whatsoever) by reason of or in connection with
any execution and delivery or transfer of or payment or failure to pay under
any Letter of Credit or any actual or proposed use of any Letter of Credit;
PROVIDED that the Borrower shall not be required to indemnify any LC Issuing
Bank for any such claims, damages, losses, liabilities, costs or expenses to
the extent, but only to the extent, caused by (i) its own willful misconduct or
gross negligence or (ii) its failure to pay under any Letter of Credit issued
by it after the presentation to it of a request strictly complying with the
terms and conditions of such Letter of Credit. Nothing in this subsection is
intended to limit the obligations of the Borrower under any other provision of
this Section.
(n) INDEMNIFICATION BY LENDERS. The Lenders shall, ratably in proportion
to their Commitment Percentages, indemnify each LC Issuing Bank, (to the extent
not reimbursed by the Borrower) against any claims, damages, losses,
liabilities,
43
reasonable costs and reasonable expenses (including, without limitation,
reasonable fees and disbursements of counsel) that any such indemnitee may
suffer or incur in connection with this Section or any action taken or
omitted by such indemnitee under this Section; PROVIDED that the Lenders
shall not be required to indemnify any LC Issuing Bank for any such claims,
damages, losses, liabilities, costs or expenses to the extent, but only to
the extent, caused by (i) its own gross negligence or willful misconduct,
(ii) its failure to pay under any Letter of Credit issued by it after the
presentation to it of a request strictly complying with the terms and
condition of such Letter of Credit, (iii) its liabilities under any Letter of
Credit issued by it in contravention of clause (iii) (to the extent that the
limitations referred to therein were in fact exceeded) or clause (iv) of
subsection (d) of this Section or (iv) its liabilities under any Letter of
Credit extended (or allowed to be automatically extended) by it in
contravention of clause (i) or (ii) of subsection (g) of this Section.
(o) LIABILITY FOR DAMAGES. Nothing in this Section shall preclude the
Borrower or any Lender from asserting against any LC Issuing Bank any claim for
direct (but not consequential) damages suffered by the Borrower or such Lender
to the extent, but only to the extent, caused by (A) the willful misconduct or
gross negligence of such LC Issuing Bank in determining whether a request
presented under any Letter of Credit issued by it complied with the terms
thereof or (B) such LC Issuing Bank's failure to pay under any such Letter of
Credit after the presentation to it of a request strictly complying with the
terms and conditions thereof.
(p) DUAL CAPACITIES. In its capacity as a Lender, each LC Issuing Bank
shall have the same rights and obligations under this Section as any other
Lender.
ARTICLE 3
CONDITIONS
SECTION 3.01. Closing. This Agreement shall become effective when all the
following conditions have been satisfied (or waived in accordance with Section
9.05):
(a) the Administrative Agent shall have received (i) counterparts
hereof signed by the Borrower, the Lenders listed on the Commitment
Schedule, the Swingline Bank and the Agents or (ii) in the case of any
such party as to which an executed counterpart shall not have been
received, telex, facsimile or other written confirmation (in form
44
satisfactory to the Administrative Agent) that a counterpart hereof has
been executed by such party;
(b) the Administrative Agent shall have received (i) a duly executed
Note, dated on or before the Closing Date and complying with the provisions
of Section 2.05, for each Lender and (ii) a duly executed Swingline Note,
dated on or before the Closing Date, for the Swingline Bank;
(c) the Administrative Agent shall have received evidence
satisfactory to it that the Borrower and OrNda will comply with the
provisions of Section 3.02 on the Closing Date and that they have received
all consents (if any) required to enable them to do so from the lenders
under the Borrower's Existing Credit Agreement and OrNda's Existing Credit
Agreement that are not parties to this Agreement;
(d) the Administrative Agent shall have received evidence
satisfactory to it that (i) all security interests created pursuant to
OrNda's Existing Credit Agreement will be released on the Closing Date,
(ii) termination statements will be delivered for filing under the Uniform
Commercial Code as required to evidence the termination of such security
interests and (iii) all stock certificates and other instruments pledged
under OrNda's Existing Credit Agreement will be returned to OrNda;
(e) the Administrative Agent shall have received evidence
satisfactory to it that the Acquisition has been consummated substantially
on the terms set forth in the Merger Agreement and all conditions to the
consummation of the Acquisition, as set forth in the Merger Agreement,
have been fulfilled in all material respects;
(f) the Administrative Agent shall have received evidence
satisfactory to it that the consideration paid or to be paid by the
Borrower and its Subsidiaries as a result of the Acquisition to the former
holders of common stock of OrNda and options to purchase such common stock
will consist only of shares of common stock of the Borrower and cash to
purchase fractional shares;
(g) the Administrative Agent shall have received evidence
satisfactory to it that the Borrower will receive, on or within five
Domestic Business Days after the Closing Date, the net cash proceeds of
the issuance and sale of the New Public Debt;
45
(h) the Administrative Agent shall have received a certificate,
substantially in the form of Exhibit F hereto, dated the Closing Date
and signed by a Senior Officer of the Borrower;
(i) the Administrative Agent shall have received a certificate of a
Senior Officer of the Borrower certifying that, if this Agreement had been
in effect on November 30, 1996, and the transactions and events reflected
in the "Pro Forma Financial Information" included in the New Public Debt
Prospectus (other than the consummation of the OrNda Tender Offers) had
occurred on the dates assumed in the preparation thereof, (i) the Borrower
would have been in compliance with the requirements of Sections 5.09 to
5.11, inclusive, at the end of such Fiscal Quarter and (ii) no Default
would have occurred and been continuing at such time. Such certificate
shall set forth in reasonable detail the calculations required to establish
the correctness of clause (i);
(j) the Administrative Agent shall have received an opinion of ▇▇▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Borrower, substantially in
the form of Exhibit G hereto, dated the Closing Date and covering such
other matters incident to the transactions contemplated by this Agreement
as any Agent shall reasonably request;
(k) the Administrative Agent shall have received an opinion of the
Borrower's General Counsel, dated the Closing Date, substantially in the
form of Exhibit H hereto and covering such other matters incident to the
transactions contemplated by this Agreement as any Agent shall reasonably
request;
(l) the Administrative Agent shall have received an opinion of ▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the Administrative Agent, dated the
Closing Date, substantially in the form of Exhibit I hereto and covering
such other matters incident to the transactions contemplated by this
Agreement as any Agent shall reasonably request;
(m) the Administrative Agent shall have received a copy of the
opinion of counsel for the Borrower delivered pursuant to Section 8.2 of
the Merger Agreement and a letter from such counsel to the effect that the
Agents and the Lenders are entitled to rely on such opinion as if it were
addressed to them;
(n) the Administrative Agent shall have received a copy of the
opinion of counsel for OrNda delivered pursuant to Section 8.3 of the
46
Merger Agreement and a letter from such counsel to the effect that the
Agents and the Lenders are entitled to rely on such opinion as if it were
addressed to them;
(o) the Administrative Agent shall have received a certificate of
the Secretary of the Borrower, dated the Closing Date, as to the restated
articles of incorporation and restated bylaws of the Borrower, no
amendments thereto, the adoption by the Borrower's board of directors of
the resolutions referred to in clause (p) below and the incumbency of each
officer of the Borrower who executed or will execute any Financing Document
or any other document to be delivered pursuant to this Agreement on the
Closing Date;
(p) the Administrative Agent shall have received a copy of resolutions
(in form and substance satisfactory to the Agents) of the Borrower's board
of directors authorizing the execution, delivery and performance of the
Financing Documents, certified by the Secretary of the Borrower to be in
full force and effect without modification on the Closing Date;
(q) the Borrower shall have paid or made arrangements satisfactory
to the Administrative Agent for paying all expenses payable by the
Borrower on or before the Closing Date pursuant to Section 9.03(a);
(r) the Borrower shall have paid to the Administrative Agent for the
account of each Lender a fee calculated in accordance with the memorandum
dated December 24, 1996 to Prospective ▇▇▇▇▇ Healthcare Corporation Lenders
from the Arranger and the Co-Arrangers;
(s) the Metrocrest Reimbursement Agreement shall have been amended so
that references therein to the covenants and events of default in the
Borrower's Existing Credit Agreement refer instead to the covenants and
events of default in this Agreement; and
(t) the Administrative Agent shall have received all documents it may
reasonably request relating to the existence of the Borrower, the corporate
authority for and the validity of the Financing Documents and any other
matters relevant thereto, all in form and substance reasonably satisfactory
to the Administrative Agent.
47
When this Agreement becomes effective, the Administrative Agent shall promptly
notify the Borrower and the Lenders that it is effective, and such notice shall
be conclusive and binding on all parties hereto.
SECTION 3.02. TERMINATION OF EXISTING COMMITMENTS. (a) The Borrower
agrees that on the Closing Date it will (i) prepay all loans outstanding under
the Borrower's Existing Credit Agreement, (ii) terminate the commitments of the
lenders thereunder immediately after such prepayment and (iii) pay all interest
and facility fees accrued thereunder to but excluding the Closing Date. The
Lenders that are parties to the Borrower's Existing Credit Agreement waive the
provisions thereof to the extent (and only to the extent) that such provisions
would otherwise require the Borrower to give prior notice of such prepayment
and termination of commitments thereunder. Notwithstanding such termination,
the Borrower shall remain obligated on and after the Closing Date to compensate
the lenders under Section 2.12 of the Borrower's Existing Credit Agreement for
any funding losses incurred by reason of such prepayment and under Sections
8.3, 8.4 and 9.3 thereof for any amounts payable to them thereunder.
(b) The Borrower agrees that on the Closing Date it will cause OrNda
to (i) prepay all loans outstanding under OrNda's Existing Credit Agreement,
(ii) terminate the commitments of the lenders thereunder immediately after such
prepayment and (iii) pay all interest and commitment fees accrued thereunder to
but excluding the Closing Date. The Lenders that are parties to OrNda's
Existing Credit Agreement (including The Bank of Nova Scotia in its capacity as
Administrative Agent thereunder) (x) waive the provisions thereof to the extent
(and only to the extent) that such provisions would otherwise require OrNda to
give prior notice of such prepayment and termination of commitments thereunder
and (y) consent to the termination on the Closing Date of all participations in
letters of credit sold to such Lenders pursuant to OrNda's Existing Credit
Agreement. Notwithstanding such termination, OrNda shall remain obligated on
and after the Closing Date to compensate such lenders under Section 2.5.2 of
OrNda's Existing Credit Agreement for any funding losses incurred by reason of
such prepayment and under Sections 2.12, 2.13, 2.19 and 12.3 thereof for any
amounts payable to them thereunder.
SECTION 3.03. BORROWINGS AND ISSUANCES OR EXTENSIONS OF LETTERS OF CREDIT.
The obligation of any Lender to make a Loan on the occasion of any Borrowing
(except a Syndicated Borrowing pursuant to Section 2.16(h)), the obligation of
the Swingline Bank to make any Swingline Loan and the obligation of any LC
Issuing Bank to issue (or extend or allow the extension of the expiry
48
date of ) any Letter of Credit are each subject to the satisfaction of the
following conditions:
(a) the fact that the Closing Date shall have occurred on or prior
to May 31, 1997;
(b) receipt by the Administrative Agent of a Notice of Borrowing as
required by Section 2.02, 2.03 or 2.16(b), as the case may be, or receipt
by the relevant LC Issuing Bank of a notice of proposed issuance or
extension as required by Section 2.17(b) or (e), as the case may be;
(c) the fact that, immediately after such Borrowing or issuance or
extension of a Letter of Credit, the sum of the aggregate outstanding
principal amount of the Loans plus the Aggregate LC Exposure (and, in the
case of a Swingline Borrowing, the Swingline Loans) will not exceed the
aggregate amount of the Commitments;
(d) the fact that, immediately before and after such Borrowing or
issuance or extension of a Letter of Credit, no Default shall have
occurred and be continuing; and
(e) the fact that the representations and warranties of the Borrower
contained in this Agreement shall be true on and as of the date of such
Borrowing or issuance or extension of a Letter of Credit.
Each Borrowing and each issuance or extension of a Letter of Credit shall be
deemed to be a representation and warranty by the Borrower on the date of such
Borrowing or issuance or extension of a Letter of Credit as to the facts
specified in clauses (c), (d) and (e) of this Section.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. CORPORATE EXISTENCE AND POWER. The Borrower is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Nevada, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
49
SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION. The execution,
delivery and performance by the Borrower of the Financing Documents (i) are
within its corporate powers, (ii) have been duly authorized by all necessary
corporate action, (iii) require no action by or in respect of, or filing with,
any governmental body, agency or official, (iv) do not contravene any provision
of applicable law or regulation or of the articles of incorporation or by-laws
of the Borrower, (v) do not constitute a breach of or default under any
agreement, judgment, injunction, order, decree or other instrument binding upon
the Borrower or any of its Subsidiaries, except for breaches and defaults
which, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect or have an adverse effect on the validity or enforceability of
any material provision of any Financing Document, or (vi) result in the
creation or imposition of any Lien on any asset of the Borrower or any of its
Subsidiaries.
SECTION 4.03. BINDING EFFECT. This Agreement constitutes a valid and
binding agreement of the Borrower and the Notes and the Swingline Note, when
executed and delivered in accordance with this Agreement, will constitute valid
and binding obligations of the Borrower, in each case enforceable against the
Borrower in accordance with its terms.
SECTION 4.04. Financial Information(a) The consolidated balance sheet
of the Borrower and its Subsidiaries as of May 31, 1996 and the related
consolidated statements of operations, cash flows and changes in stockholders'
equity for the Fiscal Year then ended, reported on by KPMG Peat Marwick LLP and
set forth in the Borrower's 1996 Form 10-K, a copy of which has been delivered
to each of the Lenders, fairly present, in conformity with GAAP, the
consolidated financial position of the Borrower and its Subsidiaries as of such
date and their consolidated results of operations and cash flows for such
Fiscal Year.
(b) The unaudited condensed consolidated balance sheet of the Borrower
and its Subsidiaries as of November 30, 1996 and the related unaudited
condensed consolidated statements of operations and cash flows for the six
months then ended, set forth in the Borrower's quarterly report on Form 10-Q
for the Fiscal Quarter ended November 30, 1996, a copy of which has been
delivered to each of the Lenders, fairly present, on a basis consistent with
the financial statements referred to in subsection (a) of this Section, the
consolidated financial position of the Borrower and its Subsidiaries as of such
date and their consolidated results of operations and cash flows for such
six-month period (subject to normal year-end adjustments).
50
(c) The consolidated balance sheet of OrNda and its Subsidiaries as
of August 31, 1996 and the related consolidated statements of operations,
cash flows and changes in stockholders' equity for the Fiscal Year then
ended, reported on by Ernst & Young LLP and set forth in OrNda's 1996 Form
10-K, a copy of which has been delivered to each of the Lenders, fairly
present, in conformity with GAAP, the consolidated financial position of
OrNda and its Subsidiaries as of such date and their consolidated results
of operations and cash flows for such Fiscal Year.
(d) The unaudited condensed consolidated balance sheet of OrNda and
its Subsidiaries as of November 30, 1996 and the related unaudited
condensed consolidated statements of operations and cash flows for the
three months then ended, set forth in OrNda's quarterly report on Form 10-Q
for its Fiscal Quarter ended November 30, 1996, a copy of which has been
delivered to each of the Lenders, fairly present, on a basis consistent
with the financial statements referred to in subsection (c) of this
Section, the consolidated financial position of OrNda and its Subsidiaries
as of such date and their consolidated results of operations and cash flows
for such three-month period (subject to normal year-end adjustments).
(e) The pro forma condensed combined balance sheet of the Combined
Companies as of November 30, 1996 and the related condensed combined
statements of operations set forth in the New Public Debt Prospectus
under the heading "Pro Forma Financial Information" fairly present their
combined financial position at such date and combined results of
operations for the periods specified therein, on a Pro Forma Basis.
(f) There has been no material adverse change since November 30,
1996 in the business, operations, properties, financial condition or
prospects of the Combined Companies considered as a whole.
SECTION 4.05. LITIGATION. Except as described in Schedule 4.05
hereto, there are no actions, suits or proceedings pending against, or
to the knowledge of the Borrower threatened against, any of the Combined
Companies or any of their respective properties, before any court or
arbitrator or any governmental body, agency or official in which there
is a reasonable possibility of adverse decisions which in the aggregate
could reasonably be expected to have a Material Adverse Effect or which
in any manner draw into question the validity of any of the Financing
Documents.
SECTION 4.06. COMPLIANCE WITH ERISA. Each member of the ERISA
Group has fulfilled its obligations under the minimum funding standards
of
51
ERISA and the Internal Revenue Code with respect to each Plan and is in
compliance in all material respects with the presently applicable
provisions of ERISA and the Internal Revenue Code with respect to each
Plan. No member of the ERISA Group has (i) sought a waiver of the
minimum funding standard under Section 412 of the Internal Revenue Code
in respect of any Plan, (ii) failed to make any contribution or payment
to any Plan or Multiemployer Plan, or made any amendment to any Plan,
which has resulted or could result in the imposition of a Lien or the
posting of a bond or other security under ERISA or the Internal Revenue
Code or (iii) incurred any liability under Title IV of ERISA other than
a liability to the PBGC for premiums under Section 4007 of ERISA.
SECTION 4.07. COMPLIANCE WITH LAWS. The Borrower and its
Subsidiaries are in compliance in all material respects with all
applicable laws, rules and regulations (including without limitation
health care laws, rules and regulations), other than such laws, rules or
regulations (i) the validity or applicability of which the Borrower or
such Subsidiary is contesting in good faith by appropriate proceedings
or (ii) failures to comply with which could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
SECTION 4.08. ENVIRONMENTAL MATTERS. The Borrower has reviewed the
effect of Environmental Laws on the business, operations and properties
of the Borrower and its Subsidiaries, and has in good faith attempted to
identify and evaluate the associated liabilities and costs (including,
without limitation, capital or operating expenditures required for
clean-up or closure of properties presently or previously owned, capital
or operating expenditures required to achieve or maintain compliance
with environmental protection standards imposed by law or as a condition
of any license, permit or contract, any related constraints on operating
activities, including any periodic or permanent shutdown of any facility
or reduction in the level of or change in the nature of operations
conducted thereat, any costs or liabilities in connection with off-site
disposal of wastes or Hazardous Substances, and actual or potential
liabilities to third parties, including employees, and any related costs
and expenses); PROVIDED that, with respect to OrNda and its
Subsidiaries, on and at all times prior to the first anniversary of the
Closing Date, such review has been and during such time will be limited
to (i) a review (without independent investigation) of information
supplied by OrNda as to the effect of Environmental Laws on it and its
Subsidiaries and (ii) a review of any other information relating to the
effect of Environmental Laws on OrNda and its Subsidiaries of which the
Borrower obtains actual knowledge after the Closing Date. On the basis
of the foregoing review, the Borrower has reasonably concluded that such
associated liabilities and costs, including the costs of compliance with
Environmental Laws, are unlikely to have a Material Adverse Effect.
52
SECTION 4.09. TAXES. The Combined Companies have filed all United
States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes shown to
be due on such returns or pursuant to any assessment received by any of
them (unless such assessment is being contested in good faith by
appropriate proceedings). The charges, accruals and reserves on the
books of the Combined Companies in respect of taxes or other
governmental charges are, in the opinion of the Borrower, adequate.
SECTION 4.10. MATERIAL SUBSIDIARIES. Each Material Subsidiary is a
corporation duly incorporated, validly existing and in good standing
under the laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now
conducted.
SECTION 4.11. CERTAIN LAWS NOT APPLICABLE. The Borrower is neither
an "investment company" nor a Person directly or indirectly "controlled"
by or "acting on behalf of" an "investment company" within the meaning
of the Investment Company Act of 1940, as amended. The Borrower is
neither a "holding company", nor an "affiliate" of a "holding company"
or a "subsidiary company" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935, as amended.
SECTION 4.12. FULL DISCLOSURE. All information heretofore
furnished by the Borrower to any Agent or any Lender for purposes of or
in connection with this Agreement or any transaction contemplated hereby
is, and all such information hereafter furnished by the Borrower to any
Agent or any Lender will, taken as a whole, be true and accurate in all
material respects on the date as of which such information is stated or
certified. The Borrower has disclosed to the Lenders in writing any and
all facts which have or may (to the extent the Borrower can now
reasonably foresee) have a Material Adverse Effect.
SECTION 4.13. CERTAIN DOCUMENTS. (a) The copies of the Merger
Agreement and the Company Disclosure Letter and Parent Disclosure Letter
referred to therein, in the form delivered to each Lender prior to the
date of this Agreement, are correct and complete copies thereof as in
effect on the date of this Agreement.
(b) The copy of the New Public Debt Prospectus delivered to each
Lender prior to the date of this Agreement is a correct and complete
copy of the New Public Debt Prospectus as filed with the SEC on January
27, 1997.
53
SECTION 4.14. LEGALITY OF ACQUISITION. On the Closing Date, the
Acquisition will be consummated in compliance with all applicable laws
and in accordance with the provisions of the Merger Agreement. The
consummation of the Acquisition will not (i) contravene any provision of
applicable law or regulation in any manner that could reasonably be
expected to have a Material Adverse Effect, (ii) contravene any
provision of the charter or by-laws of any party to the Merger
Agreement, (iii) constitute a breach of or default under any instrument
or agreement binding upon any such party or any of its Subsidiaries or
of any judgment, injunction, order, decree or other instrument binding
upon any such party, except for breaches and defaults which, in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect or (iv) result in the creation or imposition of any Lien on any
asset of any such party or any of its Subsidiaries.
ARTICLE 5
COVENANTS
The Borrower agrees that, so long as any Lender has any Credit Exposure
hereunder or any Swingline Loan remains outstanding or any interest or fees
accrued hereunder remain unpaid:
SECTION 5.01. INFORMATION. The Borrower will deliver to each Lender:
(a) as soon as available and in any event within 90 days after
the end of each Fiscal Year, an audited consolidated balance sheet
of the Borrower and its Subsidiaries as of the end of such Fiscal
Year and the related audited consolidated statements of operations,
cash flows and changes in stockholders' equity for such Fiscal
Year, setting forth in each case in comparative form the figures
for the previous Fiscal Year, all reported on in a manner
acceptable to the SEC by KPMG Peat Marwick LLP or other independent
public accountants of nationally recognized standing;
(b) as soon as available and in any event within 45 days after
the end of each of the first three Fiscal Quarters of each Fiscal
Year, a condensed consolidated balance sheet of the Borrower and
its Subsidiaries as of the end of such Fiscal Quarter, the related
condensed consolidated statements of operations for such Fiscal
Quarter and for the portion of the Fiscal Year ended at the end of
such Fiscal Quarter and the related condensed consolidated
statement of cash flows for the portion of the
54
Fiscal Year then ended, setting forth in the case of such condensed
consolidated statements of operations and cash flows in comparative
form the figures for the corresponding Fiscal Quarter and the
corresponding portion of the previous Fiscal Year, all certified
(subject to normal year-end adjustments) as to fairness of
presentation and consistency with GAAP by a Senior Officer of the
Borrower;
(c) concurrently with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate
of a Senior Officer of the Borrower (i) setting forth in reasonable
detail the calculations required to establish whether the Borrower
was in compliance with the requirements of Sections 5.09 to 5.11,
inclusive, on the date of such financial statements and (ii)
stating whether any Default exists on the date of such certificate
and, if any Default then exists, setting forth the details thereof
and the action which the Borrower is taking or proposes to take
with respect thereto;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement by the firm
of independent public accountants which reported on such statements
that, in making the examination necessary for reporting on such
financial statements, they did not obtain knowledge of any Default
hereunder except as described in such statement;
(e) within 45 days after the end of each Fiscal Quarter, a
certificate signed by a Senior Officer of the Borrower setting
forth the Pricing Level applicable during the Rate Period that
begins 46 days after the end of such Fiscal Quarter and in
reasonable detail the calculations required to establish that such
Pricing Level will be applicable; PROVIDED that (x) in the case of
the last Fiscal Quarter of any Fiscal Year, such certificate may
set forth only the Borrower's estimate of the applicable Pricing
Level (it being understood that, if the Borrower in good faith
cannot determine with reasonable certainty which of two Pricing
Levels applies, the Borrower may, in view of the provisions of
Section 2.15(b), appropriately estimate that the lower of such
Pricing Levels applies), and (y) if such certificate sets forth
only an estimated Pricing Level, the Borrower shall, within 90 days
after the end of such Fiscal Year, deliver a further certificate
signed by a Senior Officer of the Borrower setting forth the
calculations contemplated by this clause (e) and either confirming
that such estimated Pricing Level applies or, if not, setting forth
the Pricing Level that does apply during the relevant Rate Period
and requesting the Administrative Agent to determine the amounts of
any additional interest,
55
facility fees and/or letter of credit fees payable by the Borrower
pursuant to Section 2.15(b);
(f) within five days after any officer of the Borrower obtains
knowledge of any Default, if such Default is then continuing, a
certificate of a Senior Officer of the Borrower setting forth the
details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(g) promptly upon the mailing thereof to the shareholders of
the Borrower generally, copies of all financial statements, reports
and proxy statements so mailed;
(h) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and reports
on Forms 10-K, 10-Q and 8-K (or their equivalents) which the
Borrower shall have filed with the SEC;
(i) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which
might constitute grounds for a termination of such Plan under Title
IV of ERISA, or knows that the plan administrator of any Plan has
given or is required to give notice of any such reportable event, a
copy of the notice of such reportable event given or required to be
given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any
Multiemployer Plan is in reorganization, is insolvent or has been
terminated, a copy of such notice; (iii) receives notice from the
PBGC under Title IV of ERISA of an intent to terminate, impose
liability (other than for premiums under Section 4007 of ERISA or
premium-related penalties) in respect of, or appoint a trustee to
administer any Plan, a copy of such notice; (iv) applies for a
waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code, a copy of such application; (v) gives notice
of intent to terminate any Plan under Section 4041(c) of ERISA, a
copy of such notice and other information filed with the PBGC; (vi)
gives notice of withdrawal from any Plan pursuant to Section 4063
of ERISA, a copy of such notice; or (vii) fails to make any payment
or contribution to any Plan or Multiemployer Plan or makes any
amendment to any Plan which has resulted or could result in the
imposition of a Lien or the posting of a bond or other security, a
certificate of a Senior Officer of the Borrower setting forth
details as to such
56
occurrence and the action, if any, which the Borrower or applicable
member of the ERISA Group is required or proposes to take; and
(j) from time to time such additional information regarding
the financial position or business of the Borrower and its
Subsidiaries as the Administrative Agent, at the request of any
Lender, may reasonably request.
SECTION 5.02. MAINTENANCE OF PROPERTY; INSURANCE. (a) The
Borrower and each Material Subsidiary will keep all property useful and
necessary in its business in good working order and condition, ordinary
wear and tear excepted.
(b) The Borrower and each Material Subsidiary will maintain, with
financially sound and reputable insurance companies (which may be
Affiliates of the Borrower or part of the Borrower's self-insurance
program) insurance on all their properties in at least such amounts and
against at least such risks as are usually insured against in the same
general area and by companies engaged in the same or similar businesses
and maintain professional liability and malpractice insurance against
claims usually insured against by companies engaged in the same or
similar businesses, and furnish to each Lender, upon written request by
any of the Agents, full information as to the insurance carried.
SECTION 5.03. CONDUCT OF BUSINESS, MAINTENANCE OF EXISTENCE. (a)
The Borrower and its Material Subsidiaries will continue to engage
primarily in business of the same general type as now conducted by the
Borrower and its Material Subsidiaries.
(b) The Borrower and each Material Subsidiary will preserve, renew
and keep in full force and effect its corporate existence and take all
reasonable action to maintain its rights, privileges and franchises
necessary or desirable in the normal conduct of business, PROVIDED that
(i) the foregoing shall not prohibit any merger, consolidation or sale
of assets expressly permitted by Section 5.06 and (ii) any Material
Subsidiary may liquidate or dissolve if the Borrower in good faith
determines that such liquidation or dissolution is in the best interests
of the Borrower and its Subsidiaries and not materially adverse to the
Lenders.
SECTION 5.04. COMPLIANCE WITH LAWS. The Borrower and each Material
Subsidiary will comply with all material applicable laws, ordinances,
rules, regulations and requirements of governmental authorities
(including without limitation Environmental Laws, ERISA and the rules
and regulations thereunder and Public Law 92-603), and hold and maintain
in full force and effect all certifications, governmental approvals,
licenses and permits necessary or desirable
57
to enable the Borrower and its Material Subsidiaries to conduct their
respective businesses as now conducted, except where the failure to
comply therewith or hold and maintain such certifications, governmental
approvals, licenses or permits could not, in the aggregate, reasonably
be expected to have a Material Adverse Effect.
SECTION 5.05. INSPECTION OF PROPERTY, BOOKS AND RECORDS. The
Borrower and each Material Subsidiary will keep proper books of record
and account in which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and activities;
and will permit representatives of the Administrative Agent (at the
request of any Lender) at such requesting Lender's expense to visit and
inspect any of their respective properties, to examine and make
abstracts (at such Lender's expense, unless an Event of Default shall
have occurred and be continuing, in which case at the Borrower's
expense) from any of their respective books and records and to discuss
their respective affairs, finances and accounts with officers of the
Borrower and with the accountants of the Borrower, all upon reasonable
notice and at such reasonable times and as often as may reasonably be
desired.
SECTION 5.06. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. (a) The
Borrower will not merge or consolidate with any other Person, or sell or
otherwise transfer all or substantially all of its assets to any other
Person, unless after giving effect to such merger, consolidation, sale
or other transfer, (i) no Default shall have occurred and be continuing
and (ii) the corporation surviving such merger or consolidation (if
other than the Borrower) or the Person acquiring such assets is
organized under the laws of a state of the United States and assumes in
writing all the obligations of the Borrower hereunder and said surviving
corporation or acquiring Person delivers to each Lender an opinion of
counsel reasonably satisfactory to the Required Lenders, in form and
substance satisfactory to the Required Lenders, to the effect that the
assumption of such obligations by such surviving corporation or
acquiring Person is effective and is fully binding upon and enforceable
against such surviving corporation or acquiring Person.
(b) The Borrower will not make any Restricted Asset Transfer, or
permit any of its Subsidiaries to make any Restricted Asset Transfer,
unless immediately after giving effect thereto:
(i) no Default (under Section 5.13(b) or otherwise) shall
have occurred and be continuing,
(ii) the aggregate book value of all assets sold or otherwise
transferred by the Combined Companies in Restricted Asset Transfers
58
during the twelve months then ended does not exceed 10% of the
consolidated total assets of the Borrower and its Subsidiaries at
the time of such Restricted Asset Transfer, and
(iii) the aggregate book value of all assets sold or otherwise
transferred by the Combined Companies in Restricted Asset Transfers
after November 30, 1996 does not exceed 15% of the consolidated total
assets of the Borrower and its Subsidiaries at the time of such
Restricted Asset Transfer.
For purposes of this subsection (b) and Section 5.13(b), the book
value of assets sold in a Restricted Asset Transfer shall be
determined immediately prior to such Restricted Asset Transfer.
SECTION 5.07. NEGATIVE PLEDGE. After the Closing Date, neither the
Borrower nor any Subsidiary will create, assume or suffer to exist any
Lien on any asset now owned or hereafter acquired by it, except:
(a) any Lien existing prior to the Closing Date securing Debt;
PROVIDED that the Liens created by OrNda's Existing Credit Agreement
shall be released on or before the Closing Date;
(b) any Lien on bonds issued by the Metrocrest Hospital
Authority (and related proceeds and other distributions) granted to
secure the Borrower's obligations under the Metrocrest
Reimbursement Agreement and the Securities Pledge and Security
Agreement referred to therein;
(c) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by
clause (a) above; PROVIDED that (i) the principal amount of such
Debt is not increased and (ii) such Debt is not secured by any
additional assets;
(d) if the letters of credit issued pursuant to the
Metrocrest Reimbursement Agreement are replaced by other letters of
credit issued for the same purpose, any Lien securing the
Borrower's obligations under the reimbursement agreement relating
to such replacement letters of credit; PROVIDED that (i) the
aggregate amount of such letters of credit is not increased and
(ii) the Borrower's obligations under the related reimbursement
agreement are not secured or required to be secured by any assets
except the assets by which the Borrower's obligations under the
59
Metrocrest Reimbursement Agreement are secured or required to be
secured;
(e) any Lien securing Non-Recourse Purchase Money Debt;
(f) any Lien on assets of a Person which becomes a Subsidiary
after the Closing Date; PROVIDED that such Lien secures only (i)
Debt of such Person that is outstanding when such Person becomes a
Subsidiary and was not created in contemplation of such event or
(ii) Debt incurred solely for the purpose of refinancing Debt
described in the foregoing clause (i);
(g) carriers', warehousemen's, mechanics', transporters,
materialmen's, repairmen's or other like Liens arising in the
ordinary course of business;
(h) any Lien imposed by any governmental authority for taxes,
assessments, governmental charges, duties or levies not delinquent
or which are being contested in good faith and by appropriate
proceedings; PROVIDED that adequate reserves with respect thereto
are maintained on the books of the Borrower and its Subsidiaries in
accordance with GAAP;
(i) Liens on cash and cash equivalents securing obligations
of the Borrower and its Subsidiaries with respect to workers'
compensation, malpractice and other insurance policies; PROVIDED
that the aggregate amount of cash and cash equivalents subject to
such Liens may not exceed $35,000,000 at any time;
(j) Liens arising in the ordinary course of business (other
than Liens permitted by clause (g), (h) or (i) above) which (i) do
not secure Financial Obligations, (ii) do not secure any single
obligation in an outstanding amount exceeding $10,000,000 and (iii)
do not secure obligations in an aggregate outstanding amount
exceeding $50,000,000;
(k) Liens on cash and cash equivalents securing Hedging
Obligations, PROVIDED that the aggregate amount of cash and cash
equivalents subject to such Liens may not exceed $50,000,000 at any
time;
(l) any Lien on cash and cash equivalents securing LC
Reimbursement Obligations pursuant to Section 6.03;
60
(m) any Lien on an asset leased by the Borrower or a
Subsidiary under a capital lease securing its obligations as lessee
under such capital lease;
(n) any Lien on any asset of a Subsidiary securing Debt owed
to the Borrower; and
(o) Liens not otherwise permitted by the foregoing clauses of
this Section securing Debt; PROVIDED that, immediately after any
such Debt is incurred, the aggregate outstanding principal or face
amount of all Debt secured pursuant to this clause (o) shall not
exceed $15,000,000.
SECTION 5.08. DEBT OF SUBSIDIARIES. After the Closing Date, no
Subsidiary will incur, assume or otherwise be liable in respect of
any Debt, except:
(a) Debt subject to the OrNda Tender Offers and other Debt
outstanding at the close of business on the Closing Date in an
aggregate principal or face amount not exceeding $400,000,000;
(b) Debt owing to the Borrower;
(c) Non-Recourse Purchase Money Debt;
(d) Debt of any Person which becomes a Subsidiary after the
Closing Date; PROVIDED that (i) such Debt is outstanding when such
Person becomes a Subsidiary and was not created in contemplation of
such event or (ii) such Debt is incurred solely for the purpose of
refinancing Debt described in the foregoing clause (i);
(e) Guarantees by any Subsidiary of Debt relating to any
assets sold or otherwise disposed of by it; PROVIDED that (i) such
Debt was outstanding when such assets were disposed of and was not
created in contemplation of the disposition thereof and (ii) the
sum of (x) the aggregate outstanding principal amount of all Debt
which is Guaranteed by the Borrower or any of its Subsidiaries
pursuant to this clause (e) and (y) the aggregate amount of all
lease payments under operating leases which are Guaranteed by any
Subsidiary after November 30, 1996 shall not exceed $200,000,000 at
any time;
(f) Debt consisting of the obligations of any Subsidiary as
lessee which are capitalized in accordance with GAAP; and
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(g) Debt of any Subsidiary not otherwise permitted by the
foregoing clauses of this Section; PROVIDED that the aggregate
outstanding principal or face amount of all Debt of Subsidiaries
permitted by this clause (g) shall not exceed $35,000,000 at any
time.
SECTION 5.09. DEBT RATIO. At the close of business on any day on
or after the Closing Date, the ratio of (i) Adjusted Total Debt at such
time to (ii) Adjusted EBITDA for the period of four consecutive Fiscal
Quarters most recently ended at or prior to such time will not be
greater than the ratio set forth below opposite the period in which such
day is included:
PERIOD RATIO
Closing Date through May 31, 1998 4.0 to 1
June 1, 1998 through May 31, 1999 3.75 to 1
On and after June 1, 1999 3.5 to 1
SECTION 5.10. CONSOLIDATED NET WORTH. Consolidated Net Worth will at
no time be less than the sum of (i) $2,750,000,000 plus (ii) 75% of the
consolidated net income of the Borrower and its Subsidiaries for each
Fiscal Quarter ended after November 30, 1996, if such consolidated net
income for such Fiscal Quarter is positive, plus (iii) 100% of the
amount by which the consolidated stockholders' equity of the Borrower
and its Subsidiaries is increased after November 30, 1996 as a result of
any issuance or sale of Equity Interests by the Borrower (other than the
issuance of common stock of the Borrower as consideration for the
Acquisition).
SECTION 5.11. FIXED CHARGE RATIO. At the end of each Fiscal
Quarter ending after the Closing Date, the ratio of (i) the sum of
Adjusted EBITDA plus Adjusted Rental Expense to (ii) the sum of Adjusted
Interest Expense plus Adjusted Rental Expense, all calculated for the
period of four consecutive Fiscal Quarters then ended, will not be less
than 2.0 to 1.
SECTION 5.12. RESTRICTED PAYMENTS. Neither the Borrower nor any
Subsidiary will declare or make (i) any dividend or other distribution
on any shares of capital stock of the Borrower (except dividends payable
solely in shares of its capital stock) or (ii) any payment on account of
the purchase, redemption, retirement, acquisition, defeasance or
prepayment of any Equity Interests in the Borrower, unless the Borrower
has an Investment Grade Rating when such dividend is declared or when
the Borrower or such Subsidiary becomes legally obligated to make such
distribution or other payment, as the case may be.
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SECTION 5.13. RESTRICTION ON INVESTMENTS. (a) The sum of (i) the
aggregate book value of all Investments in Equity Affiliates held by the
Borrower and its Subsidiaries, as determined from time to time in accordance
with GAAP, and (ii) the Loss Adjustment Amount for each Equity Affiliate in
which the Combined Companies make an Investment after November 30, 1996 (such
sum being called the "Aggregate Investment in Equity Affiliates") will not at
any time exceed 17.5% of the consolidated total assets of the Borrower and
its Subsidiaries at such time. The term "Loss Adjustment Amount" means, for
any Equity Affiliate at any time, the cumulative amount by which the book
value of Investments by the Combined Companies in such Equity Affiliate has
theretofore been reduced by operating losses, write downs or writeoffs of
assets or other special charges.
(b) The sum of (i) the Aggregate Investment in Equity Affiliates and
(ii) the aggregate book value of all assets sold or otherwise transferred in
Restricted Asset Transfers after November 30, 1996 will not at any time
exceed 27.5% of the consolidated total assets of the Borrower and its
Subsidiaries at such time.
SECTION 5.14. RESTRICTIONS ON INCLUDED EQUITY AFFILIATES. (a) DEBT. On
and after the Closing Date, no Included Equity Affiliate will incur, assume
or otherwise be liable in respect of any Debt, except:
(i) Debt of such Included Equity Affiliate
outstanding when it first becomes an Equity Affiliate
and not created in contemplation of such event;
(ii) Debt of any partner, member or shareholder of
such Included Equity Affiliate that (x) is assumed by
such Included Equity Affiliate in connection with a
contribution of assets to its capital by such partner,
member or shareholder and (y) was not created in
contemplation of such event;
(iii) Debt secured by a Lien on any asset acquired
by such Included Equity Affiliate; PROVIDED that (x)
such Debt was outstanding and was secured by such Lien
prior to the acquisition of such asset by such Included
Equity Affiliate and (y) neither such Debt nor such
Lien was created in contemplation of such acquisition;
(iv) Non-Recourse Purchase Money Debt;
(v) Debt incurred solely for the purpose of
refinancing (x) Debt of such Included Equity Affiliate
permitted by clause (i), (ii), (iii) or (iv)
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above or (y) Debt that such Included Equity Affiliate would be
permitted to assume by clause (ii) above;
(vi) Debt owing to the Borrower or any Subsidiary;
(vii) Debt incurred to satisfy working capital
requirements; and
(viii) other Debt of Included Equity Affiliates not
exceeding $15,000,000 in aggregate principal amount
outstanding at any time.
(b) LIENS. On and after the Closing Date, no Included Equity Affiliate
will create, assume or suffer to exist any Lien securing Debt on any asset
now owned or hereafter acquired by it, except:
(i) any Lien securing Debt permitted by clause
(i) or (ii) of subsection (a) above; PROVIDED that such
Lien is limited to assets securing such Debt at the
time it is assumed;
(ii) any Lien securing Debt permitted by clause
(iii) of subsection (a) above; PROVIDED that such Lien is
limited in each case to the asset that was acquired subject
to such Lien and any improvements thereto;
(iii) any Lien securing Debt permitted by clause (iv)
of subsection (a) above; PROVIDED that such Lien is limited
in each case to the assets acquired, constructed or improved
with the proceeds of such Debt;
(iv) any Lien securing Debt permitted by clause (v) of
subsection (a) above; PROVIDED that in each case the Debt
refinanced thereby was secured and such Lien is limited to
the assets that secured the Debt refinanced thereby;
(v) any Lien securing Debt permitted by clause (vi) of
subsection (a) above; and
(vi) other Liens securing Debt of Included Equity
Affiliates not exceeding $2,000,000 in aggregate principal
amount outstanding at any time.
SECTION 5.15. RESTRICTION ON PREPAYING SUBORDINATED DEBT. Neither the
Borrower nor any Subsidiary will prepay, defease or purchase, prior to the
date on which it is required by its terms to be repaid, repurchased or
otherwise retired, all
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or any portion of any Debt of the Borrower that is subordinated in right of
payment to the Loans.
SECTION 5.16. TRANSACTIONS WITH AFFILIATES. The Borrower will not, and
will not permit any Subsidiary to, directly or indirectly, pay any funds to
or for the account of, make any investment (whether by acquisition of stock
or indebtedness, by loan, advance, transfer of property, guarantee or other
agreement to pay, purchase or service, directly or indirectly, any Debt, or
otherwise) in, lease, sell, transfer or otherwise dispose of any assets,
tangible or intangible, to, or participate in, or effect, any transaction
with, any Affiliate except on an arms-length basis on terms at least as
favorable to the Borrower or such Subsidiary as it could have obtained from a
third party who was not an Affiliate; PROVIDED that the foregoing provisions
of this Section shall not prohibit (x) any such Person from declaring or
paying any lawful dividend or other payment ratably in respect of all of its
capital stock of the relevant class so long as, after giving effect thereto,
no Default shall have occurred and be continuing or (y) any such transaction
between or among the Borrower and its Subsidiaries.
SECTION 5.17. SENIOR STATUS. The obligations of the Borrower under the
Financing Documents will at all times constitute "senior debt" as defined in
any instrument or agreement evidencing or governing any subordinated debt of
the Borrower outstanding on or after the Closing Date.
SECTION 5.18. PAYMENT OF DIVIDENDS BY MATERIAL SUBSIDIARIES. After the
Closing Date neither the Borrower nor any of its Material Subsidiaries will
enter into any agreement or arrangement which would limit in any way the
ability of any Material Subsidiary to pay any dividend.
SECTION 5.19. RETIREMENT OF ORNDA DEBT. If the Borrower does not
consummate the OrNda Tender Offers and obtain sufficient consents from the
holders of OrNda's 12.25% Senior Subordinated Notes due 2002 and 11.375%
Senior Subordinated Notes due 2004 to eliminate the restrictive covenants
intended to be eliminated thereby, the Borrower will cause all of OrNda's
outstanding 12.25% Senior Subordinated Notes due 2002 to be redeemed on or
before May 31, 1997.
SECTION 5.20. USE OF PROCEEDS. (a) The proceeds of the Loans will be
used by the Borrower (i) to purchase, redeem or otherwise refinance
outstanding Debt of the Borrower, OrNda and their respective Subsidiaries and
(ii) for general corporate purposes (including working capital needs) of the
Borrower and its Subsidiaries after the Acquisition is consummated.
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(b) The Letters of Credit will be used by the Borrower for the general
corporate purposes of the Borrower and its Subsidiaries.
(c) Neither the proceeds of the Loans nor any Letter of Credit will be
used, directly or indirectly, for the purpose, whether immediate, incidental
or ultimate, of buying or carrying any "margin stock" within the meaning of
Regulation U in any manner which would (i) violate any applicable law or
regulation or (ii) require any Form FRU-1 or any successor form to be
executed.
ARTICLE 6
DEFAULTS
SECTION 6.01. EVENTS OF DEFAULT. If one or more of the following
events ("Events of Default") shall have occurred:
(a) any principal of any Loan or Swingline Loan shall not be
paid when due;
(b) any LC Reimbursement Obligation, any
interest on any Loan, Swingline Loan or LC Reimbursement
Obligation, any fee or any other amount payable under any
Financing Document shall not be paid within three Domestic
Business Days after it becomes due;
(c) the Borrower (or any Subsidiary or Included Equity
Affiliate) shall fail to comply with any covenant applicable
to it contained in Sections 5.06 through 5.20, inclusive;
(d) the Borrower shall fail to observe or perform any
covenant or agreement contained in this Agreement (other
than those covered by clause (a), (b) or (c) above) within
30 days after such failure occurs or, if later, 10 days
after written notice thereof has been given to the Borrower
by the Administrative Agent at the request of the Required
Lenders;
(e) any representation, warranty, certification or
statement made by the Borrower in this Agreement or by the
Borrower or any Subsidiary in any certificate, financial
statement or other document delivered pursuant hereto
shall prove to have been incorrect in any material respect
when made (or deemed made);
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(f) the Borrower and/or one or more Subsidiaries shall
fail to make one or more payments in respect of Material
Financial Obligations when due or within any applicable
grace period;
(g) any event or condition shall occur which
results in the acceleration of the maturity of Material
Financial Obligations, or enables (any applicable grace
period having expired) the holder or holders of Material
Financial Obligations or any Person acting on their behalf
to accelerate the maturity thereof;
(h) the Borrower or any Material Subsidiary shall
commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect
to itself or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or
any substantial part of its property, or shall consent to any
such relief or to the appointment of or taking possession by
any such official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its
debts as they become due, or shall take any corporate action
to authorize any of the foregoing;
(i) an involuntary case or other proceeding shall be
commenced against the Borrower or any Material Subsidiary
seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking
the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any
substantial part of its property, and such involuntary
case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for relief
shall be entered against the Borrower or any Material
Subsidiary under the federal bankruptcy laws as now or
hereafter in effect;
(j) any member of the ERISA Group shall
fail to pay when due an amount or amounts aggregating in
excess of $25,000,000 which it shall have become liable to
pay under Title IV of ERISA; or notice of intent to terminate
a Material Plan shall be filed under Title IV of ERISA by any
member of the ERISA Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of
ERISA or premium-related penalties) in respect of, or to
cause a trustee to be appointed to administer any Material
Plan; or a
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condition shall exist by reason of which the PBGC
would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall occur a
complete or partial withdrawal from, or a default, within
the meaning of Section 4219(c)(5) of ERISA, with respect to,
one or more Multiemployer Plans which could cause one or
more members of the ERISA Group to incur a current payment
obligation in excess of $25,000,000;
(k) a judgment or order for the payment of money in
excess of $25,000,000 (net of insurance to the extent that
the insurer shall have admitted coverage thereof) shall be
rendered against the Borrower or any Subsidiary and such
judgment or order shall continue unsatisfied and unstayed
for a period of 30 days; or
(l) any person or group of persons (within the meaning
of Section 13 or 14 of the Exchange Act) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3
promulgated by the SEC under the Exchange Act) of 20% or more
of the outstanding shares of common stock of the Borrower; or
Continuing Directors shall no longer constitute a majority
of the Borrower's board of directors;
then, and in every such event, while such event is continuing, the
Administrative Agent shall:
(i) if requested by Lenders having more than 50%
in aggregate amount of the Commitments, by notice to
the Borrower terminate the Commitments and the
Swingline Commitment and they shall thereupon
terminate,
(ii) if requested by Lenders having more than 50%
of the Aggregate LC Exposure, by notice to each LC
Issuing Bank instruct such LC Issuing Bank (x) not to
extend the expiry date of any outstanding Letter of
Credit and/or (y) in the case of any Evergreen Letter
of Credit, to give notice to the beneficiary thereof
terminating such Letter of Credit as soon as is
permitted by the provisions thereof, whereupon such LC
Issuing Bank shall deliver notice to that effect
promptly (or as soon thereafter as is permitted by the
provisions of the relevant Letter of Credit) to the
beneficiary of each such Letter of Credit and the
Borrower; and
(iii) if requested by Lenders holding Notes
evidencing more than 50% in aggregate outstanding
principal amount of the Loans, by notice to the
Borrower declare the Notes and the Swingline Note (in
each case
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together with accrued interest thereon) to be, and
the Notes and the Swingline Note shall thereupon
become, immediately due and payable without
presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower;
PROVIDED that, if any Event of Default specified in clause (h) or (i) above
occurs with respect to the Borrower, then without any notice to the Borrower
or any other act by the Administrative Agent or the Lenders, the Commitments
and the Swingline Commitment shall thereupon terminate and the Notes and the
Swingline Note (in each case together with accrued interest thereon) shall
become immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.
SECTION 6.02. NOTICE OF DEFAULT. The Administrative Agent shall give
notice to the Borrower under clause (d) of Section 6.01 promptly upon being
requested to do so by the Required Lenders and shall thereupon notify all the
Lenders thereof.
SECTION 6.03. CASH COVER. The Borrower agrees that, if an Event of
Default shall have occurred and be continuing and Lenders having more than
50% of the Aggregate LC Exposure instruct the Administrative Agent to request
cash collateral pursuant to this Section, the Borrower will, promptly after
it receives such request from the Administrative Agent, pay to the
Administrative Agent an amount in immediately available funds equal to the
then aggregate amount available for subsequent drawings under all outstanding
Letters of Credit, to be held by the Administrative Agent, under arrangements
satisfactory to it, to secure the payment of all LC Reimbursement Obligations
arising from subsequent drawings under such Letters of Credit; PROVIDED that,
if any Event of Default specified in clause (h) or (i) of Section 6.01 occurs
with respect to the Borrower, the Borrower shall pay such amount to the
Administrative Agent forthwith without any notice or demand or any other act
by the Administrative Agent or the Lenders.
ARTICLE 7
THE AGENTS
SECTION 7.01. APPOINTMENT AND AUTHORIZATION. Each Lender irrevocably
appoints and authorizes the Administrative Agent to take such action as agent
on its behalf and to exercise such powers under this Agreement as are
delegated to it
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by the terms hereof, together with all such powers as are reasonably
incidental thereto.
SECTION 7.02. AGENTS AND AFFILIATES. Each of ▇▇▇▇▇▇ Guaranty Trust
Company of New York, Bank of America National Trust and Savings Association,
The Bank of New York and The Bank of Nova Scotia shall have the same rights
and powers under the Financing Documents as any other Lender and may exercise
or refrain from exercising the same as though it were not an Agent, and each
of ▇▇▇▇▇▇ Guaranty Trust Company of New York, Bank of America National Trust
and Savings Association, The Bank of New York and The Bank of Nova Scotia and
their respective Affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Borrower or any of the
Borrower's Subsidiaries or Equity Affiliates as if it were not an Agent under
any of the Financing Documents.
SECTION 7.03. ACTION BY THE ADMINISTRATIVE AGENT. The obligations of
the Administrative Agent hereunder are only those expressly set forth herein.
Without limiting the generality of the foregoing, the Administrative Agent
shall not be required to take any action with respect to any Default, except
as expressly provided in Article 6.
SECTION 7.04. CONSULTATION WITH EXPERTS. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
public accountants and other experts selected by it with reasonable care and
shall not be liable for any action taken or omitted to be taken by it in good
faith in accordance with the advice of such counsel, accountants or experts.
SECTION 7.05. LIABILITY OF THE AGENTS. None of the Agents, their
respective Affiliates and their respective directors, officers, agents or
employees shall be liable for any action taken or not taken by such Person in
connection with any Financing Document (i) in the absence of its own gross
negligence or willful misconduct or (ii) with the consent or at the request
of the Required Lenders, PROVIDED that this clause (ii) shall not affect any
rights the Borrower may have against the Lenders that made such request.
None of the Agents, the Managing Agents, the Co-Agents, their respective
Affiliates and their respective directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into or
verify (i) any statement, warranty or representation made in connection with
any Financing Document or any Borrowing; (ii) the performance or observance
of any of the covenants or agreements of the Borrower in any Financing
Document; (iii) the satisfaction of any condition specified in Article 3,
except, in the case of the Administrative Agent, receipt of items required to
be delivered to it; or (iv) the validity, effectiveness or genuineness of
70
any Financing Document or any other instrument or writing furnished in
connection therewith. The Administrative Agent shall not incur any liability
by acting in reliance upon any notice, consent, certificate, statement, or
other writing (which may be a bank wire, telex, facsimile transmission or
similar writing) believed by it to be genuine or to be signed by the proper
party or parties.
SECTION 7.06. INDEMNIFICATION. The Lenders shall, ratably in
accordance with their Credit Exposures, indemnify each Agent, the Swingline
Bank, their respective Affiliates and their respective directors, officers,
agents and employees (to the extent not reimbursed by the Borrower) against
any cost, expense (including counsel fees and disbursements), claim, demand,
action, loss or liability (except such as result from the relevant
indemnitee's gross negligence or willful misconduct) that such indemnitees
may suffer or incur in connection with the Financing Documents or any action
taken or omitted by the relevant indemnitee thereunder.
SECTION 7.07. CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon any Agent, Managing Agent, Co-Agent
or other Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon any Agent, Managing Agent, Co-Agent or 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
any action under the Financing Documents.
SECTION 7.08. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent
may resign at any time by giving notice thereof to the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders,
and shall have accepted such appointment, within 30 days after the retiring
Administrative Agent gives notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank organized or licensed
under the laws of the United States or of any State thereof and having a
combined capital and surplus of at least $50,000,000. Upon the acceptance of
its appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations (excepting liabilities previously
incurred) hereunder. After any retiring Administrative Agent's resignation
71
hereunder as Administrative Agent, the provisions of this Article shall inure
to its benefit as to any actions taken or omitted to be taken by it while it
was Administrative Agent.
SECTION 7.09. FEES. The Borrower shall pay to the Administrative Agent
for its own account fees in the amounts and at the times previously agreed
upon between the Borrower and the Administrative Agent.
SECTION 7.10. OTHER AGENTS. The Managing Agents, Co-Agents and Agents
(other than the Administrative Agent), in their capacities as such, shall
have no duties or obligations of any kind under the Financing Documents. The
use of the term "Agent" in this Agreement is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable law. Instead, such term is used merely as a
matter of market custom, and, in the case of the Administrative Agent, such
term is intended to create or reflect only an administrative relationship
between independent contracting parties.
ARTICLE 8
CHANGE IN CIRCUMSTANCE
SECTION 8.01. BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR UNFAIR.
If on or prior to the first day of any Interest Period for any Euro-Dollar
Loan or Money Market LIBOR Loan:
(a) the Administrative Agent is advised by the Euro-Dollar
Reference Banks that deposits in dollars (in the applicable
amounts) are not being offered to the Euro-Dollar Reference
Banks in the relevant market for such Interest Period, or
(b) in the case of a Group of Euro-Dollar Loans, Lenders
having 50% or more of the aggregate principal amount of such
Loans advise the Administrative Agent that the Adjusted
London Interbank Offered Rate as determined by the
Administrative Agent will not adequately and fairly reflect
the cost to such Lenders of funding such Loans for such
Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower
and the Lenders, whereupon until the Administrative Agent notifies the
Borrower that the circumstances giving rise to such suspension no longer
exist, (i) the
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obligations of the Lenders to make or maintain Euro-Dollar Loans shall be
suspended and (ii) each outstanding Euro-Dollar Loan shall be converted into
a Base Rate Loan on the last day of the then current Interest Period
applicable thereto. Unless the Borrower notifies the Administrative Agent at
least two Domestic Business Days before the date of any Euro-Dollar Borrowing
or Money Market LIBOR Borrowing for which a Notice of Borrowing has
previously been given that it elects not to borrow on such date, (i) if such
Borrowing is a Euro-Dollar Borrowing, such Borrowing shall instead be made as
a Base Rate Borrowing and (ii) if such Borrowing is a Money Market LIBOR
Borrowing, the Money Market LIBOR Loans comprising such Borrowing shall bear
interest for each day from and including the first day to but excluding the
last day of the Interest Period applicable thereto at the Base Rate for such
day.
SECTION 8.02. ILLEGALITY. If, on or after the date of this Agreement,
the adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof,
or compliance by any Lender (or its Euro-Dollar Lending Office) with any
request or directive (whether or not having the force of law) made on or
after the date of this Agreement by any such authority, central bank or
comparable agency shall make it unlawful or impossible for any Lender (or its
Euro-Dollar Lending Office) to make, maintain or fund its Euro-Dollar Loans
and such Lender shall so notify the Administrative Agent, the Administrative
Agent shall forthwith give notice thereof to the other Lenders and the
Borrower, whereupon until such Lender notifies the Borrower and the
Administrative Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such Lender to make Euro-Dollar Loans, or to
convert outstanding Base Rate Loans into Euro-Dollar Loans, shall be
suspended. Before giving any notice to the Administrative Agent pursuant to
this Section, such Lender shall designate a different Euro-Dollar Lending
Office if such designation will avoid the need for giving such notice and
will not, in the judgment of such Lender, be otherwise disadvantageous to
such Lender. If such notice is given, each Euro-Dollar Loan of such Lender
then outstanding shall be converted to a Base Rate Loan either (a) on the
last day of the then current Interest Period applicable to such Euro-Dollar
Loan if such Lender may lawfully continue to maintain and fund such Loan to
such day or (b) immediately if such Lender shall determine that it may not
lawfully continue to maintain and fund such Loan to such day.
SECTION 8.03. INCREASED COST AND REDUCED RETURN. (a) If, on or after
(x) the date hereof, in the case of any Euro-Dollar Loan or Letter of Credit
or any obligation to make Euro-Dollar Loans or issue or participate in any
Letter of
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Credit or (y) the date of the related Money Market Quote, in the case of any
Money Market Loan, the adoption of any applicable law, rule or regulation, or
any change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable
Lending Office) or any LC Issuing Bank with any request or directive (whether
or not having the force of law) made on or after the date of this Agreement
by any such authority, central bank or comparable agency shall impose, modify
or deem applicable any reserve (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve System,
but excluding with respect to any Euro-Dollar Loan any such requirement
included in an applicable Euro-Dollar Reserve Percentage), special deposit,
insurance assessment or similar requirement against assets of, deposits with
or for the account of, or credit (including Letters of Credit and
participations therein) extended by, any Lender (or its Applicable Lending
Office) or any LC Issuing Bank or shall impose on any Lender (or its
Applicable Lending Office) or any LC Issuing Bank or on the London interbank
market any other condition affecting its Euro-Dollar Loans, its Notes, its
obligation to make Euro-Dollar Loans, its Money Market Loans or its
obligations hereunder in respect of Letters of Credit, and the result of any
of the foregoing is to increase the cost to such Lender (or its Applicable
Lending Office) or such LC Issuing Bank of making or maintaining any
Euro-Dollar Loan or Money Market Loan or issuing or participating in any
Letter of Credit, or to reduce the amount of any sum received or receivable
by such Lender (or its Applicable Lending Office) or such LC Issuing Bank
under this Agreement or under its Note with respect thereto, by an amount
deemed by such Lender or LC Issuing Bank to be material, then, within 15 days
after demand by such Lender or LC Issuing Bank (with a copy to the
Administrative Agent), the Borrower shall pay to such Lender or LC Issuing
Bank such additional amount or amounts as will (subject to subsection (e) of
this Section) compensate such Lender or LC Issuing Bank for such increased
cost or reduction.
(b) If any Lender shall have determined that, after the date hereof,
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital
adequacy (whether or not having the force of law) made on or after the date
of this Agreement by any such authority, central bank or comparable agency,
has or would have the effect of reducing the rate of return on capital of
such Lender (or its Parent) as a consequence of such Lender's obligations
hereunder to a level below that which such Lender (or its
74
Parent) could have achieved but for such adoption, change, request or
directive (taking into consideration its policies with respect to capital
adequacy) by an amount deemed by such Lender to be material, then from time
to time, within 15 days after demand by such Lender (with a copy to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amount or amounts as will (subject to subsection (d) of this Section)
compensate such Lender (or its Parent) for such reduction.
(c) Each Lender and LC Issuing Bank will promptly notify the Borrower
and the Administrative Agent of any event of which it has knowledge,
occurring after the date hereof, which will entitle such Lender or LC Issuing
Bank to compensation pursuant to this Section and will designate a different
Applicable Lending Office if such designation will avoid the need for, or
reduce the amount of, such compensation and will not, in the judgment of such
Lender or LC Issuing Bank, be otherwise disadvantageous to it. A certificate
of any Lender or LC Issuing Bank claiming compensation under this Section and
setting forth in reasonable detail the additional amount or amounts to be
paid to it hereunder and the method of calculation thereof and shall be
conclusive in the absence of manifest error. In determining such amount, such
Lender or LC Issuing Bank may use any reasonable averaging and attribution
methods.
(d) No Lender shall be entitled to claim compensation pursuant to this
Section for (i) Taxes or Other Taxes (as such terms are defined in Section
8.04) or (ii) any increased cost or reduction incurred or accrued more than
90 days before such Lender first notifies the Borrower of the change in law
or other circumstance on which such claim is based.
SECTION 8.04. TAXES. (a) For purposes of this Section, the following
terms have the following meanings:
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings with respect to any payment by
the Borrower pursuant to any Financing Document, and all liabilities with
respect thereto, EXCLUDING (i) in the case of each Lending Party, taxes
imposed on its income, and franchise or similar taxes imposed on it, by a
jurisdiction under the laws of which it is organized or in which its
principal executive office is located or in which its Applicable Lending
Office is located and (ii) in the case of each Lender, any United States
withholding tax imposed on such payments but only to the extent that such
Lender is subject to United States withholding tax at the time such Lender
first becomes a party to this Agreement.
75
"Other Taxes" means any present or future stamp or documentary taxes and
any other excise or property taxes, or similar charges or levies, which arise
from any payment made pursuant to any Financing Document, or from the
execution or delivery of, or otherwise with respect to, any Financing
Document.
(b) Any and all payments by any Borrower to or for the account of any
Lending Party under any Financing Document shall be made without deduction
for any Taxes or Other Taxes; PROVIDED that, if the Borrower shall be
required by law to deduct any Taxes or Other Taxes from any such payment, (i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums
payable under this Section 8.04) such Lending Party receives an amount equal
to the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions, (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law and (iv) the Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 9.1, the original
or a certified copy of a receipt evidencing payment thereof.
(c) The Borrower agrees to indemnify each Lending Party for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 8.04) paid by such Lending Party and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto.
This indemnification shall be paid within 15 days after such Lending Party
makes demand therefor.
(d) Each Lending Party organized under the laws of a jurisdiction outside
the United States, on or prior to its execution and delivery of this
Agreement in the case of each Lending Party listed on the signature pages
hereof and on or prior to the date on which it becomes a Lending Party in the
case of each other Lending Party, and from time to time thereafter if
requested in writing by the Borrower (but only so long as such Lending Party
remains lawfully able to do so), shall provide the Borrower and the
Administrative Agent with Internal Revenue Service form 1001 or 4224, as
appropriate, or any successor form prescribed by the Internal Revenue
Service, certifying that such Lending Party is entitled to benefits under an
income tax treaty to which the United States is a party which exempts such
Lending Party from United States withholding tax or reduces the rate of
withholding tax on payments of interest for the account of such Lending Party
or certifying that the income receivable pursuant to the Financing Documents
is effectively connected with the conduct of a trade or business in the
United States.
76
(e) For any period with respect to which a Lending Party has failed to
provide the Borrower and the Administrative Agent with the appropriate form
pursuant to Section 8.04(d) (unless such failure is due to a change in
treaty, law or regulation occurring after the date on which such form
originally was required to be provided), such Lending Party shall not be
entitled to indemnification under Section 8.04(b) or (c) with respect to
Taxes imposed by the United States; PROVIDED that if a Lending Party, which
is otherwise exempt from or subject to a reduced rate of withholding tax,
becomes subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as such Lending Party shall
reasonably request to assist such Lending Party to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this Section 8.04, such Lender will change
the jurisdiction of its Applicable Lending Office if, in the judgment of such
Lender, such change (i) will eliminate or reduce any such additional payment
which may thereafter accrue and (ii) is not otherwise disadvantageous to such
Lender.
SECTION 8.05 BASE RATE LOANS SUBSTITUTED FOR AFFECTED EURO-DOLLAR
LOANS. If (i) the obligation of any Lender to make Euro-Dollar Loans has been
suspended pursuant to Section 8.02 or (ii) any Lender has demanded
compensation under Section 8.03 or 8.04 with respect to its Euro-Dollar Loans
and the Borrower shall, by at least five Euro-Dollar Business Days' prior
notice to such Lender through the Administrative Agent, have elected that the
provisions of this Section shall apply to such Lender, then, unless and until
such Lender notifies the Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer exist, all Loans which would
otherwise be made by such Lender as (or continued as or converted into)
Euro-Dollar Loans shall instead be made as (or converted into) Base Rate
Loans (on which interest and principal shall be payable contemporaneously
with the related Euro-Dollar Loans of the other Lenders). If such Lender
notifies the Borrower that the circumstances giving rise to such notice no
longer apply, the principal amount of each such Base Rate Loan shall be
converted into a Euro-Dollar Loan on the first day of the next succeeding
Interest Period applicable to the related Euro-Dollar Loans of the other
Lenders.
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ARTICLE 9
MISCELLANEOUS
SECTION 9.01 NOTICES. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, telex,
facsimile transmission or similar writing) and shall be given to such party:
(x) in the case of the Borrower, the Swingline Bank or the
Administrative Agent, at its address, facsimile number or telex number
set forth on the signature pages hereof,
(y) in the case of any Lender or Agent (other than the
Administrative Agent), at its address, facsimile number or telex number
set forth in its Administrative Questionnaire or
(z) in the case of any party, such other address, facsimile number
or telex number as such party may hereafter specify for the purpose by
notice to the Administrative Agent and the Borrower.
Each such notice, request or other communication shall be effective (i) if
given by telex, when such telex is transmitted to the telex number referred
to in this Section and the appropriate answerback is received, (ii) if given
by facsimile transmission, when transmitted to the facsimile number referred
to in this Section and confirmation of receipt is received, (iii) if given by
mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid or (iv) if given by any other
means, when delivered at the address referred to in this Section; PROVIDED
that notices to the Administrative Agent or an LC Issuing Bank under Article
2 or Article 8 shall not be effective until received.
SECTION 9.02. NO WAIVERS. No failure or delay by any Lending Party in
exercising any right, power or privilege under any Financing Document shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.03. EXPENSES; INDEMNIFICATION. (a) The Borrower shall pay (i) all
out-of-pocket expenses of the Administrative Agent, including reasonable fees
and disbursements of special counsel for the Administrative Agent, in
connection with the preparation and administration of the Financing
Documents, any waiver or consent thereunder or any amendment thereof or any
Default or
78
alleged Default thereunder, (ii) all out-of-pocket expenses of the Arranger
and each Co-Arranger (but not any fees and disbursements of its counsel) in
connection with the preparation of the Financing Documents, any waiver or
consent thereunder or any amendment thereof and (iii) if an Event of Default
occurs, all out-of-pocket expenses incurred by each Lending Party, including
(without duplication) the fees and disbursements of outside counsel and the
allocated cost of inside counsel, in connection with such Event of Default
and any collection, bankruptcy, insolvency, workout or other enforcement
proceedings resulting therefrom.
(b) The Borrower shall indemnify each Lending Party, the Arranger, the
Co-Arrangers and their respective Affiliates and the respective directors,
directors, officers, agents and employees of the foregoing (each an
"Indemnitee") and hold each Indemnitee harmless from and against any and all
liabilities, losses, damages, costs and expenses of any kind, including,
without limitation, the reasonable fees and disbursements of counsel, which
may be incurred by such Indemnitee in connection with any investigative,
administrative or judicial proceeding (whether or not such Indemnitee shall
be designated a party thereto) brought or threatened relating to or arising
out of any Financing Document or any actual or proposed use by the Borrower
or any of its Subsidiaries or Equity Affiliates of any Letters of Credit or
any proceeds of the Loans; PROVIDED that no Indemnitee shall have the right
to be indemnified hereunder for such Indemnitee's own gross negligence or
willful misconduct as determined by a court of competent jurisdiction.
SECTION 9.04 SHARING OF SET-OFFS. (a) Each Lender agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise,
receive payment of a proportion of the aggregate amount of principal and
interest due with respect to the Loans and participations in LC Reimbursement
Obligations held by it which is greater than the proportion received by any
other Lender in respect of the aggregate amount of principal and interest due
with respect to the Loans and participations in LC Reimbursement Obligations
held by such other Lender, the Lender receiving such proportionately greater
payment shall purchase such participations in the Loans and participations in
LC Reimbursement Obligations held by the other Lenders, and such other
adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Loans and participations in LC
Reimbursement Obligations held by the Lenders shall be shared by the Lenders
pro rata.
(b) Nothing in this Section shall impair the right of any Lender to
exercise any right of set-off or counterclaim it may have and to apply the
amount subject to such exercise to the payment of indebtedness of the
Borrower other
79
than its indebtedness in respect of the Loans and the LC Reimbursement
Obligations.
(c) The Borrower agrees, to the fullest extent it may effectively do so
under applicable law, that any holder of a participation in a Note or LC
Reimbursement Obligation, whether or not acquired pursuant to the foregoing
arrangements, may exercise rights of set-off or counterclaim and other rights
with respect to such participation as fully as if such holder of a
participation were a direct creditor of the Borrower in the amount of such
participation.
SECTION 9.05 AMENDMENTS AND WAIVERS. Any provision of this Agreement or
the Notes may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed by the Borrower and the Required Lenders (and, if
the rights or duties of any Agent or LC Issuing Bank are affected thereby, by
such Agent or LC Issuing Bank, as the case may be); PROVIDED that no such
amendment or waiver shall:
(i) unless signed by all the Lenders, increase or decrease any
Commitment (except for a ratable decrease in all the Commitments),
postpone the date fixed for the termination of any Commitment or, except
as expressly provided in Section 2.17, extend the expiry date of any
Letter of Credit, reduce the principal of or rate of interest on any
Syndicated Loan or the amount of any LC Reimbursement Obligation or any
interest thereon, or postpone the Termination Date or any date fixed for
any payment of interest on any Syndicated Loan or of any LC
Reimbursement Obligation or any interest thereon;
(ii) unless signed by the Swingline Bank, increase the Swingline
Commitment, postpone the date fixed for the termination of the Swingline
Commitment or otherwise affect any of its rights or obligations
hereunder;
(iii) unless signed by all the Lenders entitled to receive such
fees, reduce or postpone the date fixed for any scheduled payment of
fees hereunder;
(iv) unless signed by all the Lenders, change any provision of
this Section or any other provision of this Agreement specifying which
Lenders may take any action that the Lenders or any of them are entitled
to take hereunder; or
(v) unless signed by each Lender affected thereby, waive any
condition set forth in clause (b), (c), (q) or (r) of Section 3.01.
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SECTION 9.06. SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, except
that the Borrower may not assign or otherwise transfer any of its rights
under the Financing Documents without the prior written consent of all
the Lenders, the LC Issuing Banks and the Swingline Bank.
(b) Any Lender may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its
Commitment or any or all of its Loans and participations in the Letters
of Credit. If any Lender grants such a participating interest to a
Participant, whether or not upon notice to the Borrower and the
Administrative Agent, such Lender shall remain responsible for the
performance of its obligations hereunder, and the Borrower, the LC
Issuing Banks and the Administrative Agent shall continue to deal solely
and directly with such Lender in connection with such Lender's rights
and obligations under the Financing Documents. Any agreement pursuant
to which any Lender may grant such a participating interest shall
provide that such Lender shall retain the sole right and responsibility
to enforce the obligations of the Borrower and the LC Issuing Banks
under the Financing Documents including, without limitation, the right
to approve any amendment, modification or waiver of any provision
thereof; PROVIDED that such participation agreement may provide that
such Lender will not agree to any modification, amendment or waiver of
this Agreement described in clause (i) or (iii) of Section 9.05 without
the consent of the Participant. An assignment or other transfer which
is not permitted by subsection (c) or (d) below shall be given effect
for purposes of this Agreement only to the extent of a participating
interest granted in accordance with this subsection (b).
(c) Any Lender may at any time after the Closing Date assign to one
or more banks or other institutions (each an "Assignee") all, or a pro
rata part of all, of its rights and obligations under the Financing
Documents, and such Assignee shall assume such rights and obligations,
pursuant to an Assignment and Assumption Agreement substantially in the
form of Exhibit J hereto signed by such Assignee and such transferor
Lender, with (and subject to) the subscribed consent of the Borrower
(which shall not be unreasonably withheld), the LC Issuing Banks and the
Swingline Bank, and with notice to the Administrative Agent; PROVIDED
that:
(A) if such Assignee is an Affiliate of such transferor Lender or was a
Lender immediately prior to such assignment, no such consent shall be
required;
81
(B) such assignment may, but need not, include rights of the transferor
Lender in respect of outstanding Money Market Loans;
(C) if such Assignee is not an Affiliate of the transferor Lender and
was not a Lender immediately prior to such assignment, then, unless the
Borrower otherwise agrees, the portion of the transferor Lender's
Commitment assigned to such Assignee shall be at least $20,000,000; and
(D) unless the Borrower otherwise agrees, the transferor Lender and/or
its Affiliates shall retain, in the aggregate, a Commitment at least
equal to the greater of (x) $20,000,000 or (y) 50% of the Commitment
assumed by the transferor Lender when it first became a Lender hereunder;
PROVIDED that, if the aggregate amount of the Commitments is reduced pursuant
to Section 2.12 or otherwise, the minimum amounts specified in clause (C) and
subclauses (x) and (y) of clause (D) above shall be correspondingly reduced.
When (i) such Assignment and Assumption Agreement has been signed and
delivered, (ii) notice thereof has been given to the Administrative Agent and
(iii) such Assignee has paid to such transferor Lender an amount equal to the
purchase price agreed between such transferor Lender and such Assignee, such
Assignee shall be a Lender party to this Agreement and shall have all the
rights and obligations of a Lender to the extent set forth in such Assignment
and Assumption Agreement, and the transferor Lender shall be released from
its obligations hereunder to a corresponding extent, and no further consent
or action by any party shall be required. Upon the consummation of any
assignment pursuant to this subsection (c), the transferor Lender, the
Administrative Agent and the Borrower shall make appropriate arrangements so
that, if required, a new Note is issued to the Assignee. In connection with
any such assignment, either the transferor Lender or the Assignee shall pay
to the Administrative Agent an administrative fee for processing such
assignment in the amount of $3,000. If the Assignee is not incorporated
under the laws of the United States or a State thereof, it shall deliver to
the Borrower and the Administrative Agent certification as to exemption from
deduction or withholding of any United States federal income taxes in
accordance with Section 8.04(d).
(d) Any Lender may at any time assign all or any portion of its rights
under the Financing Documents to a Federal Reserve Bank. No such assignment
shall release the transferor Lender from its obligations thereunder.
(e) No Assignee, Participant or other transferee of any Lender's rights
shall be entitled to receive any greater payment under or by reason by
Section 8.03 or 8.04 than such Lender would have been entitled to receive
with respect to
82
the rights transferred, unless such transfer is made with the Borrower's
prior written consent or by reason of the provisions of Section 8.02, 8.03 or
8.04 requiring such Lender to designate a different Applicable Lending Office
under certain circumstances or, in the case of an Assignee, at a time when
the circumstances giving rise to such greater payment did not exist. Subject
to the foregoing limitation, any Lender claiming compensation or
indemnification pursuant to Section 8.03 or 8.04 may include in its claim
similar compensation or indemnification for any Participant having a
participating interest in such Lender's rights.
SECTION 9.07. NO RELIANCE ON MARGIN STOCK AS COLLATERAL. Each of the
Lenders represents to the Administrative Agent and each of the other Lenders
that it in good faith is not relying upon any "margin stock" (as defined in
Regulation U) as collateral in the extension or maintenance of the credit
provided for in this Agreement.
SECTION 9.08. CONFIDENTIALITY. Each Lending Party agrees to keep any
information delivered or made available by the Borrower to it confidential
from anyone other than persons employed or retained by such Lending Party who
are, or are expected to be, engaged in evaluating, approving, structuring or
administering the credit facility provided herein; PROVIDED that nothing
herein shall prevent any Lending Party from disclosing such information (a)
to any other Lending Party, (b) to any other Person if reasonably incidental
to the administration of the credit facility provided herein, (c) upon the
order of any court or administrative agency, (d) upon the request or demand
of any regulatory agency or authority, (e) which had been publicly disclosed
other than as a result of a disclosure by any Lending Party prohibited by
this Agreement, (f) in connection with any litigation to which such Lending
Party or any of its Affiliates may be a party, (g) to the extent necessary in
connection with the exercise of any remedy hereunder, (h) to such Lending
Party's legal counsel and independent auditors, (i) to any Affiliate of such
Lending Party, solely in connection with this Agreement or any other
transaction or proposed transaction between such Lending Party and/or its
Affiliates and the Borrower and/or its Affiliates, and (j) subject to
provisions substantially similar to those contained in this Section, to any
actual or proposed Participant or Assignee.
SECTION 9.09 WAIVER OF JURY TRIAL. THE BORROWER AND EACH LENDING PARTY
HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THE FINANCING DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED THEREBY.
83
SECTION 9.10 GOVERNING LAW; SUBMISSION TO JURISDICTION. EACH OF THE
FINANCING DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK. THE BORROWER HEREBY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW
YORK CITY FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO
THE FINANCING DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY. THE
BORROWER IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF
ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
SECTION 9.11. COUNTERPARTS; INTEGRATION. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement constitutes the entire agreement and understanding among the
parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
84
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the
day and year first above written.
▇▇▇▇▇ HEALTHCARE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
▇▇▇▇▇ Healthcare Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Treasurer
(with a copy to General Counsel)
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as a Lender and as the
Swingline Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a
Lender and as Syndication Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Title: Managing Director
85
THE BANK OF NEW YORK, as a Lender
and as a Documentation Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA, as a Lender
and as a Documentation Agent
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Title: Senior Relationship Manager
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY, as
a Lender and as a Managing Agent
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Title: Senior Vice President
ABN AMRO BANK N.V.
LOS ANGELES INTERNATIONAL
BRANCH, as a Lender and as a
Managing Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Title: Vice President/Director
86
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as a Lender and as a
Managing Agent
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
------------------------------------
Title: Vice President
THE CHASE MANHATTAN BANK, as a
Lender and as a Managing Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Title: Managing Director
DEUTSCHE BANK NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES, as a
Lender and as a Managing Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Title: Assistant Vice
President
By: /s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Title: Assistant Vice
President
FLEET NATIONAL BANK, as a Lender
and as a Managing Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
87
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., as a Lender and as
a Managing Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Title: Joint General Manager
MELLON BANK, N.A., as a Lender
and as a Managing Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
NATIONSBANK OF TEXAS, N.A., as a
Lender and as a Managing Agent
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title: Vice President
PNC BANK, N.A., as a Lender and
as a Managing Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Title: Assistant Vice
President
THE SANWA BANK LIMITED, DALLAS
AGENCY, as a Lender and as a
Managing Agent
By: /s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Title: Vice President
88
SOCIETE GENERALE, as a Lender and
as a Managing Agent
By: /s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
THE SUMITOMO BANK, LIMITED, as a
Lender and as a Managing Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Title: General Manager
TORONTO DOMINION (TEXAS), INC.,
as a Lender and as a Managing
Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A.,
as a Lender and as a Managing
Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Senior Vice President
89
COMMERZBANK AG
LOS ANGELES BRANCH, as a Lender
and as a Co-Agent
By: /s/ Christian Jagenberg
------------------------------------
Title: Senior Vice President &
Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender and as a Co-Agent
By: /s/ Farboud Tavangar
------------------------------------
Title: First Vice President
THE DAI-ICHI KANGYO BANK, LTD.
LOS ANGELES AGENCY, as a Lender
and as a Co-Agent
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Title: Senior Vice President &
Joint General Manager
THE FUJI BANK, LIMITED, as a
Lender and as a Co-Agent
By: /s/ ▇. ▇▇▇▇▇▇▇
------------------------------------
Title: Joint General Manager
90
KREDIETBANK N.V., as a Lender and
as a Co-Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title: Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A. "RABOBANK
NEDERLAND" NEW YORK BRANCH, as
a Lender and as a Co-Agent
By: /s/ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Title: Deputy General Manager
By: /s/ ▇▇▇▇▇ ▇. Tackling
------------------------------------
Title: Vice President
BANK OF MONTREAL, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title: Managing Director
91
BANQUE PARIBAS, as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Title: General Manager-
Western Region
CORESTATES BANK, N.A., as a
Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Vice President
CREDIT SUISSE FIRST BOSTON, as a
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION, as a Lender
By: /s/ Yasushi Satomi
------------------------------------
Title: Chief Manager & Senior
Vice President
92
SUNTRUST BANK, CENTRAL FLORIDA
NATIONAL ASSOCIATION, as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
STATE OF GEORGIA
COUNTY OF ▇▇▇▇▇▇
On the 28th day of January, 1997 personally appeared ▇▇▇▇▇ ▇▇▇▇▇▇▇, as the
VICE PRESIDENT of SunTrust Bank, Central Florida, National Association, and
before me executed the attached CREDIT AGREEMENT dated as of January 30, 1997
between ▇▇▇▇▇ Healthcare Corporation and SunTrust Bank, Central Florida,
National Association, as Lender.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal, in the
state and county aforesaid.
--------------------------------------------------------------
Signature of Notary Public, State of Georgia
-------------------------
--------------------------------------------------------------
(Print, Type or Stamp Commissioned Name of Notary Public)
Personally known X ; OR Produced identification
-----------
Type of identification produced:
------------------------------
--------------------------------------------------------------
(Notary Seal)
93
THE SAKURA BANK LIMITED LOS
ANGELES AGENCY, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------------
Title: Senior Vice President
THE ROYAL BANK OF SCOTLAND plc, as a
Lender
By: /s/ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Vice President
HIBERNIA NATIONAL BANK, as a Lender
By: /s/ ▇▇▇ St. ▇▇▇▇
------------------------------------
Title: Senior Vice President
THE SUMITOMO TRUST & BANKING
COMPANY LTD. NEW YORK BRANCH,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Senior Vice President
94
BANCA COMMERCIALE ITALIANA LOS
ANGELES FOREIGN BRANCH, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
By: /s/ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: Vice President &
Manager
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR, as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title: Vice President
By: /s/ ▇▇▇▇▇▇ Touffu
------------------------------------
Title: First Vice President &
Regional Manager
BHF-BANK AKTIENGESELLSCHAFT, as a
Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Title: Vice President
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Assistant Treasurer
95
MICHIGAN NATIONAL BANK, as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Title: Vice President, Commercial
Relationship Manager
THE NIPPON CREDIT BANK, LTD., LOS
ANGELES AGENCY, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
------------------------------------
Title: Vice President & Senior
Manager
THE TOKAI BANK LIMITED, LOS
ANGELES AGENCY, as a Lender
By: /s/ Kyosuke Furokawa
------------------------------------
Title: Joint General Manager
UNITED STATES NATIONAL BANK OF
OREGON, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Vice President
96
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK, as Administrative Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title: Vice President
c/o ▇.▇. ▇▇▇▇▇▇ Services Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile number: ▇▇▇-▇▇▇-▇▇▇▇
97
COMMITMENT SCHEDULE
Lender
Commitment
▇▇▇▇▇▇ Guaranty Trust Company of New York.........................$ 125,000,000
Bank of America National Trust and Savings Association............$ 125,000,000
The Bank of New York..............................................$ 125,000,000
The Bank of Nova Scotia...........................................$ 125,000,000
The Industrial Bank of Japan, Limited, Los Angeles Agency.........$ 100,000,000
ABN AMRO Bank N.V. Los Angeles International Branch...............$ 85,000,000
Bank of Tokyo-Mitsubishi Trust Company............................$ 85,000,000
The Chase Manhattan Bank..........................................$ 85,000,000
Deutsche Bank New York and/or Cayman Islands Branches.............$ 85,000,000
Fleet National Bank...............................................$ 85,000,000
The Long-Term Credit Bank of Japan, Ltd...........................$ 85,000,000
Mellon Bank, N.A..................................................$ 85,000,000
NationsBank of Texas, N.A.........................................$ 85,000,000
PNC Bank, N.A.....................................................$ 85,000,000
The Sanwa Bank Limited, Dallas Agency.............................$ 85,000,000
Societe Generale..................................................$ 85,000,000
The Sumitomo Bank, Limited........................................$ 85,000,000
Toronto Dominion (Texas), Inc.....................................$ 85,000,000
Wachovia Bank of Georgia, N.A.....................................$ 85,000,000
Commerzbank AG Los Angeles Branch.................................$ 65,000,000
Credit Lyonnais New York Branch...................................$ 65,000,000
The Dai-Ichi Kangyo Bank, Ltd. Los Angeles Agency.................$ 65,000,000
The Fuji Bank, Limited............................................$ 65,000,000
Kredietbank N.V...................................................$ 65,000,000
Cooperatieve Centrale Raiffeisen- Boerenleenbank B.A.
"Rabobank Nederland" New York Branch............................$ 65,000,000
Bank of Montreal..................................................$ 50,000,000
Banque Paribas....................................................$ 50,000,000
CoreStates Bank, N.A..............................................$ 50,000,000
Credit Suisse First Boston........................................$ 50,000,000
The Mitsubishi Trust and Banking Corporation......................$ 50,000,000
The Sakura Bank Limited Los Angeles Agency........................$ 50,000,000
SunTrust Bank, Central Florida National Association...............$ 50,000,000
The Royal Bank of Scotland plc....................................$ 35,000,000
Hibernia National Bank............................................$ 30,000,000
The Sumitomo Trust & Banking Company Ltd. New York Branch.........$ 30,000,000
Banca Commerciale Italiana Los Angeles Foreign Branch.............$ 25,000,000
Banque Francaise du Commerce Exterieur............................$ 25,000,000
BHF-Bank Aktiengesellschaft.......................................$ 25,000,000
Michigan National Bank............................................$ 25,000,000
The Nippon Credit Bank, Ltd., Los Angeles Agency..................$ 25,000,000
The Tokai Bank, Limited, Los Angeles Agency.......................$ 25,000,000
United States National Bank of Oregon.............................$ 25,000,000
----------
----------
TOTAL........................................................$2,800,000,000
2
PRICING SCHEDULE
The "Euro-Dollar Margin", "Facility Fee Rate" and "LC Fee Rate" for
any day are the respective rates per annum set forth below in the
applicable row under the column corresponding to the Pricing Level that
applies on such day: Pricing Level
Level I Level II Level III Level IV Level V Level VI
Euro-Dollar Margin..0.225% 0.300% 0.375% 0.425% 0.500% 0.6875%
Facility Fee Rate...0.125% 0.150% 0.175% 0.200% 0.250% 0.3125%
LC Fee Rate.........0.225% 0.300% 0.375% 0.425% 0.500% 0.6875%
For purposes of this Pricing Schedule, the following terms have the
following meanings:
"Consolidated Debt Ratio" means, at the end of any Fiscal Quarter, the
ratio of (i) Adjusted Total Debt at the end of such Fiscal Quarter to (ii)
Adjusted EBITDA for the period of four consecutive Fiscal Quarters then ended.
"Level I Pricing" applies during any Rate Period if, at the end of the
Preceding Fiscal Quarter, the Consolidated Debt Ratio was equal to or less
than 2 to 1.
"Level II Pricing" applies during any Rate Period if no higher Pricing
Level applies and, at the end of the Preceding Fiscal Quarter, the
Consolidated Debt Ratio was greater than 2 to 1.
"Level III Pricing" applies during any Rate Period if no higher Pricing
Level applies and, at the end of the Preceding Fiscal Quarter, the
Consolidated Debt Ratio was greater than 2.25 to 1.
"Level IV Pricing" applies during any Rate Period if no higher Pricing
Level applies and, at the end of the Preceding Fiscal Quarter, the
Consolidated Debt Ratio was greater than 2.5 to 1.
"Level V Pricing" applies during any Rate Period if no higher Pricing
Level applies and, at the end of the Preceding Fiscal Quarter, the
Consolidated Debt Ratio was greater than 3.0 to 1.
"Level VI Pricing" applies during any Rate Period if, at the end of the
Preceding Fiscal Quarter, the Consolidated Debt Ratio was greater than 3.5 to
1.
"Preceding Fiscal Quarter" means, with respect to any Rate Period, the
most recent Fiscal Quarter ended before such Rate Period begins.
"Pricing Level" refers to the determination of which of Level I Pricing,
Level II Pricing, Level III Pricing, Level IV Pricing, Level V Pricing or
Level VI Pricing applies on any day. Pricing Levels are referred to in
ascending order (e.g., Level III Pricing is a higher Pricing Level than Level
II Pricing).
"Rate Period" means any period from and including the 46th day of a
Fiscal Quarter to and including the 45th day of the immediately succeeding
Fiscal Quarter.
SCHEDULE 4.05
PENDING LITIGATION
The Borrower hereby incorporates by reference the disclosure concerning the
legal proceedings referred to in its annual report on Form 10-K for its
fiscal year ended May 31, 1996 and its quarterly report on Form 10-Q for its
fiscal quarter ended November 30, 1996. The Borrower also hereby
incorporates by reference the disclosure concerning the legal proceedings
referred to in OrNda's annual report on Form 10-K for its fiscal year ended
August 31, 1996, and OrNda's quarterly report on Form 10-Q for its fiscal
quarter ended November 30, 1996.
EXHIBIT A
NOTE
New York, New York
, 199
For value received, ▇▇▇▇▇ HEALTHCARE CORPORATION, a Nevada corporation
(the "Borrower"), promises to pay to the order of ________________ (the
"Lender"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Loan made by the Lender to the Borrower pursuant to
the Credit Agreement referred to below on the maturity date provided for in
the Credit Agreement. The Borrower promises to pay interest on the unpaid
principal amount of each such Loan on the dates and at the rate or rates
provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or
other immediately available funds at the office of ▇▇▇▇▇▇ Guaranty Trust
Company of New York, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
All Loans made by the Lender, the respective dates and amounts thereof and
all payments of the principal with respect thereto shall be recorded by the
Lender and, if the Lender so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding may be endorsed
by the Lender on the schedule attached hereto, or on a continuation of such
schedule attached to and made a part hereof; provided that the failure of the
Lender to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under any other Financing Document.
This note is one of the Notes referred to in the Credit Agreement dated as
of January 30, 1997 among the Borrower, the Lenders, Managing Agents,
Co-Agents and Swingline Bank party thereto, The Bank of New York and The Bank
of Nova Scotia, as Documentation Agents, Bank of America National Trust and
Savings Association, as Syndication Agent, and ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Administrative Agent (as the same may be amended from time to
time, the "Credit Agreement"). Terms defined in the Credit Agreement are
used
A-1
herein with the same meanings. Reference is made to the Credit Agreement for
provisions for the prepayment hereof and the acceleration of the maturity
hereof.
▇▇▇▇▇ HEALTHCARE CORPORATION
By
-------------------------------------------
Title:
A-2
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
-----------------------------------------------------------------------------
Amount of
Date Amount of Type of Principal Notation
Loan Loan Repaid Made by
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A-3
EXHIBIT B
FORM OF MONEY MARKET QUOTE REQUEST
[Date]
To: ▇▇▇▇▇▇ Guaranty Trust Company of New York
(the "Administrative Agent")
From: ▇▇▇▇▇ Healthcare Corporation
Re: Credit Agreement dated as of January 30, 1997 (the
"Credit Agreement") among the Borrower and the Lenders,
Managing Agents, Co-Agents, Swingline Bank and Agents
party thereto
We hereby give notice pursuant to Section 2.03 of the Credit Agreement
that we request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of Borrowing: __________________
PRINCIPAL AMOUNT 2 INTEREST PERIOD 3
------------------ -----------------
$
Such Money Market Quotes should offer a Money Market
[Margin] [Absolute Rate]. [The applicable base rate is the
London Interbank Offered Rate.]
---------------------
2 Amount must be $10,000,000 or a larger multiple of $1,000,000.
3 Not less than one month (LIBOR Auction) or not less than 7 days (Absolute
Rate Auction), subject to the provisions of the definition of Interest Period.
B-1
Terms used herein have the meanings assigned to them in the Credit
Agreement.
▇▇▇▇▇ Healthcare Corporation
By
---------------------------------
Title:
B-2
EXHIBIT C
FORM OF INVITATION FOR MONEY MARKET QUOTES
To: [Name of Lender]
Re: Invitation for Money Market Quotes to ▇▇▇▇▇ Healthcare
Corporation (the "Borrower")
Pursuant to Section 2.03 of the Credit Agreement dated as of January 30,
1997 among the Borrower, the Lenders, Managing Agents, Co-Agents, Swingline
Bank and Agents party thereto, and the undersigned, as Administrative Agent,
we are pleased on behalf of the Borrower to invite you to submit Money Market
Quotes to the Borrower for the following proposed Money Market Borrowing(s):
Date of Borrowing:
--------------------------
Principal Amount Interest Period
---------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank
Offered Rate.]
Please respond to this invitation by no later than [2:00 P.M.] [10:00 A.M.]
(New York City time) on [date].
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK
By
---------------------------
Authorized Officer
C-1
EXHIBIT D
FORM OF MONEY MARKET QUOTE
To: ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Administrative Agent
Re: Money Market Quote to ▇▇▇▇▇ Healthcare Corporation (the
"Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Lender: ________________________________
2. Person to contact at Quoting Lender:
_________________________
3. Date of Borrowing: ____________________
4. We hereby offer to make Money Market Loan(s) in the
following principal amounts, for the following Interest
Periods and at the following rates:
Money Market
Principal Amount5 Interest Period6 Margin7 Absolute Rate8
----------------- --------------- ------------ ---------------
$
$
------------
4As specified in the related Invitation.
5Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate limitation if the sum of the individual
offers exceeds the amount the bank is willing to lend. Bids must be made for
$10,000,000 or a larger multiple of $1,000,000.
6Not less than one month or not less than 7 days, as specified in the related
Invitation. No more than five bids are permitted for each Interest Period.
7Margin over or under the London Interbank Offered Rate
determined for the applicable Interest Period. Specify percentage (to the
nearest 1/10,000 of 1%) and specify whether "PLUS" or "MINUS".
8Specify rate of interest per annum (to the
nearest 1/10,000th of 1%).
D-1
[Provided, that the aggregate principal amount of Money
Market Loans for which the above offers may be accepted
shall not exceed $____________.]
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the Credit Agreement
dated as of January 30, 1997 among the Borrower, the Lenders, Managing
Agents, Co-Agents, Swingline Bank and Agents party thereto and yourselves, as
Administrative Agent, irrevocably obligates us to make the Money Market
Loan(s) for which any offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF LENDER]
Dated: By
----------------------------
Authorized Officer
D-2
EXHIBIT E
SWINGLINE NOTE
New York, New York
, 199
For value received, ▇▇▇▇▇ HEALTHCARE CORPORATION, a Nevada corporation
(the "Borrower"), promises to pay to the order of ▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK (the "Swingline Bank") the unpaid principal amount of
each Swingline Loan made by the Swingline Bank to the Borrower pursuant to
the Credit Agreement referred to below on the maturity date provided for in
the Credit Agreement. The Borrower promises to pay interest on the unpaid
principal amount of each such Swingline Loan on the dates and at the rate or
rates provided for in the Credit Agreement. All such payments of principal
and interest shall be made in lawful money of the United States in Federal or
other immediately available funds at the office of ▇▇▇▇▇▇ Guaranty Trust
Company of New York, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
All Swingline Loans made by the Swingline Bank and all repayments of the
principal thereof shall be recorded by the Swingline Bank and, if the
Swingline Bank so elects in connection with any transfer or enforcement
hereof, appropriate notations to evidence the foregoing information with
respect to each such Swingline Loan then outstanding may be endorsed by the
Swingline Bank on the schedule attached hereto, or on a continuation of such
schedule attached to and made a part hereof; provided that the failure of the
Swingline Bank to make any such recordation or endorsement shall not affect
the obligations of the Borrower hereunder or under any other Financing
Document.
This note is the Swingline Note referred to in the Credit Agreement dated as
of January 30, 1997 among the Borrower, the Lenders, Managing Agents,
Co-Agents and Swingline Bank party thereto, The Bank of New York and The Bank
of Nova Scotia, as Documentation Agents, Bank of America National Trust and
Savings Association, as Syndication Agent, and ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Administrative Agent (as the same may be amended from time to
time, the "Credit Agreement"). Terms defined in the Credit Agreement are used
E-1
herein with the same meanings. Reference is made to the Credit Agreement for
provisions for the prepayment hereof and the acceleration of the maturity
hereof.
▇▇▇▇▇ HEALTHCARE CORPORATION
By
------------------------
Title:
E-2
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
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Amount of
Amount of Principal Notation Made
Date Loan Repaid by
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E-3
EXHIBIT F
SENIOR
OFFICER'S
CLOSING CERTIFICATE
I, [name], [title] of ▇▇▇▇▇ Healthcare Corporation, a Nevada corporation
(the "Borrower"), in connection with (i) the closing held today (the
"Closing") under the $2,800,000,000 Credit Agreement dated as of January 30,
1997 (the "Borrower's Credit Agreement") among the Borrower and the Lenders,
Managing Agents, Co-Agents, Swingline Bank and Agents party thereto, and (ii)
the borrowing today (the "First Borrowing") by the Borrower thereunder, DO
HEREBY CERTIFY that:
1. The representations and warranties made by the Borrower in the
Borrower's Credit Agreement are true on and as of the date hereof.
2. Immediately before and after the First Borrowing under the
Borrower's Credit Agreement, no Default will have occurred and be continuing.
3. The Borrower has made available, or has irrevocably instructed the
relevant banks to make available from the proceeds of the New Public Debt
and/or the First Borrowing, to ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Agent under the Borrower's Existing Credit Agreement, funds sufficient to pay
in full the principal of all loans outstanding under the Borrower's Existing
Credit Agreement on the date hereof and all interest and fees accrued
thereunder to but excluding the date hereof.
4. (A) OrNda has given The Bank of Nova Scotia, as Agent under OrNda's
Existing Credit Agreement ("OrNda's Agent"), irrevocable notice of
termination of the commitments of the lenders thereunder, (B) the Borrower
has made available, or has irrevocably instructed the relevant banks to make
available from the proceeds of the New Public Debt and/or the First
Borrowing, to OrNda's Agent for the account of OrNda, an amount sufficient to
pay in full the principal of all loans and reimbursement obligations
outstanding on the date hereof under OrNda's Existing Credit Agreement and
all interest and fees accrued thereunder to but excluding the date hereof and
(C) OrNda has irrevocably instructed OrNda's Agent to apply such proceeds to
pay such amounts in full on the date hereof.
F-1
5. The Acquisition has been consummated substantially on the terms set
forth in the Merger Agreement and all conditions to the consummation of the
Acquisition, as set forth in the Merger Agreement, have been fulfilled in all
material respects.
6. The total consideration paid by the Borrower and its Subsidiaries
as a result of the Acquisition to the former holders of common stock of OrNda
and options to purchase such common stock consists only of shares of common
stock of the Borrower and cash to purchase fractional shares.
7. All approvals, consents and other actions, by or in respect of, or
filings with, any governmental body, agency, official, authority or other
Person required in connection with the Acquisition, the OrNda Tender Offers,
the issuance and sale of the New Public Debt or the transactions contemplated
by the Financing Documents have been obtained, taken or made, except for (i)
any consent which is not required because an applicable waiting period has
expired without action being taken and (ii) other approvals, consents and
other actions as to which failures to obtain or take them could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect or an
adverse effect on the validity or enforceability of any material provision of
any Financing Document.
8. No order, decree, judgment, ruling or injunction exists which
restrains or otherwise prevents the consummation of the Acquisition in the
manner contemplated by the Merger Agreement, the consummation of the OrNda
Tender Offers, the issuance and sale of the New Public Debt in the manner
described in the New Public Debt Prospectus or the making of the Loans. No
action, suit or proceeding is pending or threatened in which there is a
reasonable possibility of an adverse decision which would have a Material
Adverse Effect or an adverse effect on the validity or enforceability of any
material provision of any Financing Document.
9. The officer who executed the Borrower's Credit Agreement on behalf
of the Borrower was authorized by the Borrower's board of directors to, and
did, approve of the terms of the Borrower's Credit Agreement. Terms used
herein and not defined herein have the meanings assigned to them in the
Borrower's Credit Agreement.
_______________________________
Name:
Title:
[Closing Date]
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EXHIBIT G
OPINION OF
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
SPECIAL COUNSEL TO THE BORROWER
--------------------------------
[Closing Date]
To: The Lenders, Managing Agents,
Co-Agents, Swingline Bank
and Agents Party to the Credit
Agreement referred to herein
Re: Credit Agreement dated as of January 30, 1997
among ▇▇▇▇▇ Healthcare Corporation and the
Lenders, Managing Agents, Co-Agents,
Swingline Bank and Agents party thereto
Ladies and Gentlemen:
We have acted as special counsel to ▇▇▇▇▇ Healthcare Corporation, a
Nevada corporation (the "Borrower"), in connection with the Credit Agreement
dated as of January 30, 1997 (the "Credit Agreement") among the Borrower, the
Lenders, Managing Agents, Co-Agents and Swingline Bank party thereto, The
Bank of New York and The Bank of Nova Scotia, as Documentation Agents, Bank
of America NT & SA, as Syndication Agent, and ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Administrative Agent. Terms defined in the Credit Agreement
and not otherwise defined herein are used herein as therein defined.
This opinion is delivered pursuant to Section 3.01(j) of the Credit
Agreement.
In rendering this opinion, we have examined originals or copies certified
or otherwise identified to our satisfaction as being true copies of the
following documents and instruments:
(a) the Credit Agreement, including the Exhibits and Schedules
thereto;
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(b) the Notes;
(c) the Swingline Note;
(d) a certificate of even date herewith of the corporate secretary
of the Borrower as to resolutions, incumbency of certain officers and
the form of articles of incorporation and by-laws of the Borrower in
effect on the date hereof;
(e) a certificate of even date herewith executed by an officer of
the Borrower setting forth or certifying certain factual matters; and
(f) a certificate of recent date of the Secretary of State of Nevada
as to the legal existence of the Borrower in good standing under the
laws of Nevada. The documents referred to in Items (a) through (c) are
sometimes referred to herein collectively as the "Financing Documents".
We have, with your permission, assumed, without independent
investigation or inquiry with respect to any such matter, that:
(a) The Borrower is a validly existing corporation in good standing under
the laws of the State of Nevada. The Borrower has requisite corporate power
and authority to own and operate its properties, to conduct its business in
the manner in which it presently is conducted, and to execute, deliver and
perform its obligations under each of the Financing Documents.
(b) Each of the Financing Documents has been duly authorized by all
necessary corporate action on the part of the Borrower. Each of the
Financing Documents has been duly executed and delivered on behalf of the
Borrower.
(c) Each Lender and the Administrative Agent each has all requisite power
and authority to execute, deliver and perform its obligations under the
Credit Agreement; the execution and delivery of the Credit Agreement and
performance of such obligations have been duly authorized by all necessary
action on the part of such Lender and the Administrative Agent; and the
Credit Agreement is the legal, valid and binding obligation of such Lender or
the Administrative Agent, enforceable against it in accordance with its terms.
(d) The execution and delivery of the Credit Agreement by each Lender and
the Administrative Agent and performance by each of them of their respective
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obligations thereunder comply with all laws and regulations that are
applicable to such Lender or the Administrative Agent or the transactions
contemplated by the Credit Agreement because of the nature of their
respective businesses (provided that the assumption stated in this
subparagraph (d) does not relate to any matter as to which we expressly state
our opinion herein).
(e) The signatures on all documents examined by us are genuine, and all
individuals executing such documents were thereunto duly authorized.
(f) The documents submitted to us as originals are authentic and the
documents submitted to us as certified or reproduction copies conform to the
originals.
With respect to questions of fact material to the opinions expressed
below, we have, with your consent, relied upon certificates of public
officials and officers of the Borrower, in each case without having
independently verified the accuracy or completeness thereof.
With respect to any opinion herein in regard to the existence or absence
of facts that is stated to be to our actual knowledge, such statement means
that, during the course of our representation of the Borrower, no information
has come to the attention of the lawyers in our Firm participating in such
representation that has given them actual knowledge of facts contrary to the
existence or absence of the facts indicated. No inference as to our
knowledge of the existence or absence of such facts should be drawn from our
representation of the Borrower.
Based upon the foregoing, and subject to the qualifications, exceptions,
limitations and assumptions hereinafter set forth, we are of the opinion that:
(1) Each of the Financing Documents constitutes the legal, valid and
binding obligation of the Borrower and is enforceable against the Borrower in
accordance with its terms.
(2) No consent, approval or authorization of, and no registration,
declaration or filing with any administrative, governmental or other public
authority is required under the laws of the United States of America or the
State of New York which, in our experience, are generally applicable to
transactions of the type contemplated by the Credit Agreement, or under the
Nevada General Corporation Law, to be obtained or made in connection with the
execution, delivery and performance by the Borrower, or for the validity or
enforceability against the Borrower, of any of the Financing Documents.
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(3) Neither the execution and delivery of the Financing Documents and the
performance by the Borrower of its obligations thereunder nor the
consummation of the transactions contemplated thereby constitutes or will
constitute a violation of any laws of the United States of America or the
State of New York which, in our experience, are generally applicable to
transactions of the type contemplated by the Credit Agreement, or under the
Nevada General Corporation Law or the California Corporations Code, or, to
our actual knowledge, of any order of any court or governmental authority
that is applicable to the Borrower.
(4) The Borrower is neither an "investment company" nor a Person directly
or indirectly "controlled" by or "acting on behalf of" an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended. The Borrower is neither a "holding company", nor an "affiliate" of
a "holding company" or a "subsidiary company" of a "holding company", as such
terms are defined in the Public Utility Holding Company Act of 1935, as
amended.
(5) Neither the making of the Loans on the Closing Date pursuant to, nor
the application of the proceeds of the Loans in accordance with, the Credit
Agreement will violate Regulation G, U or X promulgated by the Board of
Governors of the Federal Reserve System.
Each of the opinions set forth above is subject to the following
exceptions, qualifications, limitations and assumptions:
(a) Our opinions are subject to the effect of bankruptcy, insolvency,
reorganization, moratorium, arrangement or other similar laws affecting
enforcement of creditors' rights generally, including, without limitation,
the effect of statutory or other laws regarding fraudulent conveyances or
transfers, preferential transfers, and of laws affecting distributions by
corporations to stockholders.
(b) Our opinions are subject to the application of general principles of
equity, whether considered in a case or proceeding at law or in equity,
including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing.
(c) Our opinions are subject to the qualifications that indemnification
provisions in any of the Financing Documents may be unenforceable to the
extent that such indemnification may be held to be in violation of or against
public policy.
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This opinion is limited to the effect of (i) the laws of the United
States of America and the State of New York, (ii) for purposes only of our
opinion expressed in Paragraph 3 herein, the California Corporations Code,
and (iii) to the limited extent set forth below, the General Corporation Law
of the State of Nevada. Although we are not admitted to practice in the
State of Nevada, we are generally familiar with the General Corporation Law
of the State of Nevada and have made such inquiries as we consider necessary
to render our opinions expressed in Paragraphs 2 and 3 hereof. This opinion
relates to the present state of the laws referred to herein and, in rendering
this opinion, we assume no obligation to revise or supplement this opinion
should the present laws, or the interpretation thereof, be changed.
This opinion is rendered to the Lenders, the Managing Agents, the
Co-Agents, the Swingline Bank and the Agents as of the date hereof in
connection with the Credit Agreement, and may not be relied upon by any other
person (except an LC Issuing Bank) or by them in any other context.
Very truly yours,
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇
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EXHIBIT H
OPINION OF
▇▇▇▇▇ ▇▇▇▇▇
GENERAL COUNSEL FOR THE BORROWER
--------------------------------
[Closing Date]
To: The Lenders, Managing Agents,
Co-Agents, Swingline Bank
and Agents Party to the Credit
Agreement referred to herein
Ladies and Gentlemen:
I am the General Counsel of ▇▇▇▇▇ Healthcare Corporation, a Nevada
corporation (the "Borrower"), and have acted as such in connection with the
Credit Agreement dated as of January 30, 1997 (the "Credit Agreement") among
the Borrower, the Lenders, Managing Agents, Co-Agents and Swingline Bank
party thereto, The Bank of New York and The Bank of Nova Scotia, as
Documentation Agents, Bank of America National Trust & Savings Association,
as Syndication Agent, and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Administrative Agent.
This opinion is delivered to you pursuant to Section 3.01(k) of the
Credit Agreement. Terms used herein which are defined in the Credit
Agreement have the respective meanings set forth in the Credit Agreement,
unless otherwise defined herein.
In connection with this opinion, I have examined executed copies of each
of the Credit Agreement (including all of the Schedules and Exhibits
thereto), the Notes and the Swingline Note (together, the "Financing
Documents") and such corporate documents and records of the Borrower and its
Subsidiaries and certificates of public officials and officers of the
Borrower and its Subsidiaries, and such other documents, as I have deemed
necessary or appropriate for the purposes of this opinion. In stating my
opinion, I have assumed the genuineness of all signatures and the authority
of persons signing the Financing Documents on
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behalf of parties thereto other than the Borrower, the authenticity of all
documents submitted to me as originals and the conformity to authentic
original documents of all documents submitted to me as certified, conformed
or photostatic copies. This opinion is limited to the laws of California,
New York and the United States of America, and to the general corporate laws
of the State of Nevada.
Based upon the foregoing, I am of the opinion that:
1. CORPORATE EXISTENCE; COMPLIANCE WITH LAW. The Borrower (a) is duly
organized, validly existing and in good standing under the laws of the State
of Nevada, and (b) has the corporate power, authority and legal right to own
or operate its properties or to lease the properties it operates and to
conduct the business in which it is currently engaged. Except as could not,
in the aggregate, reasonably be expected to have a Material Adverse Effect or
an adverse effect on the validity or enforceability of any material provision
of any Financing Document, (x) the Borrower is duly qualified as a foreign
corporation, and in good standing under the laws of each jurisdiction where
its ownership, lease or operation of properties or the conduct of its
business requires such qualification, and (y) each of the Borrower and its
Subsidiaries is in compliance with all laws, regulations, decrees and orders
applicable to the Borrower or any of its Subsidiaries (including, without
limitation, laws, regulations, decrees and orders relating to environmental,
occupational and health standards and controls and in respect to antitrust,
monopoly, restraint of trade or unfair competition). The Borrower and its
Subsidiaries have obtained all certifications, licenses, accreditations and
approvals that are necessary to conduct their respective businesses. None of
the Borrower or any of its Subsidiaries has received or, to the best of my
knowledge, expects to receive, any order or notice of any violation or claim
of violation of any law, regulation, decree, rule, judgment or order of any
governmental authority or agency relating to the ownership or operation of
any hospital or other facility owned or operated by it, as to which the cost
of compliance or the consequences of noncompliance, individually or in the
aggregate, would have a Material Adverse Effect or which would impair the
ability of the Borrower to discharge any of its obligations under any of the
Financing Documents.
2. CORPORATE POWER; AUTHORIZATION. The Borrower has the corporate
power, authority and legal right to execute, deliver and perform the
Financing Documents and to borrow and obtain the issuance of letters of
credit thereunder, and has taken all necessary corporate action to authorize
the borrowings and the issuance of such letters of credit on the terms and
conditions of the Financing Documents and to authorize the execution,
delivery and performance of the Financing Documents. No consent of any other
Person, and no authorization of,
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notice to, or other act by or in respect of the Borrower by any governmental
authority, agency or instrumentality is required in connection with
borrowings or the issuance of letters of credit thereunder or with the
execution, delivery, performance, validity or enforceability of the Financing
Documents. The Borrower has duly executed and delivered each Financing
Document.
3. NO LEGAL BAR. The execution, delivery and performance by the
Borrower of the Financing Documents, the borrowings and the issuance of
letters of credit thereunder and the use of the proceeds of such borrowings
and the use of such letters of credit will not violate (except to the extent
that such violation, if any, would not have a Material Adverse Effect or an
adverse effect on the validity or enforceability of any material provision of
any Financing Document) any provision of any existing law or regulation
applicable to the Borrower or any of its Subsidiaries or of any award, order
or decree applicable to the Borrower or any of its Subsidiaries known to me
(after due inquiry) of any court, arbitrator or governmental authority, or of
the restated articles of incorporation or restated by-laws of the Borrower
or, to the best of my knowledge (after due inquiry), of any security issued
by the Borrower or of any material mortgage, indenture, lease, contract or
other agreement or undertaking to which the Borrower is a party or by which
the Borrower or any of its respective properties or assets may be bound, and
will not result in or require the creation or imposition of any Lien
prohibited by the Credit Agreement on any of its properties or revenues
pursuant to the provisions of any such mortgage, indenture, contract, lease
or other agreement or other undertaking.
4. NO MATERIAL LITIGATION. To the best of my knowledge, after due
inquiry, (i) there are no pending or threatened actions, suits, proceedings
or investigations against the Borrower or any of its Subsidiaries in any
court or by or before any arbitrator or governmental authority that calls
into question the validity of the Financing Documents and (ii) except as
disclosed in Schedule 4.05 to the Credit Agreement, there are no such pending
or threatened actions, suits, proceedings or investigations in which there is
a reasonable possibility of an adverse determination that could reasonably be
expected to have a Material Adverse Effect or an adverse effect on the
validity or enforceability of any material provision of any Financing
Document. For purposes of the preceding sentence, I have assumed that, in
medical malpractice actions now pending or threatened against the Borrower
and its Subsidiaries, damages would be assessed consistent with the
Borrower's past experience. The past experience of the Borrower has been
that damages assessed in such suits have been adequately covered by
insurance. In rendering the opinions set forth in this paragraph 4, I have
not conducted a search of any federal or state court docket. My inquiry has
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been limited to consultation with counsel representing the Borrower and its
Subsidiaries in litigation matters.
This opinion relates to the present state of the laws referred to herein
and, in rendering this opinion, I assume no obligation to revise or
supplement this opinion should the present laws, or the interpretation
thereof, be changed. This opinion is rendered to the Lenders, the Managing
Agents, the Co-Agents, the Swingline Bank and the Agents as of the date
hereof in connection with the Credit Agreement, and may not be relied upon by
any other person (except an LC Issuing Bank) or by them in any other context.
Very truly yours,
_______________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇
General Counsel
H-4
EXHIBIT I
OPINION OF
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
SPECIAL COUNSEL FOR THE ADMINISTRATIVE AGENT
--------------------------------------------
[Closing Date]
To the Lenders , Managing Agents,
Co-Agents, Swingline Bank
and Agents
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Administrative Agent
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have participated in the preparation of the $2,800,000,000 Credit
Agreement dated as of January 30, 1997 (the "Credit Agreement") among ▇▇▇▇▇
Healthcare Corporation, a Nevada corporation, the Lenders, Managing Agents,
Co-Agents and Swingline Bank party thereto, The Bank of New York and The Bank
of Nova Scotia, as Documentation Agents, Bank of America National Trust &
Savings Association, as Syndication Agent, and ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Administrative Agent, and have acted as special counsel for
the Administrative Agent for the purpose of rendering this opinion pursuant
to Section 3.01(l) of the Credit Agreement. Terms defined in the Credit
Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments and have conducted such other
investigations of fact and law as we have deemed necessary or advisable for
purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. The Credit Agreement constitutes a valid and binding agreement of
the Borrower and the Notes and Swingline Note constitute valid and binding
I-1
obligations of the Borrower, in each case enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and by general principles of
equity.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York and the federal laws
of the United States of America. Insofar as the foregoing opinions involve
matters governed by the laws of any other jurisdiction, we have relied, with
your permission and without independent investigation, upon the opinions of
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇, Esq., each dated the date hereof, a
copy of each of which has been delivered to you, and we have assumed, without
independent investigation, the correctness of the matters set forth in each
such opinion, our opinion being subject to the qualifications and limitations
set forth in each such opinion with respect thereto. In addition, we express
no opinion as to the effect (if any) of any law of any jurisdiction (except
the State of New York) in which any Lender is located which limits the rate
of interest that such Lender may charge or collect.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by any other Person (except an LC Issuing Bank) without our prior
written consent.
Very truly yours,
I-2
EXHIBIT J
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ between [ASSIGNOR](the "Assignor")
and [ASSIGNEE] (the "Assignee").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, this Assignment and Assumption Agreement relates to
the Credit Agreement dated as of January 30 , 1997 among
▇▇▇▇▇ Healthcare Corporation (the "Borrower"), the Lenders,
Managing Agents, Co-Agents and Swingline Bank party thereto,
The Bank of New York and The Bank of Nova Scotia, as
Documentation Agents, Bank of America National Trust &
Savings Association, as Syndication Agent, and ▇▇▇▇▇▇
Guaranty Trust Company of New York, as Administrative Agent
(as amended from time to time, the "Credit Agreement");
[WHEREAS, as provided under the Credit Agreement, the
Assignor has a Commitment to make Loans to the Borrower and
participate in Letters of Credit in the amount of
$_______________, under which the Assignor has outstanding
Syndicated Loans in the aggregate principal amount of
$___________ at the date hereof];
[WHEREAS, Letters of Credit with a total amount available
for drawing thereunder of $________ are outstanding at the
date hereof, and]
[WHEREAS, the Assignor proposes to assign to the Assignee
all of the rights of the Assignor under the Credit Agreement
in respect of a portion of its Commitment in an amount equal
to $__________ (the "Commitment Assigned Amount"), together
with a corresponding portion of each of its outstanding
Syndicated Loans and its LC Exposure, and the Assignee
proposes to accept such assignment of such rights and assume
the corresponding obligations from the Assignor;]
[WHEREAS, the Assignor also proposes to assign to the Assignee
Money Market Loans in an aggregate outstanding principal amount
of $__________;]
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NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. All capitalized terms not otherwise defined
herein have the respective meanings set forth in the Credit Agreement.
SECTION 2. ASSIGNMENT. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement with
respect to its Commitment to the extent of the Commitment Assigned Amount,
and the Assignee hereby accepts such assignment from the Assignor and assumes
all of the obligations of the Assignor under the Credit Agreement to the
extent of the Commitment Assigned Amount, including the purchase from the
Assignor of a pro-rata portion of the outstanding principal amount of each
Syndicated Loan made by the Assignor, and a pro rata portion of its LC
Exposure. Upon the execution and delivery hereof by the Assignor and the
Assignee[, the Borrower, the Issuing Banks, the Agent and the Swingline Bank]
and the payment of the amounts specified in Section 3 required to be paid on
the date hereof (i) the Assignee shall, as of the date hereof, succeed to the
rights and be obligated to perform the obligations of a Lender under the
Credit Agreement with a Commitment in an amount equal to the Commitment
Assigned Amount, (ii) the Commitment of the Assignor shall, as of the date
hereof, be reduced by a like amount and the Assignor released from its
obligations under the Credit Agreement to the extent such obligations have
been assumed by the Assignee. The assignment provided for herein shall be
without recourse to the Assignor.
SECTION 3. PAYMENTS. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on
the date hereof in Federal funds the amount heretofore agreed between
them.(9) Facility fees accrued with respect to the Commitment Assigned Amount
to the date hereof are for the account of the Assignor and such fees accruing
with respect to the Commitment Assigned Amount on and after the date hereof
are for the account of the Assignee. Each of the Assignor and the Assignee
agrees that if it receives any amount under the Credit Agreement which is for
the account of the other party hereto, it shall receive the same for the
account of such other party to the extent of such other party's interest
therein and shall promptly pay the same to such other party.
________________________
(9) Amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee. It may be
preferable in an appropriate case to specify these amounts generically or by
formula rather than as a fixed sum.
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[SECTION 4. CONSENT OF THE BORROWER, THE LC ISSUING BANKS AND THE
SWINGLINE LENDER. This Agreement is conditioned upon the consent of the
Borrower, the LC Issuing Banks and the Swingline Bank pursuant to Section
9.06(c) of the Credit Agreement.]
SECTION 5. NON-RELIANCE ON ASSIGNOR. The Assignor makes no
representation or warranty in connection with, and shall have no
responsibility with respect to, the solvency, financial condition or
statements of the Borrower or the validity and enforceability of the
obligations of the Borrower in respect of any Financing Document. The
Assignee acknowledges that it has, independently and without reliance on the
Assignor, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and will continue to be responsible for making its own independent
appraisal of the business, affairs and financial condition of the Borrower.
SECTION 6. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By __________________________________
Title:
[ASSIGNEE]
By __________________________________
Title:
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[The undersigned consent to the foregoing assignment:
▇▇▇▇▇ HEALTHCARE
CORPORATION
By ____________________________
Title:
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK,
as Swingline Bank
By _____________________________
Title:
[LC ISSUING BANKS]
By ______________________________
Title: ]
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