\n a) Greater than 7.50 to 1.00 A- A3 8 b.p. 9 b.p.<\/p>\n b) Equal to or Less than 7.50
\n to 1.00 but Greater than
\n 6.50 to 1.00 BBB+ Baa1 9 10<\/p>\n
c) Equal to or Less than 6.50
\n to 1.00 but Greater than
\n 5.50 to 1.00 BBB Baa2 10 12.5<\/p>\n
d) Equal to or Less than 5.50
\n to 1.00 but Greater than
\n 4.50 to 1.00 BBB- Baa3 12.5 15<\/p>\n
e) Equal to or Less than 4.50
\n to 1.00 but Greater than
\n 3.50 to 1.00 BB+ Ba1 15 17.5<\/p>\n
f) Equal to or Less than 3.50
\n to 1.00 but Greater than
\n 3.00 to 1.00 BB Ba2 17.5 20<\/p>\n
g) Equal to or Less than 3.00
\n to 1.00 but Greater than BB- Ba3
\n 2.50 to 1.00 or Lower 22.5 25<\/p>\n
<\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
4<\/p>\n
The Applicable Unused Fee shall be established in the case of a Rating
\n from time to time based upon the Rating then in effect, and in the case
\n of the ratio, at the end of each fiscal quarter of the Borrower (the
\n “Ratio Determination Date”). Any change in the Applicable Unused Fee
\n following each Ratio Determination Date shall be determined based upon
\n the computations set forth in the Compliance Certificate, subject to
\n review and approval of such computations by the Agent and shall be
\n effective commencing on the date following the date such certificate is
\n received until the date following the date on which a new Compliance
\n Certificate is delivered or is required to be delivered, whichever
\n shall first occur; provided however, if the Borrower shall fail to
\n deliver any such certificate within the time period required by Section
\n 7.1, then the Applicable Unused Fee shall be 2%. From the Closing Date
\n to the first Ratio Determination Date, the Applicable Unused Fee shall
\n be 15 basis points on the Revolving Credit Facility and 12.5 basis
\n points on the Line of Credit Facility unless there is an improvement in
\n the Rating from the Rating in effect at the Closing Date.<\/p>\n
“Applications and Agreements for Letters of Credit” means,
\n collectively, the Applications and Agreements for Letters of Credit, or
\n similar documentation, executed by the Borrower from time to time and
\n delivered to the Issuing Bank to support the issuance of Letters of
\n Credit.<\/p>\n
“Assignment and Acceptance” shall mean an Assignment and
\n Acceptance in the form of Exhibit B (with blanks appropriately filled
\n in) delivered to the Agent in connection with an assignment of a
\n Lender’s interest under this Agreement pursuant to Section 11.1.<\/p>\n
“Authorized Representative” means any of the Executive
\n Officers of the Borrower or, with respect to financial matters, the
\n Treasurer or the chief financial officer of the Borrower, or any other
\n Person expressly designated by the Board of Directors of the Borrower
\n (or the appropriate committee thereof) as an Authorized Representative
\n of the Borrower, as set forth from time to time in a certificate in the
\n form of Exhibit C.<\/p>\n
“Base Rate” means the per annum rate of interest equal to the
\n greater of (i) the Prime Rate or (ii) the Federal Funds Effective Rate
\n plus one-half of one percent (1\/2%). Any change in the Base Rate
\n resulting from a change in the Prime Rate or the Federal Funds
\n Effective Rate shall become effective as of 12:01 A.M. of the Business
\n Day on which each such change occurs. The Base Rate is a reference rate
\n used by the Agent in determining interest rates on certain loans and is
\n not intended to be the lowest rate of interest charged on any extension
\n of credit to any debtor.<\/p>\n
5<\/p>\n
“Base Rate Loan” means a Loan for which the rate of interest
\n is determined by reference to the Base Rate.<\/p>\n
“Base Rate Segment” means a Segment bearing interest or to
\n bear interest at the Base Rate.<\/p>\n
“Base Rate Refunding Loan” means an Advance under the
\n Revolving Credit Facility which bears interest at a Base Rate made to
\n satisfy Reimbursement Obligations arising from a drawing under a Letter
\n of Credit.<\/p>\n
“Board” means the Board of Governors of the Federal Reserve
\n System (or any successor body).<\/p>\n
“Borrowing Notice” means the notice delivered by an Authorized
\n Representative in connection with an Advance under the Revolving Credit
\n Facility or Line of Credit Facility, in the form of Exhibit D.<\/p>\n
“Business Day” means, (i) except in the case of a Eurodollar
\n Loan, any day which is not a Saturday, Sunday or a day on which banks
\n in the States of New York and North Carolina are authorized or
\n obligated by law, executive order or governmental decree to be closed
\n and, (ii) with respect to any Eurodollar Rate Loan, any day which is a
\n Business Day, as described above, and on which the relevant
\n international financial markets are open for the transaction of
\n business contemplated by this Agreement in London, England, New York,
\n New York and Charlotte, North Carolina.<\/p>\n
“Capital Leases” means all leases which have been or should be
\n capitalized in accordance with GAAP as in effect from time to time
\n including Statement No. 13 of the Financial Accounting Standards Board
\n and any successor thereof.<\/p>\n
“Capital Stock” of any Person means any and all shares, rights
\n to purchase, warrants or options (whether or not currently
\n exercisable), participation or other equivalents of or interest in
\n (however designated) the equity (including without limitation common
\n stock, preferred stock and partnership and joint venture interests) of
\n such Person (excluding any debt securities that are convertible into,
\n or exchangeable for, such equity).<\/p>\n
“Change of Control” means, at any time:<\/p>\n
(i) any “person” or “group” (each as used in Sections
\n 13(d)(3) and 14(d)(2) of the Exchange Act), who are not as of
\n the Closing Date owners of one percent (1%) or more of the
\n Voting Stock of the Borrower, either (A) becomes the
\n “beneficial owner” (as defined in Rule 13d-3 of the Exchange
\n Act), directly or indirectly, of Voting Stock of the Borrower
\n (or securities convertible into or<\/p>\n
6<\/p>\n
exchangeable for such Voting Stock) representing 15% or more
\n of the combined voting power of all Voting Stock of the
\n Borrower (on a fully diluted basis) or (B) otherwise has the
\n ability, directly or indirectly, to elect a majority of the
\n board of directors of the Borrower;<\/p>\n
(ii) during any period of up to 24 consecutive months,
\n commencing on the Closing Date, individuals who at the
\n beginning of such period were directors of the Borrower shall
\n cease for any reason (other than the death, disability or
\n retirement of an officer of the Borrower that is serving as a
\n director at such time so long as another officer of the
\n Borrower replaces such Person as a director) to constitute a
\n majority of the board of directors of the Borrower; or<\/p>\n
(iii) any Person or two or more Persons acting in concert
\n shall have acquired by contract or otherwise, or shall have
\n entered into a contract or arrangement that, upon consummation
\n thereof, will result in its or their acquisition, of the power
\n to exercise, directly or indirectly, a controlling influence
\n on the management or policies of the Borrower.<\/p>\n
“Closing Date” means the date as of which this Agreement is
\n executed by the Borrower, the Lenders and the Agent and on which the
\n conditions set forth in Section 5.1 have been satisfied.<\/p>\n
“Code” means the Internal Revenue Code of 1986, as amended,
\n and any regulations promulgated thereunder.<\/p>\n
“Commitment” shall mean, as to each Lender, the obligation of
\n such Lender to make Loans pursuant to Section 2.1 in an aggregate
\n amount at any one time outstanding up to but not exceeding the amount
\n set opposite such Lender’s name on the signature pages hereof under the
\n caption “Commitment” (as the same may be limited or reduced at any time
\n or from time to time pursuant to Section 2.8); provided that the
\n Commitment of each Lender shall be increased or decreased to reflect
\n any assignments to or by such Lender effected in accordance with
\n Section 11.1.<\/p>\n
“Common Stock” means the common stock, par value $.01 per
\n share, of the Borrower.<\/p>\n
“Competitive Bid Borrowing” shall have the meaning assigned to
\n such term in Section 2.2(b).<\/p>\n
“Competitive Bid Loans” shall mean the Loans provided for by
\n Section 2.2.<\/p>\n
7<\/p>\n
“Competitive Bid Notes” shall mean the promissory notes
\n provided for by Section 2.6(c) substantially in the form of Exhibit E
\n and all promissory notes delivered in substitution or exchange
\n therefor, in each case as the same shall be modified and supplemented
\n and in effect from time to time.<\/p>\n
“Competitive Bid Quote” shall mean an offer in accordance with
\n Section 2.2(c) by a Lender to make a Competitive Bid Loan with one
\n single specified interest rate.<\/p>\n
“Competitive Bid Quote Request” shall have the meaning
\n assigned to such term in Section 2.2(b).<\/p>\n
“Compliance Certificate” shall have the meaning attributed to
\n that term in Section 7.1(c).<\/p>\n
“Consistent Basis” in reference to the application of GAAP
\n means the accounting principles observed in the period referred to are
\n comparable in all material respects to those applied in the preparation
\n of the audited financial statements of the Borrower referred to in
\n Section 6.6(a).<\/p>\n
“Consolidated Amortization Expense” of the Borrower for any
\n period means the amortization expense of the Borrower and its
\n Consolidated Entities for such period (to the extent included in the
\n computation of Consolidated Net Income), determined on a consolidated
\n basis in accordance with GAAP.<\/p>\n
“Consolidated Depreciation Expense” of the Borrower means the
\n depreciation expense of the Borrower and its Consolidated Entities for
\n such period (to the extent included in the computation of Consolidated
\n Net Income of the Borrower), determined on a consolidated basis in
\n accordance with GAAP.<\/p>\n
“Consolidated EBITDA” means, with respect to the Borrower and
\n its Consolidated Entities for any Four-Quarter Period ending on the
\n date of computation thereof, the sum of, without duplication, (i)
\n Consolidated Net Income, (ii) Consolidated Interest Expense, (iii)
\n Consolidated Income Tax Expense, (iv) Consolidated Amortization
\n Expense, (v) Consolidated Depreciation Expense and (vi) the minority
\n interest of any Person or Persons in Consolidated Entities, all
\n determined on a consolidated basis in accordance with GAAP applied on a
\n Consistent Basis.<\/p>\n
“Consolidated Entity” shall mean any Person whose financial
\n statements are appropriately consolidated with the Borrower’s financial
\n statements under GAAP.<\/p>\n
“Consolidated Indebtedness” means all Indebtedness of the
\n Borrower and its Consolidated Entities, all determined on a
\n consolidated basis.<\/p>\n
8<\/p>\n
“Consolidated Interest Expense” means, with respect to any
\n Four-Quarter Period ending on the date of computation thereof, the
\n gross interest expense of the Borrower and its Consolidated Entities,
\n including without limitation (i) the current amortized portion of debt
\n discounts to the extent included in gross interest expense, (ii) the
\n current amortized portion of all fees (including fees payable in
\n respect of any Rate Hedging Obligation) payable in connection with the
\n incurrence of Indebtedness to the extent included in gross interest
\n expense, (iii) the portion of any payments made in connection with
\n Capital Leases allocable to interest expense, and (iv) lease payments,
\n other than the Headquarters Obligations, made pursuant to the
\n Headquarters Lease, all determined on a consolidated basis in
\n accordance with GAAP applied on a Consistent Basis.<\/p>\n
“Consolidated Net Income” of the Borrower for any period means
\n the net income (or loss) of the Borrower and its Consolidated Entities
\n for such period determined on a consolidated basis in accordance with
\n GAAP, without giving effect to dividends on any series of preferred
\n stock of any Consolidated Entity, whether or not in cash, to the extent
\n such consolidated net income was reduced thereby; provided that there
\n shall be excluded from such net income (for all purposes, other than
\n compliance with Section 8.1(a), to the extent otherwise included
\n therein), without duplication, (i) the net income of any Person (other
\n than a Consolidated Entity) to the extent that any such income has not
\n actually been received by the Borrower or a Consolidated Entity in the
\n form of dividends or similar distributions during such period, but
\n including, in any event, net income of any Person who becomes a
\n Consolidated Entity whose Acquisition is accounted for on a “pooling of
\n interests” basis; (ii) except to the extent includable in the
\n consolidated net income of the Borrower or a Consolidated Entity
\n pursuant to the foregoing clause (i), the net income of any Person that
\n accrued prior to the date that (a) such Person becomes a Consolidated
\n Entity or is merged into or consolidated with a Consolidated Entity or
\n (b) the assets of such Person are acquired by the Borrower or a
\n Consolidated Entity; (iii) the net income of any Consolidated Entity to
\n the extent that the declaration or payment of dividends or similar
\n distributions by such Consolidated Entity of that income is not
\n permitted by operation of the terms of its charter or any agreement,
\n instrument, judgment, decree, order, statute, rule or governmental
\n regulation applicable to that Consolidated Entity during such period;
\n (iv) any gain (or loss), together with any related provisions for taxes
\n on any such gain, realized during such period by the Borrower or its
\n Consolidated Entities upon (a) the acquisition of any securities, or
\n the extinguishment of any Indebtedness, of the Borrower or its
\n Consolidated Entities or (b) any asset sale by the referent person or
\n any of its Subsidiaries; (v) any extraordinary gain (or<\/p>\n
9<\/p>\n
extraordinary loss), together with any related provision for taxes or
\n tax benefit resulting from any such extraordinary gain or loss,
\n realized by the Borrower or its Consolidated Entities during such
\n period; and (vi) in the case of a successor to any Person by
\n consolidation, merger or transfer of its assets, any earnings of the
\n successor prior to such merger, consolidation or transfer of assets;
\n provided, further, however, that there shall be added back to net
\n income non-recurring, non-cash expenses and cash transaction costs
\n relating to professional fees arising in conjunction with an
\n Acquisition provided such expenses do not exceed 10% of the Cost of
\n Acquisition.<\/p>\n
“Consolidated Net Worth” of the Borrower as of any date means
\n the Consolidated Stockholders’ Equity (including any preferred stock
\n that is classified as equity under GAAP, other than Disqualified Stock)
\n of the Borrower and its Consolidated Entities (excluding any equity
\n adjustment for foreign currency translation for any period subsequent
\n to the Closing Date) on a consolidated basis at such date, as
\n determined in accordance with GAAP, less all write-ups subsequent to
\n the Closing Date in the book value of any asset owned by the Borrower
\n or any of its Consolidated Entities.<\/p>\n
“Consolidated Stockholders’ Equity” shall mean at any time as
\n at which the amount thereof is to be determined, the sum of the
\n following amounts in respect of the Borrower and the Consolidated
\n Entities: (i) the par or stated value of all Capital Stock of the
\n Borrower, (ii) retained earnings, (iii) additional paid in capital,
\n (iv) capital surplus and (v) earned surplus minus treasury stock.<\/p>\n
“Consolidated Tangible Net Worth” means, as of any date on
\n which the amount thereof is to be determined, Consolidated
\n Stockholders’ Equity minus (without duplication of deductions in
\n respect of items already deducted in arriving at surplus and retained
\n earnings) (i) all reserves (other than contingency reserves not
\n allocated to any particular purpose), including without limitation
\n reserves for depreciation, depletion, amortization, obsolescence,
\n deferred income taxes, insurance and inventory valuation and (ii) the
\n net book value of all assets which would be treated as intangible
\n assets, such as (without limitation) goodwill (whether representing the
\n excess of cost over book value of assets acquired or otherwise),
\n capitalized expenses, unamortized debt discount and expense,
\n consignment inventory rights, patents, trademarks, trade names,
\n copyrights, franchises and licenses, all as determined on a
\n consolidated basis in accordance with GAAP applied on a Consistent
\n Basis.<\/p>\n
“Consolidated Total Assets” means, as of any date on which the
\n amount thereof is to be determined, the net book value of all assets of
\n the Borrower and its Consolidated<\/p>\n
10<\/p>\n
Entities as determined on a consolidated basis in accordance with GAAP
\n applied on a Consistent Basis.<\/p>\n
“Consolidated Total Capital” means, as of any date on which
\n the amount thereof is to be determined, the sum of Consolidated
\n Indebtedness plus Consolidated Shareholders’ Equity of the Borrower and
\n its Consolidated Entities.<\/p>\n
“Contract Provider” means any Person who provides professional
\n health care services under or pursuant to any contract with the
\n Borrower or any Subsidiary.<\/p>\n
“Controlled Partnership” shall mean a general partnership of
\n which the Borrower or a Subsidiary is a general partner (but not
\n including Alabama World Football), or a limited partnership whose
\n general partners include the Borrower or a Subsidiary (but not
\n including Vanderbilt), or a limited liability company whose members
\n include the Borrower or a Subsidiary or another Controlled Partnership,
\n which partnership, whether general or limited, or limited liability
\n company has assets with a value in excess of $2,000.00, and with
\n respect to which partnership or limited liability company the Borrower
\n or a Subsidiary is entitled to receive not less than 50% of any
\n distributions of cash made to the partners or members thereof, other
\n than any preferred cash distribution arrangement in existence at the
\n Closing Date or approved by the Required Lenders in writing, or which
\n is otherwise a Consolidated Entity.<\/p>\n
“Cost of Acquisition” means, in respect of any Acquisition,
\n the sum of (i) the amount of cash paid by the Borrower and its
\n Consolidated Entities in connection with such Acquisition, (ii) the
\n Fair Market Value of all Capital Stock or other ownership interests of
\n the Borrower or any Consolidated Entity issued or given in connection
\n with such Acquisition, (iii) the amount (determined by using the face
\n amount or the amount payable at maturity, whichever is greater) of all
\n Indebtedness incurred, assumed or acquired in connection with such
\n Acquisition, (iv) all additional purchase price amounts in the form of
\n earnouts and other contingent obligations that should be recorded on
\n the financial statements of the Borrower and its Consolidated Entities
\n in connection with Generally Accepted Accounting Principles, (v) all
\n amounts paid in respect of covenants not to compete, consulting
\n agreements and other affiliated contracts in connection with such
\n Acquisition and (vi) the aggregate fair market value of all other
\n consideration given by the Borrower and its Consolidated Entities in
\n connection with such Acquisition.<\/p>\n
11<\/p>\n
“Default” means any event or condition which, with the giving
\n or receipt of notice or lapse of time or both, would constitute an
\n Event of Default.<\/p>\n
“Default Rate” means (i) with respect to each Eurodollar Rate
\n Loan and Eurodollar Rate Segment, until the end of the Interest Period
\n applicable thereto, a rate of two percent (2%) plus the Eurodollar Rate
\n applicable to such Loan or Segment, and thereafter at a rate of
\n interest per annum which shall be two percent (2%) plus the Base Rate,
\n (ii) with respect to Base Rate Loans and Base Rate Segments, at a rate
\n of interest per annum which shall be two percent (2%) plus the Base
\n Rate and (iii) in any case, the maximum rate permitted by applicable
\n law, if lower.<\/p>\n
“Disqualified Stock” means any Capital Stock that, by its
\n terms (or by the terms of any security into which it is convertible or
\n for which it is exchangeable), or upon the happening of any event,
\n matures or is mandatorily redeemable, pursuant to a sinking fund
\n obligation or otherwise, or is redeemable at the option of the holder
\n thereof, in whole or in part, on or prior to the Revolving Credit
\n Termination Date.<\/p>\n
“Dollars” and the symbol “$” mean dollars constituting legal
\n tender for the payment of public and private debts in the United States
\n of America.<\/p>\n
“Employee Benefit Plan” means any employee benefit plan within
\n the meaning of Section 3(3) of ERISA which (i) is maintained for
\n employees of the Borrower or any of its ERISA Affiliates or is assumed
\n by the Borrower or any of its ERISA Affiliates in connection with any
\n Acquisition or (ii) has at any time been maintained for the employees
\n of the Borrower or any current or former ERISA Affiliate.<\/p>\n
“Environmental Laws” means, collectively, the Comprehensive
\n Environmental Response, Compensation and Liability Act of 1980, as
\n amended, the Superfund Amendments and Reauthorization Act of 1986, the
\n Resource Conservation and Recovery Act, as amended, the Toxic
\n Substances Control Act, as amended, the Clean Air Act, as amended, the
\n Clean Water Act, as amended, any other “Superfund” or “Superlien” law
\n or any other federal, or applicable state or local statute, law,
\n ordinance, code, rule, regulation, order or decree regulating, relating
\n to, or imposing liability or standards of conduct concerning, any
\n Hazardous Material.<\/p>\n
“ERISA” means the Employee Retirement Income Security Act of 1974,
\n as amended from time to time, and any successor statute and all rules
\n and regulations promulgated thereunder.<\/p>\n
“ERISA Affiliate”, as applied to the Borrower, means any
\n Person or trade or business which is a member of a group which<\/p>\n
12<\/p>\n
is under common control with the Borrower, who together with the
\n Borrower, is treated as a single employer within the meaning of Section
\n 414(b) and (c) of the Code.<\/p>\n
“Eurodollar Auction” shall mean a solicitation of Competitive
\n Bid Quotes setting forth Eurodollar Margins based on the Interbank
\n Offered Rate pursuant to Section 2.2.<\/p>\n
“Eurodollar Margin” shall have the meaning assigned to such
\n term in Section 2.2(c)(ii)(C).<\/p>\n
“Eurodollar Market Loans” shall mean Competitive Bid Loans
\n interest rates on which are determined on the basis of Interbank
\n Offered Rate pursuant to a Eurodollar Auction.<\/p>\n
“Eurodollar Rate” means the interest rate per annum calculated
\n according to the following formula:<\/p>\n
Eurodollar = Interbank Offered Rate + Applicable
\n ——————————–
\n Rate 1- Eurodollar Reserve Percentage Margin<\/p>\n
“Eurodollar Rate Loan” means a Loan or Segment of a Loan for
\n which the rate of interest is determined by reference to the Eurodollar
\n Rate.<\/p>\n
“Eurodollar Rate Segment” means a Segment bearing interest or
\n to bear interest at the Eurodollar Rate.<\/p>\n
“Eurodollar Reserve Percentage” means, for any day, that
\n percentage (expressed as a decimal) which is in effect from time to
\n time under Regulation D or any successor regulation, as the maximum
\n reserve requirement (including any basic, supplemental, emergency,
\n special, or marginal reserves) applicable with respect to Eurocurrency
\n liabilities as that term is defined in Regulation D (or against any
\n other category of liabilities that includes deposits by reference to
\n which the interest rate on Eurodollar Rate Loans is determined),
\n whether or not the Agent or any Lender has any Eurocurrency liabilities
\n subject to such requirements, without benefits of credits or proration,
\n exceptions or offsets that may be available from time to time to the
\n Agent or any Lender. The Eurodollar Rate shall be adjusted
\n automatically on and as of the effective date of any change in the
\n Eurodollar Reserve Percentage.<\/p>\n
“Event of Default” means any of the occurrences set forth as
\n such in Section 9.1.<\/p>\n
“Exchange Act” means the Securities Exchange Act of 1934, as
\n amended, and the regulations promulgated thereunder.<\/p>\n
“Executive Officer” means any Person who from time to time
\n holds the offices with Borrower listed on Exhibit N.<\/p>\n
13<\/p>\n
“Facility” shall mean an inpatient or outpatient
\n rehabilitation facility, certified outpatient rehabilitation facility,
\n skilled nursing facility, specialty medical center, specialty
\n orthopedic hospital or acute care hospital, subacute inpatient
\n facility, transitional living center, medical office building,
\n outpatient surgery center or outpatient diagnostic center with all
\n buildings and improvements associated therewith, that is owned or
\n leased, in whole or part, by the Borrower or a Subsidiary or any
\n partnership controlled directly or indirectly by the Borrower.<\/p>\n
“Facility Termination Date” means the date on which both the
\n Revolving Credit Termination Date and the Line of Credit Termination
\n Date shall have occurred, no Letters of Credit shall remain outstanding
\n and the Borrower shall have fully, finally and irrevocably paid and
\n satisfied all Obligations.<\/p>\n
“Fair Market Value” shall mean, with respect to any capital
\n stock or other ownership interests issued or given by the Borrower or
\n any Consolidated Entity in connection with an Acquisition, (i) in the
\n case of capital stock that is Common Stock and such Common Stock is
\n then designated as a national market system security by the National
\n Association of Securities Dealers, Inc. (“NASD”) or is listed on a
\n national securities exchange, the average of the last reported bid and
\n ask quotations or prices reported thereon for Common Stock or such
\n other value as may be ascribed to the Common Stock in a definitive
\n merger or acquisition agreement provided such value is determined
\n according to customary methods for like transactions and is approved
\n (to the extent required by Borrower’s charter or bylaws) by the
\n Borrower’s Board of Directors or (ii) in the case of capital stock that
\n is not Common Stock or in the event that Common Stock is not so
\n designated by NASD or listed on such national exchange, or in the case
\n of any other ownership interests, the determination of the fair market
\n value thereof in good faith by a majority of disinterested members of
\n the board of directors of the Borrower or such Consolidated Entity, in
\n each case effective as of the close of business on the Business Day
\n immediately preceding the closing date of such Acquisition.<\/p>\n
“Federal Funds Effective Rate” means, for any day, the rate
\n per annum (rounded upward to the nearest 1\/100th of 1%) equal to the
\n weighted average of the rates on overnight Federal funds transactions
\n with members of the Federal Reserve System arranged by Federal funds
\n brokers on such day, as published by the Federal Reserve Bank of New
\n York on the Business Day next succeeding such day, provided that (a) if
\n such day is not a Business Day, the Federal Funds Effective Rate for
\n such day shall be such rate on such transactions on the next preceding
\n Business Day, and (b) if no such rate is so published on such next
\n succeeding Business Day, the Federal Funds Effective Rate for such day
\n shall be the average rate<\/p>\n
14<\/p>\n
quoted to the Agent on such day on such transaction as determined by
\n the Agent.<\/p>\n
“Fiscal Year” means the twelve month fiscal period of the
\n Borrower commencing on January 1 of each calendar year and ending on
\n December 31 of each calendar year.<\/p>\n
“Fixed Rate” shall mean the Absolute Rate or the Interbank
\n Offered Rate plus the Applicable Margin or the Eurodollar Margin, as
\n the case may be.<\/p>\n
“Fixed Rate Loan” means a Loan for which the rate of interest
\n is determined by reference to the Fixed Rate.<\/p>\n
“Fixed Rate Segment” shall mean a Segment to which a Fixed
\n Rate is (or is proposed to be) applicable.<\/p>\n
“Four-Quarter Period” means a period of four full consecutive
\n fiscal quarters of the Borrower and its Subsidiaries, taken together as
\n one accounting period; provided, however, for purposes of this
\n Agreement, for periods prior to December 31, 1996 the results of
\n operations shall be determined for the Four-Quarter Period ending on
\n the last day of (i) the first quarter of Fiscal Year 1996 by
\n multiplying the results of operations for the first quarter by four
\n (4), (ii) the second quarter of Fiscal Year 1996 by multiplying the
\n results of operations for the first and second quarters by two (2), and
\n (iii) for the third quarter of Fiscal Year 1996 by multiplying the
\n results of operations of the sum of the first, second and third
\n quarters by four-thirds (4\/3’s).<\/p>\n
“GAAP” or “Generally Accepted Accounting Principles” means
\n generally accepted accounting principles, being those principles of
\n accounting set forth in pronouncements of the Financial Accounting
\n Standards Board or the American Institute of Certified Public
\n Accountants or which have other substantial authoritative support and
\n are applicable in the circumstances as of the date of a report.<\/p>\n
“Governmental Authority” shall mean any Federal, state,
\n municipal, national or other governmental department, commission,
\n board, bureau, court, agency or instrumentality or political
\n subdivision thereof or any entity or officer exercising executive,
\n legislative, judicial, regulatory or administrative functions of or
\n pertaining to any government or any court, in each case whether
\n associated with a state of the United States, the United States, or a
\n foreign entity or government.<\/p>\n
“Guaranteed Obligations” of any person shall mean all
\n guaranties (including guaranties of guaranties and guaranties of
\n dividends and other monetary obligations), endorsements, assumptions
\n and other contingent obligations with respect to,<\/p>\n
15<\/p>\n
or to purchase or to otherwise pay or acquire, Indebtedness of others;
\n provided, however, that such term shall not include obligations under
\n leases and other contracts initially incurred directly by another
\n Person and subsequently directly assumed by the Person in question, but
\n such term shall include obligations that, if the same had been
\n initially incurred directly by the Person in question, would have
\n constituted Guaranteed Obligations.<\/p>\n
“Hazardous Material” means and includes any hazardous, toxic
\n or dangerous waste, substance or material, the generation, handling,
\n storage, disposal, treatment or emission of which is subject to any
\n Environmental Law.<\/p>\n
“HCFA” means the United States Health Care Financing
\n Administration and any successor thereto.<\/p>\n
“Headquarters Lease” means the Lease Agreement between
\n HEALTHSOUTH Holdings, Inc., as Lessee, and First Security Bank of Utah,
\n N.A., as Lessor, dated as of November 16, 1995 providing for the lease
\n to HEALTHSOUTH Holdings, Inc. of the land and improvements thereon
\n located on the property described therein, as such Lease Agreement may
\n be amended, modified or supplemented from time to time.<\/p>\n
“Headquarters Obligations” means all of the Holder Advances
\n and Loans, as each such term is defined in the Participation Agreement.<\/p>\n
“Indebtedness” of any Person at any date means, without
\n duplication: (i) all indebtedness of such Person for borrowed money
\n (whether or not the recourse of the lender is to the whole of the
\n assets of such Person or only to a portion thereof); (ii) all
\n obligations of such Person evidenced by bonds, debentures, notes or
\n other similar instruments; (iii) all obligations (contingent or
\n otherwise) of such Person in respect of letters of credit or other
\n similar instruments (or reimbursement obligations with respect
\n thereto); (iv) all obligations of such Person with respect to Rate
\n Hedging Obligations (other than those that fix the interest rate on
\n variable rate indebtedness otherwise permitted hereunder or that
\n protect the Borrower and or its Consolidated Entities against changes
\n in foreign exchange rates); (v) obligations of such Person to pay the
\n deferred and unpaid purchase price of property or services, except
\n trade payables and accrued expenses incurred in the ordinary course of
\n business; (vi) all Capitalized Lease Obligations of such Person; (vii)
\n all indebtedness of others secured by a Lien on any assets of such
\n Person, whether or not such indebtedness is assumed by such Person;
\n (viii) all Guaranteed Obligations; (ix) the Headquarters Obligations;
\n and (x) all obligations of a like nature to those described in clauses
\n (i) through (ix) above of a partnership of which such Person is a
\n general partner. The<\/p>\n
16<\/p>\n
amount of Indebtedness of any Person at any date shall be the
\n outstanding balance at such date of all unconditional obligations as
\n described above, the maximum liability of such Person for any such
\n contingent obligations at such date and, in the case of clause (vii),
\n the amount of the Indebtedness secured.<\/p>\n
“Interbank Offered Rate” means, with respect to any Eurodollar
\n Rate Loan or Eurodollar Rate Segment or Eurodollar Market Loans for the
\n Interest Period applicable thereto, the average (rounded upward to the
\n nearest one-sixteenth (1\/16) of one percent) per annum rate of interest
\n determined by the Agent (each such determination to be conclusive and
\n binding absent manifest error) as of two Business Days prior to the
\n first day of such Interest Period, as the effective rate at which
\n deposits in immediately available funds in Dollars are being, have
\n been, or would be offered or quoted by the Agent to major banks in the
\n applicable interbank market for Eurodollar deposits at any time during
\n the Business Day which is the second Business Day immediately preceding
\n the first day of such Interest Period, for a term comparable to such
\n Interest Period and in the amount of such Eurodollar Rate Loan or
\n Eurodollar Rate Segment or Eurodollar Market Loan. If no such offers or
\n quotes are generally available for such amount, then the Agent shall be
\n entitled to determine the Eurodollar Rate by estimating in its
\n reasonable judgment the per annum rate (as described above) that would
\n be applicable if such quote or offers were generally available.<\/p>\n
“Interest Period” shall mean:<\/p>\n
(i) with respect to any Eurodollar Rate Loan, each period
\n commencing on the date such Eurodollar Rate Loan is made or converted
\n from a Loan of another Type or the last day of the next preceding
\n Interest Period for such Loan and ending on the numerically
\n corresponding day in the first, second, third or sixth calendar month
\n thereafter, as the Borrower may select as provided in Section 2.3,
\n except that each Interest Period that commences on the last Business
\n Day of a calendar month (or on any day for which there is no
\n numerically corresponding day in the appropriate subsequent calendar
\n month) shall end on the last Business Day of the appropriate subsequent
\n calendar month;<\/p>\n
(ii) with respect to any Absolute Rate Loan, the period
\n commencing on the date such Absolute Rate Loan is made and ending on
\n any Business Day up to 180 days thereafter, as the Borrower may select
\n as provided in Section 2.2(b); and<\/p>\n
(iii) with respect to any Eurodollar Market Loan, the period
\n commencing on the date such Eurodollar Market Loan is made and ending
\n on the numerically corresponding day in the first, second, third or
\n sixth calendar month thereafter, as<\/p>\n
17<\/p>\n
the Borrower may select as provided in Section 2.2(b), except that each
\n Interest Period that commences on the last Business Day of a calendar
\n month (or any day for which there is no numerically corresponding day
\n in the appropriate subsequent calendar month) shall end on the last
\n Business Day of the appropriate subsequent calendar month.<\/p>\n
Notwithstanding the foregoing: (i) if any Interest Period for any
\n Competitive Bid Loan would otherwise end after the Revolving Credit
\n Termination Date, such Interest Period shall end on the Revolving
\n Credit Termination Date; (ii) if any Interest Period for any Eurodollar
\n Rate Loan would otherwise end after the Revolving Credit Termination
\n Date or Line of Credit Termination Date, such Interest Period shall end
\n on the Revolving Credit Termination Date or Line of Credit Termination
\n Date, respectively; (iii) each Interest Period that would otherwise end
\n on a day which is not a Business Day shall end on the next succeeding
\n Business Day (or, in the case of an Interest Period for a Eurodollar
\n Rate Loan or a Eurodollar Market Loan, if such next succeeding Business
\n Day falls in the next succeeding calendar month, on the next preceding
\n Business Day); and (iv) notwithstanding clauses (i), (ii) and (iii)
\n above, no Interest Period for any Loan (other than an Absolute Rate
\n Loan) shall have a duration of less than one month (in the case of a
\n Eurodollar Rate Loan or a Eurodollar Market Loan) and, if the Interest
\n Period for any Eurodollar Rate Loan or Eurodollar Market Loan would
\n otherwise be a shorter period, such Loan shall not be available
\n hereunder for such period.<\/p>\n
“Interest Rate Selection Notice” means the written notice
\n delivered by an Authorized Representative in connection with the
\n election of a subsequent Interest Period for any Eurodollar Rate Loan
\n or Eurodollar Rate Segment or the conversion of any Eurodollar Rate
\n Loan or Eurodollar Rate Segment into a Base Rate Loan or Base Rate
\n Segment or the conversion of any Base Rate Loan or Base Rate Segment
\n into a Eurodollar Rate Loan or Eurodollar Rate Segment, in the form of
\n Exhibit F.<\/p>\n
“Issuing Bank” means NationsBank as issuer of Letters of
\n Credit under Article III.<\/p>\n
“LC Account Agreement” means the LC Account Agreement dated as
\n of the date hereof between the Borrower and the Issuing Bank, as
\n amended, modified or supplemented from time to time.<\/p>\n
“Lending Office” means, as to each Lender and for each Type of
\n Loan, the Lending Office of such Lender (or an Affiliate of such
\n Lender) designated for such Type of Loan on the signature pages hereof
\n or in an Assignment and Acceptance or such other office of such Lender
\n (or of an affiliate of<\/p>\n
18<\/p>\n
such Lender) as such Lender may from time to time specify to an
\n Authorized Representative and the Agent as the office by which its
\n Loans are to be made and maintained.<\/p>\n
“Letter of Credit” means a standby letter of credit issued by
\n the Issuing Bank pursuant to Article III for the account of the
\n Borrower in favor of a Person advancing credit or securing an
\n obligation on behalf of the Borrower.<\/p>\n
“Letter of Credit Commitment” means, with respect to each
\n Lender, the obligation of such Lender to acquire Participations in
\n respect of Letters of Credit and Reimbursement Obligations up to an
\n aggregate amount at any one time outstanding equal to such Lender’s
\n Applicable Commitment Percentage of the Total Letter of Credit
\n Commitment as the same may be increased or decreased from time to time
\n pursuant to this Agreement.<\/p>\n
“Letter of Credit Facility” means the facility described in
\n Article III providing for the issuance by the Issuing Bank for the
\n account of the Borrower of Letters of Credit in an aggregate stated
\n amount at any time outstanding not exceeding, together with all
\n Reimbursement Obligations, the Total Letter of Credit Commitment.<\/p>\n
“Letter of Credit Outstandings” means, as of any date of
\n determination, the aggregate amount remaining undrawn under all Letters
\n of Credit plus Reimbursement Obligations then outstanding.<\/p>\n
“Lien” means any interest in property securing any obligation
\n owed to, or a claim by, a Person other than the owner of the property,
\n whether such interest is based on the common law, statute or contract,
\n and including but not limited to the lien or security interest arising
\n from a mortgage, encumbrance, pledge, security agreement, conditional
\n sale or trust receipt or a lease, consignment or bailment for security
\n purposes. For the purposes of this Agreement, the Borrower and any
\n Subsidiary shall be deemed to be the owner of any property which it has
\n acquired or holds subject to a conditional sale agreement, financing
\n lease, or other arrangement pursuant to which title to the property has
\n been retained by or vested in some other Person for security purposes.<\/p>\n
“Line of Credit Commitment” means, with respect to each
\n Lender, the obligation of such Lender to make Line of Credit Loans to
\n the Borrower in a principal amount equal to such Lender’s Applicable
\n Commitment Percentage of the Total Line of
\n Credit Commitment.<\/p>\n
“Line of Credit Facility” means the facility described in
\n Section 2.1(b) providing for Line of Credit Loans to the<\/p>\n
19<\/p>\n
Borrower by the Lenders in the original principal amount of the Total Line of
\nCredit Commitment.<\/p>\n
“Line of Credit Loan” means a loan made pursuant to the Line
\n of Credit Facility in accordance with Section 2.1(b).<\/p>\n
“Line of Credit Notes” means, collectively, the promissory
\n notes of the Borrower evidencing Line of Credit Loans executed and
\n delivered to the Lenders as provided in Section 2.6(b) substantially in
\n the form of Exhibit G, with appropriate insertions as to amounts, dates
\n and names of Lenders.<\/p>\n
“Line of Credit Outstandings” means, as of any date of
\n determination, the aggregate principal amount of Line of Credit Loans
\n then outstanding and all interest accrued thereon.<\/p>\n
“Line of Credit Termination Date” means (i) the Stated
\n Termination Date or (ii) such earlier date of termination of Lenders’
\n obligations pursuant to Section 9.1 upon the occurrence of an Event of
\n Default, or (iii) such date as the Borrower may voluntarily and
\n permanently terminate the Line of Credit Facility by payment in full of
\n all Line of Credit Outstandings.<\/p>\n
“Loan” or “Loans” means any Syndicated Loans, Competitive Bid
\n Loans, Reimbursement Obligations and Letter of Credit Outstandings and
\n all extensions and renewals thereof.<\/p>\n
“Loan Documents” means this Agreement, the Notes, the LC
\n Account Agreement, the Applications and Agreements for Letter of
\n Credit, and all other instruments and documents heretofore or hereafter
\n executed or delivered to or in favor of any Lender or the Agent in
\n connection with the Loans made, Letters of Credit issued and
\n transactions contemplated under this Agreement, as the same may be
\n amended, supplemented or replaced from time to time.<\/p>\n
“Material Adverse Effect” means a material adverse effect on
\n (i) the business, properties, operations or condition, financial or
\n otherwise, of the Borrower and its Consolidated Entities, taken as a
\n whole, (ii) the ability of the Borrower to pay or perform its
\n obligations, liabilities and indebtedness under the Loan Documents as
\n such payment or performance becomes due in accordance with the terms
\n thereof, or (iii) the rights, powers and remedies of the Agent or any
\n Lender under any Loan Document or the validity, legality or
\n enforceability thereof (including for purposes of clauses (ii) and
\n (iii) the imposition of burdensome conditions thereon).<\/p>\n
“Material Group” shall mean, at any time, any group, whether
\n one or more, or combination of Consolidated Entities<\/p>\n
20<\/p>\n
(a) whose assets, in the aggregate, constitute 5% or more of the assets
\n of the Borrower and the Consolidated Entities on a consolidated basis
\n or (b) whose net revenues, in the aggregate, constitute 5% or more of
\n the net revenues of the Borrower and the Consolidated Entities on a
\n consolidated basis.<\/p>\n
“Medicaid Certification” means certification by HCFA or a
\n state agency or entity under contract with HCFA that a health care
\n operation is in compliance with all the conditions of participation set
\n forth in the Medicaid Regulations.<\/p>\n
“Medicaid Provider Agreement” means an agreement entered into
\n between a state agency or other entity administering the Medicaid
\n program and a health care operation under which the health care
\n operation agrees to provide services for Medicaid patients in
\n accordance with the terms of the agreement and Medicaid Regulations.<\/p>\n
“Medicaid Regulations” means, collectively, (i) all federal
\n statutes (whether set forth in Title XIX of the Social Security Act or
\n elsewhere) affecting the medical assistance program established by
\n Title XIX of the Social Security Act and any statutes succeeding
\n thereto; (ii) all applicable provisions of all federal rules,
\n regulations, manuals and orders of all Governmental Authorities
\n promulgated pursuant to or in connection with the statutes described in
\n clause (i) above and all federal administrative, reimbursement and
\n other guidelines of all Governmental Authorities having the force of
\n law promulgated pursuant to or in connection with the statutes
\n described in clause (i) above; (iii) all state statutes and plans for
\n medical assistance enacted in connection with the statutes and
\n provisions described in clauses (i) and (ii) above; and (iv) all
\n applicable provisions of all rules, regulations, manuals and orders of
\n all Governmental Authorities promulgated pursuant to or in connection
\n with the statutes described in clause (iii) above and all state
\n administrative, reimbursement and other guidelines of all Governmental
\n Authorities having the force of law promulgated pursuant to or in
\n connection with the statutes described in clause (ii) above, in each
\n case as may be amended, supplemented or otherwise modified from time to
\n time.<\/p>\n
“Medicare Certification” means certification by HCFA or a
\n state agency or entity under contract with HCFA that a health care
\n operation is in compliance with all the conditions of participation set
\n forth in the Medicare Regulations.<\/p>\n
“Medicare Provider Agreement” means an agreement entered into
\n between a state agency or other entity administering the Medicare
\n program and a health care operation under which the health care
\n operation agrees to provide services for Medicare<\/p>\n
21<\/p>\n
patients in accordance with the terms of the agreement and Medicare
\n Regulations.<\/p>\n
“Medicare Regulations” means, collectively, all federal
\n statutes (whether set forth in Title XVIII of the Social Security Act
\n or elsewhere) affecting the health insurance program for the aged and
\n disabled established by Title XVIII of the Social Security Act and any
\n statutes succeeding thereto; together with all applicable provisions of
\n all rules, regulations, manuals and orders and administrative,
\n reimbursement and other guidelines having the force of law of all
\n Governmental Authorities (including without limitation, Health and
\n Human Services (“HHS”), HCFA, the Office of the Inspector General for
\n HHS, or any Person succeeding to the functions of any of the foregoing)
\n promulgated pursuant to or in connection with any of the foregoing
\n having the force of law, as each may be amended, supplemented or
\n otherwise modified from time to time.<\/p>\n
“Moody’s” means Moody’s Investors Service, Inc.<\/p>\n
“Multiemployer Plan” means a “multiemployer plan” as defined
\n in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
\n Affiliate is making, or is accruing an obligation to make,
\n contributions or has made, or been obligated to make, contributions
\n within the preceding six (6) Fiscal Years.<\/p>\n
“NationsBank” means NationsBank, National Association.<\/p>\n
“Notes” means, collectively, the Line of Credit Notes and the
\n Revolving Notes and the Competitive Bid Notes.<\/p>\n
“Obligations” means the obligations, liabilities and
\n Indebtedness of the Borrower with respect to (i) the principal and
\n interest on the Loans as evidenced by the Notes, (ii) the Reimbursement
\n Obligations and otherwise in respect of the Letters of Credit, and
\n (iii) the payment and performance of all other obligations, liabilities
\n and Indebtedness of the Borrower to the Lenders or the Agent hereunder,
\n under any one or more of the other Loan Documents or with respect to
\n the Loans.<\/p>\n
“Participation” means, with respect to any Lender (other than
\n the Issuing Bank) and a Letter of Credit, the extension of credit
\n represented by the participation of such Lender hereunder in the
\n liability of the Issuing Bank in respect of a Letter of Credit issued
\n by the Issuing Bank in accordance with the terms hereof.<\/p>\n
“Participation Agreement” means the Participation Agreement
\n dated November 16, 1995 among HEALTHSOUTH Corporation, as Construction
\n Agent, HEALTHSOUTH Holdings, Inc., as Lessee, First Security Bank of
\n Utah, N.A., as<\/p>\n
22<\/p>\n
Trustee, the Holders identified therein, the Lenders identified
\n therein, and NationsBank, National Association, as Agent.<\/p>\n
“PBGC” means the Pension Benefit Guaranty Corporation and any
\n successor thereto.<\/p>\n
“Pension Plan” means any employee pension benefit plan within the
\n meaning of Section 3(2) of ERISA, other than a Multiemployer Plan,
\n which is subject to the provisions of Title IV of ERISA or Section 412
\n of the Code and which (i) is maintained for employees of the Borrower
\n or any of its ERISA Affiliates or is assumed by the Borrower or any of
\n its ERISA Affiliates in connection with any Acquisition or (ii) has at
\n any time been maintained for the employees of the Borrower or any
\n current or former ERISA Affiliate.<\/p>\n
“Permitted Encumbrances” shall mean:<\/p>\n
(1) liens for taxes, assessments and other governmental
\n charges that are not delinquent or that are being contested in
\n good faith by appropriate proceedings duly pursued;<\/p>\n
(2) mechanics’, materialmen’s, contractor’s, landlord’s or
\n other similar liens arising in the ordinary course of
\n business, securing obligations that are not delinquent or that
\n are being contested in good faith by appropriate proceedings
\n duly pursued;<\/p>\n
(3) restrictions, exceptions, reservations, easements,
\n conditions, limitations and other matters of record other than
\n Liens that do not materially adversely affect the value or
\n utility of the affected property;<\/p>\n
(4) Liens on assets securing Indebtedness the proceeds of
\n which are used to acquire such assets;<\/p>\n
(5) Liens and other matters approved in writing by the
\n Required Lenders; and<\/p>\n
(6) Liens in favor of landlords, the amount secured by which
\n landlords’ Liens, in the aggregate, would not materially
\n adversely affect the Borrower or a Material Group.<\/p>\n
“Permitted Investments” shall mean:<\/p>\n
(1) direct obligations of, or obligations the payment of which
\n is guaranteed by, the United States of America or an interest
\n in any trust or fund that invests solely in such obligations
\n or repurchase agreements, properly secured, with respect to
\n such obligations.<\/p>\n
23<\/p>\n
(2) direct obligations of agencies or instrumentalities of the
\n United States of America having a rating of A or higher by S&P
\n or A2 or higher by Moody’s;<\/p>\n
(3) a certificate of deposit issued by, or other
\n interest-bearing deposits with, a bank having its principal
\n place of business in the United States of America and having
\n equity capital of not less than $250,000,000;<\/p>\n
(4) a certificate of deposit issued by, or other
\n interest-bearing deposits with, any other bank organized under
\n the laws of the United States of America or any state thereof,
\n provided that such deposit is either (i) insured by the
\n Federal Deposit Insurance Corporation or (ii) properly secured
\n by such bank by pledging direct obligations of the United
\n States of America having a market value not less than the face
\n amount of such deposits;<\/p>\n
(5) the capital stock of and partnership interests in, and
\n loans made by the Borrower to, Controlled Partnerships and
\n Subsidiaries;<\/p>\n
(6) prime commercial paper maturing within 270 days of the
\n acquisition thereof and, at the time of acquisition, having a
\n rating of A-1 or higher by S&P, or P-1 or higher by Moody’s;<\/p>\n
(7) eligible banker’s acceptances, repurchase agreements and
\n tax-exempt municipal bonds having a maturity of less than one
\n year, in each case having a rating, or that is the full
\n recourse obligation of a person whose senior debt is rated, A
\n or higher by S&P or A2 or higher by Moody’s;<\/p>\n
(8) loans made by the Borrower or a Consolidated Entity in an
\n aggregate amount of $2,000,000 or less to employees of the
\n Borrower or of a Consolidated Entity;<\/p>\n
(9) loans made by the Borrower or a Controlled Partnership in
\n an aggregate amount of $1,000,000 or less to limited partners
\n (or potential limited partners) of Controlled Partnerships for
\n the purpose of enabling such limited partners to acquire
\n limited partnership interests in Controlled Partnerships, to
\n operate their practices or to restructure partnership
\n interests;<\/p>\n
(10) loans in an aggregate amount of up to $20,000,000 made by
\n the Borrower to the HEALTHSOUTH Employee Stock Benefit Plan;<\/p>\n
24<\/p>\n
(11) scholarship loans made by the Borrower in an aggregate
\n amount not exceeding $1,000,000 to individuals who meet
\n certain eligibility requirements as established by the
\n Borrower from time to time;<\/p>\n
(12) up to 100% of the outstanding shares of stock of
\n Caretenders Healthcorp (formerly known as Senior Services,
\n Inc.) provided that aggregate costs incurred to purchase such
\n shares shall not exceed $12,000,000;<\/p>\n
(13) other investments of less than $5,000,000 in the
\n aggregate expressly approved in writing by the Agent and
\n investments of $5,000,000 or greater expressly approved in
\n writing by the Required Lenders;<\/p>\n
(14) any other investment having a rating of A or higher
\n or A-1 or higher by S&P or A2 or higher or P-1 or higher
\n by Moody’s;<\/p>\n
(15) loans to health care practitioners and other persons not
\n to exceed in the aggregate $5,000,000;<\/p>\n
(16) investments in Acacia Venture Partners, Wellmark,
\n HEALTHSMART, MedPartners and Austin Medical Office Building
\n which in the aggregate do not exceed $5,000,000; and<\/p>\n
(17) additional investments existing on the Closing Date
\n and described in Exhibit H.<\/p>\n
“Person” means an individual, partnership, corporation,
\n limited liability company, trust, unincorporated organization,
\n association, joint venture or a government or agency or political
\n subdivision thereof.<\/p>\n
“Prime Rate” means the rate of interest per annum announced
\n publicly by the Agent as its prime rate from time to time.<\/p>\n
“Principal Office” means the office of the Agent at
\n NationsBank, National Association, Independence Center, 15th Floor, NC1
\n 001-15-04, Charlotte, North Carolina 28255, Attention: Agency Services,
\n or such other office and address as the Agent may from time to time
\n designate.<\/p>\n
“Rate Hedging Obligations” means any and all obligations of
\n the Borrower or any Consolidated Entity, whether absolute or contingent
\n and howsoever and whensoever created, arising, evidenced or acquired
\n (including all renewals, extensions and modifications thereof and
\n substitutions therefor), under (i) any and all agreements, devices or
\n arrangements designed to protect at least one of the parties thereto
\n from the fluctuations of interest rates, exchange rates or forward<\/p>\n
25<\/p>\n
rates applicable to such party’s assets, liabilities or exchange
\n transactions, including, but not limited to, Dollar- denominated or
\n cross-currency interest rate exchange agreements, forward currency
\n exchange agreements, interest rate cap or collar protection agreements,
\n forward rate currency or interest rate options, puts, warrants and
\n those commonly known as interest rate “swap” agreements; and (ii) any
\n and all cancellations, buybacks, reversals, terminations or assignments
\n of any of the foregoing.<\/p>\n
“Rating” means the rating of senior unsecured Indebtedness of
\n the Borrower in effect at any time which rating is made by either of
\n Moody’s or S&P.<\/p>\n
“Regulation D” means Regulation D of the Board as the same may
\n be amended or supplemented from time to time.<\/p>\n
“Reimbursement Obligation” shall mean, at any time, the
\n obligation of the Borrower with respect to any Letter of Credit to
\n reimburse the Issuing Bank and the Lenders to the extent of their
\n respective Participations (including by the receipt by the Issuing Bank
\n of proceeds of Loans pursuant to Section 3.2) for amounts theretofore
\n paid by the Issuing Bank pursuant to a drawing under such Letter of
\n Credit.<\/p>\n
“Required Lenders” means, as of any date, Lenders on such date
\n having Credit Exposures (as defined below) aggregating at least 51% of
\n the aggregate Credit Exposures of all the Lenders on such date. For
\n purposes of the preceding sentence, the amount of the “Credit Exposure”
\n of each Lender shall be equal to the aggregate principal amount of the
\n Loans without regard to any Competitive Bid Loan, so long as there
\n exists no Event of Default, owing to such Lender plus the aggregate
\n unutilized amounts of such Lender’s Line of Credit Commitment and
\n Revolving Credit Commitment plus the amount of such Lender’s Applicable
\n Commitment Percentage of Letter of Credit Outstandings; provided that,
\n if any Lender shall have failed to pay to the Issuing Bank its
\n Applicable Commitment Percentage of any drawing under any Letter of
\n Credit resulting in an outstanding Reimbursement Obligation, such
\n Lender’s Credit Exposure attributable to Letters of Credit and
\n Reimbursement Obligations shall be deemed to be held by the Issuing
\n Bank for purposes of this definition.<\/p>\n
“Restricted Payment” means (a) any dividend or other distribution,
\n direct or indirect, on account of any shares of any class of stock of
\n Borrower or any of its Consolidated Entities (other than those payable
\n or distributable solely to the Borrower) now or hereafter outstanding,
\n except a dividend payable solely in shares of a class of stock to the
\n holders of that class; (b) any redemption, conversion, exchange,
\n retirement or similar payment, purchase or other acquisition for value,
\n direct or indirect, of any shares of any class of<\/p>\n
26<\/p>\n
stock of the Borrower or any of its Consolidated Entities (other than
\n those payable or distributable solely to the Borrower) now or hereafter
\n outstanding; (c) any payment made to retire, or to obtain the surrender
\n of, any outstanding warrants, options or other rights to acquire shares
\n of any class of stock of the Borrower or any of its Consolidated
\n Entities now or hereafter outstanding; and (d) any issuance and sale of
\n capital stock of any Consolidated Entity of the Borrower (or any
\n option, warrant or right to acquire such stock) other than to the
\n Borrower.<\/p>\n
“Revolving Credit Commitment” means, with respect to each
\n Lender, the obligation of such Lender to make Revolving Loans to the
\n Borrower up to an aggregate principal amount at any one time
\n outstanding equal to such Lender’s Applicable Commitment Percentage of
\n the Total Revolving Credit Commitment.<\/p>\n
“Revolving Credit Facility” means the facility described in
\n Section 2.1(a) providing for Loans to the Borrower by the Lenders in
\n the aggregate principal amount of the Total Revolving Credit
\n Commitment.<\/p>\n
“Revolving Credit Outstandings” means, as of any date of
\n determination, the aggregate principal amount of all Revolving Loans
\n then outstanding and all interest accrued thereon.<\/p>\n
“Revolving Credit Termination Date” means (i) March 31, 2001
\n or (ii) such earlier date of termination of Lenders’ obligations
\n pursuant to Section 9.1 upon the occurrence of an Event of Default, or
\n (iii) such date as the Borrower may voluntarily and permanently
\n terminate the Revolving Credit Facility by payment in full of all
\n Revolving Credit Outstandings, Competitive Bid Loans and Letter of
\n Credit Outstandings and cancellation of all Letters of Credit.<\/p>\n
“Revolving Loan” means any borrowing pursuant to an Advance
\n under the Revolving Credit Facility in accordance with Section 2.1(a).<\/p>\n
“Revolving Notes” means, collectively, the promissory notes of
\n the Borrower evidencing Revolving Loans executed and delivered to the
\n Lenders as provided in Section 2.6(a) substantially in the form of
\n Exhibit I, with appropriate insertions as to amounts, dates and names
\n of Lenders.<\/p>\n
“S&P” means Standard & Poor’s, a division of The McGraw Hill
\n Companies.<\/p>\n
“Segment” means a portion of a Loan (or all thereof) with
\n respect to which a particular interest rate is (or is proposed to be)
\n applicable.<\/p>\n
27<\/p>\n
“Single Employer Plan” means any employee pension benefit plan
\n covered by Title IV of ERISA in respect of which the Borrower or any
\n Subsidiary is an “employer” as described in Section 4001(b) of ERISA
\n and which is not a Multiemployer Plan.<\/p>\n
“Solvent” means, when used with respect to any Person, that at
\n the time of determination:<\/p>\n
(i) the fair value of its assets (both at fair
\n valuation and at present fair saleable value on an orderly
\n basis) is in excess of the total amount of its liabilities,
\n including contingent obligations; and<\/p>\n
(ii) it is then able and expects to be able to pay
\n its debts as they mature; and<\/p>\n
(iii) it has capital sufficient to carry on its
\n business as conducted and as proposed to be conducted.<\/p>\n
“Stated Termination Date” means March 31, 1997 or such later
\n date as the parties may agree pursuant to Section 2.14.<\/p>\n
“Subordinated Debt” means any unsecured Indebtedness of the
\n Borrower or any Consolidated Entity (other than inter-company
\n Indebtedness) which is subordinated in right of payment in all respects
\n to the Obligations in a manner reasonably acceptable to the Agent.<\/p>\n
“Subsidiary” means any corporation or other entity in which
\n more than 50% of its outstanding voting stock or more than 50% of all
\n equity interests is owned directly or indirectly by the Borrower and\/or
\n by one or more of the Borrower’s Subsidiaries.<\/p>\n
“Swap Agreement” means one or more agreements between the
\n Borrower and any Person with respect to Indebtedness evidenced by any
\n or all of the Notes, on terms mutually acceptable to Borrower and such
\n Person and approved by each of the Lenders, which agreements create
\n Rate Hedging Obligations; provided, however, that no such approval of
\n the Lenders shall be required to the extent such agreements are entered
\n into between the Borrower and any Lender.<\/p>\n
“Syndicated Loans” shall mean the Revolving Loans and Line of
\n Credit Loans provided for by Section 2.1, which may be Base Rate Loans
\n or Eurodollar Rate Loans.<\/p>\n
“Termination Event” means: (i) a “Reportable Event” described in
\n Section 4043 of ERISA and the regulations issued thereunder (unless the
\n notice requirement has been waived by applicable regulation); or (ii)
\n the withdrawal of the Borrower or any ERISA Affiliate from a Pension
\n Plan during a plan year<\/p>\n
28<\/p>\n
in which it was a “substantial employer” as defined in Section
\n 4001(a)(2) of ERISA or was deemed such under Section 4068(f) of ERISA;
\n or (iii) the termination of a Pension Plan, the filing of a notice of
\n intent to terminate a Pension Plan or the treatment of a Pension Plan
\n amendment as a termination under Section 4041 of ERISA; or (iv) the
\n institution of proceedings to terminate a Pension Plan by the PBGC; or
\n (v) any other event or condition which would constitute grounds under
\n Section 4042(a) of ERISA for the termination of, or the appointment of
\n a trustee to administer, any Pension Plan; or (vi) the partial or
\n complete withdrawal of the Borrower or any ERISA Affiliate from a
\n Multiemployer Plan; or (vii) the imposition of a Lien pursuant to
\n Section 412 of the Code or Section 302 of ERISA; or (viii) any event or
\n condition which results in the reorganization or insolvency of a
\n Multiemployer Plan under Section 4241 or Section 4245 of ERISA,
\n respectively; or (ix) any event or condition which results in the
\n termination of a Multiemployer Plan under Section 4041A of ERISA or the
\n institution by the PBGC of proceedings to terminate a Multiemployer
\n Plan under Section 4042 of ERISA.<\/p>\n
“Total Letter of Credit Commitment” means an amount not to exceed
\n $75,000,000.<\/p>\n
“Total Line of Credit Commitment” means a principal amount
\n equal to $350,000,000, as reduced from time to time in accordance with
\n Section 2.1(b) and Section 2.8.<\/p>\n
“Total Revolving Credit Commitment” means a principal amount
\n equal to $900,000,000, as reduced from time to time in accordance with
\n Section 2.1(a) and Section 2.8.<\/p>\n
“Type” shall have the meaning assigned to such term in Section
\n 1.3.<\/p>\n
“Unused Amount” shall mean with respect to each Lender, (a)
\n the Revolving Credit Commitment of such Lender less (b) such Lender’s
\n pro rata share of outstanding Revolving Loans and Letter of Credit
\n Outstandings less (c) the outstanding principal amount of all
\n Competitive Bid Loans then held by such Lender; provided, that in no
\n event shall such amount be a negative number.<\/p>\n
“Vanderbilt” shall mean Vanderbilt Stallworth Rehabilitation
\n Hospital, L.P., the partners of which are the Borrower, Vanderbilt
\n University and Vanderbilt Health Services.<\/p>\n
“Voting Stock” means shares of Capital Stock issued by a
\n corporation, or equivalent interests in any other Person, the holders
\n of which are ordinarily, in the absence of contingencies, entitled to
\n vote for the election of directors (or persons performing similar
\n functions) of such Person, even<\/p>\n
29<\/p>\n
if the right so to vote has been suspended by the happening of such a
\n contingency.<\/p>\n
1.2 Rules of Interpretation.
\n ———————–<\/p>\n
(a) All accounting terms not specifically defined herein
\n shall have the meanings assigned to such terms and shall be interpreted
\n in accordance with GAAP applied on a Consistent Basis.<\/p>\n
(b) The headings, subheadings and table of contents used
\n herein or in any other Loan Document are solely for convenience of
\n reference and shall not constitute a part of any such document or
\n affect the meaning, construction or effect of any provision thereof.<\/p>\n
(c) Except as otherwise expressly provided, references
\n herein to articles, sections, paragraphs, clauses, annexes, appendices,
\n exhibits and schedules are references to articles, sections,
\n paragraphs, clauses, annexes, appendices, exhibits and schedules in or
\n to this Agreement.<\/p>\n
(d) All definitions set forth herein or in any other Loan
\n Document shall apply to the singular as well as the plural form of such
\n defined term, and all references to the masculine gender shall include
\n reference to the feminine or neuter gender, and vice versa, as the
\n context may require.<\/p>\n
(e) When used herein or in any other Loan Document, words
\n such as “hereunder”, “hereto”, “hereof” and “herein” and other words of
\n like import shall, unless the context clearly indicates to the
\n contrary, refer to the whole of the applicable document and not to any
\n particular article, section, subsection, paragraph or clause thereof.<\/p>\n
(f) References to “including” means including without
\n limiting the generality of any description preceding such term, and for
\n purposes hereof the rule of ejusdem generis shall not be applicable to
\n limit a general statement, followed by or referable to an enumeration
\n of specific matters, to matters similar to those specifically
\n mentioned.<\/p>\n
(g) All dates and times of day specified herein shall refer
\n to such dates and times at Charlotte, North Carolina.<\/p>\n
(h) Each of the parties to the Loan Documents and their
\n counsel have reviewed and revised, or requested (or had the opportunity
\n to request) revisions to, the Loan Documents, and any rule of
\n construction that ambiguities are to be resolved against the drafting
\n party shall be inapplicable in the construing and interpretation of the
\n Loan Documents and all exhibits, schedules and appendices thereto.<\/p>\n
30<\/p>\n
(i) Any reference to an officer of the Borrower or any
\n other Person by reference to the title of such officer shall be deemed
\n to refer to each other officer of such Person, however titled,
\n exercising the same or substantially similar functions.<\/p>\n
(j) All references to any agreement or document as
\n amended, modified or supplemented, or words of similar effect, shall
\n mean such document or agreement, as the case may be, as amended,
\n modified or supplemented from time to time only as and to the extent
\n permitted therein and in the Loan Documents.<\/p>\n
1.3. Classes and Types of Loans. Loans hereunder are distinguished
\nby “Class” and by “Type”. The “Class” of a Loan refers to whether such Loan is a
\nCompetitive Bid Loan or a Syndicated Loan (and if a Syndicated Loan, a Revolving
\nLoan or Line of Credit Loan), each of which constitutes a Class. The “Type” of a
\nLoan refers to whether such Loan is a Base Rate Loan, a Eurodollar Rate Loan, an
\nAbsolute Rate Loan or a Eurodollar Market Loan, each of which constitutes a
\nType. Loans may be identified by both Class and Type.<\/p>\n
31<\/p>\n
ARTICLE II<\/p>\n
The Loans
\n ———<\/p>\n
2.1. Syndicated Loans.
\n —————-
\n (a) Revolving Credit Facility. Subject to the terms and
\nconditions of this Agreement, each Lender severally agrees to make Advances to
\nthe Borrower under the Revolving Credit Facility from time to time from the
\nClosing Date until the Revolving Credit Termination Date on a pro rata basis as
\nto the total borrowing requested by the Borrower on any day determined by such
\nLender’s Applicable Commitment Percentage up to but not exceeding the Revolving
\nCredit Commitment of such Lender, provided, however, that the Lenders will not
\nbe required and shall have no obligation to make any such Advance (i) so long as
\na Default or an Event of Default has occurred and is continuing or (ii) if the
\nmaturity of any of the Notes has been accelerated as a result of an Event of
\nDefault; provided further, however, that immediately after giving effect to each
\nsuch Advance, the aggregate principal amount of Revolving Credit Outstandings
\nplus Letter of Credit Outstandings plus outstanding Competitive Bid Loans shall
\nnot exceed the Total Revolving Credit Commitment. Within such limits, the
\nBorrower may borrow, repay and reborrow under the Revolving Credit Facility on a
\nBusiness Day from the Closing Date until, but (as to borrowings and
\nreborrowings) not including, the Revolving Credit Termination Date; provided,
\nhowever, that (y) no Revolving Loan that is a Eurodollar Rate Loan shall be made
\nwhich has an Interest Period that extends beyond the Revolving Credit
\nTermination Date and (z) each Revolving Loan that is a Eurodollar Rate Loan may,
\nsubject to the provisions of Section 2.4, be repaid only on the last day of the
\nInterest Period with respect thereto unless such payment is accompanied by the
\nadditional payment, if any, required by Section 4.2.<\/p>\n
(b) Line of Credit Facility. Subject to the terms and
\nconditions of this Agreement, each Lender severally agrees to make Advances to
\nthe Borrower under the Line of Credit Facility from time to time from the
\nClosing Date until the Line of Credit Termination Date on a pro rata basis as to
\nthe total borrowing requested by the Borrower on any day determined by such
\nLender’s Applicable Commitment Percentage up to but not exceeding the Line of
\nCredit Commitment of such Lender, provided, however, that the Lenders will not
\nbe required and shall have no obligation to make any such Advance (i) so long as
\na Default or an Event of Default has occurred and is continuing or (ii) if the
\nmaturity of any of the Notes has been accelerated as a result of an Event of
\nDefault; provided further, however, that immediately after giving effect to each
\nsuch Advance, the principal amount of Line of Credit Outstandings shall not
\nexceed the Total Line of Credit Commitment. Within such limits, the Borrower may
\nborrow, repay and reborrow under the Line of Credit Facility on a Business Day
\nfrom the Closing Date until, but (as to borrowings and reborrowings) not<\/p>\n
32<\/p>\n
including, the Line of Credit Termination Date; provided, however, that (y) no
\nLine of Credit Loan that is a Eurodollar Rate Loan shall be made which has an
\nInterest Period that extends beyond the Line of Credit Termination Date and (z)
\neach Line of Credit Loan that is a Eurodollar Rate Loan may, subject to the
\nprovisions of Section 2.4, be repaid only on the last day of the Interest Period
\nwith respect thereto unless such payment is accompanied by the additional
\npayment, if any, required by Section 4.2.<\/p>\n
(c) Amounts. The aggregate unpaid principal amount of
\nthe Revolving Credit Outstandings plus Letter of Credit Outstandings plus
\noutstanding Competitive Bid Loans shall not exceed at any time the Total
\nRevolving Credit Commitment, and the aggregate unpaid principal amount of the
\nLine of Credit Outstandings shall not exceed the Total Line of Credit Commitment
\nand, in the event there shall be outstanding any such excess, the Borrower shall
\nimmediately make such payments and prepayments as shall be necessary to comply
\nwith this restriction. Each Syndicated Loan hereunder, other than Base Rate
\nRefunding Loans, and each conversion under Section 2.9, shall be in an amount of
\nat least $5,000,000, and, if greater than $5,000,000, an integral multiple of
\n$1,000,000.<\/p>\n
(d) Advances. An Authorized Representative shall give
\nthe Agent (1) at least three (3) Business Days’ irrevocable written notice by
\ntelefacsimile transmission of a Borrowing Notice or Interest Rate Selection
\nNotice (as applicable) with appropriate insertions, effective upon receipt, of
\neach Syndicated Loan that is a Eurodollar Rate Loan (whether representing an
\nadditional borrowing hereunder or the conversion of a borrowing hereunder from
\nBase Rate Loans to Eurodollar Rate Loans) prior to 10:30 A.M. and (2)
\nirrevocable written notice by telefacsimile transmission of a Borrowing Notice
\nor Interest Rate Selection Notice (as applicable) with appropriate insertions,
\neffective upon receipt, of each Syndicated Loan (other than Base Rate Refunding
\nLoans to the extent the same are effected without notice pursuant to Section
\n2.1(d)(iv)) that is a Base Rate Loan (whether representing an additional
\nborrowing hereunder or the conversion of borrowing hereunder from Eurodollar
\nRate Loans to Base Rate Loans) prior to 10:30 A.M. on the day of such proposed
\nSyndicated Loan. Each such notice shall specify the amount of the borrowing,
\nwhether the Loan is a Revolving Loan or Line of Credit Loan, the Type of Loan<\/p>\n
(Base Rate or Eurodollar Rate), the date of borrowing and, if a Eurodollar Rate
\nLoan, the Interest Period to be used in the computation of interest. Notice of
\nreceipt of such Borrowing Notice or Interest Rate Selection Notice, as the case
\nmay be, together with the amount of each Lender’s portion of an Advance
\nrequested thereunder, shall be provided by the Agent to each Lender by
\ntelefacsimile transmission with reasonable promptness, but (provided the Agent
\nshall have received such notice by 10:30 A.M.) not later than 1:00 P.M. on the
\nsame day as the Agent’s receipt of such notice.<\/p>\n
33<\/p>\n
(ii) Not later than 2:00 P.M. on the date specified for each
\nborrowing under this Section 2.1, each Lender shall, pursuant to the terms and
\nsubject to the conditions of this Agreement, make the amount of the Loan or
\nLoans to be made by it on such day available by wire transfer to the Agent in
\nthe amount of its pro rata share, determined according to such Lender’s
\nApplicable Commitment Percentage of the Syndicated Loan or Syndicated Loans to
\nbe made on such day. Such wire transfer shall be directed to the Agent at the
\nPrincipal Office and shall be in the form of Dollars constituting immediately
\navailable funds. The amount so received by the Agent shall, subject to the terms
\nand conditions of this Agreement, be made available to the Borrower by delivery
\nof the proceeds thereof as shall be directed in the applicable Borrowing Notice
\nby the Authorized Representative and reasonably acceptable to the Agent.<\/p>\n
(iii) The Borrower shall have the option to elect the duration of the
\ninitial and any subsequent Interest Periods and to convert the Syndicated Loans
\nin accordance with Section 2.9. Eurodollar Rate Loans and Base Rate Loans may be
\noutstanding at the same time, provided, however, there shall not be outstanding
\nat any one time Loans (whether Syndicated Loans or Competitive Bid Loans) having
\nmore than eight (8) different Interest Periods. If the Agent does not receive a
\nBorrowing Notice or an Interest Rate Selection Notice giving notice of election
\nof the duration of an Interest Period or of conversion of any Loan to or
\ncontinuation of a Loan as a Eurodollar Rate Loan by the time prescribed by
\nSection 2.1(d) or 2.9, the Borrower shall be deemed to have elected to convert
\nsuch Segment to (or continue such Segment as) a Base Rate Loan until the
\nBorrower notifies the Agent in accordance with Section 2.9.<\/p>\n
(iv) Notwithstanding the foregoing, if a drawing is made under any
\nLetter of Credit, such drawing is honored by the Issuing Bank prior to the
\nRevolving Credit Termination Date, and the Borrower shall not immediately fully
\nreimburse the Issuing Bank in respect of such drawing, (A) provided that the
\nconditions to making a Revolving Loan as herein provided shall then be
\nsatisfied, the Reimbursement Obligation arising from such drawing shall be paid
\nto the Issuing Bank by the Agent without the requirement of notice to or from
\nthe Borrower from immediately available funds which shall be advanced as a Base
\nRate Refunding Loan by each Lender under the Revolving Credit Facility in an
\namount equal to such Lender’s Applicable Commitment Percentage of such
\nReimbursement Obligation, and (B) if the conditions to making a Revolving Loan
\nas herein provided shall not then be satisfied, each of the Lenders shall fund
\nby payment to the Agent (for the benefit of the Issuing Bank) in immediately
\navailable funds the purchase from the Issuing Bank of their respective
\nParticipations in the related Reimbursement Obligation based on their respective
\nApplicable Commitment Percentages. If a drawing is presented under any Letter of
\nCredit in accordance with the terms thereof and the Borrower shall not
\nimmediately reimburse the Issuing Bank in respect thereof, then notice of such
\ndrawing or payment shall be provided promptly by the<\/p>\n
34<\/p>\n
Issuing Bank to the Agent and the Agent shall provide notice to each Lender by
\ntelephone or telefacsimile transmission. If notice to the Lenders of a drawing
\nunder any Letter of Credit is given by the Agent at or before 12:00 noon on any
\nBusiness Day, each Lender shall, pursuant to the conditions specified in this
\nSection 2.1(d)(iv), either make a Base Rate Refunding Loan or fund the purchase
\nof its Participation in the amount of such Lender’s Applicable Commitment
\nPercentage of such drawing or payment and shall pay such amount to the Agent for
\nthe account of the Issuing Bank at the Principal Office in Dollars and in
\nimmediately available funds before 2:30 P.M. on the same Business Day. If notice
\nto the Lenders of a drawing under a Letter of Credit is given by the Agent after
\n12:00 noon on any Business Day, each Lender shall, pursuant to the conditions
\nspecified in this Section 2.1(d)(iv), either make a Base Rate Refunding Loan or
\nfund the purchase of its Participation in the amount of such Lender’s Applicable
\nCommitment Percentage of such drawing or payment and shall pay such amount to
\nthe Agent for the account of the Issuing Bank at the Principal Office in Dollars
\nand in immediately available funds before 12:00 noon on the next following
\nBusiness Day. Any such Base Rate Refunding Loan shall be advanced as, and shall
\ncontinue as, a Base Rate Loan unless and until the Borrower converts such Base
\nRate Loan in accordance with the terms of Section 2.9.<\/p>\n
2.2. Competitive Bid Loans.
\n ———————
\n (a) In addition to borrowings of Syndicated Loans, at any time
\nprior to the Revolving Credit Termination Date the Borrower may, as set forth in
\nthis Section 2.2, request the Lenders to make offers to make Competitive Bid
\nLoans to the Borrower in Dollars. The Lenders may, but shall have no obligation
\nto, make such offers and the Borrower may, but shall have no obligation to,
\naccept any such offers in the manner set forth in this Section 2.2. Competitive
\nBid Loans may be Eurodollar Market Loans or Absolute Rate Loans (each a “Type”
\nof Competitive Bid Loan), provided that:<\/p>\n
(i) the aggregate amount of outstanding Competitive Bid
\n Loans shall not exceed the Total Revolving Credit Commitment
\n less the sum of the principal amount of Revolving Credit
\n Outstandings and Letter of Credit Outstandings;<\/p>\n
(ii) there may be no more than eight (8) different
\n Interest Periods for both Syndicated Loans and Competitive Bid
\n Loans outstanding at the same time (for which purpose Interest
\n Periods described in different lettered clauses of the
\n definition of the term “Interest Period” shall be deemed to be
\n different Interest Periods even if they are coterminous);<\/p>\n
(iii) the aggregate amount of outstanding Competitive Bid
\n Loans of a Lender shall not exceed at any time an<\/p>\n
35<\/p>\n
amount equal to such Lender’s Revolving Credit Commitment;<\/p>\n
(iv) the aggregate principal amount of all Competitive Bid
\n Loans, together with the sum of (i) the aggregate principal
\n amount of all outstanding Revolving Loans and (ii) the Letter
\n of Credit Outstandings shall not exceed the Total Revolving
\n Credit Commitment at such time; and<\/p>\n
(v) no Competitive Bid Loan shall have a maturity date
\n subsequent to the Revolving Credit Termination Date.<\/p>\n
(b) When the Borrower wishes to request offers to make
\nCompetitive Bid Loans, it shall give the Agent (which shall promptly notify the
\nLenders) notice (a “Competitive Bid Quote Request”) to be received no later than
\n11:00 a.m. on (x) the fourth Business Day prior to the date of borrowing
\nproposed therein, in the case of a Eurodollar Auction or (y) the Business Day
\nnext preceding the date of borrowing proposed therein, in the case of an
\nAbsolute Rate Auction (or, in any such case, such other time and date as the
\nBorrower and the Agent, with the consent of the Required Lenders, may agree).
\nThe Borrower may request offers to make Competitive Bid Loans for up to three
\n(3) different Interest Periods in a single notice (for which purpose Interest
\nPeriods in different lettered clauses of the definition of the term “Interest
\nPeriod” shall be deemed to be different Interest Periods even if they are
\ncoterminous); provided that the request for each separate Interest Period shall
\nbe deemed to be a separate Competitive Bid Quote Request for a separate
\nborrowing (a “Competitive Bid Borrowing”) and there shall not be outstanding at
\nany one time more than four (4) Competitive Bid Borrowings. Each such
\nCompetitive Bid Quote Request shall be substantially in the form of Exhibit J
\nand shall specify as to each Competitive Bid Borrowing:<\/p>\n
(i) the proposed date of such Competitive Bid
\n Borrowing, which shall be a Business Day;<\/p>\n
(ii) the aggregate amount of such Competitive Bid
\n Borrowing, which shall be at least $10,000,000 (or a larger
\n integral multiple of $1,000,000) but shall not cause the
\n limits specified in Section 2.2(a) to be violated;<\/p>\n
(iii) the duration of the Interest Period applicable
\n thereto;<\/p>\n
(iv) whether the Competitive Bid Quotes requested for a
\n particular Interest Period are seeking quotes for Eurodollar
\n Market Loans or Absolute Rate Loans; and<\/p>\n
(v) if the Competitive Bid Quotes requested are
\n seeking quotes for Absolute Rate Loans, the date on which<\/p>\n
36<\/p>\n
the Competitive Bid Quotes are to be submitted if it is before
\n the proposed date of borrowing (the date on which such
\n Competitive Bid Quotes are to be submitted is called the
\n “Quotation Date”).<\/p>\n
Except as otherwise provided in this Section 2.2(b), no Competitive Bid Quote
\nRequest shall be given within five (5) Business Days (or such other number of
\ndays as the Borrower and the Agent, with the consent of the Required Lenders,
\nmay agree) of any other Competitive Bid Quote Request.<\/p>\n
(c) (i) Each Lender may submit one or more Competitive Bid
\nQuotes, each containing an offer to make a Competitive Bid Loan in response to
\nany Competitive Bid Quote Request; provided that, if the Borrower’s request
\nunder Section 2.2(b) specified more than one Interest Period, such Lender may
\nmake a single submission containing one or more Competitive Bid Quotes for each
\nsuch Interest Period. Each Competitive Bid Quote must be submitted to the Agent
\nnot later than (x) 2:00 p.m. on the fourth Business Day prior to the proposed
\ndate of borrowing, in the case of a Eurodollar Auction or (y) 10:00 a.m. on the
\nQuotation Date, in the case of an Absolute Rate Auction (or, in any such case,
\nsuch other time and date as the Borrower and the Agent, with the consent of the
\nRequired Lenders, may agree); provided that any Competitive Bid Quote may be
\nsubmitted by NationsBank (or its Applicable Lending Office) only if NationsBank
\n(or such Applicable Lending Office) notifies the Borrower of the terms of the
\noffer contained therein not later than (x) 1:00 p.m. on the fourth Business Day
\nprior to the proposed date of borrowing, in the case of a Eurodollar Auction or
\n(y) 9:45 a.m. on the Quotation Date, in the case of an Absolute Rate Auction.
\nSubject to Article IV, Article VI and Article IX, any Competitive Bid Quote so
\nmade shall be irrevocable except with the consent of the Agent given on the
\ninstructions of the Borrower.<\/p>\n
(ii) Each Competitive Bid Quote shall be substantially in
\nthe form of Exhibit K and shall specify:<\/p>\n
(A) the proposed date of borrowing and the
\n Interest Period therefor;<\/p>\n
(B) the principal amount of the Competitive
\n Bid Loan for which each such Competitive Bid Quote is
\n being made, which principal amount shall be at least
\n $5,000,000 (or a larger integral multiple of
\n $1,000,000); provided that the aggregate principal
\n amount of all Competitive Bid Loans for which a
\n Lender submits Competitive Bid Quotes (x) may not
\n exceed the Revolving Credit Commitment of such Lender
\n and (y) may not exceed the principal amount of the
\n Competitive Bid Borrowing for a particular Interest
\n Period for which offers were requested;<\/p>\n
37<\/p>\n
(C) in the case of a Eurodollar Auction, the
\n margin above or below the applicable Interbank
\n Offered Rate adjusted for any Eurodollar Reserve
\n Percentage (the “Eurodollar Margin”) offered for each
\n such Competitive Bid Loan, expressed as a percentage
\n (rounded upwards, if necessary, to the nearest
\n 1\/10,000th of 1%) to be added to or subtracted from
\n the applicable Interbank Offered Rate as so adjusted;<\/p>\n
(D) in the case of an Absolute Rate Auction,
\n the rate of interest per annum (rounded upwards, if
\n necessary, to the nearest 1\/10,000th of 1%) offered
\n for each such Competitive Bid Loan (the “Absolute
\n Rate”); and<\/p>\n
(E) the identity of the quoting Lender.<\/p>\n
Unless otherwise agreed by the Agent and the Borrower, no Competitive Bid Quote
\nshall contain qualifying, conditional or similar language or propose terms other
\nthan or in addition to those set forth in the applicable Competitive Bid Quote
\nRequest and, in particular, no Competitive Bid Quote may be conditioned upon
\nacceptance by the Borrower of all (or some specified minimum) of the principal
\namount of the Competitive Bid Loan for which such Competitive Bid Quote is being
\nmade.<\/p>\n
(d) The Agent shall (x) in the case of a Eurodollar Auction,
\nby 4:00 p.m. on the day a Competitive Bid Quote is submitted or (y) in the case
\nof an Absolute Rate Auction, as promptly as practicable after the Competitive
\nBid Quote is submitted (but in any event not later than 10:30 a.m. on the
\nQuotation Date), notify the Borrower of the terms (i) of any Competitive Bid
\nQuote submitted by a Lender that is in accordance with Section 2.2(c) and (ii)
\nof any Competitive Bid Quote that amends, modifies or is otherwise inconsistent
\nwith a previous Competitive Bid Quote submitted by such Lender with respect to
\nthe same Competitive Bid Quote Request. Any such subsequent Competitive Bid
\nQuote shall be disregarded by the Agent unless such subsequent Competitive Bid
\nQuote is submitted solely to correct a manifest error in such former Competitive
\nBid Quote. The Agent’s notice to the Borrower shall specify (A) the aggregate
\nprincipal amount of the Competitive Bid Borrowing for which Competitive Bid
\nQuotes have been received and (B) the respective principal amounts and
\nEurodollar Margins or Absolute Rates, as the case may be, so offered by each
\nLender (identifying the Lender that made each Competitive Bid Quote).<\/p>\n
(e) Not later than 11:00 a.m. on (x) the third Business Day
\nprior to the proposed date of borrowing, in the case of a Eurodollar Auction or
\n(y) the Quotation Date, in the case of an Absolute Rate Auction (or, in any such
\ncase, such other time and date as the Borrower and the Agent, with the consent
\nof the<\/p>\n
38<\/p>\n
Required Lenders, may agree), the Borrower shall notify the Agent of its
\nacceptance or nonacceptance of the offers so notified to it pursuant to Section
\n2.2(d) (and the failure of the Borrower to give such notice by such time shall
\nconstitute nonacceptance) and the Agent shall promptly notify each affected
\nLender. In the case of acceptance, such notice shall specify the aggregate
\nprincipal amount of offers for each Interest Period that are accepted. The
\nBorrower may accept any Competitive Bid Quote in whole or in part (provided that
\nany Competitive Bid Quote accepted in part shall be at least $5,000,000 or a
\nlarger integral multiple of $1,000,000); provided that:<\/p>\n
(i) the aggregate principal amount of each Competitive Bid
\n Borrowing may not exceed the applicable amount set forth in
\n the related Competitive Bid Quote Request;<\/p>\n
(ii) the aggregate principal amount of each Competitive
\n Bid Borrowing shall be at least $10,000,000 (or a larger
\n integral multiple of $1,000,000) but shall not cause the
\n limits specified in Section 2.2(a) to be violated;<\/p>\n
(iii) acceptance of offers may be made only in ascending
\n order of Eurodollar Margins or Absolute Rates, as the case may
\n be, in each case beginning with the lowest rate so offered;
\n provided, however, that the Borrower, in its sole discretion,
\n may accept other than the lowest rate where acceptance of the
\n lowest rate will result in (x) the outstanding Loans other
\n than Line of Credit Loans of a Lender or Lenders offering the
\n lowest rate exceeding such Lender’s Revolving Credit
\n Commitment and (y) an increase in the Unused Fee payable by
\n Borrower under Section 2.11(a); and<\/p>\n
(iv) the Borrower may not accept any offer where the Agent
\n has correctly advised the Borrower that such offer fails to
\n comply with Section 2.2(c)(ii) or otherwise fails to comply
\n with the requirements of this Agreement (including, without
\n limitation, Section 2.2(a)).<\/p>\n
If offers are made by two or more Lenders with the same Eurodollar Margins or
\nAbsolute Rates, as the case may be, for a greater aggregate principal amount
\nthan the amount in respect of which offers are permitted to be accepted for the
\nrelated Interest Period after the acceptance of all offers, if any, of all lower
\nEurodollar Margins or Absolute Rates, as the case may be, offered by any Lender
\nfor such related Interest Period, the principal amount of Competitive Bid Loans
\nin respect of which such offers are accepted shall be allocated by the Borrower
\namong such Lenders as nearly as possible (in amounts of at least $5,000,000 or
\nlarger integral multiples of $1,000,000) in proportion to the aggregate
\nprincipal amount of such offers. Determinations by the Borrower of the<\/p>\n
39<\/p>\n
amounts of Competitive Bid Loans and the lowest bid after adjustment as provided
\nin Section 2.2(e)(iii) shall be conclusive in the absence of manifest error.<\/p>\n
(f) Any Lender whose offer to make any Competitive Bid Loan
\nhas been accepted shall, not later than 1:00 p.m. on the date specified for the
\nmaking of such Loan, make the amount of such Loan available to the Agent at the
\nPrincipal Office in Dollars and in immediately available funds, for account of
\nthe Borrower. The amount so received by the Agent shall, subject to the terms
\nand conditions of this Agreement, be made available to the Borrower on such date
\nby depositing the same, in Dollars and in immediately available funds, in an
\naccount of the Borrower maintained at the Principal Office.<\/p>\n
2.3. Payment of Interest. (a) The Borrower shall pay interest to
\nthe Agent for the account of each Lender on the outstanding and unpaid principal
\namount of each Loan made by such Lender for the period commencing on the date of
\nsuch Loan until such Loan shall be due at the then applicable Base Rate for Base
\nRate Loans or applicable Fixed Rate for Fixed Rate Loans, as designated by the
\nAuthorized Representative pursuant to Section 2.1 or Section 2.2; provided,
\nhowever, that if any amount payable under this Agreement shall not be paid when
\ndue (at maturity, by acceleration or otherwise, subject to the provisions of
\nSection 9.1(a)), all amounts outstanding hereunder shall bear interest
\nthereafter at the Default Rate.<\/p>\n
(b) Interest on each Loan shall be computed on an Actual\/360
\nBasis. Interest on each Loan shall be paid (i) quarterly in arrears on the last
\nBusiness Day of each March, June, September and December, commencing June 30,
\n1996, for each Base Rate Loan, (ii) on the last day of the applicable Interest
\nPeriod for each Fixed Rate Loan and, if such Interest Period extends for more
\nthan three (3) months, at intervals of three (3) months after the first day of
\nsuch Interest Period, and (iii) upon the Line of Credit Termination Date or
\nRevolving Credit Termination Date, as the case may be. Interest payable at the
\nDefault Rate shall be payable on demand.<\/p>\n
2.4. Payment of Principal. The principal amount of each Revolving
\nLoan shall be due and payable to the Agent for the benefit of each Lender in
\nfull on the Revolving Credit Termination Date, or earlier as specifically
\nprovided herein. The principal amount of each Line of Credit Loan shall be due
\nand payable to the Agent for the benefit of each Lender in full on the Stated
\nTermination Date, or earlier as specifically provided herein. The principal
\namount of each Competitive Bid Loan shall be due and payable to the Agent for
\nthe benefit of the applicable Lender in full on the last day of the Interest
\nPeriod applicable thereto, or earlier as specifically provided herein. The
\nprincipal amount of any Base Rate Loan may be prepaid in whole or in part at any
\ntime. The principal amount of any Fixed Rate Loan may be prepaid only at<\/p>\n
40<\/p>\n
the end of the applicable Interest Period unless the Borrower shall pay to the
\nAgent for the account of the Lenders the additional amount, if any, required
\nunder Section 4.2. All prepayments of Syndicated Loans made by the Borrower
\nshall be in the amount of $5,000,000 or such greater amount which is an integral
\nmultiple of $1,000,000, or the amount equal to all Revolving Credit Outstandings
\nor Line of Credit Outstandings, as the case may be, or such other amount as
\nnecessary to comply with Section 2.1(c) or Section 2.9.<\/p>\n
2.5. Non-Conforming Payments. (a) Each payment of principal (including
\nany prepayment) and payment of interest and fees, and any other amount required
\nto be paid to the Lenders with respect to the Loans, shall be made to the Agent
\nat the Principal Office, for the account of each Lender, in Dollars and in
\nimmediately available funds before 10:00 A.M. on the date such payment is due.
\nThe Agent may, but shall not be obligated to, debit the amount of any such
\npayment which is not made by such time to any ordinary deposit account, if any,
\nof the Borrower with the Agent. The Agent shall promptly notify the Borrower of
\nany such debit; however, failure to give such notice shall not affect the
\nvalidity of such debit.<\/p>\n
(b) The Agent shall deem any payment made by or on behalf of the
\nBorrower hereunder that is not made both in Dollars and in immediately available
\nfunds and prior to 10:00 A.M. to be a non-conforming payment. Any such payment
\nshall not be deemed to be received by the Agent until the later of (i) the time
\nsuch funds become available funds and (ii) the next Business Day. Any
\nnon-conforming payment may constitute or become a Default or Event of Default.
\nInterest shall continue to accrue on any principal as to which a non-conforming
\npayment is made until the later of (x) the date such funds become available
\nfunds or (y) the next Business Day at the Default Rate from the date such amount
\nwas due and payable.<\/p>\n
(c) In the event that any payment hereunder or under the Notes
\nbecomes due and payable on a day other than a Business Day, then such due date
\nshall be extended to the next succeeding Business Day unless provided otherwise
\nunder clause (ii) of the definition of “Interest Period”; provided that interest
\nshall continue to accrue during the period of any such extension and provided
\nfurther, that in no event shall any such due date be extended beyond the
\nRevolving Credit Termination Date or Line of Credit Termination Date, as the
\ncase may be.<\/p>\n
2.6. Notes. (a) Revolving Loans made by each Lender shall be
\nevidenced by the Revolving Note payable to the order of such Lender in the
\nrespective amount of its Applicable Commitment Percentage of the Revolving
\nCredit Commitment, which Revolving Note shall be dated the Closing Date or a
\nlater date pursuant to an Assignment and Acceptance and shall be duly completed,
\nexecuted and delivered by the Borrower.<\/p>\n
41<\/p>\n
(b) Line of Credit Loans made by each Lender shall be evidenced by the
\nLine of Credit Note payable to the order of such Lender in the respective amount
\nof its Applicable Commitment Percentage of the Line of Credit Commitment, which
\nLine of Credit Note shall be dated the Closing Date or a later date pursuant to
\nan Assignment and Acceptance and shall be duly completed, executed and delivered
\nby the Borrower.<\/p>\n
(c) Competitive Bid Loans made by each Lender shall be evidenced by the
\nCompetitive Bid Note payable to the order of such Lender and representing the
\nobligation of the Borrower to pay the lesser of (a) the aggregate amount of the
\nRevolving Credit Commitment of such Lender and (b) the unpaid principal amount
\nof all Competitive Bid Loans made by such Lender, with interest on the unpaid
\nprincipal amount from time to time outstanding of each Competitive Bid Loan
\nevidenced thereby as prescribed in Section 2.3. Each Lender is hereby authorized
\nto record the date and amount of each Competitive Bid Loan made by such Lender,
\nthe maturity date thereof, the date and amount of each payment of principal
\nthereof and the interest rate with respect thereto on the schedule attached to
\nand constituting part of its Competitive Bid Note, and any such recordation
\nshall constitute prima facie evidence of the accuracy of the information so
\nrecorded; provided, however, that the failure to make any such recordation shall
\nnot affect the obligations of the Borrower hereunder or under any Competitive
\nBid Note. Each Competitive Bid Note shall be dated the Closing Date or a later
\ndate pursuant to an Assignment and Acceptance and shall be duly completed,
\nexecuted and delivered by the Borrower.<\/p>\n
2.7. Pro Rata Payments. Except as otherwise provided herein, (a)
\neach payment on account of the principal of and interest on the Syndicated Loans
\nand the fees described in Section 2.11 and the first sentence of Section 3.3(a)
\nshall be made to the Agent for the account of the Lenders pro rata based on
\ntheir Applicable Commitment Percentages, (b) all payments to be made by the
\nBorrower for the account of each of the Lenders on account of principal,
\ninterest and fees, shall be made without diminution, setoff, recoupment or
\ncounterclaim, and (c) the Agent will promptly distribute to the Lenders in
\nimmediately available funds payments received in fully collected, immediately
\navailable funds from the Borrower.<\/p>\n
2.8. Reductions. The Borrower shall, by irrevocable notice from an
\nAuthorized Representative, have the right from time to time but not more
\nfrequently than once each calendar month, upon not less than three (3) Business
\nDays’ written notice to the Agent, effective upon receipt, to permanently reduce
\nthe Total Revolving Credit Commitment or the Total Line of Credit Commitment.
\nThe Agent shall give each Lender, within one (1) Business Day of receipt of such
\nnotice, telefacsimile notice, or telephonic notice (confirmed in writing), of
\nsuch reduction. Each such reduction shall be in the aggregate amount of
\n$10,000,000 or such greater amount which is<\/p>\n
42<\/p>\n
in an integral multiple of $1,000,000, or the entire remaining Total Revolving
\nCredit Commitment or the Total Line of Credit Commitment, and shall permanently
\nreduce the Total Revolving Credit Commitment or the Total Line of Credit
\nCommitment, as the case may be. Each reduction of the Total Revolving Credit
\nCommitment shall be accompanied by payment of the Revolving Loans and
\nCompetitive Bid Loans to the extent that the principal amount of Revolving
\nCredit Outstandings plus Letter of Credit Outstandings plus outstanding
\nCompetitive Bid Loans exceeds the Total Revolving Credit Commitment after giving
\neffect to such reduction, together with accrued and unpaid interest on the
\namounts prepaid. Each reduction of the Total Line of Credit Commitment shall be
\naccompanied by payment of Line of Credit Loans to the extent that the principal
\namount of Line of Credit Outstandings exceeds the Total Line of Credit
\nCommitment after giving effect to such reduction, together with accrued and
\nunpaid interest on the amounts prepaid. If any such reduction shall result in
\nthe payment of any Fixed Rate Loan other than on the last day of the Interest
\nPeriod of such Fixed Rate Loan such prepayment shall be accompanied by amounts
\ndue, if any, under Section 4.2.<\/p>\n
2.9. Conversions and Elections of Subsequent Interest Periods.
\nProvided that no Default or Event of Default shall have occurred and be
\ncontinuing and subject to the limitations set forth below and in Article IV, the
\nBorrower may:<\/p>\n
(a) upon delivery, effective upon receipt, of a properly
\ncompleted Interest Rate Selection Notice to the Agent on or before 10:30 A.M. on
\nany Business Day, convert all or a part of Eurodollar Rate Loans under either
\nthe Revolving Credit Facility or the Line of Credit Facility to Base Rate Loans
\non the last day of the Interest Period for such Eurodollar Rate Loans; and<\/p>\n
(b) upon delivery, effective upon receipt, of a properly
\ncompleted Interest Rate Selection Notice to the Agent on or before 10:30 A.M.
\nthree (3) Business Days prior to the date of such election or conversion:<\/p>\n
(i) elect a subsequent Interest Period for all
\n or a portion of Eurodollar Rate Loans under either the
\n Revolving Credit Facility or the Line of Credit Facility to
\n begin on the last day of the then current Interest Period for
\n such Eurodollar Rate Loans; and<\/p>\n
(ii) convert Base Rate Loans under either the
\n Revolving Credit Facility or the Line of Credit Facility to
\n Eurodollar Rate Loans on any Business Day.<\/p>\n
Each election and conversion pursuant to this Section 2.9 shall be
\nsubject to the limitations on Eurodollar Rate Loans set forth in the definition
\nof “Interest Period” herein and in Sections 2.1 and 2.4 and Article IV. The
\nAgent shall give written notice to each Lender of such notice of election or
\nconversion prior to 3:00<\/p>\n
43<\/p>\n
P.M. on the day such notice of election or conversion is received. All such
\ncontinuations or conversions of Loans shall be effected pro rata based on the
\nApplicable Commitment Percentages of the Lenders.<\/p>\n
2.10. Increase and Decrease in Amounts. The amount of the Total
\nRevolving Credit Commitment which shall be available to the Borrower as Advances
\nshall be reduced by the aggregate amount of Letter of Credit Outstandings.<\/p>\n
2.11. Unused Fees.<\/p>\n
(a) Revolving Credit Facility. For the period beginning on the Closing
\nDate and ending on the Revolving Credit Termination Date, the Borrower agrees to
\npay to the Agent, for the benefit of each Lender, an unused fee equal to the
\nApplicable Unused Fee multiplied by the average daily Unused Amount of such
\nLender. Such fees shall be due in arrears on the last Business Day of each
\nMarch, June, September and December commencing June 30, 1996 to and on the
\nRevolving Credit Termination Date.<\/p>\n
(b) Line of Credit Facility. For the period beginning on the Closing
\nDate and ending on the Line of Credit Termination Date, the Borrower agrees to
\npay to the Agent, for the pro rata benefit of the Lenders based on their
\nApplicable Commitment Percentages, an unused fee equal to the Applicable Unused
\nFee multiplied by the average daily amount by which the Total Line of Credit
\nCommitment exceeds the aggregate principal amount of Line of Credit
\nOutstandings. Such fees shall be due in arrears on the last Business Day of each
\nMarch, June, September and December commencing June 30, 1996 to and on the Line
\nof Credit Termination Date.<\/p>\n
(c) Notwithstanding the foregoing, so long as any Lender fails to make
\navailable any portion of its Revolving Credit Commitment or Line of Credit
\nCommitment when requested, such Lender shall not be entitled to receive payment
\nof its pro rata share of such fees until such Lender shall make available such
\nportion. All fees payable pursuant to this Section 2.11 shall be calculated on
\nan Actual\/360 Basis.<\/p>\n
2.12. Deficiency Advances. No Lender shall be responsible for any
\ndefault of any other Lender in respect of such other Lender’s obligation to make
\nany Loan or fund its purchase of any Participation hereunder nor shall the
\nRevolving Credit Commitment or Line of Credit Commitment of any Lender hereunder
\nbe increased as a result of such default of any other Lender. Without limiting
\nthe generality of the foregoing, in the event any Lender shall fail to advance
\nfunds to the Borrower under the Revolving Credit Facility or the Line of Credit
\nFacility as herein provided, the Agent may in its discretion, but shall not be
\nobligated to, advance under the Revolving Note or Line of Credit Note, as the
\ncase may be, in its favor as a Lender all or any portion of such amount or
\namounts (each, a “deficiency advance”) and shall thereafter be<\/p>\n
44<\/p>\n
entitled to payments of principal of and interest on such deficiency advance in
\nthe same manner and at the same interest rate or rates to which such other
\nLender would have been entitled had it made such advance under its Revolving
\nNote or Line of Credit Note, as the case may be; provided that, upon payment to
\nthe Agent from such other Lender of the entire outstanding amount of each such
\ndeficiency advance, together with accrued and unpaid interest thereon, from the
\nmost recent date or dates interest was paid to the Agent by the Borrower on each
\nLoan comprising such deficiency advance at the interest rate per annum for
\novernight borrowing by the Agent from the Federal Reserve Bank of Richmond,
\nVirginia, then such payment shall be credited against the applicable Note of the
\nAgent in full payment of such deficiency advance and the Borrower shall be
\ndeemed to have borrowed the amount of such deficiency advance from such other
\nLender as of the most recent date or dates, as the case may be, upon which any
\npayments of interest were made by the Borrower thereon.<\/p>\n
2.13. Use of Proceeds. The proceeds of the Loans made pursuant to
\nthis Agreement shall be used by the Borrower to provide funding for the
\nacquisition and development of Facilities and to provide for the working capital
\nneeds and other corporate purposes of the Borrower and its Consolidated
\nEntities.<\/p>\n
2.14. (a) Extension of Stated Termination Date. At the request of
\nthe Borrower the Lenders may, in their sole discretion, elect to extend the
\nStated Termination Date then in effect for additional periods of up to 364 days
\neach; provided, however, that at no time shall the committed term of the Line of
\nCredit Facility exceed 364 days. The Borrower shall notify the Lenders of its
\nrequest for such an extension by delivering to the Agent and the Lenders notice
\nof such request signed by an Authorized Representative not more than ninety (90)
\ndays nor less than sixty (60) days prior to the Stated Termination Date then in
\neffect. If the Lenders shall elect to so extend, the Agent shall notify the
\nBorrower in writing within sixty (60) days of its receipt of such request for
\nextension of the decision of the Lenders as to whether to extend the Stated
\nTermination Date. Failure by any Lender to respond to a request for an extension
\nshall constitute a refusal of such Lender to give its consent to such extension.
\nFailure by the Agent to give such notice shall constitute refusal by the Lenders
\nto extend the Stated Termination Date. The Borrower, with the consent of the
\nAgent, shall be entitled to replace any Lender who is unwilling to consent to
\nthe extension of the Stated Termination Date. Any Lender which elects not to
\nconsent to an extension shall cooperate with the Borrower and the Agent in
\nassigning its interest as provided in Section 11.1 to a new lender; provided,
\nall obligations to such assigning Lender shall be paid in full, no assignment
\nfee shall be payable by such assigning Lender but shall be paid by Borrower and
\nsuch assigning Lender shall be entitled to the benefits of this Agreement set
\nforth in Sections 3.2(g), 11.6, and 11.12 and Article IV. In no event shall the
\nStated Termination Date extend beyond the Revolving Credit Termination Date.<\/p>\n
45<\/p>\n
(b) Amortization of Line of Credit Loans Outstanding at the
\nMaturity Date.<\/p>\n
(i) Election to Amortize. The Borrower shall have the option
\n to pay all of the outstanding principal balance of the Line of Credit
\n Loans outstanding as of the Line of Credit Termination Date, provided
\n the Line of Credit Termination Date occurs on or prior to March 31,
\n 1999, in eight (8) equal consecutive quarterly installments on the last
\n day of each March, June, September and December commencing with the
\n first of such dates to occur after the Line of Credit Termination Date
\n (each such date referred to herein as a “Term Loan Amortization Date”
\n and the last such date referred to herein as the “Term Loan Termination
\n Date”). The Borrower may exercise such option by giving written notice
\n to the Agent at least fifteen (15) days prior to the Line of Credit
\n Termination Date. In the event the Line of Credit Termination Date
\n shall occur subsequent to March 31, 1999 the Borrower shall have the
\n option upon the giving of fifteen (15) days’ notice prior to the end of
\n a calendar quarter to pay the then outstanding Line of Credit Loans in
\n quarterly installments, which installments shall be in approximately
\n equal amounts determined by dividing the number of full calendar
\n quarters remaining from the date of exercise of such option to March
\n 31, 2001 by such outstanding Line of Credit Loans. If the Agent does
\n not receive such notification within the time period specified in the
\n preceding two sentences (and unless such Line of Credit Termination
\n Date has been extended in accordance with the terms of subsection (a)
\n above), the principal amount of all Line of Credit Loans shall be due
\n and payable on the Line of Credit Termination Date. Line of Credit
\n Loans remaining outstanding after the Line of Credit Termination Date
\n at the election of the Borrower in accordance with the terms of this
\n subsection (b) shall be referred to collectively as the “Term Loans”.
\n The Term Loans may be comprised of Base Rate Loans and Eurodollar Rate
\n Loans as the Borrower may elect in accordance with the provisions
\n hereof. Amounts repaid or prepaid on the Term Loans may not be
\n reborrowed. For purposes of this Agreement, in the event that the
\n Borrower shall elect to amortize the Line of Credit Loans outstanding
\n as of the Line of Credit Termination Date in accordance herewith, then
\n on and after the Line of Credit Termination Date (x) references herein
\n to the “Total Line of Credit Commitment” shall mean the aggregate
\n principal amount of the Term Loans as of the Line of Credit Termination
\n Date less all payments made or required to be made with respect to the
\n Term Loans hereunder, whether scheduled amortization payment, voluntary
\n or optional prepayment or otherwise, (y) references herein to “Line of
\n Credit Commitment” shall mean, with respect to each Lender, the
\n obligation of such Lender to make Term Loans in a principal amount
\n equal to such Lender’s Applicable Commitment Percentage of the
\n aggregate Term Loans and (z) references herein to “Line of Credit
\n Termination Date”<\/p>\n
46<\/p>\n
shall mean the Term Loan Termination Date. Any prepayments of the Term
\n Loan shall be applied to installments of principal in the inverse order
\n of maturities.<\/p>\n
(ii) Interest on Term Loans. The Term Loans shall bear
\n interest on the same terms as apply to Line of Credit Loans prior to
\n the Line of Credit Termination Date.<\/p>\n
47<\/p>\n
ARTICLE III<\/p>\n
3.1. Letters of Credit. The Issuing Bank agrees, subject to the terms
\nand conditions of this Agreement, upon request of the Borrower to issue from
\ntime to time for the account of the Borrower Letters of Credit upon delivery to
\nthe Issuing Bank of an Application and Agreement for Letter of Credit relating
\nthereto in form and content acceptable to the Issuing Bank; provided, that (i)
\nthe Letter of Credit Outstandings shall not exceed the Total Letter of Credit
\nCommitment, (ii) no Letter of Credit shall be issued so long as a Default or an
\nEvent of Default has occurred or is continuing or if the applicable conditions
\nset forth in Article V shall not have been satisfied and (iii) no Letter of
\nCredit shall be issued if, after giving effect thereto, Letter of Credit
\nOutstandings plus the aggregate principal amount of Revolving Credit
\nOutstandings and outstanding Competitive Bid Loans shall exceed the Total
\nRevolving Credit Commitment. No Letter of Credit shall have an expiry date
\n(including all rights of the Borrower or any beneficiary named in such Letter of
\nCredit to require renewal) or payment date occurring later than the fifth
\nBusiness Day prior to the Revolving Credit Termination Date.<\/p>\n
3.2. Reimbursement.<\/p>\n
(a) The Borrower hereby unconditionally agrees to pay to the
\nIssuing Bank immediately on demand at the Principal Office all amounts required
\nto pay all drafts drawn or purporting to be drawn under the Letters of Credit
\nand all reasonable expenses incurred by the Issuing Bank in connection with the
\nLetters of Credit, and in any event and without demand to place in possession of
\nthe Issuing Bank (which shall include Advances under the Revolving Credit
\nFacility if permitted by Section 2.1(d)) sufficient funds to pay all debts and
\nliabilities arising in respect of any Letter of Credit. The Issuing Bank agrees
\nto give the Borrower prompt notice of any request for a draw under a Letter of
\nCredit. The Issuing Bank may charge any account the Borrower may have with it
\nfor any and all amounts the Issuing Bank pays under a Letter of Credit, plus
\ncharges and reasonable expenses as from time to time agreed to by the Issuing
\nBank and the Borrower; provided that to the extent permitted by Section
\n2.1(d)(iv), amounts shall be paid pursuant to Advances under the Revolving
\nCredit Facility. The Borrower agrees to pay the Issuing Bank interest on any
\nReimbursement Obligations not paid when due hereunder at the Base Rate plus two
\npercent (2.0%), or the maximum rate permitted by applicable law, if lower, such
\nrate to be calculated on an Actual\/360 Basis.<\/p>\n
(b) In accordance with the provisions of Section 2.1(d), the
\nIssuing Bank shall notify the Agent of any drawing under any Letter of Credit
\npromptly following the receipt by the Issuing Bank of such drawing.<\/p>\n
48<\/p>\n
(c) Each Lender (other than the Issuing Bank) shall automatically
\nacquire on the date of issuance thereof a Participation in the liability of the
\nIssuing Bank in respect of each Letter of Credit in an amount equal to such
\nLender’s Applicable Commitment Percentage of such liability, and to the extent
\nthat the Borrower is obligated to pay the Issuing Bank under Section 3.2(a),
\neach Lender (other than the Issuing Bank) thereby shall absolutely,
\nunconditionally and irrevocably assume, and shall be unconditionally obligated
\nto pay to the Issuing Bank as hereinafter described, its Applicable Commitment
\nPercentage of the liability of the Issuing Bank under such Letter of Credit.<\/p>\n
(i) Each Lender (including the Issuing Bank in its capacity as
\n a Lender) shall, subject to the terms and conditions of Article II, pay
\n to the Agent for the account of the Issuing Bank at the Principal
\n Office in Dollars and in immediately available funds, an amount equal
\n to its Applicable Commitment Percentage of any drawing under a Letter
\n of Credit, such funds to be provided in the manner described in Section
\n 2.1(d)(iv).<\/p>\n
(ii) Simultaneously with the making of each payment by a
\n Lender to the Issuing Bank pursuant to Section 2.1(d)(iv)(B), such
\n Lender shall, automatically and without any further action on the part
\n of the Issuing Bank or such Lender, acquire a Participation in an
\n amount equal to such payment (excluding the portion thereof
\n constituting interest accrued prior to the date such Lender made its
\n payment) in the related Reimbursement Obligation of the Borrower. The
\n Reimbursement Obligations of the Borrower shall be immediately due and
\n payable whether by Advances made in accordance with Section 2.1(d)(iv)
\n or otherwise.<\/p>\n
(iii) Each Lender’s obligation to make payment to the Agent
\n for the account of the Issuing Bank pursuant to Section 2.1(d)(iv) and
\n this Section 3.2(c), and the right of the Issuing Bank to receive the
\n same, shall be absolute and unconditional, shall not be affected by any
\n circumstance whatsoever and shall be made without any offset,
\n abatement, withholding or reduction whatsoever. If any Lender is
\n obligated to pay but does not pay amounts to the Agent for the account
\n of the Issuing Bank in full upon such request as required by Section
\n 2.1(d)(iv) or this Section 3.2(c), such Lender shall, on demand, pay to
\n the Agent for the account of the Issuing Bank interest on the unpaid
\n amount for each day during the period commencing on the date of notice
\n given to such Lender pursuant to Section 2.1(d) until such Lender pays
\n such amount to the Agent for the account of the Issuing Bank in full at
\n the interest rate per annum for overnight borrowing by the Agent from
\n the Federal Reserve Bank of Richmond, Virginia.<\/p>\n
49<\/p>\n
(iv) In the event the Lenders have purchased Participations in
\n any Reimbursement Obligation as set forth in clause (ii) above, then at
\n any time payment (in fully collected, immediately available funds) of
\n such Reimbursement Obligation, in whole or in part, is received by
\n Issuing Bank from the Borrower, the Issuing Bank shall promptly pay to
\n each Lender an amount equal to its Applicable Commitment Percentage of
\n such payment from the Borrower.<\/p>\n
(d) Promptly following the end of each calendar quarter, the
\nIssuing Bank shall deliver to the Agent and the Agent shall deliver to each
\nLender a notice describing the aggregate undrawn amount of all Letters of Credit
\nat the end of such quarter. The Agent shall promptly notify each Lender of the
\nissuance of a Letter of Credit.<\/p>\n
(e) The issuance by the Issuing Bank of each Letter of Credit
\nshall, in addition to the conditions precedent set forth in Article V, be
\nsubject to the conditions that such Letter of Credit be in such form and contain
\nsuch terms as shall be reasonably satisfactory to the Issuing Bank consistent
\nwith the then current practices and procedures of the Issuing Bank with respect
\nto similar letters of credit, and the Borrower shall have executed and delivered
\nsuch other instruments and agreements relating to such Letters of Credit as the
\nIssuing Bank shall have reasonably requested consistent with such practices and
\nprocedures and shall not be in conflict with any of the express terms herein
\ncontained. All Letters of Credit shall be issued pursuant to and subject to the
\nUniform Customs and Practice for Documentary Credits, 1993 revision,
\nInternational Chamber of Commerce Publication No. 500 and all subsequent
\namendments and revisions thereto.<\/p>\n
(f) The Borrower agrees that Issuing Bank may, in its sole
\ndiscretion, accept or pay, as complying with the terms of any Letter of Credit,
\nany drafts or other documents otherwise in order which may be signed or issued
\nby an administrator, executor, trustee in bankruptcy, debtor in possession,
\nassignee for the benefit of creditors, liquidator, receiver, attorney in fact or
\nother legal representative of a party who is authorized under such Letter of
\nCredit to draw or issue any drafts or other documents.<\/p>\n
(g) Without limiting the generality of the provisions of Section
\n11.12, the Borrower hereby agrees to indemnify and hold harmless the Issuing
\nBank, each other Lender and the Agent from and against any and all claims and
\ndamages, losses, liabilities, reasonable costs and expenses which the Issuing
\nBank, such other Lender or the Agent may incur (or which may be claimed against
\nthe Issuing Bank, such other Lender or the Agent) by any Person by reason of or
\nin connection with the issuance or transfer of or payment or failure to pay
\nunder any Letter of Credit; provided that the Borrower shall not be required to
\nindemnify the Issuing Bank, any other Lender or the Agent for any claims,
\ndamages, losses, liabilities, costs or expenses to the extent, but only to the<\/p>\n
50<\/p>\n
extent, (i) caused by the willful misconduct or negligence of the party to be
\nindemnified or (ii) in the case of the Issuing Bank, caused by the failure of
\nthe Issuing Bank to pay under any Letter of Credit after the presentation to it
\nof a request for payment strictly complying with the terms and conditions of
\nsuch Letter of Credit, unless such payment is prohibited by any law, regulation,
\ncourt order or decree. The indemnification and hold harmless provisions of this
\nSection 3.2(g) shall survive repayment of the Obligations, occurrence of the
\nRevolving Credit Termination Date and expiration or termination of this
\nAgreement.<\/p>\n
(h) Without limiting the Borrower’s rights as set forth in Section
\n3.2(g), the obligation of the Borrower to immediately reimburse the Issuing Bank
\nfor drawings made under Letters of Credit and to repay Loans made under Section
\n2.1(d) and the Issuing Bank’s and each Lender’s right to receive such payment
\nshall be absolute, unconditional and irrevocable, and such obligations of the
\nBorrower shall be performed strictly in accordance with the terms of this
\nAgreement and such Letters of Credit and the related Applications and Agreement
\nfor any Letter of Credit, under all circumstances whatsoever, including the
\nfollowing circumstances:<\/p>\n
(i) any lack of validity or enforceability of any Letter of
\n Credit, the obligation supported by any Letter of Credit or any other
\n agreement or instrument relating thereto (collectively, the “Related LC
\n Documents”);<\/p>\n
(ii) any amendment or waiver of or any consent to or departure
\n from all or any of the Related LC Documents;<\/p>\n
(iii) the existence of any claim, setoff, defense (other than
\n the defense of payment in accordance with the terms of this Agreement)
\n or other rights which the Borrower may have at any time against any
\n beneficiary or any transferee of a Letter of Credit (or any persons or
\n entities for whom any such beneficiary or any such transferee may be
\n acting), the Agent, the Lenders or any other Person, whether in
\n connection with the Loan Documents, the Related LC Documents or any
\n unrelated transaction;<\/p>\n
(iv) any breach of contract or other dispute between the
\n Borrower and any beneficiary or any transferee of a Letter of Credit
\n (or any persons or entities for whom such beneficiary or any such
\n transferee may be acting), the Agent, the Lenders or any other Person;<\/p>\n
(v) any draft, statement or any other document presented under
\n any Letter of Credit proving to be forged, fraudulent, invalid or
\n insufficient in any respect or any statement therein being untrue or
\n inaccurate in any respect whatsoever;<\/p>\n
(vi) any delay, extension of time, renewal, compromise or
\n other indulgence or modification granted or agreed to by the Agent or
\n the requisite number of Lenders,<\/p>\n
51<\/p>\n
with or without notice to or approval by the Borrower in respect of any
\n of Borrower’s Obligations under this Agreement; or<\/p>\n
(vii) any other circumstance or happening whatsoever, whether
\n or not similar to any of the foregoing;<\/p>\n
provided, however, that nothing in this Section 3.2(h) shall give the Issuing
\nBank any right to reimbursement for drawings made under a Letter of Credit
\notherwise than pursuant to a request for payment strictly complying with the
\nterms and conditions of such Letter of Credit unless the Borrower has
\nspecifically waived such strict compliance in writing.<\/p>\n
3.3. Letter of Credit Facility Fees. (a) The Borrower shall pay to the
\nAgent, for the pro rata benefit of the Lenders based on their Applicable
\nCommitment Percentages, a fee on the aggregate amount available to be drawn on
\neach outstanding Letter of Credit at a rate equal to the Applicable Margin. In
\naddition, the Borrower agrees to pay to the Agent for the benefit of the Issuing
\nBank an issuance fee equal to one-eighth of one percent (1\/8%) per annum times
\nthe amount of outstanding Letters of Credit. Such fees shall be due with respect
\nto each Letter of Credit quarterly in arrears on the last Business Day of each
\nMarch, June, September and December, the first such payment to be made on the
\nfirst such date occurring after the date of issuance of a Letter of Credit. The
\nfees described in this Section 3.3 shall be calculated on the basis of a year of
\n360 days for the actual number of days elapsed.<\/p>\n
(b) The Borrower acknowledges that the Issuing Bank as issuer of each
\nLetter of Credit will be required by applicable rules and regulations of the
\nBoard to maintain reserves for its liability to honor draws made pursuant to a
\nLetter of Credit notwithstanding the obligation of the Lenders for a
\nParticipation in such liability. The Borrower agrees to promptly reimburse the
\nIssuing Bank for all additional costs which it may hereafter incur solely by
\nreason of its acting as issuer of the Letters of Credit and its being required
\nto reserve for such liability, it being understood by the Borrower that other
\ninterest and fees payable under this Agreement do not include compensation of
\nthe Issuing Bank for such reserves. The Issuing Bank shall furnish to the
\nBorrower at the time of its demand for payment of such additional costs, the
\ncomputation of such additional cost which shall be conclusive absent manifest
\nerror, provided that such computations are made on a reasonable basis.<\/p>\n
3.4. Administrative Fees. The Borrower shall pay to the Issuing Bank
\nsuch administrative fee and other fees, if any, in connection with the Letters
\nof Credit in such amounts and at such times as the Issuing Bank and the Borrower
\nshall agree from time to time.<\/p>\n
52<\/p>\n
ARTICLE IV<\/p>\n
Termination of Eurodollar Rate and Yield Protection<\/p>\n
4.1. Suspension of Loans.<\/p>\n
(a) If at any time the Agent shall reasonably determine (which
\ndetermination, if reasonable, shall be final, conclusive and binding upon all
\nparties) that:<\/p>\n
(i) by reason of any changes arising after the Closing Date
\n affecting the applicable interbank market or affecting the position of
\n any Lender or the Agent in such market, adequate and fair means do not
\n exist for ascertaining the Interbank Offered Rate with respect to a
\n Eurodollar Loan or Eurodollar Market Loan; or<\/p>\n
(ii) the continuation by any Lender of any Eurodollar Loans or
\n Eurodollar Market Loans or the funding thereof in the applicable
\n interbank market would be unlawful by reason of any law, governmental
\n rule, regulation, guidelines or order; or<\/p>\n
(iii) the continuation by any Lender of any Eurodollar Loans
\n or Eurodollar Market Loans or the funding thereof in the applicable
\n interbank market would be impracticable as a result of a contingency
\n occurring after the date of this Agreement that materially and
\n adversely affects the applicable interbank market;<\/p>\n
then, and in any such event, the Agent shall on such date give notice (by
\ntelephone and confirmed in writing) to the Borrower of such determination. The
\nobligation of any Lender to make or maintain Fixed Rate Segments so affected or
\nto permit interest to be computed thereon based upon the Interbank Offered Rate
\nshall be terminated, and interest shall thereafter be computed on the affected
\nSegment or Segments at the then applicable Base Rate.<\/p>\n
(b) It is the intention of the parties that the Fixed Rates
\nshall accurately reflect the cost to each Lender of maintaining any Fixed Rate
\nSegment during any period in which interest accrues thereon at a Fixed Rate.
\nAccordingly:<\/p>\n
(i) if by reason of any change after the date hereof in any
\n applicable law or governmental rule, regulation or order (or any
\n interpretation thereof and including the introduction of any new law or
\n governmental rule, regulation or order), including any change in the
\n Eurodollar Reserve Percentage, the cost to any Lender of maintaining
\n any Fixed Rate Segment or funding the same by means of an interbank
\n market time deposit in the relevant interbank market shall increase,
\n the Fixed Rate applicable to such Fixed Rate Segment shall be adjusted<\/p>\n
53<\/p>\n
as necessary to reflect such change in cost to such Lender, effective
\n as of the date on which such change in any applicable law, governmental
\n rule, regulation or order becomes effective; and<\/p>\n
(ii) If any Lender shall have determined that the adoption
\n after the date of this Agreement of any law, rule, regulation or
\n guideline regarding capital adequacy, or any change in any of the
\n foregoing or in the interpretation or administration of any of the
\n foregoing by any Governmental Authority, central bank or comparable
\n agency charged with the interpretation or administration thereof, or
\n compliance by any Lender (or any lending office of any Lender) or such
\n Lender’s holding company with any request or directive regarding
\n capital adequacy (whether or not having the force of law) of any such
\n authority, central bank or comparable agency, has or would have the
\n effect of reducing the rate of return on such Lender’s capital or on
\n the capital of such Lender’s holding company, as a consequence of such
\n Lender’s obligations under this Agreement or the Advances made by such
\n Lender pursuant hereto, to a level below that which such Lender or such
\n Lender’s holding company could have achieved but for such adoption,
\n change or compliance (taking into consideration such Lender’s
\n guidelines with respect to capital adequacy) by an amount reasonably
\n deemed by such Lender to be material, then from time to time the
\n Borrower shall pay to such Lender such additional amount or amounts as
\n will compensate such Lender or such Lender’s holding company for any
\n such reduction suffered.<\/p>\n
4.2. Compensation. The Borrower shall compensate any Lender for all
\nreasonable losses, expenses and liabilities (including any interest owed by such
\nLender to lenders on funds borrowed by such Lender to make or carry any Fixed
\nRate Segment and any loss sustained by such Lender in connection with the
\nre-employment of such funds), that such Lender may sustain: (a) if for any
\nreason (other than a default by such Lender) following agreement between the
\nBorrower and the Agent or the Borrower and such Lender, as the case may be, as
\nto the Fixed Rate applicable to a Fixed Rate Segment the Borrower fails to
\naccept such Fixed Rate Segment, (b) as a consequence of any unauthorized action
\ntaken or default by the Borrower in the repayment of any Fixed Rate Segment when
\nrequired by the terms of this Agreement or (c) with respect to any loss of
\nincome incurred by a Lender (as determined in a reasonable manner by such
\nLender) associated with the payment of principal other than the last day of an
\nInterest Period with respect to any Fixed Rate Loan. A certificate as to the
\namount of any additional amounts payable pursuant to this Section 4.2 (setting
\nforth in reasonable detail the basis for requesting such amounts) submitted by
\nsuch Lender to the Borrower shall be conclusive, in the absence of manifest
\nerror. The Borrower shall pay to such Lender the <\/p>\n
54<\/p>\n
amount shown as due on any such certificate delivered by such Lender within 30
\ndays after the Borrower’s receipt of the same.<\/p>\n
4.3. All payments by the Borrower of principal of, and interest on, the
\nLoans and all other amounts payable hereunder shall be made free and clear of
\nand without deduction for any present or future excise, stamp or franchise taxes
\nor other taxes, whatsoever imposed by any taxing authority, but excluding
\nfranchise taxes and taxes imposed on or measured by any Lender’s net income or
\nreceipts (such non-excluded items being called “Taxes”). In the event that any
\nwithholding or deduction from any payment to be made by the Borrower hereunder
\nis required in respect of any Taxes pursuant to any applicable law, rule or
\nregulation, then the Borrower will<\/p>\n
(a) pay directly to the relevant authority the full amount
\n required to be so withheld or deducted;<\/p>\n
(b) promptly forward to the Agent an official receipt or other
\n documentation satisfactory to the Agent evidencing such payment to such
\n authority; and<\/p>\n
(c) pay to the Agent for the account of each affected Lender such
\n additional amount or amounts as is necessary to ensure that the net
\n amount actually received by each Lender will equal the full amount such
\n Lender would have received had no such withholding or deduction been
\n required.<\/p>\n
Moreover, if any Taxes are directly asserted against the Agent or any Lender
\nwith respect to any payment received by the Agent or such Lender hereunder, the
\nAgent or such Lender may pay such Taxes and the Borrower will promptly pay such
\nadditional amounts (including any penalties, interest or expenses) as is
\nnecessary in order that the net amount received by the Agent or such Lender
\nafter the payment of such Taxes (including any Taxes on such additional amount)
\nshall equal the amount the Agent or such Lender would have received had no such
\nTaxes been asserted. Upon the request of the Borrower or the Agent, each Lender
\nand each participant that is organized under the laws of a jurisdiction other
\nthan the United States shall, prior to the due date of any payments hereunder or
\nunder the Notes, execute and deliver to the Borrower and the Agent one or more
\n(as the Borrower or the Agent may reasonably request) United States Internal
\nRevenue Service Forms 4224 or Forms 1001 or such other forms or documents (or
\nsuccessor forms or documents), appropriately completed, as may be applicable (if
\nany are) to establish the extent, if any, to which a payment to such Lender or
\nparticipant is exempt from withholding or deduction of Taxes.<\/p>\n
If the Borrower fails to pay any Taxes when due to the appropriate
\ntaxing authority or fails to remit to the Agent, for the account of the
\nrespective Lender, the required amounts, receipts or other required documentary
\nevidence, the Borrower shall <\/p>\n
55<\/p>\n
indemnify the Lenders for any incremental Taxes, interest or penalties that may
\nbecome payable by any Lender as a result of any such failure. For purposes of
\nthis Section 4.3, a distribution hereunder by the Agent or any Lender to or for
\nthe account of any Lenders shall be deemed a payment by the Borrower.<\/p>\n
If Taxes are incorrectly or illegally paid or assessed, and if any
\nLender or the Agent contests the assessment of such Taxes, such Lender or the
\nAgent shall refund, to the extent of any refund made to such Lender or the
\nAgent, any amounts paid by the Borrower under this Section in respect of such
\nTaxes (less the costs and expenses incurred by such Lender in connection with
\nsuch contest, including legal fees).<\/p>\n
Without prejudice to the survival of any other agreements of the
\nBorrower hereunder or under any other Loan Document, the agreements of the
\nBorrower contained in this Section shall survive the payment in full of all its
\nObligations and the termination of all Commitments.<\/p>\n
To the extent any Lender shall become liable for the payment of any
\nTaxes hereunder and shall seek reimbursement therefor pursuant to this Section
\n4.3, the Borrower shall be entitled, upon the giving of five Business Days’
\nnotice to the Agent and such Lender, (i) to replace such Lender with a
\nsubstitute lender, and (ii) in connection with such substitution, cause the
\npayment in full of the outstanding Obligation due to the Lender requesting
\nreimbursement without penalty or payment other than under Section 4.2; provided,
\nall obligations to such assigning Lender shall be paid in full, no assignment
\nfee shall be payable by such assigning Lender but shall be paid by Borrower and
\nsuch assigning Lender shall be entitled to the benefits of this Agreement set
\nforth in Sections 3.2(g), 11.6 and 11.12 and Article IV.<\/p>\n
56<\/p>\n
ARTICLE V<\/p>\n
5.1. Conditions of Initial Advance. The obligation of the Lenders to
\nmake the initial Advance under the Revolving Credit Facility, the Line of Credit
\nFacility or the Competitive Bid Facility, and of the Issuing Bank to issue the
\ninitial Letter of Credit, is subject to the conditions precedent that:<\/p>\n
(a) the Agent shall have received on the Closing Date, in form
\n and substance satisfactory to the Agent and Lenders, the following:<\/p>\n
(i) executed originals of each of this Agreement, the Notes,
\n the LC Account Agreement and the other Loan Documents, together
\n with all schedules and exhibits thereto;<\/p>\n
(ii) the favorable written opinion or opinions with respect to
\n the Loan Documents and the transactions contemplated thereby of
\n counsel to the Borrower dated the Closing Date, addressed to the
\n Agent and the Lenders and satisfactory to Smith Helms Mulliss & Moore, L.L.P., special counsel to the Agent, substantially in the
\n form of Exhibit L;<\/p>\n
(iii) resolutions of the board of directors of the Borrower
\n certified by its secretary or assistant secretary as of the
\n Closing Date, approving and adopting the Loan Documents to be
\n executed by the Borrower, and authorizing the execution and
\n delivery and performance thereof;<\/p>\n
(iv) specimen signatures of officers of the Borrower executing
\n the Loan Documents on behalf of the Borrower, certified by the
\n secretary or assistant secretary of the Borrower;<\/p>\n
(v) the charter documents of the Borrower certified as of a
\n recent date by the Secretary of State of its state of
\n organization;<\/p>\n
(vi) the bylaws of the Borrower certified as of the Closing
\n Date as true and correct by its secretary or assistant secretary;<\/p>\n
(vii) certificates issued as of a recent date by the Secretary
\n of State of the jurisdiction of formation of the Borrower as to
\n the valid existence and good standing of the Borrower;<\/p>\n
57<\/p>\n
(viii) appropriate certificates of qualification to do
\n business, good standing and, where appropriate, authority to
\n conduct business under assumed name, issued in respect of the
\n Borrower as of a recent date by the Secretary of State or
\n comparable official of each jurisdiction in which the failure to
\n be qualified to do business or authorized so to conduct business
\n could have a Material Adverse Effect;<\/p>\n
(ix) notice of appointment of the initial Authorized
\n Representative(s);<\/p>\n
(x) evidence of all insurance required by the Loan Documents;<\/p>\n
(xi) a certificate in the form of Exhibit M completed as of
\n December 31, 1995;<\/p>\n
(xii) an initial Borrowing Notice, if any, and, if elected by
\n the Borrower, Interest Rate Selection Notice;<\/p>\n
(xiii) evidence that all fees payable by the Borrower on the
\n Closing Date to the Agent and the Lenders have been paid in full;
\n and<\/p>\n
(xiv) such other documents, instruments, certificates and
\n opinions as the Agent or any Lender may reasonably request on or
\n prior to the Closing Date in connection with the consummation of
\n the transactions contemplated hereby; and<\/p>\n
(b) In the good faith judgment of the Agent and the Lenders:<\/p>\n
(i) there shall not have occurred or become known to the Agent
\n or the Lenders any event, condition, situation or status since the
\n date of the information contained in the financial and business
\n projections, budgets, pro forma data and forecasts concerning the
\n Borrower and its Consolidated Entities delivered to the Agent
\n prior to the Closing Date that has had or could reasonably be
\n expected to result in a Material Adverse Effect;<\/p>\n
(ii) no litigation, action, suit, investigation or other
\n arbitral, administrative or judicial proceeding shall be pending
\n or threatened which could reasonably be likely to result in a
\n Material Adverse Effect; and<\/p>\n
(iii) the Borrower and its Consolidated Entities shall have
\n received all approvals, consents and waivers, and shall have made
\n or given all necessary filings and notices, as shall be required
\n to consummate the <\/p>\n
58<\/p>\n
transactions contemplated hereby without the occurrence of any
\n default under, conflict with or violation of (A) any applicable
\n law, rule, regulation, order or decree of any Governmental
\n Authority or arbitral authority or (B) any agreement, document or
\n instrument to which any of the Borrower or any Consolidated Entity
\n is a party or by which any of them or their properties is bound,
\n except for such approvals, consents, waivers, filings and notices
\n the receipt, making or giving of which will not have a Material
\n Adverse Effect.<\/p>\n
5.2. Conditions of Loans and Letters of Credit. The obligations of the
\nLenders to make any Loans, and the Issuing Bank to issue Letters of Credit,
\nhereunder on or subsequent to the Closing Date, are subject to the satisfaction
\nof the following conditions:<\/p>\n
(a) the Agent shall have received a Borrowing Notice if required
\n by Article II;<\/p>\n
(b) the representations and warranties of the Borrower and the
\n Subsidiaries set forth in Article VI and in each of the other Loan
\n Documents shall be true and correct in all material respects on and as
\n of the date of such Advance or Letter of Credit issuance or renewal,
\n with the same effect as though such representations and warranties had
\n been made on and as of such date, except to the extent that such
\n representations and warranties expressly relate to an earlier date and
\n except that the financial statements referred to in Section 6.6(a)
\n shall be deemed to be those financial statements most recently
\n delivered to the Agent and the Lenders pursuant to Section 7.1 from the
\n date financial statements are delivered to the Agent and the Lenders in
\n accordance with such Section;<\/p>\n
(c) in the case of the issuance of a Letter of Credit, the
\n Borrower shall have executed and delivered to the Issuing Bank an
\n Application and Agreement for Letter of Credit in form and content
\n acceptable to the Issuing Bank together with such other instruments and
\n documents as it shall request;<\/p>\n
(d) at the time of (and after giving effect to) each Advance or
\n the issuance of a Letter of Credit, no Default or Event of Default
\n shall have occurred and be continuing; and<\/p>\n
(e) immediately after giving effect to:<\/p>\n
(i) a Revolving Loan, the aggregate principal balance of all
\n outstanding Revolving Loans of a Lender plus such Lender’s
\n Applicable Commitment Percentage of the aggregate amount of
\n Letter of Credit Outstandings shall not exceed such Lender’s
\n Revolving Credit Commitment;<\/p>\n
59<\/p>\n
(ii) a Line of Credit Loan, the aggregate principal balance
\n of all outstanding Line of Credit Loans for each Lender shall
\n not exceed such Lender’s Line of Credit Commitment;<\/p>\n
(iii) a Letter of Credit or renewal thereof, the aggregate
\n principal balance of all outstanding Participations in
\n Letters of Credit and Reimbursement Obligations (or in the
\n case of the Issuing Bank, its remaining interest after
\n deduction of all Participations in Letters of Credit and
\n Reimbursement Obligations of other Lenders) for each Lender
\n and in the aggregate shall not exceed, respectively, (X) such
\n Lender’s Letter of Credit Commitment or (Y) the Total Letter
\n of Credit Commitment; and<\/p>\n
(iv) a Revolving Loan or a Letter of Credit or renewal
\n thereof, the sum of Letter of Credit Outstandings plus the
\n aggregate principal amount of Revolving Credit Outstandings
\n plus outstanding Competitive Bid Loans shall not exceed the
\n Total Revolving Credit Commitment.<\/p>\n
Each borrowing hereunder and each issuance of a Letter of Credit
\n hereunder shall constitute a representation and warranty by the
\n Borrower to the effect that the conditions set forth in clauses (b),
\n (d) and (e) have been satisfied as of the date thereof.<\/p>\n
60<\/p>\n
ARTICLE VI<\/p>\n
Representations and Warranties<\/p>\n
The Borrower represents and warrants with respect to itself and (to the
\nextent expressly set forth below) its Consolidated Entities (which
\nrepresentations and warranties shall survive the delivery of the documents
\nmentioned herein and the making of Loans and the issuance of a Letter of
\nCredit), that:<\/p>\n
6.1. Organization and Authority.<\/p>\n
(a) The Borrower and each Consolidated Entity is a corporation,
\n partnership or limited liability company duly organized and validly
\n existing under the laws of the jurisdiction of its formation;<\/p>\n
(b) The Borrower and each Consolidated Entity (x) has the
\n requisite power and authority to own its properties and assets and to
\n carry on its business as now being conducted and as contemplated in the
\n Loan Documents, and (y) is qualified to do business in every
\n jurisdiction in which failure so to qualify would have a Material
\n Adverse Effect;<\/p>\n
(c) The Borrower has the power and authority to execute, deliver
\n and perform this Agreement and the Notes, and to borrow and obtain other
\n extensions of credit hereunder, and to execute, deliver and perform each
\n of the other Loan Documents to which it is a party; and<\/p>\n
(d) When executed and delivered, each of the Loan Documents to
\n which the Borrower is a party will be the legal, valid and binding
\n obligation or agreement, as the case may be, of the Borrower,
\n enforceable against the Borrower in accordance with its terms, subject
\n to the effect of any applicable bankruptcy, moratorium, insolvency,
\n reorganization or other similar law affecting the enforceability of
\n creditors’ rights generally and to the effect of general principles of
\n equity (whether considered in a proceeding at law or in equity).<\/p>\n
6.2. Loan Documents. The execution, delivery and performance by the
\nBorrower of each of the Loan Documents and the credit extensions hereunder:<\/p>\n
(a) have been duly authorized by all requisite corporate actions
\n (including any required shareholder approval) of the Borrower required
\n for the lawful execution, delivery and performance thereof;<\/p>\n
(b) do not violate any provisions of (i) applicable law, rule or
\n regulation, (ii) any judgment, writ, order, determination, decree or
\n arbitral award of any Governmental <\/p>\n
61<\/p>\n
Authority or arbitral authority binding on the Borrower or any
\n Subsidiary or its or any Subsidiary’s properties, or (iii) the charter
\n documents or bylaws of the Borrower;<\/p>\n
(c) do not and will not be in conflict with, result in a breach of
\n or constitute an event of default, or an event which, with notice or
\n lapse of time or both, would constitute an event of default, under any
\n contract, indenture, agreement or other instrument or document to which
\n Borrower or any Consolidated Entity is a party, or by which the
\n properties or assets of the Borrower or any Consolidated Entity are
\n bound; and<\/p>\n
(d) do not and will not result in the creation or imposition of
\n any Lien upon any of the properties or assets of Borrower or any
\n Subsidiary.<\/p>\n
6.3. Solvency. The Borrower is Solvent and the Borrower and its
\nConsolidated Entities taken as a whole are Solvent, in each case after giving
\neffect to the transactions contemplated by the Loan Documents.<\/p>\n
6.4. Subsidiaries. The Borrower has no Subsidiaries other than those
\nPersons listed as Subsidiaries in Schedule 6.4 and additional Subsidiaries
\ncreated or acquired after the Closing Date.<\/p>\n
6.5. Ownership Interest. Borrower owns no interest in any Person other
\nthan the Persons listed in Schedule 6.4, equity investments in Persons not
\nconstituting Subsidiaries permitted under Section 8.2 and additional
\nSubsidiaries created or acquired after the Closing Date.<\/p>\n
6.6. Financial Condition.<\/p>\n
(a) The Borrower has heretofore furnished to each Lender an
\n audited consolidated balance sheet of the Borrower and its Consolidated
\n Entities as at December 31, 1995 and the notes thereto and the related
\n consolidated statements of income, stockholders’ equity and cash flows
\n for the Fiscal Year then ended as examined and certified by Ernst & Young LLP. Except as set forth therein, such financial statements
\n (including the notes thereto) present fairly the financial condition of
\n the Borrower and its Consolidated Entities as of the end of such Fiscal
\n Year and results of their operations and the changes in stockholders’
\n equity for the Fiscal Year then ended, all in conformity with GAAP
\n applied on a Consistent Basis;<\/p>\n
(b) since December 31, 1995 there has been no material adverse
\n change in the condition, financial or otherwise, of the Borrower and
\n its Consolidated Entities taken as a whole or in the businesses,
\n properties, performance, prospects or operations of the Borrower and
\n Consolidated Entities taken as a whole, nor have such businesses or
\n properties been <\/p>\n
62<\/p>\n
materially adversely affected as a result of any fire, explosion,
\n earthquake, accident, strike, lockout, combination of workers, flood,
\n embargo or act of God; provided that one-time expenses recognized in
\n the first quarter of 1996 with respect to the Acquisitions of Surgical
\n Care Affiliates, Inc. and Advantage Health Corporation shall not be
\n deemed to constitute material adverse changes; and<\/p>\n
(c) neither the Borrower nor any Consolidated Entity has any
\n material Indebtedness, Guaranteed Obligations or other obligations or
\n liabilities, direct or contingent, in an aggregate amount in excess of
\n $300,000 other than (a) the liabilities reflected in such balance sheet
\n and the notes thereto or (b) liabilities incurred in the ordinary
\n course of business.<\/p>\n
6.7. Title to Properties. The Borrower and each Consolidated Entity has
\ngood and marketable title to all its real and personal properties, subject to no
\ntransfer restrictions or Liens of any kind, except for the transfer restrictions
\nand Liens permitted by this Agreement.<\/p>\n
6.8. Taxes. The Borrower and each Consolidated Entity have filed or
\ncaused to be filed all federal, state and local tax returns which are required
\nto be filed by it and, except for taxes and assessments being contested in good
\nfaith by appropriate proceedings diligently conducted and against which reserves
\nreflected in the financial statements described in Section 6.6(a) and
\nsatisfactory to the Borrower’s independent certified public accountants have
\nbeen established, have paid or caused to be paid all taxes as shown on said
\nreturns or on any assessment received by it, to the extent that such taxes have
\nbecome due.<\/p>\n
6.9. Other Agreements.<\/p>\n
(a) Neither the Borrower nor any Consolidated Entity is a party to
\n or subject to any judgment, order, decree, agreement, lease or
\n instrument, or subject to other restrictions, compliance with the terms
\n of which individually or in the aggregate could reasonably be expected
\n to have a Material Adverse Effect;<\/p>\n
(b) neither the Borrower nor any Consolidated Entity is in
\n default in the performance, observance or fulfillment of any of the
\n obligations, covenants or conditions contained in (i) any Medicaid
\n Provider Agreement, Medicare Provider Agreement or other agreement or
\n instrument to which the Borrower or any Consolidated Entity is a party,
\n which default has resulted in, or if not remedied within any applicable
\n grace period could result in, the revocation, termination, cancellation
\n or suspension of Medicaid Certification or Medicare Certification of
\n Borrower or any Consolidated Entity which could have a Material Adverse
\n Effect or (ii) any other <\/p>\n
63<\/p>\n
agreement or instrument to which the Borrower or any Consolidated
\n Entity is a party, which default has, or if not remedied within any
\n applicable grace period could reasonably be likely to have, a Material
\n Adverse Effect;<\/p>\n
(c) to the knowledge of Borrower’s Executive Officers, no
\n Contract Provider is a party to any judgment, order, decree, agreement
\n or instrument, or subject to restrictions, compliance with the terms of
\n which could individually or in the aggregate reasonably be expected to
\n have a Material Adverse Effect; and<\/p>\n
(d) to the knowledge of Borrower’s Executive Officers, no
\n Contract Provider is in default in the performance, observance or
\n fulfillment of any of the obligations, covenants or conditions
\n contained in any Medicaid Provider Agreement, Medicare Provider
\n Agreement or other agreement or instrument to which such Person is a
\n party, which default has resulted in, or if not remedied within any
\n applicable grace period could result in, the revocation, termination,
\n cancellation or suspension of Medicaid Certification or Medicare
\n Certification of such Person, which revocation, termination,
\n cancellation or suspension could reasonably be likely to have a
\n Material Adverse Effect.<\/p>\n
6.10. Litigation. There is no action, suit, investigation or proceeding
\nat law or in equity or by or before any governmental instrumentality or agency
\nor arbitral body pending or, to the knowledge of the Borrower, threatened by or
\nagainst the Borrower or any Consolidated Entity or, to the knowledge of the
\nBorrower, pending or threatened by or against any Contract Provider, or
\naffecting the Borrower or any Consolidated Entity or, to the knowledge of the
\nBorrower, any Contract Provider or any properties or rights of the Borrower or
\nany Consolidated Entity or, to the knowledge of the Borrower, any Contract
\nProvider, which could reasonably be expected (i) to result in the revocation,
\ntermination, cancellation or suspension of Medicaid Certification or Medicare
\nCertification of such Person, which revocation, termination, cancellation or
\nsuspension could reasonably be likely to have a Material Adverse Effect, or (ii)
\nto have a Material Adverse Effect.<\/p>\n
6.11. The proceeds of the borrowings and other extensions of credit
\nmade hereunder will be used by the Borrower only for the purposes expressly
\nauthorized herein. None of such proceeds will be used, directly or indirectly,
\nfor the purpose of purchasing or carrying any margin stock or for the purpose of
\nreducing or retiring any Indebtedness which was originally incurred to purchase
\nor carry margin stock or for any other purpose which might constitute any of the
\nLoans or Letters of Credit under this Agreement a “purpose credit” within the
\nmeaning of Regulation U or Regulation X of the Board. Neither the Borrower nor
\nany agent acting in its behalf has taken or will take any action which might<\/p>\n
64<\/p>\n
cause this Agreement or any of the documents or instruments delivered pursuant
\nhereto to violate any regulation of the Board or to violate the Exchange Act or
\nthe Securities Act of 1933, as amended, or any state securities laws, in each
\ncase as in effect on the date hereof.<\/p>\n
6.12. Investment Company. Neither the Borrower nor any Consolidated
\nEntity is an “investment company,” or an “affiliated person” of, or “promoter”
\nor “principal underwriter” for, an “investment company”, as such terms are
\ndefined in the Investment Company Act of 1940, as amended (15 U.S.C. ss. 80a-1,
\net seq.). The application of the proceeds of the Loans and repayment thereof by
\nthe Borrower and the issuance of Letters of Credit and the performance by the
\nBorrower and any Consolidated Entity of the transactions contemplated by the
\nLoan Documents will not violate any provision of said Act, or any rule,
\nregulation or order issued by the Securities and Exchange Commission thereunder,
\nin each case as in effect on the date hereof.<\/p>\n
6.13. The Borrower and each Consolidated Entity owns or has the right
\nto use, under valid license agreements or otherwise, all material patents,
\nlicenses, franchises, trademarks, trademark rights, trade names, trade name
\nrights, trade secrets, service marks, service mark rights and copyrights
\nnecessary to or used in the conduct of its businesses as now conducted and as
\ncontemplated by the Loan Documents, without known conflict by, or with, any
\npatent, license, franchise, trademark, trade secret, trade name, service mark,
\ncopyright or other proprietary right of, any other Person.<\/p>\n
6.14. Neither (a) this Agreement nor any other Loan Document or
\ncertificate or document executed and delivered by or on behalf of the Borrower
\nor any Consolidated Entity in accordance with or pursuant to any Loan Document
\nnor (b) any statement, representation, or warranty provided to the Agent or any
\nLender in connection with the negotiation or preparation of the Loan Documents
\ncontains any misrepresentation or untrue statement of material fact or omits to
\nstate a material fact necessary, in light of the circumstance under which it was
\nmade, in order to make any such warranty, representation or statement contained
\ntherein not misleading.<\/p>\n
6.15. Neither the respective businesses or properties of the Borrower
\nor any Consolidated Entity, nor any relationship between the Borrower or any
\nConsolidated Entity and any other Person, nor any circumstance in connection
\nwith the execution, delivery and performance of the Loan Documents and the
\ntransactions contemplated thereby, is such as to require a consent, approval or
\nauthorization of, or filing, registration or qualification with, any
\nGovernmental Authority or any other Person on the part of the Borrower or any
\nConsolidated Entity as a condition to the execution, delivery and performance
\nof, or consummation of the transactions contemplated by, or the validity<\/p>\n
65<\/p>\n
or enforceability of, the Loan Documents, which, if not obtained or effected,
\nwould be reasonably likely to have a Material Adverse Effect, or if so, such
\nconsent, approval, authorization, filing, registration or qualification has been
\nduly obtained or effected, as the case may be;<\/p>\n
6.16. ERISA Requirement. (i) The execution and delivery of the Loan
\nDocuments will not involve any prohibited transaction within the meaning of
\nERISA, (ii) the Borrower and each ERISA Affiliate has fulfilled its obligations
\nunder the minimum funding standards imposed by ERISA and each is in compliance
\nin all material respects with the applicable provisions of ERISA, and (iii) no
\n“Reportable Event,” as defined in Section 4043(b) of Title IV of ERISA, has
\noccurred with respect to any plan maintained by the Borrower or any of its ERISA
\nAffiliate.<\/p>\n
6.17. No Default. As of the date hereof, there does not exist any
\nDefault or Event of Default.<\/p>\n
6.18. Hazardous Materials. The Borrower and each Consolidated Entity is
\nin compliance with all applicable Environmental Laws in all material respects.
\nNeither the Borrower nor any Consolidated Entity has been notified of any
\naction, suit, proceeding or investigation which, and neither the Borrower nor
\nany Consolidated Entity is aware of any facts which, (i) calls into question, or
\ncould reasonably be expected to call into question, compliance in all material
\nrespects by the Borrower or any Consolidated Entity with any Environmental Laws,
\n(ii) which seeks, or could reasonably be expected to form the basis of a
\nmeritorious proceeding, to suspend, revoke or terminate any material license,
\npermit or approval necessary for the generation, handling, storage, treatment or
\ndisposal of any Hazardous Material, or (iii) seeks to cause, or could reasonably
\nbe expected to form the basis of a meritorious proceeding to cause, any property
\nof the Borrower or any Consolidated Entity to be subject to any material
\nrestrictions on ownership, use, occupancy or transferability under any
\nEnvironmental Law.<\/p>\n
6.19. Employment Matters. (a) Except as set forth on Schedule 6.19,
\nnone of the employees of the Borrower or any Consolidated Entity is subject to
\nany collective bargaining agreement and there are no strikes, work stoppages,
\nelection or decertification petitions or proceedings, unfair labor charges,
\nequal opportunity proceedings, or other material labor\/employee related
\ncontroversies or proceedings pending or, to the best knowledge of the Borrower,
\nthreatened against the Borrower or any Consolidated Entity or between the
\nBorrower or any Consolidated Entity and any of its employees, other than
\nemployee grievances, controversies or proceedings arising in the ordinary course
\nof business which could not reasonably be expected, individually or in the
\naggregate, to have a Material Adverse Effect; and<\/p>\n
66<\/p>\n
(b) Except to the extent a failure to maintain compliance would not
\nhave a Material Adverse Effect, the Borrower and each Consolidated Entity is in
\ncompliance in all respects with all applicable laws, rules and regulations
\npertaining to labor or employment matters, including without limitation those
\npertaining to wages, hours, occupational safety and taxation and there is
\nneither pending nor threatened any litigation, administrative proceeding or, to
\nthe knowledge of the Borrower, any investigation, in respect of such matters
\nwhich, if decided adversely, could reasonably be likely, individually or in the
\naggregate, to have a Material Adverse Effect.<\/p>\n
6.20. RICO. Neither the Borrower nor any Consolidated Entity is engaged
\nin or has engaged in any course of conduct that could subject any of their
\nrespective properties to any Lien, seizure or other forfeiture under any
\ncriminal law, racketeer influenced and corrupt organizations law, civil or
\ncriminal, or other similar laws.<\/p>\n
6.21. Reimbursement from Third Party Payors. The accounts receivable of
\nthe Borrower and each Consolidated Entity and each Contract Provider have been
\nand will continue to be adjusted to reflect reimbursement policies of third
\nparty payors such as Medicare, Medicaid, Blue Cross\/Blue Shield, private
\ninsurance companies, health maintenance organizations, preferred provider
\norganizations, alternative delivery systems, managed care systems, government
\ncontracting agencies and other third party payors. In particular, accounts
\nreceivable relating to such third party payors do not and shall not exceed
\namounts any obligee is entitled to receive under any capitation arrangement, fee
\nschedule, discount formula, cost-based reimbursement or other adjustment or
\nlimitation to its usual charges.<\/p>\n
67<\/p>\n
ARTICLE VII<\/p>\n
Affirmative Covenants<\/p>\n
Until the Facility Termination Date and termination of this Agreement
\nin accordance with the terms hereof, unless the Required Lenders shall otherwise
\nconsent in writing, the Borrower will, and where applicable will cause each
\nConsolidated Entity to:<\/p>\n
7.1. Financial Statements, Reports, Etc. The Borrower shall deliver or
\ncause to be delivered to the Agent and each Lender:<\/p>\n
(a) Not later than 50 days after the end of each of the first
\n three quarters of each Fiscal Year, a balance sheet and a statement of
\n revenues and expenses of the Borrower and its Consolidated Entities on
\n a consolidated basis and a statement of cash flow of the Borrower and
\n its Consolidated Entities on a consolidated basis for such calendar
\n quarter and for the period beginning on the first day of such Fiscal
\n Year and ending on the last day of such quarter (in sufficient detail
\n to indicate the Borrower’s and each Consolidated Entity’s compliance
\n with the financial covenants set forth in Section 8.1), together with
\n statements in comparative form for the corresponding date or period in
\n the preceding Fiscal Year as summarized in the Borrower’s Form 10-Q for
\n the corresponding period, and certified as to fairness, accuracy and
\n completeness by the chief executive officer, chief financial officer or
\n Treasurer of the Borrower.<\/p>\n
(b) Not later than 100 days after the end of each Fiscal Year,
\n financial statements (including a balance sheet, a statement of
\n revenues and expenses, a statement of changes in shareholders’ equity
\n and a statement of cash flow) of the Borrower and its Consolidated
\n Entities on a consolidated basis for such Fiscal Year (in sufficient
\n detail to indicate the Borrower’s and each Consolidated Entity’s
\n compliance with the financial covenants set forth in Section 8.1),
\n together with statements in comparative form as of the end of and for
\n the preceding Fiscal Year as summarized in the Borrower’s Form 10-K for
\n the corresponding period, and accompanied by an opinion of certified
\n public accountants acceptable to the Agent, which opinion shall state
\n in effect that such financial statements (A) were audited using
\n generally accepted auditing standards, (B) were prepared in accordance
\n with generally accepted accounting principles applied on a Consistent
\n Basis, and (C) present fairly the financial condition and results of
\n operations of the Borrower and its Consolidated Entities for the
\n periods covered.<\/p>\n
(c) Together with the financial statements required by paragraphs
\n (1) and (2) above a compliance certificate duly executed by the chief
\n executive officer or chief financial <\/p>\n
68<\/p>\n
officer or Treasurer of the Borrower in the form of Exhibit M
\n (“Compliance Certificate”).<\/p>\n
(d) Contemporaneously with the distribution thereof to the
\n Borrower’s or any Consolidated Entity’s stockholders or partners or the
\n filing thereof with the Securities and Exchange Commission, as the case
\n may be, copies of all statements, reports, notices and filings
\n distributed by the Borrower or any Consolidated Entity to its
\n stockholders or partners or filed with the Securities and Exchange
\n Commission (including reports on SEC Forms 10-K, 10-Q and 8-K).<\/p>\n
(e) Promptly after the Borrower knows or has reason to know of the
\n occurrence of any “reportable event” under Section 4043 of ERISA
\n applicable to the Borrower or any ERISA Affiliate, a certificate of the
\n president or chief financial officer of the Borrower setting forth the
\n details as to such “reportable event” and the action that the Borrower
\n or the ERISA Affiliate has taken or will take with respect thereto, and
\n promptly after the filing or receiving thereof, copies of all reports
\n and notices that the Borrower and each Consolidated Entity files under
\n ERISA with the Internal Revenue Service or the PBGC or the United
\n States Department of Labor.<\/p>\n
(f) Promptly after the Borrower or any of its Consolidated
\n Entities becomes aware of the commencement thereof, notice of any
\n investigation, action, suit or proceeding before any Governmental
\n Authority involving the condemnation or taking under the power of
\n eminent domain of any of its property or the revocation or suspension
\n of any permit, license, certificate of need or other governmental
\n requirement applicable to any Facility.<\/p>\n
(g) Within 10 days of the receipt by the Borrower or any of its
\n Consolidated Entities, copies of all material deficiency notices,
\n compliance orders or adverse reports issued by any Governmental
\n Authority or accreditation commission having jurisdiction over
\n licensing, accreditation or operation of a Facility or by any
\n Governmental Authority or private insurance company pursuant to a
\n provider agreement, which, if not promptly complied with or cured,
\n could result in the suspension or forfeiture of any license,
\n certification or accreditation necessary in order for such Facility to
\n carry on its business as then conducted or the termination of any
\n material insurance or reimbursement program available to such Facility.<\/p>\n
(h) Such other information regarding any Facility or the financial
\n condition or operations of the Borrower or its Consolidated Entities as
\n the Agent shall reasonably request from time to time or at any time.<\/p>\n
69<\/p>\n
7.2. Maintain Properties. Maintain all properties necessary to its
\noperations in good working order and condition, make all needed repairs,
\nreplacements and renewals to such properties, and maintain free from Liens all
\ntrademarks, trade names, service marks, patents, copyrights, trade secrets,
\nknow-how, and other intellectual property and proprietary information (or
\nadequate licenses thereto), in each case as are reasonably necessary to conduct
\nits business as currently conducted or as contemplated hereby, all in accordance
\nwith customary and prudent business practices.<\/p>\n
7.3. Existence, Qualification, Etc. Except as otherwise expressly
\npermitted under Section 8.4, do or cause to be done all things necessary to
\npreserve and keep in full force and effect its existence and all material rights
\nand franchises, and maintain its license or qualification to do business as a
\nforeign corporation and good standing in each jurisdiction in which its
\nownership or lease of property or the nature of its business makes such license
\nor qualification necessary.<\/p>\n
7.4. Regulations and Taxes. Comply in all material respects with or
\ncontest in good faith all statutes and governmental regulations and pay all
\ntaxes, assessments, governmental charges, claims for labor, supplies, rent and
\nany other obligation which, if unpaid, would become a Lien against any of its
\nproperties except liabilities being contested in good faith by appropriate
\nproceedings diligently conducted and against which adequate reserves acceptable
\nto the Borrower’s independent certified public accountants have been established
\nunless and until any Lien resulting therefrom attaches to any of its property
\nand becomes enforceable by its creditors.<\/p>\n
7.5. Insurance. At all times maintain in force, and pay all premiums
\nand costs related to, insurance coverages in amounts deemed by the management of
\nthe Borrower to be sufficient in accordance with usual and customary business
\npractices and any other coverages required under applicable governmental
\nrequirements. The Borrower shall deliver to the Agent annually on or before each
\nanniversary date of this Agreement, and at such other time or times as the Agent
\nmay request (but not more often than monthly), a certificate of the president or
\nchief financial officer of the Borrower setting out in such detail as the Agent
\nmay reasonably require a description of all insurance coverages maintained by
\nthe Borrower and each Consolidated Entity. The Agent shall have no obligation to
\ngive the Borrower or any Consolidated Entity notice of any notification received
\nby the Agent with respect to any insurance policies or take any steps to protect
\nthe Borrower’s or any Consolidated Entity’s interests under such policies.<\/p>\n
7.6. True Books. Keep true books of record and account in which full,
\ntrue and correct entries will be made of all of its dealings and transactions,
\nand set up on its books such reserves as <\/p>\n
70<\/p>\n
may be required by GAAP with respect to doubtful accounts and all taxes,
\nassessments, charges, levies and claims and with respect to its business in
\ngeneral, and include such reserves in interim as well as year-end financial
\nstatements.<\/p>\n
7.7. Right of Inspection. Permit any Person designated by the Agent to
\nvisit and inspect any of the properties, corporate books and financial reports
\nof the Borrower or any Subsidiary and to discuss its affairs, finances and
\naccounts with its principal officers and independent certified public
\naccountants, all at reasonable times, at reasonable intervals and with
\nreasonable prior notice.<\/p>\n
7.8. Observe all Laws. Conform to and duly observe, and cause all
\nContract Providers to conform to and duly observe, in all material respects all
\nlaws, rules and regulations and all other valid requirements of any regulatory
\nauthority with respect to the conduct of its business, including without
\nlimitation Titles XVIII and XIX of the Social Security Act, Medicare
\nRegulations, Medicaid Regulations, and all laws, rules and regulations of
\nGovernmental Authorities pertaining to the licensing of professional and other
\nhealth care providers, except where the failure to do so could not reasonably be
\nexpected to have a Material Adverse Effect.<\/p>\n
7.9. Governmental Licenses. Obtain and maintain, and use reasonable
\neffort to cause all Contract Providers to obtain and maintain, all licenses,
\npermits, certifications and approvals of all applicable Governmental Authorities
\nas are required for the conduct of its business as currently conducted and
\nherein contemplated, including without limitation professional licenses,
\nMedicaid Certifications and Medicare Certifications, except where the failure to
\ndo so could not reasonably be expected to have a Material Adverse Effect.<\/p>\n
7.10. Covenants Extending to Other Persons. Cause each of its
\nConsolidated Entities to do with respect to itself, its business and its assets,
\neach of the things required of the Borrower in Sections 7.2 through 7.9, 7.15
\nand 7.16 inclusive.<\/p>\n
7.11. Officer’s Knowledge of Default. Upon any Executive Officer of the
\nBorrower obtaining knowledge of any Default or Event of Default or any default
\nor event of default under any other obligation of the Borrower or any
\nConsolidated Entity to any Lender, or any event, development or occurrence which
\ncould reasonably be expected to have a Material Adverse Effect, cause such
\nExecutive Officer or an Authorized Representative to promptly notify the Agent
\nof the nature thereof, the period of existence thereof, and what action the
\nBorrower or such Consolidated Entity proposes to take with respect thereto. The
\nAgent shall notify the Lenders of receipt of such notice.<\/p>\n
7.12. Suits or Other Proceedings. Upon any Executive Officer of the
\nBorrower obtaining knowledge of any litigation or<\/p>\n
71<\/p>\n
other proceedings being instituted (i) against the Borrower or any Subsidiary,
\nor any attachment, levy, execution or other process being instituted against any
\nassets of the Borrower or any Subsidiary or Controlled Partnership, which if
\nadversely determined could reasonably be likely to have a Material Adverse
\nEffect or (ii) against the Borrower, any Subsidiary or any Contract Provider
\n(but only with respect to services provided to the Borrower or any Consolidated
\nEntity) to suspend, revoke or terminate any Medicaid Provider Agreement,
\nMedicaid Certification, Medicare Provider Agreement or Medicare Certification,
\nwhich suspension, revocation or termination could reasonably be likely to have a
\nMaterial Adverse Effect, cause such Executive Officer or an Authorized
\nRepresentative to promptly deliver to the Agent written notice thereof stating
\nthe nature and status of such litigation, dispute, proceeding, levy, execution
\nor other process.<\/p>\n
7.13. Notice of Discharge of Hazardous Material or Environmental
\nComplaint. Promptly provide to the Agent true, accurate and complete copies of
\nany and all notices, complaints, orders, directives, claims, or citations
\nreceived by the Borrower or any Consolidated Entity relating to any of the
\nfollowing which is likely to have a Material Adverse Effect: (a) violation or
\nalleged violation by the Borrower or any Consolidated Entity of any applicable
\nEnvironmental Law; (b) release or threatened release by the Borrower or any
\nConsolidated Entity, or at any Facility or property owned or leased or operated
\nby the Borrower or any Consolidated Entity, of any Hazardous Material, except
\nwhere occurring legally; or (c) liability or alleged liability of the Borrower
\nor any Consolidated Entity for the costs of cleaning up, removing, remediating
\nor responding to a release of Hazardous Materials.<\/p>\n
7.14. Environmental Compliance. If the Borrower or any Consolidated
\nEntity shall receive any letter, notice, complaint, order, directive, claim or
\ncitation from any Governmental Authority alleging that the Borrower or any
\nConsolidated Entity has violated any Environmental Law or is liable for the
\ncosts of cleaning up, removing, remediating or responding to a release of
\nHazardous Materials within the time period permitted by the applicable
\nEnvironmental Law or the Governmental Authority responsible for enforcing such
\nEnvironmental Law, remove or remedy, or cause the applicable Consolidated Entity
\nto remove or remedy, such violation or release or satisfy such liability unless
\nand only during the period that the applicability of such Environmental Law, the
\nfact of such violation or liability or what is required to remove or remedy such
\nviolation is being contested by the Borrower or the applicable Consolidated
\nEntity by appropriate proceedings diligently conducted and all reserves with
\nrespect thereto as may be required under GAAP, if any, have been made, and no
\nLien in connection therewith shall have attached to any property of the Borrower
\nor the applicable Consolidated Entity which shall have become enforceable
\nagainst creditors of such Person.<\/p>\n
72<\/p>\n
7.15. Continuation of Current Business. Not engage in any business
\nother than the business now being conducted by the Borrower and other businesses
\ndirectly related to such services.<\/p>\n
7.16. Management Contracts. Not enter into any agreement whereby the
\nmanagement, supervision or control of its business or any Facility shall be
\ndelegated to or placed in any persons other than its governing body and
\nofficers, the Borrower or a Consolidated Entity, except that (i) management of
\nthe Facility owned by Vanderbilt Stallworth Rehabilitation Hospital, L.P. is
\nvested in part in a Governance Committee and in part in a Subsidiary of the
\nBorrower pursuant to the applicable limited partnership agreement and a
\nmanagement agreement and (ii) the Facility known as Nashville Rehabilitation
\nHospital located in Nashville, Tennessee may be managed by an independent body
\nuntil such time as such Facility is sold.<\/p>\n
73<\/p>\n
ARTICLE VIII<\/p>\n
Negative Covenants<\/p>\n
Until the Facility Termination Date and termination of this Agreement
\nin accordance with the terms hereof, unless the Required Lenders shall otherwise
\nconsent in writing, the Borrower will not, nor (to the extent expressly set
\nforth below) will it permit any Consolidated Entity to:<\/p>\n
8.1. Financial Convenants.<\/p>\n
(a) Minimum Net Worth. Permit Consolidated Net Worth to be less
\n than $917,711,000 plus (A) 50% of Consolidated Net Income (if positive
\n and including for purposes of this Section 8.1(a) only any
\n extraordinary gain), on an ongoing basis for each fiscal quarter
\n beginning with the fiscal quarter ended March 31, 1996, plus (B) the
\n aggregate amount of all increases, if any, in its capital accounts
\n resulting from the issuance of Capital Stock or conversion of debt into
\n Capital Stock or other securities properly classified as equity in
\n accordance with generally accepted accounting principles, or from the
\n sale or other disposition of treasury shares, from the date of this
\n Agreement through the date of determination plus (c) without
\n duplication, any addition to Consolidated Stockholders’ Equity
\n resulting from an Acquisition after the Closing Date which shall be
\n accounted for on a pooling-of-interests basis.<\/p>\n
(b) Consolidated EBITDA to Consolidated Interest Expense Ratio.
\n Permit the ratio of Consolidated EBITDA to Consolidated Interest
\n Expense at any time to be less than or equal to 2.50 to 1.00.<\/p>\n
(c) Consolidated Indebtedness to Consolidated Total Capital.
\n Permit the ratio of Consolidated Indebtedness to Consolidated Total
\n Capital at any time to equal or exceed .65 to 1.00.<\/p>\n
8.2. Investments and Loans. Purchase or otherwise acquire any stock,
\nsecurity, obligation or evidence of indebtedness of, make any capital
\ncontribution to, own any equity interest in, or make any loan or advance to, any
\nother Person; provided, however, that the Borrower and its Consolidated Entities
\nmay (A) continue to hold all stock of and own partnership interests in the
\nPersons that constitute Consolidated Entities on the Closing Date and Persons
\nthat thereafter become Consolidated Entities as a result of Acquisitions
\npermitted under Section 8.8; (B) make Permitted Investments; and (C) make
\ninvestments in an amount not exceeding 15% of Consolidated Total Assets.<\/p>\n
8.3. Indebtedness. Permit to exist Indebtedness, howsoever evidenced,
\nof Subsidiaries and Controlled Partnerships (exclusive <\/p>\n
74<\/p>\n
of Indebtedness to the Borrower) in an aggregate amount at any time exceeding
\nthe greater of $70,000,000 or 15% of Consolidated Tangible Net Worth, excluding,
\nhowever, Indebtedness of Subsidiaries and Controlled Partnerships existing as of
\nthe date hereof and described on Schedule 8.3.<\/p>\n
8.4. Disposition of Assets. Sell, lease, transfer or otherwise dispose
\nof assets in excess of 15% of Consolidated Total Assets as at the Closing Date
\nplus an amount equal to 15% of assets acquired following the Closing Date.<\/p>\n
8.5. Consolidation or Merger. Merge or consolidate with another Person
\nunless (i) in the case of a merger or consolidation of the Borrower, the
\nBorrower is the continuing or surviving entity, (ii) in the case of a merger or
\nconsolidation involving a Consolidated Entity, the continuing or surviving
\nentity is majority-owned by the Borrower (with such majority ownership
\nconstituting a controlling interest), and (iii) before and after giving effect
\nto the proposed merger or consolidation, no Default or Event of Default shall
\nexist.<\/p>\n
8.6. Liens. Incur, create, assume or permit to exist any Lien upon any
\nof its accounts receivable, contract rights, chattel paper, inventory,
\nequipment, instruments, general intangibles or other personal or real property
\nof any character, whether now owned or hereafter acquired, other than (i) Liens
\nthat constitute Permitted Encumbrances, and (ii) Liens on assets which at no
\ntime have a book value of greater than 5% of Consolidated Total Assets.<\/p>\n
8.7. Dividends and Distributions. Permit any Consolidated Entity to be
\nor become subject to any restrictions on the ability of such Consolidated Entity
\nto pay dividends or to make partnership distributions other than as required by
\nthis Agreement or restrictions imposed by applicable law.<\/p>\n
8.8. Acquisitions. Enter into any agreement to acquire any Person or
\nFacility unless (i) the Person or Facility to be acquired is in substantially
\nthe same line of business presently engaged in by the Borrower or its
\nConsolidated Entities, and (ii) if the Cost of Acquisition exceeds $150,000,000
\nthe Borrower shall have furnished to the Agent (A) pro forma historical
\nfinancial statements as of the end of the most recently completed Fiscal Year of
\nthe Borrower and most recent interim fiscal quarter, if applicable, giving
\neffect to such Acquisition and (B) a Compliance Certificate prepared on an
\nhistorical pro forma basis giving effect to such Acquisition, which certificate
\nshall demonstrate that no Default or Event of Default would exist immediately
\nafter giving effect thereto.<\/p>\n
8.9. Restricted Payments. Make any Restricted Payment or apply or set
\napart any of their assets therefor or agree to do any of the foregoing;
\nprovided, however, the Borrower may make the Restricted Payments in any Fiscal
\nYear (on a non-cumulative basis,<\/p>\n
75<\/p>\n
with the effect that amounts not paid in any Fiscal Year may not be carried over
\nfor payment in a subsequent period) if immediately prior and immediately after
\ngiving effect thereto no Default or Event of Default shall exist or occur and be
\ncontinuing.<\/p>\n
8.10. Compliance with ERISA. With respect to any Pension Plan, Employee
\nBenefit Plan or Multiemployer Plan:<\/p>\n
(a) permit the occurrence of any Termination Event which would
\n result in a liability on the part of the Borrower or any ERISA
\n Affiliate to the PBGC which liability would have a Material Adverse
\n Effect; or<\/p>\n
(b) permit the present value of all benefit liabilities under
\n all Pension Plans to exceed the current value of the assets of such
\n Pension Plans allocable to such benefit liabilities; or<\/p>\n
(c) permit any accumulated funding deficiency (as defined in
\n Section 302 of ERISA and Section 412 of the Code) with respect to any
\n Pension Plan, whether or not waived; or<\/p>\n
(d) fail to make any contribution or payment to any
\n Multiemployer Plan which the Borrower or any ERISA Affiliate may be
\n required to make under any agreement relating to such Multiemployer
\n Plan, or any law pertaining thereto; or<\/p>\n
(e) engage, or permit any Subsidiary or any ERISA Affiliate to
\n engage, in any prohibited transaction under Section 406 of ERISA or
\n Section 4975 of the Code for which a civil penalty pursuant to Section
\n 502(I) of ERISA or a tax pursuant to Section 4975 of the Code may be
\n imposed; or<\/p>\n
(f) permit the establishment of any Employee Benefit Plan
\n providing post-retirement welfare benefits or establish or amend any
\n Employee Benefit Plan which establishment or amendment could result in
\n liability to the Borrower or any ERISA Affiliate or increase the
\n obligation of the Borrower or any ERISA Affiliate to a Multiemployer
\n Plan which liability or increase, individually or together with all
\n similar liabilities and increases, is in excess of $5,000,000; or<\/p>\n
(g) fail, or permit any Subsidiary or any ERISA Affiliate to
\n fail, to establish, maintain and operate each Employee Benefit Plan in
\n compliance in all material respects with the provisions of ERISA, the
\n Code, all applicable Foreign Benefit Laws and all other applicable laws
\n and the regulations and interpretations thereof.<\/p>\n
8.11. Fiscal Year. Change its Fiscal Year.<\/p>\n
8.12. Dissolution, etc. Wind up, liquidate or dissolve (voluntarily or
\ninvoluntarily) or commence or suffer any <\/p>\n
76<\/p>\n
proceedings seeking any such winding up, liquidation or dissolution, except in
\nconnection with a merger or consolidation permitted pursuant to Section 8.5.<\/p>\n
77<\/p>\n
ARTICLE IX<\/p>\n
Events of Default Acceleration<\/p>\n
9.1 Events of Default. If any one or more of the following events
\n(herein called “Events of Default”) shall occur for any reason whatsoever (and
\nwhether such occurrence shall be voluntary or involuntary or come about or be
\neffected by operation of law or pursuant to or in compliance with any judgment,
\ndecree or order of any court or any order, rule or regulation of any
\nGovernmental Authority), that is to say:<\/p>\n
(a) the Borrower shall fail to pay (i) when due any principal
\n payable under the terms of any Note or any Reimbursement Obligation or
\n (ii) not later than five Business Days of the date when due any
\n interest or fees payable under the terms of any Note or any other
\n amount payable under this Agreement or any other of the other
\n Obligations or any other amount owed to the Agent or any of the Lenders
\n under or in connection with the Loan Documents; or<\/p>\n
(b) The Borrower or any Material Group shall default in the
\n performance or observance of any other provision of this Agreement
\n (other than the provisions of Article VII and Article VIII), except as
\n covered by clause (a) above, and shall not cure such default within
\n thirty days after the first to occur of (i) the date the Agent or any
\n Lender gives written or telephonic notice of such default to the
\n Borrower or (ii) the date the Borrower otherwise has notice thereof; or<\/p>\n
(c) the Borrower or any Material Group shall default in the
\n observance or performance of any provision in Article VII or Article
\n VIII; or<\/p>\n
(d) the Agent shall reasonably determine that any statement,
\n certification, representation or warranty contained herein, or in any
\n of the other Loan Documents or in any report, financial statement,
\n certificate or other instrument delivered to the Agent or any Lender by
\n or on behalf of the Borrower or any Consolidated Entity, was misleading
\n or untrue in any material respect at the time it was made or deemed
\n made; or<\/p>\n
(e) default shall be made (i) in the payment of any
\n Indebtedness exceeding $5,000,000 (other than the Obligations) of the
\n Borrower or any Consolidated Entity when due or (ii) in the
\n performance, observance or fulfillment of any term or covenant
\n contained in any agreement or instrument under or pursuant to which any
\n such Indebtedness may have been issued, created, assumed, guaranteed or
\n secured by Borrower or any Consolidated Entity, if the effect of such
\n default in the performance, observance or fulfillment is to accelerate
\n the maturity of such Indebtedness or to permit the holder thereof <\/p>\n
78<\/p>\n
to cause such Indebtedness to become due prior to its stated maturity,
\n and such default shall not be cured within 10 days after the occurrence
\n of such default, and the amount of the Indebtedness involved exceeds
\n $5,000,000; or<\/p>\n
(f) the Borrower or any Material Group shall fail to pay or
\n admit in writing its inability to pay its or their debts generally as
\n they come due, or a receiver, trustee, liquidator or other custodian
\n shall be appointed for the Borrower or any Material Group or for any of
\n the property of the Borrower or any Material Group or a petition in
\n bankruptcy, or under any insolvency law, shall be filed by or against
\n the Borrower or any Material Group or the Borrower or any Material
\n Group shall apply for the benefit of, or take advantage of, any law for
\n relief of debtors, or enter into an arrangement or composition with, or
\n make an assignment for the benefit of, creditors; or<\/p>\n
(g) final judgment for the payment of money in excess of any
\n aggregate of $500,000 shall be rendered against the Borrower or any
\n Material Group, and the same shall remain undischarged for a period of
\n 30 days during which execution shall not be effectively stayed; or<\/p>\n
(h) an event of default, as therein defined, shall occur under
\n any other Loan Document; or<\/p>\n
(i) any of the Notes or LC Account Agreement shall be deemed
\n unenforceable by a court of competent jurisdiction or shall no longer
\n be effective; or<\/p>\n
(j) the Borrower or any Consolidated Entity shall, other than
\n in the ordinary course of business (as determined by past practices),
\n suspend all or any part of its operations material to the conduct of
\n the business of the Borrower and its Consolidated Entities, taken as a
\n whole, for a period of more than 60 days;<\/p>\n
(k) the Borrower or any Consolidated Entity shall breach any
\n of the material terms or conditions of any agreement under which any
\n Rate Hedging Obligations are created and such breach shall continue
\n beyond any grace period, if any, relating thereto pursuant to the terms
\n of such agreement, or the Borrower or any Consolidated Entity shall
\n disaffirm or seek to disaffirm any such agreement or any of its
\n obligations thereunder;<\/p>\n
(l) there shall occur (i) any cancellation, revocation,
\n suspension or termination of any Medicare Certification, Medicare
\n Provider Agreement, Medicaid Certification or Medicaid Provider
\n Agreement affecting the Borrower, any Subsidiary or any Contract
\n Provider, or (ii) the loss of any other permits, licenses,
\n authorizations, certifications or approvals from any federal, state or
\n local Governmental <\/p>\n
79<\/p>\n
Authority or termination of any contract with any such authority, in
\n either case which cancellation, revocation, suspension, termination or
\n loss (X) in the case of any suspension or temporary loss only,
\n continues for a period greater than 60 days and (Y) results in the
\n suspension or termination of operations of the Borrower or any
\n Subsidiary or in the failure of the Borrower or any Subsidiaries or any
\n Contract Provider to be eligible to participate in Medicare or Medicaid
\n programs or to accept assignments of rights to reimbursement under
\n Medicaid Regulations or Medicare Regulations, if and only if such
\n Person, in the ordinary course of business, participates in the
\n Medicare or Medicare programs or accepts assignments of rights to
\n reimbursement thereunder; provided that any such events described in
\n this Section 9.1(l) shall constitute an Event of Default only if such
\n event shall result either singly or in the aggregate in the
\n termination, cancellation, suspension or material impairment of
\n operations or rights to reimbursement which produce 5% or more of the
\n Borrower’s gross revenues (on an annualized basis); or<\/p>\n
(m) there shall occur a Change of Control;<\/p>\n
then, and in any such event and at any time thereafter, if such Event of Default
\nor any other Event of Default shall then be continuing and shall have not been
\nwaived,<\/p>\n
(A) either or both of the following actions may be taken: (i)
\n the Agent, with the consent of the Required Lenders, may, and at the
\n direction of the Required Lenders shall, declare any obligation of the
\n Lenders and the Issuing Bank to make further Loans or to issue
\n additional Letters of Credit terminated, whereupon the obligation of
\n each Lender to make further Loans and of the Issuing Bank to issue
\n additional Letters of Credit hereunder shall terminate immediately, and
\n (ii) the Agent shall at the direction of the Required Lenders, at their
\n option, declare by notice to the Borrower any or all of the Obligations
\n to be immediately due and payable, and the same, including all interest
\n accrued thereon and all other obligations of the Borrower to the Agent
\n and the Lenders, shall forthwith become immediately due and payable
\n without presentment, demand, protest, notice or other formality of any
\n kind, all of which are hereby expressly waived, anything contained
\n herein or in any instrument evidencing the Obligations to the contrary
\n notwithstanding; provided, however, that notwithstanding the above, if
\n there shall occur an Event of Default under clause (f) above, then the
\n obligation of the Lenders to make Loans and of the Issuing Bank to
\n issue Letters of Credit hereunder shall automatically terminate and any
\n and all of the Obligations shall be immediately due and payable without
\n the necessity of any action by the Agent or the Required Lenders or
\n notice to the Agent or the Lenders;<\/p>\n
80<\/p>\n
(B) the Borrower shall, upon demand of the Agent or the
\n Required Lenders, deposit cash with the Agent in an amount equal to the
\n aggregate amount remaining undrawn under all outstanding Letters of
\n Credit, as collateral security for the repayment of any future drawings
\n or payments under such Letters of Credit, and such amounts shall be
\n held by the Agent pursuant to the terms of the LC Account Agreement;
\n and<\/p>\n
(C) the Agent and each of the Lenders shall have all of the
\n rights and remedies available under the Loan Documents or under any
\n applicable law.<\/p>\n
9.2. Agent to Act. In case any one or more Events of Default shall
\noccur and be continuing and not have been waived, the Agent may, and at the
\ndirection of the Required Lenders shall, proceed to protect and enforce their
\nrights or remedies either by suit in equity or by action at law, or both,
\nwhether for the specific performance of any covenant, agreement or other
\nprovision contained herein or in any other Loan Document, or to enforce the
\npayment of the Obligations or any other legal or equitable right or remedy.<\/p>\n
9.3. Cumulative Rights. No right or remedy herein conferred upon the
\nLenders or the Agent is intended to be exclusive of any other rights or remedies
\ncontained herein or in any other Loan Document, and every such right or remedy
\nshall be cumulative and shall be in addition to every other such right or remedy
\ncontained herein and therein or now or hereafter existing at law or in equity or
\nby statute, or otherwise.<\/p>\n
9.4. No Waiver. No course of dealing between the Borrower and any
\nLender or the Agent or any failure or delay on the part of any Lender or the
\nAgent in exercising any rights or remedies under any Loan Document or otherwise
\navailable to it shall operate as a waiver of any rights or remedies and no
\nsingle or partial exercise of any rights or remedies shall operate as a waiver
\nor preclude the exercise of any other rights or remedies hereunder or of the
\nsame right or remedy on a future occasion.<\/p>\n
9.5. Allocation of Proceeds. If an Event of Default has occurred and
\nnot been waived, and the maturity of the Notes has been accelerated pursuant to
\nthis Article IX, all payments received by the Agent hereunder, in respect of any
\nprincipal of or interest on the Obligations or any other amounts payable by the
\nBorrower hereunder, shall be applied by the Agent in the following order:<\/p>\n
(i) amounts due to the Lenders pursuant to Section 2.11 or
\n Section 11.6;<\/p>\n
(ii) amounts due to the Agent and the Issuing Bank pursuant to
\n Section 10.11, Section 3.3 and Section 3.4;<\/p>\n
(iii) payments of interest, to be applied pro rata based on the
\n proportion which the principal amount of outstanding <\/p>\n
81<\/p>\n
Loans and Reimbursement Obligations of each Lender bears to the total
\n of all outstanding Loans and Reimbursement Obligations;<\/p>\n
(iv) payments of principal, to be applied pro rata based on the
\n proportion which the principal amount of outstanding Loans and
\n Reimbursement Obligations of each Lender bears to the total of all
\n outstanding Loans and Reimbursement Obligations;<\/p>\n
(v) payment of cash amounts to the Agent pursuant to Section 9.1;<\/p>\n
(vi) payments of all other amounts due under this Agreement, if
\n any, to be applied in accordance with each Lender’s pro rata share of
\n all such other amounts due to the Lenders; and<\/p>\n
(vii) any surplus remaining after application as provided for
\n herein, to the Borrower or otherwise as may be required by applicable
\n law.<\/p>\n
82<\/p>\n
ARTICLE X<\/p>\n
The Agent<\/p>\n
10.1. Appointment. Each Lender hereby irrevocably designates and
\nappoints NationsBank as the Agent for the Lenders under this Agreement, and each
\nof the Lenders hereby irrevocably authorizes NationsBank as the Agent for such
\nLender, to take such action on its behalf under the provisions of this Agreement
\nand the other Loan Documents and to exercise such powers as are expressly
\ndelegated to the Agent by the terms of this Agreement and such other Loan
\nDocuments, together with such other powers as are reasonably incidental thereto.
\nThe Agent shall not have any duties or responsibilities, except those expressly
\nset forth herein, or any fiduciary relationship with any of the Lenders, and no
\nimplied covenants, functions, responsibilities, duties, obligations or
\nliabilities shall be read into this Agreement or any other Loan Document or
\notherwise exist against the Agent.<\/p>\n
10.2. Attorneys-in-fact. The Agent may execute any of its duties under
\nthe Loan Documents by or through agents or attorneys-in-fact and shall be
\nentitled to advice of counsel concerning all matters pertaining to such duties.
\nThe Agent shall not be responsible for the negligence, gross negligence or
\nwillful misconduct of any agents or attorneys-in-fact selected by it with
\nreasonable care.<\/p>\n
10.3. Limitation on Liability. A Neither the Agent nor any of its
\nofficers, directors, employees, agents or attorneys-in-fact shall be liable to
\nthe Lenders for any action lawfully taken or omitted to be taken by it or them
\nunder or in connection with the Loan Documents except for its or their own gross
\nnegligence or willful misconduct. Neither the Agent nor any of its Affiliates
\nshall be responsible in any manner to any of the Lenders for any recitals,
\nstatements, representations or warranties made by the Borrower or any officer or
\nrepresentative thereof contained in any Loan Document, or in any certificate,
\nreport, statement or other document referred to or provided for in or received
\nby the Agent under or in connection with any Loan Document, or for the value,
\nvalidity, effectiveness, genuineness, enforceability or sufficiency of any Loan
\nDocument, or for any failure of the Borrower to perform its obligations under
\nany Loan Document, or for any recitals, statements, representations or
\nwarranties made, or for the value, validity, effectiveness, genuineness,
\nenforceability or sufficiency of any collateral. The Agent shall not be under
\nany obligation to any of the Lenders to ascertain or to inquire as to the
\nobservance or performance of any of the terms, covenants or conditions of any
\nLoan Document on the part of the Borrower or to inspect the properties, books or
\nrecords of the Borrower or its Subsidiaries.<\/p>\n
10.4. Reliance. The Agent shall be entitled to rely, and shall be fully
\nprotected in relying, upon any Note, writing, resolution, notice, consent
\ncertificate, affidavit, letter, <\/p>\n
83<\/p>\n
cablegram, telegram, telefacsimile or telex message, statement, order or other
\ndocument or conversation believed by it to be genuine and correct and to have
\nbeen signed, sent or made by the proper Person or Persons and upon advice and
\nstatements of legal counsel (including, without limitation, counsel to the
\nBorrower), independent accountants and other experts selected by the Agent. The
\nAgent may deem and treat the payee of any Note as the owner thereof for all
\npurposes unless an Assignment and Acceptance shall have been filed with and
\naccepted by the Agent. The Agent shall be fully justified in failing or refusing
\nto take any action under the Loan Documents unless it shall first receive advice
\nor concurrence of the Lenders or the Required Lenders as provided in this
\nAgreement or it shall first be indemnified to its satisfaction by the Lenders
\nagainst any and all liability and expense which may be incurred by it by reason
\nof taking or continuing to take any such action. The Agent shall in all cases be
\nfully protected in acting, or in refraining from acting, under the Loan
\nDocuments in accordance with a request of the Required Lenders or all Lenders as
\nrequired in this Agreement, and such request and any action taken or failure to
\nact pursuant thereto shall be binding upon all the Lenders and all present and
\nfuture holders of the Notes.<\/p>\n
10.5. Notice of Default. The Agent shall not be deemed to have
\nknowledge or notice of the occurrence of any Default or Event of Default unless
\nthe Agent has received notice from a Lender, an Authorized Representative or the
\nBorrower referring to this Agreement, describing such Default or Event of
\nDefault and stating that such notice is a “notice of default”. In the event that
\nthe Agent receives such a notice, the Agent shall promptly give notice thereof
\nto the Lenders. The Agent shall take such action with respect to such Default or
\nEvent of Default as shall be reasonably directed by the Required Lenders or all
\nLenders as required in this Agreement; provided that, unless and until the Agent
\nshall have received such directions, the Agent may (but shall not be obligated
\nto) take such action, or refrain from taking such action, with respect to such
\nEvent of Default as it shall deem advisable in the best interests of the
\nLenders.<\/p>\n
10.6. No Representation. Each Lender expressly acknowledges that
\nneither the Agent nor any of its affiliates has made any representations or
\nwarranties to it and that no act by the Agent hereafter taken, including any
\nreview of the affairs of the Borrower or its Consolidated Entities, shall be
\ndeemed to constitute any representation or warranty by the Agent to any Lender.
\nEach Lender represents to the Agent that it has, independently and without
\nreliance upon the Agent or any other Lender, and based on such documents and
\ninformation as it has deemed appropriate, made its own appraisal of and
\ninvestigation into the financial condition, creditworthiness, affairs, status
\nand nature of the Borrower and each Consolidated Entity and made its own
\ndecision to enter into this Agreement. Each Lender also represents that it will,
\nindependently and without reliance upon the Agent or any other Lender, and based
\non such documents and<\/p>\n
84<\/p>\n
information as it shall deem appropriate at the time, continue to make its own
\ncredit analysis, appraisals and decisions in taking or not taking action under
\nthe Loan Documents and to make such investigation as it deems necessary to
\ninform itself as to the status and affairs, financial or otherwise, of the
\nBorrower and its Subsidiaries. Except for notices, reports and other documents
\nexpressly required to be furnished to the Lenders by the Agent hereunder, the
\nAgent shall not have any duty or responsibility to provide any Lender with any
\ncredit or other information concerning the affairs, financial condition or
\nbusiness of the Borrower and its Subsidiaries which may come into the possession
\nof the Agent or any of its affiliates.<\/p>\n
10.7 Indemnification. Each of the Lenders agrees to indemnify the Agent
\nin its capacity as such (to the extent not reimbursed by the Borrower or any of
\nits Consolidated Entities and without limiting any obligations of the Borrower
\nor any of its Consolidated Entities to do so), ratably according to the
\nrespective principal amount of the Notes held by them (or, if no Notes are
\noutstanding, ratably in accordance with their respective Applicable Commitment
\nPercentages as then in effect) from and against any and all liabilities,
\nobligations, losses (excluding any losses suffered by the Agent as a result of
\nthe Borrower’s failure to pay any fee owing to the Agent), damages, penalties,
\nactions, judgments, suits, costs, expenses or disbursements of any kind or
\nnature whatsoever which may at any time (including without limitation at any
\ntime following the payment of the Notes) be imposed on, incurred by or asserted
\nagainst the Agent in any way relating to or arising out of any Loan Document or
\nany other document contemplated by or referred to therein or the transactions
\ncontemplated thereby or any action taken or omitted by the Agent under or in
\nconnection with any of the foregoing; provided that no Lender shall be liable
\nfor the payment of any portion of such liabilities, obligations, losses,
\ndamages, penalties, actions, judgments, suits, costs, expenses or disbursements
\nresulting from the Agent’s gross negligence or willful misconduct. The
\nagreements in this Section 10.7 shall survive the payment of the Facility
\nTermination Date.<\/p>\n
10.8. Lender. The Agent and its Affiliates may make loans to, accept
\ndeposits from and generally engage in any kind of business with the Borrower and
\nits Subsidiaries as though it were not the Agent hereunder. With respect to its
\nLoans made or renewed by it and any Note issued to it, the Agent shall have the
\nsame rights and powers under this Agreement as any Lender and may exercise the
\nsame as though it were not the Agent, and the terms “Lender” and “Lenders”
\nshall, unless the context otherwise indicates, include the Agent in its
\nindividual capacity.<\/p>\n
10.9. Resignation. If the Agent shall resign as Agent under this
\nAgreement, then the Required Lenders may appoint, with the consent, so long as
\nthere shall not have occurred and be continuing a Default or Event of Default,
\nof the Borrower, which consent shall <\/p>\n
85<\/p>\n
not be unreasonably withheld, a successor Agent for the Lenders, which successor
\nAgent shall be a commercial bank organized under the laws of the United States
\nor any state thereof, having a combined surplus and capital of not less than
\n$500,000,000, whereupon such successor Agent shall succeed to the rights, powers
\nand duties of the former Agent and the obligations of the former Agent shall be
\nterminated and canceled, without any other or further act or deed on the part of
\nsuch former Agent or any of the parties to this Agreement; provided, however,
\nthat the former Agent’s resignation shall not become effective until such
\nsuccessor Agent has been appointed and has succeeded of record to all right,
\ntitle and interest in any collateral held by the Agent; provided, further, that
\nif the Required Lenders and, if applicable, the Borrower cannot agree as to a
\nsuccessor Agent within ninety (90) days after such resignation, the Agent shall
\nappoint a successor Agent which satisfies the criteria set forth above in this
\nSection 10.9 for a successor Agent and the parties hereto agree to execute
\nwhatever documents are necessary to effect such action under this Agreement or
\nany other document executed pursuant to this Agreement; provided, however that
\nin such event all provisions of the Loan Documents, shall remain in full force
\nand effect. After any retiring Agent’s resignation hereunder as Agent, the
\nprovisions of this Article X shall inure to its benefit as to any actions taken
\nor omitted to be taken by it while it was Agent under this Agreement.<\/p>\n
10.10. Sharing of Payments, etc. Each Lender agrees that if it shall,
\nthrough the exercise of a right of banker’s lien, set-off, counterclaim or
\notherwise, obtain payment with respect to its Obligations (other than pursuant
\nto Section 2.14 or Article IV) which results in its receiving more than its pro
\nrata share of the aggregate payments with respect to all of the Obligations
\n(other than any payment expressly provided hereunder to be distributed on other
\nthan a pro rata basis and payments pursuant to Article IV), then (a) such Lender
\nshall be deemed to have simultaneously purchased from the other Lenders a share
\nin their Obligations so that the amount of the Obligations held by each of the
\nLenders shall be pro rata and (b) such other adjustments shall be made from time
\nto time as shall be equitable to insure that the Lenders share such payments
\nratably; provided, however, that for purposes of this Section 10.10 the term
\n“pro rata” shall be determined with respect to both the Revolving Credit
\nCommitment and Line of Credit Commitment of each Lender and to the Total
\nRevolving Credit Commitment and Total Line of Credit Commitment after
\nsubtraction in each case of amounts, if any, by which any such Lender has not
\nfunded its share of the outstanding Loans and Obligations. If all or any portion
\nof any such excess payment is thereafter recovered from the Lender which
\nreceived the same, the purchase provided in this Section 10.10 shall be
\nrescinded to the extent of such recovery, without interest. The Borrower
\nexpressly consents to the foregoing arrangements and agrees that each Lender so
\npurchasing a portion of the other Lenders’ Obligations may exercise all rights
\nof payment (including, without limitation, all rights of set-off, <\/p>\n
86<\/p>\n
banker’s lien or counterclaim) with respect to such portion as fully as if such
\nLender were the direct holder of such portion.<\/p>\n
10.11. Fees. The Borrower agrees to pay to the Agent, for its
\nindividual account, in advance a quarterly Agent’s fee in such amount as from
\ntime to time agreed to by the Borrower and Agent in writing.<\/p>\n
10.12. Independent Agreements. The provisions contained in Sections
\n10.1 through 10.8 and 10.10 (other than the last sentence thereof) constitute
\nindependent obligations and agreements of the Agent and the Lenders and the
\nBorrower shall not be deemed a party thereto nor bound thereby. Borrower does
\nacknowledge the rights of Lenders and Agent under Sections 10.9 and 10.11 and
\nthe last sentence of Section 10.10.<\/p>\n
87<\/p>\n
ARTICLE XI<\/p>\n
Miscellaneous<\/p>\n
11.1. Assignments and Participations. (a) At any time after the Closing
\nDate each Lender may, with the prior consent of the Agent and (so long as no
\nDefault or Event of Default shall have occurred and be continuing) the Borrower,
\nwhich consents shall not be unreasonably withheld, assign to one or more banks
\nor financial institutions all or a portion of its rights and obligations under
\nthe Loan Documents (including, without limitation, all or a portion of any Notes
\npayable to its order); provided, that (i) each such assignment shall be of a
\nconstant and not a varying percentage of all of the assigning Lender’s rights
\nand obligations under the Revolving Credit Facility, Letter of Credit Facility
\nand the Line of Credit Facility, (ii) for each assignment involving the issuance
\nand transfer of Notes, the assigning Lender shall execute an Assignment and
\nAcceptance and the Borrower hereby agrees to execute replacement Notes to give
\neffect to such assignment, (iii) the minimum Commitment which shall be assigned
\nis (x) $5,000,000, in the case of an assignment by one existing Lender to
\nanother existing Lender, and (y) $10,000,000 in all other cases, and in
\nmultiples of $1,000,000 in excess thereof (together with which the assigning
\nLender’s applicable portion of Participations and the Letter of Credit
\nCommitment shall also be assigned), (iv) such assignee shall have an office
\nlocated in the United States, and (v) no consent of the Borrower or the Agent
\nshall be required in connection with any assignment by a Lender to an affiliate
\nof such Lender. Upon such execution, delivery, approval and acceptance, from and
\nafter the effective date specified in each Assignment and Acceptance, (x) the
\nassignee thereunder shall be a party hereto and, to the extent that rights and
\nobligations hereunder or under any such Notes have been assigned or negotiated
\nto it pursuant to such Assignment and Acceptance, have the rights and
\nobligations of a Lender hereunder and a holder of such Notes and (y) the
\nassignor thereunder shall, to the extent that rights and obligations hereunder
\nor under such Note have been assigned or negotiated by it pursuant to such
\nAssignment and Acceptance, relinquish its rights, other than those set forth in
\nSection 3.2(g), Article IV, Section 11.6 and Section 11.12 of this Agreement and
\nbe released from its obligations under this Agreement. Except as otherwise
\nprovided herein, any Lender who makes an assignment shall pay to the Agent a
\none-time administrative fee of $3,000 which fee shall not be reimbursed by the
\nBorrower.<\/p>\n
(b) By executing and delivering an Assignment and Acceptance, the
\nLender assignor thereunder and the assignee thereunder confirm to and agree with
\neach other and the other parties hereto as follows: (i) the assignment made
\nunder such Assignment and Acceptance is made under such Assignment and
\nAcceptance without recourse to such assignor; (ii) such assigning Lender makes
\nno representation or warranty and assumes no responsibility with respect to (x)
\nthe statements, warranties or representations made <\/p>\n
88<\/p>\n
in or in connection with this Agreement or any other Loan Document or any other
\ninstrument or document furnished pursuant hereto, (y) the execution, legality,
\nvalidity, enforceability, genuineness, sufficiency or value of this Agreement or
\nany of the other Loan Documents or any other document or instrument furnished
\npursuant hereto, or (z) the financial condition of the Borrower or its
\nSubsidiaries or the performance or observance by the Borrower or any Subsidiary
\nof any of its obligations under any Loan Document or any other instrument or
\ndocument furnished pursuant hereto; (iii) such assignee confirms that it has
\nreceived a copy of this Agreement, together with copies of the financial
\nstatements delivered pursuant to Section 6.6(a) or Section 7.1, as the case may
\nbe, and such other Loan Documents and other documents and information as it has
\ndeemed appropriate to make its own credit analysis and decision to enter into
\nsuch Assignment and Acceptance; (iv) such assignee will, independently and
\nwithout reliance upon the Agent, such assigning Lender or any other Lender and
\nbased on such documents and information as it shall deem appropriate at the
\ntime, continue to make its own credit decisions in taking or not taking action
\nunder any Loan Document; (v) such assignee appoints and authorizes the Agent to
\ntake such action as Agent on its behalf and to exercise such powers under the
\nLoan Documents as are delegated to the Agent by the terms hereof and thereof,
\ntogether with such powers as are reasonably incidental thereto; and (vi) such
\nassignee agrees that it will perform in accordance with their terms all of the
\nobligations which by the terms of the Loan Documents are required to be
\nperformed by it as a Lender and a holder of such Notes.<\/p>\n
(c) The Agent shall maintain at its address referred to herein a copy
\nof each Assignment and Acceptance delivered to and accepted by it.<\/p>\n
(d) Upon its receipt of an Assignment and Acceptance executed by an
\nassigning Lender, the Agent shall give prompt notice thereof to Borrower.<\/p>\n
(e) Nothing herein shall prohibit any Lender from pledging or
\nassigning, without notice to or consent of the Borrower or the Agent and without
\nthe payment of the administrative fee referred to in Section 13.1(a), any Note
\nto any Federal Reserve Bank in accordance with applicable law.<\/p>\n
(f) Each Lender may sell participations at its expense to one or more
\nbanks or other entities as to all or a portion of its rights and obligations
\nunder this Agreement; provided, that (i) such Lender’s obligations under this
\nAgreement shall remain unchanged, (ii) such Lender shall remain solely
\nresponsible to the other parties hereto for the performance of such obligations,
\n(iii) such Lender shall remain the holder of any Note issued to it for the
\npurpose of this Agreement, (iv) such participations shall be in a minimum amount
\nof $5,000,000 and, if greater, an amount which is an integral multiple of
\n$1,000,000 and shall include an allocable <\/p>\n
89<\/p>\n
portion of such Lender’s Participations, (v) the Borrower, the Agent and the
\nother Lenders shall continue to deal solely and directly with such Lender in
\nconnection with such Lender’s rights and obligations under this Agreement and
\nwith regard to any and all payments to be made under this Agreement; provided,
\nthat the participation agreement between a Lender and its participants may
\nprovide that such Lender will obtain the approval of such participant prior to
\nsuch Lender’s agreeing to any amendment or waiver of any provisions of any Loan
\nDocument which would (A) extend the maturity of any Note or scheduled payment of
\nany Obligations, (B) reduce the interest rates, unused fees or letter of credit
\nfacility fees hereunder or (C) increase or extend the termination date of the
\nRevolving Credit Commitment, Line of Credit Commitment or Letter of Credit
\nCommitment of the Lender granting the participation, and (vi) the sale of any
\nsuch participations which require Borrower to file a registration statement with
\nthe United States Securities and Exchange Commission or under the securities
\nregulations or laws of any state shall not be permitted.<\/p>\n
(g) The Borrower may not assign any rights, powers, duties or
\nobligations under this Agreement or the other Loan Documents without the prior
\nwritten consent of all the Lenders.<\/p>\n
11.2. Notices. Any notice shall be conclusively deemed to have been
\nreceived by any party hereto and be effective (i) on the day on which delivered
\n(including hand delivery by commercial courier service) to such party (against
\nreceipt therefor), (ii) on the date of receipt at such address, telefacsimile
\nnumber or telex number as may from time to time be specified by such party in
\nwritten notice to the other parties hereto or otherwise received), in the case
\nof notice by telegram, telefacsimile or telex, respectively (where the receipt
\nof such message is verified by return), or (iii) on the fifth Business Day after
\nthe day on which mailed, if sent prepaid by certified or registered mail, return
\nreceipt requested, in each case delivered, transmitted or mailed, as the case
\nmay be, to the address, telex number or telefacsimile number, as appropriate,
\nset forth below or such other address or number as such party shall specify by
\nnotice hereunder:<\/p>\n
(a) if to the Borrower:<\/p>\n
Two Perimeter Park South
\n Suite 224W
\n Birmingham, Alabama 35243
\n Attention: Richard M. Scrushy<\/p>\n
with a copy to:<\/p>\n
Chief Financial Officer
\n HEALTHSOUTH Corporation
\n Two Perimeter Park South
\n Suite 224W
\n Birmingham, Alabama 35243 <\/p>\n
90<\/p>\n
with a copy to:<\/p>\n
Treasurer
\n HEALTHSOUTH Corporation
\n Two Perimeter Park South
\n Suite 224W
\n Birmingham, Alabama 35243<\/p>\n
with a copy to:<\/p>\n
William W. Horton
\n HEALTHSOUTH Corporation
\n Two Perimeter Park South
\n Birmingham, Alabama 35243<\/p>\n
(b) if to the Agent at:<\/p>\n
One Independence Center
\n 15th Floor
\n 101 North Tryon Street
\n Charlotte, North Carolina 28255
\n Attention: Agency Services<\/p>\n
with a copy to:<\/p>\n
600 Peachtree Street, N.E.
\n 21st Floor
\n Atlanta, Georgia 30308-2213
\n Attention: Corporate Banking<\/p>\n
(c) if to NationsBank in its capacity as issuer of the
\n Letters of Credit:<\/p>\n
NationsBank, N.A.
\n One Independence Center, 15th Floor
\n 101 North Tryon Street
\n Charlotte, North Carolina 28255
\n Attention: Letter of Credit Department<\/p>\n
(d) if to the Lenders:<\/p>\n
At the addresses set forth on the signature pages
\n hereof and on the signature page of each Assignment
\n and Acceptance.<\/p>\n
11.3. No Waiver. No failure or delay on the part of the Agent, any
\nLender or the Borrower in the exercise of any right, power or privilege
\nhereunder shall operate as a waiver of any such right, power or privilege nor
\nshall any such failure or delay preclude any other or further exercise thereof.
\nThe rights and remedies herein provided are cumulative and not exclusive of any
\nrights or remedies provided by law.<\/p>\n
91<\/p>\n
11.4. Setoff. The Borrower agrees that the Agent and each Lender shall
\nhave a lien for all the Obligations of the Borrower upon all deposits or deposit
\naccounts, of any kind, or any interest in any deposits or deposit accounts
\nthereof, now or hereafter pledged, mortgaged, transferred or assigned to the
\nAgent or such Lender or otherwise in the possession or control of the Agent or
\nsuch Lender (other than for safekeeping) for any purpose for the account or
\nbenefit of the Borrower and including any balance of any deposit account or of
\nany credit of the Borrower with the Agent or such Lender, whether now existing
\nor hereafter established, hereby authorizing the Agent and each Lender at any
\ntime or times from and after the occurrence of a Default or an Event of Default
\nwith or without prior notice to set off against and apply such balances or any
\npart thereof to such of the Obligations of the Borrower to the Lenders then past
\ndue and in such amounts as they may elect, and whether or not the collateral or
\nthe responsibility of other Persons primarily, secondarily or otherwise liable
\nmay be deemed adequate. For the purposes of this paragraph, all remittances and
\nproperty shall be deemed to be in the possession of the Agent or such Lender as
\nsoon as the same may be put in transit to it by mail or carrier or by other
\nbailee.<\/p>\n
11.5. Survival. All covenants, agreements, representations and
\nwarranties made herein shall survive the making by the Lenders of the Loans and
\nthe issuance of the Letters of Credit and the execution and delivery to the
\nLenders of this Agreement and the Notes and shall continue in full force and
\neffect so long as any of Obligations remain outstanding or any Lender has any
\ncommitment hereunder or the Borrower has continuing obligations hereunder unless
\notherwise provided herein. Whenever in this Agreement any of the parties hereto
\nis referred to, such reference shall be deemed to include the successors and
\npermitted assigns of such party and all covenants, provisions and agreements by
\nor on behalf of the Borrower which are contained in the Loan Documents shall
\ninure to the benefit of the successors and permitted assigns of the Lenders or
\nany of them.<\/p>\n
11.6. Expenses. The Borrower agrees (a) to pay or reimburse the Agent
\nfor all its reasonable and customary out-of-pocket costs and expenses incurred
\nin connection with the preparation, negotiation and execution of, and any
\namendment, supplement or modification to, this Agreement or any of the other
\nLoan Documents, and the consummation of the transactions contemplated hereby and
\nthereby, including, without limitation, the reasonable and customary fees and
\ndisbursements of counsel to the Agent, (b) to pay or reimburse the Agent and,
\nafter an Event of Default, each Lender for all their reasonable costs and
\nexpenses incurred in connection with the enforcement or preservation of any
\nrights under this Agreement, including without limitation, the reasonable fees
\nand disbursements of their counsel, (c) to pay, indemnify and hold harmless the
\nAgent and each Lender from any and all recording and filing fees and any and all
\nliabilities with respect to, or resulting from any failure of Borrower to pay or
\ndelay of Borrower <\/p>\n
92<\/p>\n
in paying, documentary, stamp, excise, withholding and other similar taxes, if
\nany, which may be payable or determined to be payable in connection with the
\nexecution and delivery of, or consummation of any amendment, supplement or
\nmodification of, or any waiver or consent under or in respect of, this
\nAgreement, and (d) from and after the occurrence of any Event of Default to pay,
\nand indemnify and hold harmless the Agent and each Lender from and against, any
\nand all other liabilities, obligations, losses, damages, penalties, actions,
\njudgments, suits, costs, expenses or disbursements of any kind or nature
\nwhatsoever with respect to the execution, delivery, enforcement, performance and
\nadministration of this Agreement or in any respect relating to the transactions
\ncontemplated hereby or thereby, (all the foregoing, collectively, the
\n“indemnified liabilities”); provided, however, that the Borrower shall have no
\nobligation hereunder with respect to indemnified liabilities arising from (i)
\nthe willful misconduct or negligence of the party seeking indemnification, (ii)
\nlegal proceedings commenced against the Agent or any Lender by any security
\nholder or creditor thereof arising out of and based upon rights afforded any
\nsuch security holder or creditor solely in its capacity as such, (iii) any taxes
\nimposed upon the Agent or any Lender other than the documentary, stamp, excise,
\nwithholding and similar taxes described in clause (c) above or any tax resulting
\nfrom any change described in Section 4.1, which tax would be payable to Lenders
\nby Borrower pursuant to Article IV, (iv) taxes imposed as a result of a transfer
\nor assignment of any Note, participation or assignment of a portion of its
\nrights, (v) any taxes imposed upon any transferee of any Note, or (vi) by reason
\nof the failure of the Agent or any Lender to perform its or their obligations
\nunder this Agreement. The agreements in this subsection shall survive the
\nFacility Termination Date.<\/p>\n
11.7. Amendments. No amendment, modification or waiver of any provision
\nof this Agreement or any of the other Loan Documents and no consent by the
\nLenders to any departure therefrom by the Borrower shall be effective unless
\nsuch amendment, modification or waiver shall be in writing and signed by the
\nAgent and the Borrower, but only upon having received the written consent of the
\nRequired Lenders, and the same shall then be effective only for the period and
\non the conditions and for the specific instances and purposes specified in such
\nwriting; provided, however, that no such amendment, modification or waiver<\/p>\n
(i) which changes, extends or waives any provision of Section
\n 2.7, Section 2.11, Section 3.3(a), Section 5.1(a), Section 7.11,
\n Section 10.10, Section 11.1(g), this Section 11.7 or Section 11.15, the
\n amount of or the due date of any scheduled installment or other payment
\n of or the rate of interest or other amounts payable on or with respect
\n to any Obligation, which changes the definition of Required Lenders,
\n which increases or extends the Commitment of any Lender or which
\n increases or extends the Revolving Credit Termination Date (including
\n any extension of the expiry date of a Letter<\/p>\n
93<\/p>\n
of Credit beyond the Revolving Credit Termination Date) or the Stated
\n Termination Date or which waives any condition to the making of any
\n Loan or the issuance of any Letter of Credit shall be effective unless
\n in writing and signed by each of the Lenders; provided, however, the
\n Required Lenders may in their sole discretion waive any Default or
\n Event of Default (other than any Event of Default under Section 9.1(a)
\n as to which only the Lender which is the payee of a Note may waive the
\n failure to make a payment of principal or interest due on such Note and
\n Section 9.1(f) as to which all Lenders must waive such Event of
\n Default);<\/p>\n
(ii) which affects the rights, privileges, immunities or
\n indemnities of the Agent, shall be effective unless in writing and
\n signed by the Agent.<\/p>\n
Notwithstanding any provision of the other Loan Documents to the contrary, as
\nbetween the Agent and the Lenders, execution by the Agent shall not be deemed
\nconclusive evidence that the Agent has obtained the written consent of the
\nRequired Lenders; however, the Borrower shall be entitled to rely on the
\nsignature of the Agent as evidence of consent. No notice to or demand on the
\nBorrower in any case shall entitle the Borrower to any other or further notice
\nor demand in similar or other circumstances, except as provided by law or as
\notherwise expressly provided herein. No delay or omission on any Lender’s, the
\nAgent’s or the Borrower’s part in exercising any right, remedy or option shall
\noperate as a waiver of such or any other right, remedy or option or of any
\nDefault or Event of Default.<\/p>\n
11.8. Counterparts. This Agreement may be executed in any number of
\ncounterparts, each of which when so executed and delivered shall be deemed an
\noriginal, and it shall not be necessary in making proof of this Agreement to
\nproduce or account for more than one such fully-executed counterpart.<\/p>\n
11.9. Waivers by Borrower. In any litigation in any court with respect
\nto, in connection with, or arising out of this Agreement, the Loans, any of the
\nNotes, any of the other Loan Documents, the Obligations, or any instrument or
\ndocument delivered pursuant to this Agreement, or the validity, protection,
\ninterpretation, collection or enforcement thereof, or any other claim or dispute
\nhowsoever arising between the Borrower and the Lenders or the Agent, the
\nBorrower and each Lender and the Agent hereby waive, to the extent permitted by
\nlaw, trial by jury in connection with any such litigation.<\/p>\n
The Borrower, the Agent and the Lenders believe that, inasmuch as this
\nAgreement and the transactions contemplated hereby have been entered into and
\nconsummated outside the State of Alabama, such transactions constitute
\ntransactions in interstate commerce, so that neither the Agent nor any of the
\nLenders is required, solely by entering into this Agreement and consummating the<\/p>\n
94<\/p>\n
transactions contemplated hereby, to qualify to do business as a foreign
\ncorporation within the State of Alabama. Notwithstanding the foregoing, however,
\nthe Borrower hereby irrevocably waives all rights that it may have to raise, in
\nany action brought by any of the Lenders or the Agent to enforce the rights of
\nthe Lenders and the Agent hereunder or under any of the other Loan Documents, or
\nthe obligations of the Borrower hereunder or thereunder, any defense which is
\nbased upon the failure of any of the Lenders or the Agent to qualify to do
\nbusiness as a foreign corporation in the State of Alabama, including, but not
\nlimited to, any defenses based upon ss. 232 of the Alabama Constitution of 1901,
\nss. 10-2B-15.01 of the Code of Alabama (1975) or ss. 40-14-4 of the Code of
\nAlabama (1975), or any successor provision to any thereof. The foregoing waiver
\nis made knowingly and voluntarily and is a material inducement for the Agent and
\nthe Lenders to enter into the transactions contemplated by this Agreement or any
\nof the other Loan Documents.<\/p>\n
11.10. Termination. The termination of this Agreement shall not affect
\nany rights of the Borrower, the Lenders or the Agent or any obligation of the
\nBorrower, the Lenders or the Agent, arising prior to the effective date of such
\ntermination, and the provisions hereof shall continue to be fully operative
\nuntil all transactions entered into or rights created or obligations incurred
\nprior to such termination have been fully disposed of, concluded or liquidated
\nand the Obligations arising prior to or after such termination have been
\nirrevocably paid in full. The rights granted to the Agent for the benefit of the
\nLenders hereunder and under the other Loan Documents shall continue in full
\nforce and effect, notwithstanding the termination of this Agreement, until all
\nof the Obligations have been paid in full after the termination hereof or the
\nBorrower has furnished the Lenders and the Agent with an indemnification
\nsatisfactory to the Agent and each Lender with respect thereto. All
\nrepresentations, warranties, covenants, waivers and agreements contained herein
\nshall survive termination hereof until payment in full of the Obligations unless
\notherwise provided herein. Notwithstanding the foregoing, if after receipt of
\nany payment of all or any part of the Obligations, any Lender is for any reason
\ncompelled to surrender such payment to any Person because such payment is
\ndetermined to be void or voidable as a preference, impermissible setoff, a
\ndiversion of trust funds or for any other reason, this Agreement shall continue
\nin full force and the Borrower shall be liable to, and shall indemnify and hold
\nsuch Lender harmless for, the amount of such payment surrendered until such
\nLender shall have been finally and irrevocably paid in full. The provisions of
\nthe foregoing sentence shall be and remain effective notwithstanding any
\ncontrary action which may have been taken by the Lenders in reliance upon such
\npayment, and any such contrary action so taken shall be without prejudice to the
\nLenders’ rights under this Agreement and shall be deemed to have been
\nconditioned upon such payment having become final and irrevocable.<\/p>\n
95<\/p>\n
11.11. Governing Law. All documents executed pursuant to the
\ntransactions contemplated herein, including, without limitation, this Agreement
\nand each of the other Loan Documents shall be deemed to be contracts made under,
\nand for all purposes shall be construed in accordance with, the internal laws
\nand judicial decisions of the State of North Carolina. The Borrower hereby
\nsubmits to the jurisdiction and venue of the state and federal courts of North
\nCarolina for the purposes of resolving disputes hereunder or arising out of the
\ntransaction contemplated hereby or for the purposes of collection.<\/p>\n
11.12. Indemnification. In consideration of the execution and delivery
\nof this Agreement by the Agent and each Lender and the extension of the
\nCommitments, and so long as the Agent and Lenders have fulfilled their
\nobligations hereunder, the Borrower hereby indemnifies, exonerates and holds
\nfree and harmless the Agent and each Lender and each of their respective
\nofficers, directors, employees, affiliates and agents (collectively, the
\n“Indemnified Parties”) from and against any and all actions, causes of action,
\nclaims, suits, losses, costs, liabilities and damages, and expenses incurred in
\nconnection therewith (irrespective of whether any such Indemnified Party is a
\nparty to the action for which indemnification hereunder is sought), including
\nreasonable attorneys’ fees and disbursements (collectively, the “Indemnified
\nLiabilities”), incurred by the Indemnified Parties or any of them as a result
\nof, or arising out of, or relating to, any of the following:<\/p>\n
(a) any transaction financed or to be financed in whole or in
\n part, directly or indirectly, with the proceeds of any Loan or
\n supported by any Letter of Credit;<\/p>\n
(b) the entering into and performance of this Agreement and
\n any other Loan Document by any of the Indemnified Parties;<\/p>\n
(c) provided Lenders have no ownership interest in real
\n property of Borrower, any investigation, litigation or proceeding
\n related to any environmental cleanup, audit, compliance or other matter
\n relating to the protection of the environment or the release by the
\n Borrower or any of its Subsidiaries or Controlled Partnerships of any
\n hazardous waste material; or<\/p>\n
(d) provided Lenders have no ownership interest in real
\n property of Borrower, the presence on or under, or the escape, seepage,
\n leakage, spillage, discharge, emission, discharging or releases from
\n any real property owned or operated by the Borrower or any Subsidiary
\n or Controlled Partnership of any hazardous waste material (including
\n any losses, liabilities, damages, injuries, costs, expenses or claims
\n asserted or arising under any environmental laws), regardless of
\n whether caused by, or within the control of, the Borrower or such
\n Subsidiary or Controlled Partnerships,<\/p>\n
96<\/p>\n
except for any such Indemnified Liabilities arising for the account of
\n a particular Indemnified Party by reason of the relevant Indemnified
\n Party’s negligence or willful misconduct, and if and to the extent that
\n the foregoing undertaking may be unenforceable for any reason, the
\n Borrower hereby agrees to make the maximum contribution to the payment
\n and satisfaction of each of the Indemnified Liabilities which is
\n permissible under applicable law. The agreements in this Section 11.12
\n shall survive the Facility Termination Date.<\/p>\n
11.13. Agreement Controls. In the event that any term of any of the
\nLoan Documents other than this Agreement conflicts with any term of this
\nAgreement, the terms and provisions of this Agreement shall control.<\/p>\n
11.14. Integration. This Agreement and the other Loan Documents
\nrepresent the final agreement between the parties as to the subject matter
\nhereof or thereof and may not be contradicted by evidence of prior,
\ncontemporaneous, or subsequent oral agreements of the parties. There are no oral
\nagreements between the parties.<\/p>\n
11.15. Successors and Assigns. This Agreement shall be binding upon and
\nshall inure to the benefit of the parties hereto and their respective successors
\nand assigns; provided, however, that the Borrower may not assign or transfer its
\nrights or obligations hereunder without the prior written consent of the Agent
\nand all Lenders. The Agent and the Lenders may assign or transfer their interest
\nhereunder but only as provided herein.<\/p>\n
11.16. Severability. If any provision of this Agreement or the other
\nLoan Documents shall be determined to be illegal or invalid as to one or more of
\nthe parties hereto, then such provision shall remain in effect with respect to
\nall parties, if any, as to whom such provision is neither illegal nor invalid,
\nand in any event all other provisions hereof shall remain effective and binding
\non the parties hereto.<\/p>\n
11.17. Usury Savings Clause. Notwithstanding any other provision
\nherein, the aggregate interest rate charged under any of the Notes, including
\nall charges or fees in connection therewith deemed in the nature of interest
\nunder North Carolina law, shall not exceed the Highest Lawful Rate (as such term
\nis defined below). If the rate of interest (determined without regard to the
\npreceding sentence) under this Agreement at any time exceeds the Highest Lawful
\nRate (as defined below), the outstanding amount of the Loans made hereunder
\nshall bear interest at the Highest Lawful Rate until the total amount of
\ninterest due hereunder equals the amount of interest which would have been due
\nhereunder if the stated rates of interest set forth in this Agreement had at all
\ntimes been in effect. In addition, if when the Loans made hereunder are repaid
\nin full the total interest due hereunder (taking into account the increase
\nprovided for above) is less than the total amount of interest which would have
\nbeen due hereunder if the stated rates of<\/p>\n
97<\/p>\n
interest set forth in this Agreement had at all times been in effect, then to
\nthe extent permitted by law, the Borrower shall pay to the Agent an amount equal
\nto the difference between the amount of the interest paid and the amount of
\ninterest which would have been paid if the Highest Lawful Rate had at all times
\nbeen in effect. Notwithstanding the foregoing, it is the intention of the
\nLenders and the Borrower to conform strictly to any applicable usury laws.
\nAccordingly, if any Lender contracts for, charges, or receives any consideration
\nwhich constitutes interest in excess of the Highest Lawful Rate, then any such
\nexcess shall be canceled automatically and, if previously paid, shall at such
\nLender’s option be applied to the outstanding amount of the Loans made hereunder
\nor be refunded to the Borrower. As used in this paragraph, the term “Highest
\nLawful Rate” means, as to any Lender, the maximum lawful interest rate, if any,
\nthat at any time or from time to time may be contracted for, charged, or
\nreceived under the laws applicable to such Lender which are presently in effect
\nor, to the extent allowed by law, under such applicable laws which may hereafter
\nbe in effect and which allow a higher maximum nonusurious interest rate than
\napplicable laws now allow.<\/p>\n
98<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
\nbe made, executed and delivered by their duly authorized officers as of the day
\nand year first above written.<\/p>\n
HEALTHSOUTH CORPORATION
\nWITNESS:<\/p>\n
\/s\/ WILLIAM W. HORTON
\n—————————– By: \/s\/ MICHAEL D. MARTIN
\n\/s\/ TERRY L. SCAGGS ——————————
\n—————————– Name: Michael D. Martin
\n Title: Senior Vice President and
\n Treasurer<\/p>\n
99<\/p>\n
NATIONSBANK N.A.,
\n as Agent for the Lenders<\/p>\n
By: \/s\/ DOUGLAS E. COLTHARP
\n ——————————-
\n Name: Douglas E. Coltharp
\n Title: Senior Vice President<\/p>\n
COMMITMENT: NATIONSBANK, N.A.
\n$70,000,000<\/p>\n
By: \/s\/ DOUGLAS E. COLTHARP
\n Name: Douglas E. Coltharp
\n Title: Senior Vice President<\/p>\n
Lending Office:
\n 100 South Tryon Street
\n Charlotte, North Carolina 28255<\/p>\n
Wire Transfer Instructions:
\n NationsBank, N.A.
\n Charlotte, North Carolina
\n ABA #053000196
\n Reference: HEALTHSOUTH
\n Corporation
\n Attention: Agency Services<\/p>\n
100<\/p>\n
COMMITMENT: THE BANK OF NOVA SCOTIA
\n$55,000,000<\/p>\n
By: \/s\/ DANA MALONEY
\n ——————————
\n Name: Dana Maloney
\n Title: Relationship Manager<\/p>\n
Lending Office:
\n 600 Peachtree Street, N.E.
\n Suite 2700
\n Atlanta, Georgia 30308<\/p>\n
Wire Transfer Instructions:
\n The Bank of Nova Scotia
\n New York Agency, for further
\n credit to BNS-Atlanta Agency
\n New York, New York
\n ABA #026002532
\n Account #0606634
\n Attention: Houston-Atlanta Team
\n Reference: HEALTHSOUTH<\/p>\n
101<\/p>\n
COMMITMENT: FIRST UNION NATIONAL BANK OF
\n$55,000,000 NORTH CAROLINA<\/p>\n
By: \/s\/ JOSEPH H. TOWELL
\n ———————————
\n Name: Joseph H. Towell
\n Title: Senior Vice President<\/p>\n
Lending Office:
\n One First Union Plaza
\n Charlotte, North Carolina 28288<\/p>\n
Wire Transfer Instructions:
\n First Union National Bank of
\n North Carolina
\n Charlotte, North Carolina
\n ABA #053000219
\n Account #465906 0001802
\n Reference: HEALTHSOUTH
\n Attention: Sue Patterson<\/p>\n
102<\/p>\n
COMMITMENT: TORONTO DOMINION (TEXAS), INC.
\n$55,000,000<\/p>\n
By: \/s\/ LISA ALLISON
\n ————————–
\n Name: Lisa Allison
\n Title: Vice President<\/p>\n
Lending Office:
\n 909 Fannin Street, 17th
\n Floor
\n Houston, Texas 77010<\/p>\n
Wire Transfer Instructions:
\n The Toronto Dominion Bank
\n ABA #0260003243
\n Favor: TD Houston
\n Account #2159251
\n Reference: HEALTHSOUTH
\n Attention: Lisa Allison<\/p>\n
103<\/p>\n
COMMITMENT: WACHOVIA BANK OF GEORGIA, N.A.
\n$55,000,000<\/p>\n
By: \/s\/ LEIF MURPHY
\n ————————
\n Name: Leif Murphy
\n Title: Banking Officer<\/p>\n
Lending Office:
\n 191 Peachtree Street, N.E.
\n Atlanta, Georgia 30303<\/p>\n
Wire Transfer Instructions:
\n Wachovia Bank of Georgia
\n Atlanta, Georgia
\n ABA #061000010
\n Account #18-800-621
\n Attention: Becky Creel<\/p>\n
104<\/p>\n
COMMITMENT: AMSOUTH BANK OF ALABAMA
\n$55,000,000<\/p>\n
By: \/s\/ WILLIAM P. BARNES
\n ————————-
\n Name: William P. Barnes
\n Title: Vice President<\/p>\n
Lending Office:
\n 1900 5th Avenue North
\n Birmingham, Alabama 35203<\/p>\n
Wire Transfer Instructions:
\n AmSouth Bank of Alabama
\n Birmingham, Alabama
\n ABA #062000019
\n Reference:Account #50214357
\n HEALTHSOUTH
\n Attention: Jane Dainas<\/p>\n
105<\/p>\n
COMMITMENT: BANK OF TOKYO-MITSUBISHI LTD.,
\n$55,000,000 ATLANTA AGENCY<\/p>\n
By: \/s\/ NATHANIEL W. LEA
\n ——————————
\n Name: Nathaniel W. Lea
\n Title: Banking Officer<\/p>\n
Lending Office:
\n Atlanta Agency<\/p>\n
——————————-<\/p>\n
Wire Transfer Instructions:<\/p>\n
———————————<\/p>\n
———————————<\/p>\n
ABA #
\n ———————
\n Reference:
\n ———————–
\n Attention:
\n ———————–<\/p>\n
106<\/p>\n
COMMITMENT: DEUTSCHE BANK AG, NEW YORK AND\/OR
\n$55,000,000 CAYMAN ISLANDS BRANCHES<\/p>\n
By: \/s\/ STEPHEN A. WIEDEMANN
\n ——————————
\n Name: Stephen A. Weidemann
\n Title: Vice President<\/p>\n
By: \/s\/ DAPHNE K. LEE
\n —————————–
\n Name: Daphne K. Lee
\n Title: Assistant Vice President<\/p>\n
Lending Office:
\n 31 W. 52nd Street
\n New York, New York 10019<\/p>\n
Wire Transfer Instructions:
\n Deutsche Bank AG
\n New York, New York 10019
\n ABA #026003780
\n Reference: HEALTHSOUTH
\n Account #0479733<\/p>\n
107<\/p>\n
COMMITMENT: THE INDUSTRIAL BANK OF JAPAN,
\n$55,000,000 LIMITED<\/p>\n
By: \/s\/ JUNRI ODA
\n —————————–
\n Name: Junri Oda
\n Title: Senior Vice President
\n and Senior Manager<\/p>\n
Lending Office:
\n New York Branch
\n 245 Park Avenue
\n New York, New York 10167<\/p>\n
Wire Transfer Instructions:
\n Industrial Bank of Japan, Limited,
\n New York Branch
\n ABA #026008345
\n Reference: HEALTHSOUTH Corporation
\n Attention: Credit Administration<\/p>\n
108<\/p>\n
COMMITMENT: PNC BANK, KENTUCKY, INC.
\n$55,000,000<\/p>\n
By: \/s\/ TODD D. MUNSON
\n ——————————
\n Name: Todd D. Munson
\n Title: Vice President<\/p>\n
Lending Office:
\n 500 West Jefferson Street
\n Louisville, Kentucky 40202<\/p>\n
Wire Transfer Instructions:
\n PNC Bank, Kentucky, Inc.
\n Louisville, Kentucky
\n ABA #083-000-108
\n Account #3000990597
\n Reference: HEALTHSOUTH
\n Attention: Margie Pate<\/p>\n
109<\/p>\n
COMMITMENT: COOPERATIEVE CENTRALE RAIFFEISEN-
\n$55,000,000 BOERENLEENBANK B.A.,
\n “RABOBANK NEDERLAND”, NEW YORK BRANCH<\/p>\n
By: \/s\/ TERRELL BOYLE
\n ——————————
\n Name: Terrell Boyle
\n Title: Vice President<\/p>\n
By: \/s\/ W. JEFFREY VOLLACK
\n ——————————
\n Name: W. Jeffrey Vollack
\n Title: Vice President, Manager<\/p>\n
Lending Office:
\n 245 Park Avenue
\n New York, New York 10167
\n Attention: Corporate Services
\n Dept.
\n Telephone: 212-917-7800
\n Fax: 212-818-0233<\/p>\n
Wire Transfer Instructions:
\n Bank of New York
\n New York, New York
\n ABA #021000018
\n For the account of RaboBank
\n Account #8026002533
\n Reference: HEALTHSOUTH<\/p>\n
110<\/p>\n
COMMITMENT: CREDIT LYONNAIS, NEW YORK BRANCH
\n$55,000,000<\/p>\n
By: \/s\/ FARBOUD TAVANGER
\n ——————————
\n Name: Farboud Tavanger
\n Title: Vice President<\/p>\n
Lending Office:<\/p>\n
———————————<\/p>\n
———————————<\/p>\n
Wire Transfer Instructions:<\/p>\n
———————————<\/p>\n
———————————<\/p>\n
ABA #
\n ———————
\n Reference:
\n ———————–
\n Attention:
\n ———————–<\/p>\n
111<\/p>\n
COMMITMENT: MELLON BANK, N.A.
\n$55,000,000<\/p>\n
By: \/s\/ MICHAEL R. ZAKSHESKE
\n ——————————
\n Name: Michael R. Zaksheske
\n Title: Vice President<\/p>\n
Lending Office:
\n 2 Mellon Bank Center
\n Room 152-0270
\n Pittsburgh, Pennsylvania 15259<\/p>\n
Wire Transfer Instructions:
\n Mellon Bank, N.A.
\n Pittsburgh, Pennsylvania 15259
\n ABA #0430-0026-1
\n Account #990873800
\n Attention: Christine Bissell
\n Reference: HEALTHSOUTH Corp.<\/p>\n
112<\/p>\n
COMMITMENT: BANKERS TRUST COMPANY
\n$55,000,000<\/p>\n
By: \/s\/ ROBERT R. TELESCA
\n ——————————
\n Name: Robert P. Telesca
\n Title: Assistant Vice President<\/p>\n
Lending Office:
\n 1 Bankers Trust Plaza
\n 130 Liberty Street
\n New York, New York 10006<\/p>\n
Wire Transfer Instructions:
\n Bankers Trust Company
\n New York, New York 10006
\n ABA #021-001-033
\n Reference: HEALTHSOUTH
\n Attention: Commercial Loan
\n Division<\/p>\n
113<\/p>\n
COMMITMENT: LTCB TRUST COMPANY
\n$37,500,000<\/p>\n
By: \/s\/ SATORU OTSUBO
\n ——————————
\n Name: Satoru Otsubo
\n Title: Executive Vice President<\/p>\n
Lending Office:
\n 165 Broadway
\n New York, New York 10006<\/p>\n
Wire Transfer Instructions:
\n Bankers Trust Company
\n ABA #021001033
\n Name of Account: LTCB Trust
\n Company
\n Account #04-203-606<\/p>\n
114<\/p>\n
COMMITMENT: NATIONAL CITY BANK, KENTUCKY
\n$37,500,000<\/p>\n
By: \/s\/ RODERIC M. BROWN
\n ——————————
\n Name: Roderic M. Brown
\n Title: Vice President<\/p>\n
Lending Office:
\n 101 S. Fifth Street
\n Louisville, Kentucky 40202<\/p>\n
Wire Transfer Instructions:
\n National City Bank, Kentucky
\n Louisville, Kentucky
\n ABA #0830-0005-6
\n Reference: HEALTHSOUTH
\n Attention: Sandy Walker<\/p>\n
115<\/p>\n
COMMITMENT: ABN AMRO BANK N.V., ATLANTA AGENCY
\n$37,500,000
\n By: ABN AMRO NORTH AMERICA, INC.,
\n as Agent<\/p>\n
By: \/s\/ W. PAT FISCHER
\n ——————————
\n Name: W. Pat Fischer
\n Title: Senior Vice President
\n and Managing Director<\/p>\n
By: \/s\/ MICHIEL VAN CRANENBURGH
\n ——————————
\n Name: Michiel Van Cranenburgh
\n Title: Assistant Vice President<\/p>\n
Lending Office:
\n One Ravinia Drive, Suite 1200
\n Atlanta, Georgia 30346<\/p>\n
Wire Transfer Instructions:
\n Federal Reserve Bank
\n New York, New York
\n ABA #0260-09580
\n Further credit to: ABN AMRO
\n Bank N.V., Atlanta Branch
\n Account #651-0-010197-41
\n Reference: HEALTHSOUTH<\/p>\n
116<\/p>\n
COMMITMENT: FLEET NATIONAL BANK
\n$37,500,000<\/p>\n
By: \/s\/ GINGER STOLZENTHALER
\n ——————————
\n Name: Ginger Stolzenthaler
\n Title: Vice President<\/p>\n
Lending Office:
\n 75 State Street
\n Boston, Massachusetts 02109<\/p>\n
Wire Transfer Instructions:
\n Fleet National Bank
\n Boston, Massachusetts
\n ABA #011-000-138
\n Account #1510351
\n For credit to Commercial Loan
\n Services
\n Attention: Agent Bank
\n Department<\/p>\n
117<\/p>\n
COMMITMENT: THE BANK OF NEW YORK
\n$37,500,000<\/p>\n
By: \/s\/ ALAN F. LYSTER, JR.
\n ——————————
\n Name: Alan F. Lyster, Jr.
\n Title: Vice President<\/p>\n
Lending Office:
\n One Wall Street, 22nd Floor
\n New York, New York 10286<\/p>\n
Wire Transfer Instructions:
\n The Bank of New York
\n Commercial Loan Department
\n New York, New York
\n ABA #021000018
\n CLA #111556
\n Attention: Lorna O. Alleyne<\/p>\n
118<\/p>\n
COMMITMENT: THE DAI-ICHI KANGYO BANK, LIMITED,
\n$37,500,000 ATLANTA AGENCY<\/p>\n
By: \/s\/ TOSHIAKI KURIHARA
\n ———————————
\n Name: Toshiaki Kurihara
\n Title: Joint General Manager<\/p>\n
Lending Office:
\n Marquis Two Tower, Suite 2400
\n 285 Peachtree Center Avenue, N.E.
\n Atlanta, Georgia 30303<\/p>\n
Wire Transfer Instructions:
\n The Dai-Ichi Kangyo Bank, Ltd.
\n New York, New York
\n ABA #0260 0430 7
\n For credit to DKB-Atlanta Agency
\n Account #H79-740-111250
\n Reference: HEALTHSOUTH<\/p>\n
119<\/p>\n
COMMITMENT: UNION BANK OF CALIFORNIA, N.A.
\n$20,000,000<\/p>\n
By: \/s\/ WILLIAM SWIONTEK
\n ——————————
\n Name: William Swiontek
\n Title: Vice President<\/p>\n
Lending Office:
\n 550 S. Hope Street, 3rd Floor
\n Los Angeles, California 90071<\/p>\n
Wire Transfer Instructions:
\n The Bank of California
\n Los Angeles, California 90071
\n ABA #121000015
\n Reference: HEALTHSOUTH
\n Account #001 060 235
\n Attention: Hisaki Sakamoto<\/p>\n
120<\/p>\n
COMMITMENT: CREDITANSTALT CORPORATE FINANCE, INC.
\n$20,000,000<\/p>\n
By: \/s\/ JOE LONGOSZ
\n ——————————
\n Name: Joe Longosz
\n Title: Vice President<\/p>\n
By: \/s\/ SCOTT KRAY
\n ——————————
\n Name: Scott Kray
\n Title: Senior Associate<\/p>\n
Lending Office:
\n Two Ravinia Drive, Suite 1680
\n Atlanta, Georgia 30346<\/p>\n
Wire Transfer Instructions:
\n Chemical Bank
\n New York, New York
\n ABA #021000128
\n Account: Creditanstalt, New York
\n Account #544-7-73095<\/p>\n
121<\/p>\n
COMMITMENT: FIRST AMERICAN NATIONAL BANK
\n$20,000,000<\/p>\n
By: \/s\/ NEDDA M. POLLACK
\n ——————————
\n Name: Nedda M. Pollack
\n Title: Senior Vice President<\/p>\n
Lending Office:
\n 300 Union Street, 2nd Floor
\n Nashville, Tennessee 37237-0203<\/p>\n
Wire Transfer Instructions:
\n First American National Bank
\n Nashville, Tennessee 37237-0203
\n ABA #064000017
\n Account #0901256
\n Attention: Betsy Pylkos<\/p>\n
122<\/p>\n
COMMITMENT: FUJI BANK
\n$20,000,000<\/p>\n
By: \/s\/ TOSHIHIRO MITSUI
\n ———————————–
\n Name: Toshihiro Mitsui
\n Title: Vice President and Manager<\/p>\n
Lending Office:
\n Atlanta Agency<\/p>\n
Wire Transfer Instructions:
\n The Fuji Bank, Limited
\n New York Agency
\n ABA #026009700
\n Account: The Fuji Bank, Ltd., Atlanta
\n Attention: ____________________<\/p>\n
123<\/p>\n
COMMITMENT: HIBERNIA NATIONAL BANK
\n$20,000,000<\/p>\n
By: \/s\/ COLLEEN LACY
\n ——————————
\n Name: Colleen Lacy
\n Title: Vice President<\/p>\n
Lending Office:
\n 313 Carondelet Street
\n New Orleans, Louisiana 70130<\/p>\n
Wire Transfer Instructions:
\n Hibernia National Bank
\n New Orleans, Louisiana
\n ABA #065000090
\n Account #0520-36615
\n National Accounts
\n Reference: HEALTHSOUTH
\n Attention: ____________________<\/p>\n
124<\/p>\n
COMMITMENT: THE SANWA BANK LIMITED, ATLANTA
\n$20,000,000 AGENCY<\/p>\n
By: \/s\/ WILLIAM M. PLOUGH
\n ———————————
\n Name: William M. Plough
\n Title: Vice President<\/p>\n
Lending Office:
\n 133 Peachtree Street, N.E.
\n Suite 4750
\n Atlanta, Georgia 30303<\/p>\n
Wire Transfer Instructions:
\n The Sanwa Bank Limited
\n New York, New York
\n ABA #026009823
\n Account #999669
\n For the account of Atlanta
\n Reference: HEALTHSOUTH<\/p>\n
125<\/p>\n
COMMITMENT: THE SUMITOMO BANK, LIMITED
\n$20,000,000<\/p>\n
By: \/s\/ E. B. BUCHANAN, III
\n ——————————
\n Name: E. B. Buchanan, III
\n Title: Vice President<\/p>\n
Lending Office:
\n 303 Peachtree Street, Suite 4420
\n Atlanta, Georgia 30308<\/p>\n
Wire Transfer Instructions:
\n The Sumitomo Bank, Ltd.
\n Chicago, Illinois 60606
\n ABA #071001850
\n Reference: HEALTHSOUTH
\n Attention: Maria Martinez<\/p>\n
126<\/p>\n
COMMITMENT: KREDIETBANK, N.V.
\n$20,000,000<\/p>\n
By: \/s\/ ROBERT SHAUFFER
\n ——————————
\n Name: Robert Shauffer
\n Title: Vice President<\/p>\n
Lending Office:
\n 1349 W. Peachtree Street
\n Suite 1750
\n Atlanta, Georgia 30309<\/p>\n
Wire Transfer Instructions:
\n Bank of New York
\n New York, New York
\n ABA #021-000-018
\n Account #802 301 5618
\n Account Name: Kredietbank
\n New York
\n Reference: HEALTHSOUTH
\n Attention: Lynda Resuma,
\n Loan Administration<\/p>\n
127<\/p>\n
COMMITMENT: THE SAKURA BANK, LIMITED
\n$20,000,000 ATLANTA AGENCY<\/p>\n
By: \/s\/ HIROYASU IMANISHI
\n ——————————
\n Name: Hiroyasu Imanishi
\n Title: Vice President
\n and Senior Manager<\/p>\n
Lending Office:
\n 245 Peachtree Center Ave, N.E.
\n Suite 2703
\n Atlanta, Georgia 30303<\/p>\n
Wire Transfer Instructions:
\n Morgan Guaranty Trust Co.
\n of New York
\n New York, New York
\n ABA #021 000 238
\n Account Name: The Sakura Bank,
\n Ltd., New York
\n Account #631-22-624
\n In favor of MTKB, Atlanta,
\n A\/C 8000100-1<\/p>\n
128<\/p>\n
COMMITMENT: THE SUMITOMO TRUST AND BANKING CO.,
\n$20,000,000 LTD.<\/p>\n
By: \/s\/ SURAJ P. BHATIA
\n ——————————
\n Name: Suraj P. Bhatia
\n Title: Senior Vice President<\/p>\n
Lending Office:
\n 527 Madison Avenue
\n New York, New York 10022<\/p>\n
Wire Transfer Instructions:
\n Chase Manhattan Bank
\n New York, New York
\n ABA #021-000-021
\n Account #920-1-061497
\n For account of Sumitomo Trust
\n and Banking Co., Ltd.<\/p>\n
129<\/p>\n
COMMITMENT: SUNTRUST BANK, NASHVILLE, N.A.
\n$20,000,000<\/p>\n
By: \/s\/ KAREN COLE AHERN
\n ——————————
\n Name: Karen Cole Ahern
\n Title: Vice President<\/p>\n
Lending Office:
\n 201 4th Avenue, North
\n Nashville, Tennessee 37219<\/p>\n
Wire Transfer Instructions:
\n SunTrust Bank, Nashville, N.A.
\n Nashville, Tennessee 37219
\n ABA #064000046
\n Reference: HEALTHSOUTH
\n Account #170730-0998
\n Attention: Leigh Anne Gregory<\/p>\n
130<\/p>\n
COMMITMENT: THE TOKAI BANK, LTD., ATLANTA AGENCY
\n$20,000,000<\/p>\n
By: \/s\/ ELICHI FUJIHIRA
\n ——————————
\n Name: Elichi Fujihira
\n Title: General Manager<\/p>\n
Lending Office:
\n 285 Peachtree Center Avenue, N.E.
\n Marquis II Tower, Suite 2802
\n Atlanta, Georgia 30303<\/p>\n
Wire Transfer Instructions:
\n The Tokai Bank, Ltd.
\n New York, New York
\n ABA #026-004-747
\n For account of The Tokai
\n Bank, Ltd., Atlanta Agency
\n Account #08961<\/p>\n
131<\/p>\n
EXHIBIT A<\/p>\n
Applicable Commitment Percentages<\/p>\n
Lender Revolving Line of Applicable
\n—— Credit Credit Commitment
\n Commitment Commitment Percentage
\n ———- ———————-<\/p>\n
NationsBank, National
\nAssociation $ 50,400,000 $ 19,600,000 5.60%<\/p>\n
The Bank of Nova Scotia 39,600,000 15,400,000 4.40<\/p>\n
First Union National
\nBank of North Carolina 39,600,000 15,400,000 4.40<\/p>\n
Toronto Dominion (Texas),
\nInc. 39,600,000 15,400,000 4.40<\/p>\n
Wachovia Bank of Georgia,
\nN.A. 39,600,000 15,400,000 4.40<\/p>\n
AmSouth Bank of Alabama 39,600,000 15,400,000 4.40<\/p>\n
Bank of Tokyo-Mitsubishi
\nLtd., Atlanta Agency 39,600,000 15,400,000 4.40<\/p>\n
Deutsche Bank AG, New York
\nand\/or Cayman Islands Branches 39,600,000 15,400,000 4.40<\/p>\n
The Industrial Bank of
\nJapan, Limited 39,600,000 15,400,000 4.40<\/p>\n
PNC Bank, Kentucky, 39,600,000 15,400,000 4.40
\nInc.<\/p>\n
Cooperatieve Centrale
\nRaiffeisen-Boerenleenbank
\nB.A., “Rabobank Nederland”,
\nNew York Branch 39,600,000 15,400,000 4.40<\/p>\n
Credit Lyonnais, New
\nYork Branch 39,600,000 15,400,000 4.40<\/p>\n
Mellon Bank, N.A. 39,600,000 15,400,000 4.40<\/p>\n
Bankers Trust Company 39,600,000 15,400,000 4.40<\/p>\n
LTCB Trust Company 27,000,000 10,500,000 3.00<\/p>\n
National City Bank,
\nKentucky 27,000,000 10,500,000 3.00<\/p>\n
A-1<\/p>\n
ABN AMRO Bank, N.V.,
\nAtlanta Agency 27,000,000 10,500,000 3.00<\/p>\n
Fleet National Bank 27,000,000 10,500,000 3.00<\/p>\n
The Bank of New York 27,000,000 10,500,000 3.00<\/p>\n
The Dai-Ichi Kangyo
\nBank, Limited Atlanta
\nAgency 27,000,000 10,500,000 3.00<\/p>\n
Union Bank of California,
\nN.A. 14,400,000 5,600,000 1.60<\/p>\n
Creditanstalt Corporate
\nFinance, Inc. 14,400,000 5,600,000 1.60<\/p>\n
First American National
\nBank 14,400,000 5,600,000 1.60<\/p>\n
Fuji Bank 14,400,000 5,600,000 1.60<\/p>\n
Hibernia National Bank 14,400,000 5,600,000 1.60<\/p>\n
The Sanwa Bank Limited,
\nAtlanta Agency 14,400,000 5,600,000 1.60<\/p>\n
The Sumitomo Bank,
\nLimited 14,400,000 5,600,000 1.60<\/p>\n
Kredietbank, N.V. 14,400,000 5,600,000 1.60<\/p>\n
The Sakura Bank,
\nLimited, Atlanta Agency 14,400,000 5,600,000 1.60<\/p>\n
The Sumitomo Trust and
\nBanking Co., Ltd. 14,400,000 5,600,000 1.60<\/p>\n
SunTrust Bank, Nashville,
\nN.A. 14,400,000 5,600,000 1.60<\/p>\n
The Tokai Bank, Ltd.,
\nAtlanta Agency 14,400,000 5,600,000 1.60
\n ————– ———— ——<\/p>\n
TOTALS $900,000,000 $350,000,000 100.00%<\/p>\n
A-2<\/p>\n
EXHIBIT B<\/p>\n
Form of Assignment and Acceptance<\/p>\n
DATED ,
\n ————– ——-<\/p>\n
Reference is made to the Third Amended and Restated Credit Agreement
\ndated as of April 18, 1996, as amended (the “Agreement”), among HEALTHSOUTH
\nCorporation, a Delaware corporation (the “Borrower”), the Lenders (as defined in
\nthe Agreement), and NationsBank, National Association, as Agent for the Lenders
\n(“Agent”). Unless otherwise defined herein, terms defined in the Agreement are
\nused herein with the same meanings.<\/p>\n
(the “Assignor”) and
\n —————————— ——————-
\n (the “Assignee”) agree as follows:
\n—————-<\/p>\n
1. The Assignor hereby sells and assigns to the Assignee, and the
\nAssignee hereby purchases and assumes from the Assignor, WITHOUT RECOURSE to the
\nAssignor, a _______% 1 interest in and to all of the Assignor’s rights and
\nobligations under the Agreement as of the Effective Date (as defined below),
\nincluding, without limitation, such percentage interest in the Loans owing to
\nthe Assignor on the Effective Date, and evidenced by the Revolving Note and Line
\nof Credit Note held by the Assignor and in Participations and the Letter of
\nCredit Commitment of the Assignor.<\/p>\n
2. The Assignor (i) represents and warrants that, as of the date
\nhereof, (A) the aggregate outstanding principal amounts of the Revolving Loans
\nowing to it (without giving effect to assignments thereof which have not yet
\nbecome effective) is $________ under a Revolving Note dated __________, 19__ in
\nthe principal amount of $_________, (B) the aggregate principal amount of Line
\nof Credit Loans owing to it (without giving effect to the assignments thereof
\nwhich have not yet become effective) is $__________ under a Line of Credit Note
\ndated ____________, 19__ in the principal amount of $_________ and (C) the
\naggregate principal amount of the Participations purchased by it in Letters of
\nCredit (without giving effect to the assignments thereof which have not yet
\nbecome effective) is $_________; (ii) represents and warrants that it is the
\nlegal and beneficial owner of the interest being assigned by it hereunder and
\nthat such interest is free and clear of any adverse claim created by it; (iii)
\nmakes no representation or warranty and assumes no responsibility with respect
\nto any statements, warranties or representations made in or in connection with
\nthe Agreement or any of the other Loan Documents or any other instrument or
\ndocument furnished pursuant thereto or the execution, legality, validity,
\nenforceability, genuineness, sufficiency or value of the Agreement or any of the
\nother Loan Documents or any
\n——–
\n 1 Specify percentage in no more than 8 decimal points.<\/p>\n
B-1<\/p>\n
other instrument or document furnished pursuant thereto; (iv) makes no
\nrepresentation or warranty and assumes no responsibility with respect to the
\nfinancial condition of the Borrower or any Subsidiary or the performance or
\nobservance by the Borrower or any Subsidiary of any of its obligations under any
\nof the Loan Documents or any other instrument or document furnished pursuant
\nthereto and (v) attaches hereto the Revolving Note and the Line of Credit Note,
\nas the case may be, referred to in paragraph 1 above and requests that the Agent
\nexchange such Notes for replacement Notes as follows: a Revolving Note dated
\n_____________, 19__ in the principal amount of $________________, and a Line of
\nCredit Note dated __________, 19__ in the principal amount of $__________ and a
\nCompetitive Bid Note dated ____________________, 19__ in the principal amount of
\n$_______________ each payable to the order of the Assignor, and a Revolving
\nNote, dated ______________________, 19__, in the principal amount of
\n$_________________ and a Line of Credit Note dated _________________________,
\n19___ in the principal amount of $_________________ and a Competitive Bid Note
\ndated _________________, 19___ in the amount of $____________, each payable to
\nthe order of the Assignee.<\/p>\n
3. The Assignee (i) confirms that it has received a copy of the
\nAgreement, together with copies of the financial statements referred to in
\nSection 7.1 thereof and such other documents and information as it has deemed
\nappropriate to make its own credit analysis and decision to enter into this
\nAssignment and Acceptance; (ii) agrees that it will, independently and without
\nreliance upon the Agent, the Assignor, or any other Lender and based on such
\ndocuments and information as it shall deem appropriate at the time, continue to
\nmake its own credit decisions in taking or not taking action under the
\nAgreement; (iii) appoints and authorizes the Agent to take such actions on its
\nbehalf and to exercise such powers under the Loan Documents as are delegated to
\nthe Agent by the terms thereof, together with such powers as are reasonably
\nincidental thereto; (iv) will perform all of the obligations which by the terms
\nof the Agreement are required to be performed by it as a Lender; and (v)
\nspecifies as its address for notices the office set forth beneath its name on
\nthe signature pages hereof.<\/p>\n
4. The effective date for this Assignment and Acceptance shall be
\n_____________________________ (the “Effective Date”). Following the execution of
\nthis Assignment and Acceptance, it will be delivered to the Agent for acceptance
\nand recording by the Agent.<\/p>\n
5. Upon such acceptance and recording, as of the Effective Date, (i)
\nthe Assignee shall be a party to the Agreement and, to the extent provided in
\nthis Assignment and Acceptance, have the rights and obligations of a Lender
\nthereunder and under the other Loan Documents and (ii) the Assignor shall, to
\nthe extent provided in this Assignment and Acceptance, relinquish its rights,
\nother than those set forth in Section 3.2(g), Article IV, Section 11.6<\/p>\n
B-2<\/p>\n
and Section 11.12 of the Agreement and be released from its obligations under
\nthe Agreement and the other Loan Documents.<\/p>\n
6. Upon such acceptance and recording, from and after the Effective
\nDate, the Agent shall make all payments under the Agreement and Notes in respect
\nof the interest assigned hereby (including, without limitation, all payments of
\nprincipal, interest, commitment fees and letter of credit fees with respect
\nthereto) to the Assignee. The Assignor and Assignee shall make all appropriate
\nadjustments in payments under the Agreement and the Notes for periods prior to
\nthe Effective Date directly between themselves.<\/p>\n
7. This Assignment and Acceptance shall be governed by and construed in
\naccordance with, the laws of the State of _________.<\/p>\n
[NAME OF ASSIGNOR]<\/p>\n
By:_______________________________________
\n Name:___________________________________
\n Title:__________________________________<\/p>\n
Notice Address:
\n —————————
\n —————————
\n —————————
\n After the Effective Date
\n Outstanding Revolving Loans:$_____________
\n Outstanding Linen of Credit
\n Loan: $___________
\n Outstanding LC
\n Participations: $___________<\/p>\n
[NAME OF ASSIGNEE]<\/p>\n
By:_______________________________________
\n Name:___________________________________
\n Title:__________________________________<\/p>\n
Notice Address\/Lending Office
\n —————————
\n —————————
\n —————————<\/p>\n
Wire transfer Instructions:
\n —————————
\n —————————
\n —————————<\/p>\n
After the Effective Date
\n Outstanding Revolving Loans:$_____________
\n Outstanding Line of Credit
\n Loans: $__________<\/p>\n
B-3<\/p>\n
Outstanding LC
\n Participations: $___________<\/p>\n
Accepted this ______ day of ________, 19__
\n NATIONSBANK, NATIONAL ASSOCIATION,
\n as Agent<\/p>\n
By:_______________________________________
\n Name:___________________________________
\n Title:__________________________________<\/p>\n
Consented to:<\/p>\n
HEALTHSOUTH Corporation<\/p>\n
By:____________________________________
\n Name:_______________________________
\n Title:______________________________<\/p>\n
B-4<\/p>\n
EXHIBIT C<\/p>\n
Notice of Appointment (or Revocation) of Authorized
\n Representative<\/p>\n
Reference is hereby made to the Third Amended and Restated Credit
\nAgreement dated as of April 18, 1996, as amended (the “Agreement”), among
\nHEALTHSOUTH Corporation, a Delaware corporation (the “Borrower”), the Lenders
\n(as defined in the Agreement), and NationsBank, National Association, as Agent
\nfor the Lenders (“Agent”). Capitalized terms used but not defined herein shall
\nhave the respective meanings therefor set forth in the Agreement.<\/p>\n
The Borrower hereby nominates, constitutes and appoints each individual
\nnamed below as an Authorized Representative under the Loan Documents, and hereby
\nrepresents and warrants that (i) set forth opposite each such individual’s name
\nis a true and correct statement of such individual’s office (to which such
\nindividual has been duly elected or appointed), a genuine specimen signature of
\nsuch individual and an address for the giving of notice, and (ii) each such
\nindividual has been duly authorized by the Borrower to act as Authorized
\nRepresentative under the Loan Documents:<\/p>\n
Name and Address Office Specimen Signature<\/p>\n
—————– ——————- ——————-
\n—————–
\n—————–<\/p>\n
—————– ——————- ——————–
\n—————–
\n—————–<\/p>\n
—————– ——————- ——————–
\n—————–
\n—————–<\/p>\n
Borrower hereby revokes (effective upon receipt hereof by the Agent) the prior
\nappointment of ________________ as an Authorized Representative.<\/p>\n
This the ___ day of __________________, 19__.<\/p>\n
HEALTHSOUTH Corporation<\/p>\n
By:____________________________
\n Name:__________________________
\n Title:_________________________<\/p>\n
C-1<\/p>\n
EXHIBIT D<\/p>\n
Form of Borrowing Notice<\/p>\n
To: NationsBank, National Association,
\n as Agent
\n Independence Center, 15th Floor
\n NC1-001-15-04
\n Charlotte, North Carolina 28255
\n Attention: Agency Services
\n Telefacsimile: (704) 386-9923<\/p>\n
Reference is hereby made to the Third Amended and Restated Credit
\nAgreement dated as of April 18, 1996, as amended (the “Agreement”), among
\nHEALTHSOUTH Corporation (the “Borrower”), the Lenders (as defined in the
\nAgreement), and NationsBank, National Association, as Agent for the Lenders
\n(“Agent”). Capitalized terms used but not defined herein shall have the
\nrespective meanings therefor set forth in the Agreement.<\/p>\n
The Borrower through its Authorized Representative hereby gives notice
\nto the Agent that Loans of the Type and amount set forth below be made on the
\ndate indicated:<\/p>\n
Class of Loan Type Loan Interest Aggregate
\n(check one) (check one) Period(1) Amount(2) Date of Loan(3)
\n———– ———– ——— ——— —————<\/p>\n
Revolving Base Rate
\nLoan ___ ___<\/p>\n
Line of Eurodollar
\nCredit Rate ___
\nLoan ___<\/p>\n
———————–<\/p>\n
(1) For any Eurodollar Rate Loan, one, two, three or six months.
\n(2) Must be $5,000,000 or if greater an integral multiple of $1,000,000.
\n(3) At least three (3) Business Days later if a Eurodollar Rate Loan;<\/p>\n
The Borrower hereby requests that the proceeds of Loans described in
\nthis Borrowing Notice be made available to the Borrower as follows: [insert
\n ——-
\ntransmittal instructions].
\n————————
\n The undersigned hereby certifies that:<\/p>\n
1. No Default or Event of Default exists either now or after giving
\neffect to the borrowing described herein; and<\/p>\n
D-1<\/p>\n
2. All the representations and warranties set forth in Article VI of
\nthe Agreement and in the other Loan Documents (other than those expressly stated
\nto refer to a particular date) are true and correct as of the date hereof except
\nthat the reference to the financial statements in Section 6.6(a) of the
\nAgreement are to those financial statements most recently delivered to you
\npursuant to Section 7.1 of the Agreement (it being understood that any financial
\nstatements delivered pursuant to Section 7.1(b) have not been certified by
\nindependent public accountants).<\/p>\n
3. All conditions contained in the Agreement to the making of any
\n Loan requested hereby have been met or satisfied in full .<\/p>\n
HEALTHSOUTH CORPORATION<\/p>\n
BY: ________________________________________
\n Authorized Representative<\/p>\n
DATE: ______________________________________<\/p>\n
D-2<\/p>\n
EXHIBIT E<\/p>\n
Form of Competitive Bid Note<\/p>\n
PROMISSORY NOTE<\/p>\n
$_____________1 April 18, 1996<\/p>\n
FOR VALUE RECEIVED, HEALTHSOUTH CORPORATION, a Delaware corporation
\n(the “Borrower”), hereby promises to pay to the order of
\n____________________________2 (the “Lender”), for account of its Applicable
\nLending Office provided for by the Credit Agreement referred to below, at the
\nprincipal office of NationsBank, N.A., One Independence Center, 101 North Tryon
\nStreet, NC1-001-15-04, Charlotte, North Carolina 28255 (or at such other place
\nor places as the Agent may designate in writing) at the times set forth in the
\nCredit Agreement (as herein defined), the aggregate unpaid principal amount of
\nthe Competitive Bid Loans made by the Lender to the Borrower under the Credit
\nAgreement, in lawful money of the United States of America and in immediately
\navailable funds, on the dates and in the principal amounts provided in the
\nCredit Agreement, and to pay interest on the unpaid principal amount of each
\nsuch Competitive Bid Loan, at such office, in like money and funds, for the
\nperiod commencing on the date of such Competitive Bid Loan until such
\nCompetitive Bid Loan shall be paid in full, at the rates per annum and on the
\ndates provided in the Credit Agreement.<\/p>\n
The date, amount, Type, interest rate and maturity date of each
\nCompetitive Bid Loan made by the Lender to the Borrower, and each payment made
\non account of the principal thereof, shall be recorded by the Borrower on its
\nbooks and, prior to any transfer of this Note, endorsed by the Borrower on the
\nschedule attached hereto or any continuation thereof, provided that the failure
\nof the Lender to make any such recordation or endorsement shall not affect the
\nobligations of the Borrower to make a payment when due of any amount owing under
\nthe Credit Agreement or hereunder in respect of the Competitive Bid Loans made
\nby the Lender.<\/p>\n
This Note is one of the Competitive Bid Notes referred to in the Third
\nAmended and Restated Credit Agreement dated as of April 18, 1996 (as modified
\nand supplemented from time to time, the “Credit Agreement”) among the Borrower,
\nthe Lenders named therein and NationsBank, N.A., as Agent, and evidences
\nCompetitive Bid Loans made by the Lender thereunder. Terms used but not defined
\nin this Note have the respective meanings assigned to them in the Credit
\nAgreement.<\/p>\n
———-
\n1 Insert the amount of Lender’s Revolving Credit Commitment.
\n2 Insert name of Lender in capital letters.<\/p>\n
E-1<\/p>\n
The Credit Agreement provides for the acceleration of the maturity of
\nthis Note upon the occurrence of certain events and for prepayments of
\nCompetitive Bid Loans upon the terms and conditions specified therein. In the
\nevent this Note is not paid when due at any stated or accelerated maturity, the
\nBorrower agrees to pay, in addition to the principal and interest, all costs of
\ncollection, including reasonable attorney’s fees.<\/p>\n
Except as permitted by Section 11.1 of the Credit Agreement, this Note
\nmay not be assigned by the Lender to any other Person.<\/p>\n
This Note shall be governed by, and construed in accordance with, the
\nlaw of the State of North Carolina.<\/p>\n
WITNESS: HEALTHSOUTH CORPORATION<\/p>\n
____________________________
\n By:________________________________
\n____________________________ Name:______________________________
\n Title:_____________________________<\/p>\n
E-2<\/p>\n
SCHEDULE OF COMPETITIVE BID LOANS<\/p>\n
This Note evidences Competitive Bid Loans made under the
\nwithin-described Credit Agreement to the Borrower, on the dates, in the
\nprincipal amounts, of the Types, bearing interest at the rates and maturing on
\nthe dates set forth below, subject to the payments and prepayments of principal
\nset forth below:<\/p>\n
Principal
\nDate Amount Type Maturity Amount Unpaid
\n of of of Interest Date of Paid or Principal Notation
\nLoan Loan Loan Rate Loan Prepaid Amount Made by
\n—- —- —- —- —- ——- —— ——-<\/p>\n
E-3<\/p>\n
EXHIBIT F<\/p>\n
Form of Interest Rate Selection Notice<\/p>\n
To: NationsBank, National Association
\n (Carolinas), as Agent
\n Independence Center, 15th Floor
\n NC1-001-15-04
\n Charlotte, North Carolina 28255
\n Attention: Agency Services
\n Telefacsimile: (704) 386-9923<\/p>\n
Reference is hereby made to the Third Amended and Restated Credit
\nAgreement dated as of April 18, 1996, as amended (the “Agreement”), among
\nHEALTHSOUTH Corporation (the “Borrower”), the Lenders (as defined in the
\nAgreement), and NationsBank, National Association, as Agent for the Lenders
\n(“Agent”). Capitalized terms used but not defined herein shall have the
\nrespective meanings therefor set forth in the Agreement.<\/p>\n
The Borrower through its Authorized Representative hereby gives notice
\nto the Agent of the following selection of a type of Loan [or Segment] and
\nInterest Period:<\/p>\n
Type of Loan Interest Aggregate Date of
\n(check one) Period(1) Amount(2) Conversion (3)
\n———– ——— ——— ————–<\/p>\n
Revolving Loan
\nBase Rate Loan ___<\/p>\n
Eurodollar Rate
\nLoan ___<\/p>\n
Line of Credit
\nLoan
\nBase Rate Loan ___<\/p>\n
Eurodollar Rate
\nLoan ___<\/p>\n
———————–<\/p>\n
(1) For any Eurodollar Rate Loan one, two, three or six months.
\n(2) Must be $5,000,000 or if greater an integral multiple of $1,000,000.
\n(3) At least three (3) Business Days later if a Eurodollar Rate Loan.<\/p>\n
HEALTHSOUTH Corporation<\/p>\n
BY: ________________________________
\n Authorized Representative
\n DATE: ______________________________<\/p>\n
F-1<\/p>\n
EXHIBIT G<\/p>\n
Form of Line of Credit Note<\/p>\n
Promissory Note
\n (Line of Credit Loan)<\/p>\n
$————–<\/p>\n
———, ————–<\/p>\n
April 18, 1996<\/p>\n
FOR VALUE RECEIVED, HEALTHSOUTH Corporation, a Delaware corporation
\nhaving its principal place of business located in Birmingham, Alabama (the
\n“Borrower”), hereby promises to pay to the order of<\/p>\n
_______________________________________________ (the “Lender”), in its
\nindividual capacity, at the office of NATIONSBANK, NATIONAL ASSOCIATION, as
\nagent for the Lenders (the “Agent”), located at One Independence Center, 101
\nNorth Tryon Street, NC1-001-15-04, Charlotte, North Carolina 28255 (or at such
\nother place or places as the Agent may designate in writing) at the times set
\nforth in the Third Amended and Restated Credit Agreement dated as of April 18,
\n1996 among the Borrower, the financial institutions party thereto, as amended
\n(collectively, the “Lenders”) and the Agent (the “Agreement” — all capitalized
\nterms not otherwise defined herein shall have the respective meanings set forth
\nin the Agreement), in lawful money of the United States of America, in
\nimmediately available funds, the principal amount of<\/p>\n
________________________________________ DOLLARS ($__________) or, if
\nless than such principal amount, the aggregate unpaid principal amount of all
\nLine of Credit Loans made by the Lender to the Borrower pursuant to the
\nAgreement, and to pay interest from the date hereof on the unpaid principal
\namount hereof, in like money, at said office, on the dates and at the rates
\nprovided in Article II of the Agreement. All or any portion of the principal
\namount of Line of Credit Loans may be prepaid as provided in the Agreement.<\/p>\n
If any amount payable under this Note is not paid when due, the then
\nremaining principal amount and accrued but unpaid interest shall bear interest
\nwhich shall be payable on demand at the rates per annum set forth in the proviso
\nto Section 2.3(a) of the Agreement. Further, in the event of such acceleration,
\nthis Line of Credit Note shall become immediately due and payable, without
\npresentment, demand, protest or notice of any kind, all of which are hereby
\nwaived by the Borrower.<\/p>\n
In the event this Line of Credit Note is not paid when due at any
\nstated or accelerated maturity, the Borrower agrees to pay, in addition to the
\nprincipal and interest, all costs of collection,<\/p>\n
G-1<\/p>\n
including reasonable attorneys’ fees, and interest due hereunder thereon at the
\nrates set forth above.<\/p>\n
Interest hereunder shall be computed as provided in the Agreement.<\/p>\n
This Line of Credit Note is one of the Line of Credit Notes referred to
\nin the Agreement and is issued pursuant to and entitled to the benefits of the
\nAgreement to which reference is hereby made for a more complete statement of the
\nterms and conditions upon which the Line of Credit Loans evidenced hereby were
\nor are made and are to be repaid. This Line of Credit Note is subject to certain
\nrestrictions on transfer or assignment as provided in the Agreement.<\/p>\n
All Persons bound on this obligation, whether primarily or secondarily
\nliable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
\nto the full extent permitted by law the benefits of all provisions of law for
\nstay or delay of execution or sale of property or other satisfaction of judgment
\nagainst any of them on account of liability hereon until judgment be obtained
\nand execution issues against any other of them and returned satisfied or until
\nit can be shown that the maker or any other party hereto had no property
\navailable for the satisfaction of the debt evidenced by this instrument, or
\nuntil any other proceedings can be had against any of them, also their right, if
\nany, to require the holder hereof to hold as security for this Line of Credit
\nNote any collateral deposited by any of said Persons as security. Protest,
\nnotice of protest, notice of dishonor, diligence, presentment or any other
\nformality are hereby waived by all parties bound hereon.<\/p>\n
G-2<\/p>\n
IN WITNESS WHEREOF, the Borrower has caused this Line of Credit Note to
\nbe made, executed and delivered by its duly authorized representative as of the
\ndate and year first above written, all pursuant to authority duly granted.<\/p>\n
HEALTHSOUTH Corporation<\/p>\n
WITNESS:<\/p>\n
______________________ By: _________________________________
\n______________________
\n Name: _______________________________
\n Title: ______________________________<\/p>\n
G-3<\/p>\n
EXHIBIT H<\/p>\n
Investments<\/p>\n
H-1<\/p>\n
EXHIBIT I<\/p>\n
Form of Revolving Note<\/p>\n
Promissory Note
\n (Revolving Loan)<\/p>\n
$————- ———, ————–<\/p>\n
April 18, 1996<\/p>\n
FOR VALUE RECEIVED, HEALTHSOUTH Corporation, a Delaware corporation
\nhaving its principal place of business located in Birmingham, Alabama (the
\n“Borrower”), hereby promises to pay to the order of<\/p>\n
_______________________________________________ (the “Lender”), in its
\nindividual capacity, at the office of NATIONSBANK, NATIONAL ASSOCIATION, as
\nagent for the Lenders (the “Agent”), located at One Independence Center, 101
\nNorth Tryon Street, NC1-001-15-04, Charlotte, North Carolina 28255 (or at such
\nother place or places as the Agent may designate in writing) at the times set
\nforth in the Third Amended and Restated Credit Agreement dated as of April 18,
\n1996 among the Borrower, the financial institutions party thereto, as amended
\n(collectively, the “Lenders”) and the Agent (the “Agreement” — all capitalized
\nterms not otherwise defined herein shall have the respective meanings set forth
\nin the Agreement), in lawful money of the United States of America, in
\nimmediately available funds, the principal amount of
\n ________________________________________ DOLLARS ($__________) or, if
\nless than such principal amount, the aggregate unpaid principal amount of all
\nRevolving Loans made by the Lender to the Borrower pursuant to the Agreement,
\nand to pay interest from the date hereof on the unpaid principal amount hereof,
\nin like money, at said office, on the dates and at the rates provided in Article
\nII of the Agreement. All or any portion of the principal amount of Revolving
\nLoans may be prepaid as provided in the Agreement.<\/p>\n
If any amount payable under this Note is not paid when due, the then
\nremaining principal amount and accrued but unpaid interest shall bear interest
\nwhich shall be payable on demand at the rates per annum set forth in the proviso
\nto Section 2.3(a) of the Agreement. Further, in the event of such acceleration,
\nthis Revolving Note shall become immediately due and payable, without
\npresentment, demand, protest or notice of any kind, all of which are hereby
\nwaived by the Borrower.<\/p>\n
In the event this Revolving Note is not paid when due at any stated or
\naccelerated maturity, the Borrower agrees to pay, in addition to the principal
\nand interest, all costs of collection, including reasonable attorneys’ fees, and
\ninterest due hereunder thereon at the rates set forth above.<\/p>\n
I-1<\/p>\n
Interest hereunder shall be computed as provided in the Agreement.<\/p>\n
This Revolving Note is one of the Revolving Notes referred to in the
\nAgreement and is issued pursuant to and entitled to the benefits of the
\nAgreement to which reference is hereby made for a more complete statement of the
\nterms and conditions upon which the Revolving Loans evidenced hereby were or are
\nmade and are to be repaid. This Revolving Note is subject to certain
\nrestrictions on transfer or assignment as provided in the Agreement.<\/p>\n
All Persons bound on this obligation, whether primarily or secondarily
\nliable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
\nto the full extent permitted by law the benefits of all provisions of law for
\nstay or delay of execution or sale of property or other satisfaction of judgment
\nagainst any of them on account of liability hereon until judgment be obtained
\nand execution issues against any other of them and returned satisfied or until
\nit can be shown that the maker or any other party hereto had no property
\navailable for the satisfaction of the debt evidenced by this instrument, or
\nuntil any other proceedings can be had against any of them, also their right, if
\nany, to require the holder hereof to hold as security for this Revolving Note
\nany collateral deposited by any of said Persons as security. Protest, notice of
\nprotest, notice of dishonor, diligence, presentment or any other formality are
\nhereby waived by all parties bound hereon.<\/p>\n
I-2<\/p>\n
IN WITNESS WHEREOF, the Borrower has caused this Revolving Note to be
\nmade, executed and delivered by its duly authorized representative as of the
\ndate and year first above written, all pursuant to authority duly granted.<\/p>\n
HEALTHSOUTH Corporation<\/p>\n
WITNESS:<\/p>\n
______________________ By: ________________________________
\n______________________
\n Name: ______________________________
\n Title: ____________________________
\n_<\/p>\n
I-3<\/p>\n
EXHIBIT J<\/p>\n
Form of Competitive Bid Quote Request<\/p>\n
[Date]<\/p>\n
To: NationsBank, N.A.<\/p>\n
From: HEALTHSOUTH Corporation<\/p>\n
Re: Competitive Bid Quote Request<\/p>\n
Pursuant to Section 2.2 of the Third Amended and Restated Credit
\nAgreement dated as of April 18, 1996 (as modified and supplemented from time to
\ntime, the “Credit Agreement”) among HEALTHSOUTH Corporation, the lenders named
\ntherein and NationsBank, N.A. as agent, we hereby give notice that we request
\nCompetitive Bid Quotes for the following proposed Competitive Bid Borrowing(s):<\/p>\n
Borrowing Quotation Interest
\n Date Date 1 Amount 2 Type 3 Period 4
\n —- ——– ——— ——– ———-<\/p>\n
Terms used herein have the meanings assigned to them in the Credit
\nAgreement.<\/p>\n
HEALTHSOUTH CORPORATION<\/p>\n
By:________________________________
\n Title: <\/p>\n
——– <\/p>\n
1 For use if an Absolute Rate in an Absolute Rate Auction is requested
\nto be submitted before the Borrowing Date.
\n 2 Each amount must be $10,000,000 or a larger integral multiple of
\n$1,000,000.
\n 3 Insert either “Eurodollar Margin” (in the case of Eurodollar Market
\nLoans) or “Absolute Rate” (in the case of Absolute Rate Loans).
\n 4 One, two three or six months, in the case of a Eurodollar Market Loan
\nor, in the case of an Absolute Rate Loan, a period of up to 180 days after the
\nmaking of such Absolute Rate Loan and ending on a Business Day.<\/p>\n
J-1<\/p>\n
EXHIBIT K<\/p>\n
Form of Competitive Bid Quote<\/p>\n
To: NationsBank, N.A., as Agent<\/p>\n
Attention:<\/p>\n
Re: Competitive Bid Quote to HEALTHSOUTH Corporation
\n (the “Borrower”)<\/p>\n
This Competitive Bid Quote is given in accordance with Section 2.2(c)
\nof the Third Amended and Restated Credit Agreement dated as of April 18, 1996
\n(as modified and supplemented from time to time, the “Credit Agreement”) among
\nHEALTHSOUTH Corporation, the lenders named therein and NationsBank, N.A., as
\nagent. Terms defined in the Credit Agreement are used herein as defined therein.<\/p>\n
In response to the Borrower’s invitation dated __________, 199__, we
\nhereby make the following Competitive Bid Quote(s) on the following terms:<\/p>\n
1. Quoting Bank:<\/p>\n
2. Person to contact at Quoting Bank:<\/p>\n
3. We hereby offer to make Competitive Bid Loan(s) in
\n the following principal amount[s], for the following Interest
\n Period(s) and at the following rate(s):<\/p>\n
Borrowing Quotation Interest<\/p>\n
K-1<\/p>\n
Date Date 1 Amount2 Type3 Period 4 Rate5
\n —- —- – ——- —– —— – —–<\/p>\n
We understand and agree that the offer(s) set forth above, subject to
\nthe satisfaction of the applicable conditions set forth in the Credit Agreement,
\nirrevocably obligate[s] us to make the Competitive Bid Loan(s) for which any
\noffer(s) (is\/are) accepted, in whole or in part (subject to the third sentence
\nof Section 2.2(e) of the Credit Agreement).<\/p>\n
Very truly yours,<\/p>\n
[NAME OF BANK]<\/p>\n
By:________________________________
\n Authorized Officer<\/p>\n
Dated: __________, ____<\/p>\n
——–<\/p>\n
1 As specified in the related Competitive Bid Quote Request.
\n 2 The principal amount bid for each Interest Period may not exceed the
\nprincipal amount requested. Bids must be made for at least $5,000,000 or a
\nlarger integral multiple of $1,000,000.
\n 3 Indicate “Eurodollar Margin” (in the case of Eurodollar Market Loans)
\nor “Absolute Rate” (in the case of Absolute Rate Loans).
\n 4 One, two, three or six months, in the case of a Eurodollar Market
\nLoan or, in the case of an Absolute Rate Loan, a period of up to 180 days after
\nthe making of such Absolute Rate Loan and ending on a Business Day, as specified
\nin the related Competitive Bid Quote Request.
\n 5 For a Eurodollar Market Loan, specify margin over or under the
\nInterbank Offered Rate adjusted for the Eurodollar Reserve Percentage determined
\nfor the applicable Interest Period. Specify percentage (rounded to the nearest
\n1\/10,000 of 1%) and specify whether “PLUS” or “MINUS”. For an Absolute Rate
\nLoan, specify rate of interest per annum (rounded to the nearest 1\/10,000 of
\n1%).<\/p>\n
K-2<\/p>\n
EXHIBIT L<\/p>\n
Form of Opinion of Borrower’s Counsel<\/p>\n
See attached.<\/p>\n
L-1<\/p>\n
EXHIBIT M<\/p>\n
Compliance Certificate<\/p>\n
NationsBank, National Association,
\nas Agent
\nIndependence Center, 15th Floor
\nNC1-001-15-04
\nCharlotte, North Carolina 28255
\nAttention: Agency Services
\nTelefacsimile: (704) 386-9923<\/p>\n
NationsBank, National Association,
\nas Agent
\n_____________________________________
\nAttention: __________________________
\nTelefacsimile: (___) ___-____<\/p>\n
Reference is hereby made to the Third Amended and Restated Credit
\nAgreement dated as of April 18, 1996, as amended (the “Agreement”), among
\nHEALTHSOUTH Corporation (the “Borrower”), the Lenders (as defined in the
\nAgreement) and NationsBank, National Association, as Agent for the Lenders
\n(“Agent”). Capitalized terms used but not otherwise defined herein shall have
\nthe respective meanings therefor set forth in the Agreement. The undersigned, a
\nduly authorized and acting Authorized Representative, hereby certifies to you as
\nof __________ (the “Determination Date”) as follows:<\/p>\n
I. Calculations:<\/p>\n
1. Consolidated Net Worth <\/p>\n
A. Consolidated Net Worth at
\n Determination Date $___________<\/p>\n
B. Consolidated Net Worth Required<\/p>\n
a) At Closing Date $917,711,000
\n b) Consolidated Net Income for
\n successive fiscal quarters
\n x 50% ___________
\n c) Net proceeds of any sale of
\n Capital Stock ___________
\n d) Additions resulting from
\n “pooling of interests” ___________
\n e) (a) + (b) + (c) + (d) (Required) $___________<\/p>\n
M-1<\/p>\n
2. Consolidated EBITDA to Consolidated
\n Interest Expense<\/p>\n
A. Consolidated Net Income ___________
\n B. Consolidated Interest Expense ___________
\n C. Consolidated Income Tax Expense ___________
\n D. Consolidated Amortization Expense ___________
\n E. Consolidated Depreciation Expense ___________
\n F. Minority Interest in Consolidated
\n Entities ___________
\n G. 2A + 2B + 2C + 2D + 2E + 2F ___________
\n H. Ratio of 2G to 2B ____ to 1.00<\/p>\n
Required: Not less than 2.50 to 1.00<\/p>\n
3. Consolidated Indebtedness to Consolidated
\n Total Capital<\/p>\n
A. Consolidated Indebtedness ___________
\n B. Consolidated Total Capital ___________
\n C. Ratio of 3A to 3B ____ to 1.00<\/p>\n
Required: Not to exceed .65 to 1.00<\/p>\n
II. No Default<\/p>\n
A. Since __________ (the date of the last similar
\n certification), (a) the Borrower has not defaulted in the
\n keeping, observance, performance or fulfillment of its
\n obligations pursuant to any of the Loan Documents; and (b) no
\n Default or Event of Default has occurred and is continuing.<\/p>\n
B. If a Default or Event of Default has occurred
\n since __________ (the date of the last similar certification),
\n the Borrower proposes to take the following action with
\n respect to such Default or Event of Default:__________________
\n ______________________________________________________________
\n ______________________________________________________________
\n ______________________________________________________________
\n (Note, if no Default or Event of Default has
\n occurred, insert “Not Applicable”).<\/p>\n
The Determination Date is the date of the last required financial
\nstatements submitted to the Lenders in accordance with Section 9.1 of the
\nAgreement.<\/p>\n
M-2<\/p>\n
IN WITNESS WHEREOF, I have executed this Certificate this _____ day of
\n__________, 19___.<\/p>\n
By:________________________________
\n Authorized Representative
\n Name:______________________________
\n Title:_____________________________<\/p>\n
M-3<\/p>\n
EXHIBIT N<\/p>\n
Executive Officers<\/p>\n
N-1<\/p>\n
Schedule 6.4<\/p>\n
Subsidiaries<\/p>\n
S-1<\/p>\n
Schedule 6.19<\/p>\n
Employment Matters<\/p>\n
S-1<\/p>\n
Schedule 8.3<\/p>\n
Existing Subsidiary Indebtedness<\/p>\n
S-2<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6550,6694,6846,6852,7545,7751,7772,8182,8287,8542,8973,9279],"corporate_contracts_industries":[9415,9438],"corporate_contracts_types":[9561,9560],"class_list":["post-40964","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-abn-amro-holding-nv","corporate_contracts_companies-amsouth-bancorporation","corporate_contracts_companies-bank-of-america-corp","corporate_contracts_companies-bankers-trust-corp","corporate_contracts_companies-fleetboston-financial-corp","corporate_contracts_companies-healthsouth-corp","corporate_contracts_companies-hibernia-corp","corporate_contracts_companies-mellon-financial-corp","corporate_contracts_companies-national-city-corp","corporate_contracts_companies-pnc-financial-services-group-inc","corporate_contracts_companies-suntrust-banks-inc","corporate_contracts_companies-wachovia-corp","corporate_contracts_industries-financial__banks","corporate_contracts_industries-health__misc","corporate_contracts_types-finance__credit","corporate_contracts_types-finance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40964","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40964"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40964"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40964"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40964"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}