\n1.1. Definitions…………………………………………………………..2
\n1.2. Rules of Interpretation……………………………………………….25
\n1.3. Classes and Types of Loans…………………………………………….26<\/p>\n ARTICLE II<\/p>\n
The Loans<\/p>\n
2.1. Loans……………………………………………………………….27
\n2.2. Payment of Interest…………………………………………………..29
\n2.3. Payment of Principal………………………………………………….29
\n2.4. Non-Conforming Payments……………………………………………….30
\n2.5. Notes……………………………………………………………….30
\n2.6. Pro Rata Payments…………………………………………………….30
\n2.7. Reductions…………………………………………………………..31
\n2.8. Conversions and Elections of Subsequent Interest Periods………………….31
\n2.9. Unused Fees………………………………………………………….31
\n2.10. Deficiency Advances…………………………………………………..32
\n2.11. Use of Proceeds………………………………………………………32
\n2.12. Increase and Decrease in Amounts……………………………………….32<\/p>\n
ARTICLE III<\/p>\n
Letters of Credit<\/p>\n
3.1. Letters of Credit…………………………………………………….33
\n3.2. Reimbursement………………………………………………………..33
\n3.3. Letter of Credit Facility Fees…………………………………………36
\n3.4. Administrative Fees…………………………………………………..37<\/p>\n
ARTICLE IV<\/p>\n
Change in Circumstances<\/p>\n
4.1. Increased Cost and Reduced Return. …………………………………….38
\n4.2. Limitation on Types of Loans…………………………………………..39<\/p>\n
i<\/p>\n
4.3. Illegality…………………………………………………………..40
\n4.4. Treatment of Affected Loans……………………………………………40
\n4.5. Compensation…………………………………………………………40
\n4.6. Taxes……………………………………………………………….41<\/p>\n
ARTICLE V<\/p>\n
Conditions to Making Loans and Issuing Letters of Credi<\/p>\n
5.1. Conditions of Initial Advance………………………………………….43
\n5.2. Conditions of Loans and Letters of Credit……………………………….44<\/p>\n
ARTICLE VI<\/p>\n
Representations and Warranties<\/p>\n
6.1. Organization and Authority…………………………………………….46
\n6.2. Loan Documents……………………………………………………….46
\n6.3. Solvency…………………………………………………………….47
\n6.4. Subsidiaries…………………………………………………………47
\n6.5. Ownership Interests…………………………………………………..47
\n6.6. Financial Condition…………………………………………………..47
\n6.7. Title to Properties…………………………………………………..48
\n6.8. Taxes……………………………………………………………….48
\n6.9. Other Agreements……………………………………………………..48
\n6.10. Litigation…………………………………………………………..49
\n6.11. Margin Stock…………………………………………………………49
\n6.12. Investment Company……………………………………………………49
\n6.13. Patents, Etc…………………………………………………………49
\n6.14. No Untrue Statement…………………………………………………..50
\n6.15. No Consents, Etc……………………………………………………..50
\n6.16. ERISA Requirement…………………………………………………….50
\n6.17. No Default…………………………………………………………..50
\n6.18. Hazardous Materials…………………………………………………..50
\n6.19. Employment Matters……………………………………………………50
\n6.20. RICO………………………………………………………………..51
\n6.21. Reimbursement from Third Party Payors…………………………………..51
\n6.22. Year 2000 Compliance………………………………………………….51<\/p>\n
ARTICLE VII<\/p>\n
Affirmative Covenants<\/p>\n
7.1. Financial Statements, Reports, Etc……………………………………..52<\/p>\n
ii<\/p>\n
7.2. Maintain Properties…………………………………………………..53
\n7.3. Existence, Qualification, Etc………………………………………….53
\n7.4. Regulations and Taxes…………………………………………………54
\n7.5. Insurance……………………………………………………………54
\n7.6. True Books…………………………………………………………..54
\n7.7. Right of Inspection…………………………………………………..54
\n7.8. Observe all Laws……………………………………………………..54
\n7.9. Governmental Licenses…………………………………………………54
\n7.10. Covenants Extending to Other Persons……………………………………55
\n7.11. Officer’s Knowledge of Default…………………………………………55
\n7.12. Suits or Other Proceedings…………………………………………….55
\n7.13. Notice of Discharge of Hazardous Material or Environmental Complaint……….55
\n7.14. Environmental Compliance………………………………………………55
\n7.15. Continuation of Current Business……………………………………….56
\n7.16. Management Contracts………………………………………………….56
\n7.17. Year 2000 Compliance………………………………………………….56<\/p>\n
ARTICLE VIII<\/p>\n
Negative Covenants<\/p>\n
8.1. Financial Covenants…………………………………………………..57
\n8.2. Investments and Loans…………………………………………………57
\n8.3. Indebtedness…………………………………………………………57
\n8.4. Disposition of Assets…………………………………………………58
\n8.5. Consolidation or Merger……………………………………………….58
\n8.6. Liens……………………………………………………………….58
\n8.7. Dividends and Distributions……………………………………………58
\n8.8. Acquisitions…………………………………………………………58
\n8.9. Restricted Payments…………………………………………………..58
\n8.10. Compliance with ERISA…………………………………………………58
\n8.11. Fiscal Year………………………………………………………….59
\n8.12. Dissolution, etc……………………………………………………..59
\n8.13. Transactions with Affiliates…………………………………………..59<\/p>\n
ARTICLE IX<\/p>\n
Events of Default and Acceleration<\/p>\n
9.1. Events of Default…………………………………………………….61
\n9.2. Agent to Act…………………………………………………………63
\n9.3. Cumulative Rights…………………………………………………….64
\n9.4. No Waiver……………………………………………………………64
\n9.5. Allocation of Proceeds………………………………………………..64<\/p>\n
iii<\/p>\n
ARTICLE X<\/p>\n
The Agent<\/p>\n
10.1. Appointment, Powers, and Immunities…………………………………….65
\n10.2. Reliance by Agent…………………………………………………….65
\n10.3. Defaults…………………………………………………………….65
\n10.4. Rights as Lender……………………………………………………..66
\n10.5. Indemnification………………………………………………………66
\n10.6. Non-Reliance on Agent and Other Lenders…………………………………66
\n10.7. Resignation of Agent………………………………………………….67
\n10.8. Fees………………………………………………………………..67<\/p>\n
ARTICLE XI<\/p>\n
Miscellaneous<\/p>\n
11.1. Assignments and Participations…………………………………………68
\n11.2. Notices……………………………………………………………..69
\n11.3. No Waiver……………………………………………………………70
\n11.4. Rights of Setoff; Adjustments………………………………………….70
\n11.5. Survival…………………………………………………………….71
\n11.6. Expenses…………………………………………………………….71
\n11.7. Amendments and Waivers………………………………………………..72
\n11.8. Counterparts…………………………………………………………72
\n11.9. Waivers by Borrower…………………………………………………..72
\n11.10. Termination………………………………………………………….73
\n11.11. Governing Law………………………………………………………..73
\n11.12. Indemnification………………………………………………………74
\n11.13. Agreement Controls……………………………………………………74
\n11.14. Integration………………………………………………………….75
\n11.15. Successors and Assigns………………………………………………..75
\n11.16. Severability…………………………………………………………75
\n11.17. Usury Savings Clause………………………………………………….75<\/p>\n
EXHIBIT A Applicable Commitment Percentages…………………………………A-1
\nEXHIBIT B Form of Assignment and Acceptance…………………………………B-1
\nEXHIBIT C Notice of Appointment (or Revocation) of Authorized
\n Representative………………………………………………….C-1
\nEXHIBIT D Form of Borrowing Notice…………………………………………D-1
\nEXHIBIT E Form of Interest Rate Selection Notice…………………………….E-1
\nEXHIBIT F Form of Note……………………………………………………F-1
\nEXHIBIT G Investments…………………………………………………….G-1<\/p>\n
iv<\/p>\n
EXHIBIT H Form of Opinion of Borrower’s Counsel……………………………H-1
\nEXHIBIT I Compliance Certificate…………………………………………I-1
\nEXHIBIT J Executive Officers…………………………………………….J-1<\/p>\n
Schedule 6.4 Subsidiaries………………………………………………… S-1
\nSchedule 6.13 Patent Issue………………………………………………….S-2
\nSchedule 6.19 Employment Matters…………………………………………….S-3
\nSchedule 8.3 Existing Subsidiary Indebtedness………………………………..S-4<\/p>\n
<\/c><\/s><\/caption>\n<\/table>\n
v<\/p>\n
SHORT TERM CREDIT AGREEMENT<\/p>\n
THIS SHORT TERM CREDIT AGREEMENT dated as of September 28, 1998 (this
\n“Agreement”) is entered into by and among HEALTHSOUTH CORPORATION, a Delaware
\ncorporation (the “Borrower”), NATIONSBANK, N.A., a national banking association
\norganized and existing under the laws of the United States, in its capacity as a
\nLender (“NationsBank”), and each other financial institution executing and
\ndelivering a signature page hereto and each other financial institution which
\nmay hereafter execute and deliver an instrument of assignment with respect to
\nthis Agreement pursuant to Section 11.1 (hereinafter such financial institutions
\nmay be referred to individually as a “Lender” or collectively as the “Lenders”),
\nand NATIONSBANK, N.A., a national banking association organized and existing
\nunder the laws of the United States, in its capacity as agent for the Lenders
\n(in such capacity, and together with any successor agent appointed in accordance
\nwith the terms of Section 10.7, the “Agent”).<\/p>\n
RECITAL:<\/p>\n
The Borrower has requested that the Lenders make a short term revolving
\ncredit facility of up to $500,000,000, including a $25,000,000 sublimit for the
\nissuance of standby letters of credit, to the Borrower, the proceeds of which
\nshall be used as set forth in Section 2.11, and the Lenders have agreed to make
\nsuch short term revolving credit facility available to the Borrower on the
\nfollowing terms and conditions:<\/p>\n
1<\/p>\n
ARTICLE I<\/p>\n
Definitions and Terms<\/p>\n
1.1. Definitions. For the purposes of this Agreement, in addition to
\nthe definitions set forth above, the following terms shall have the respective
\nmeanings set forth below:<\/p>\n
“Acquisition” means the acquisition, whether with cash,
\n property, stock or promise to pay, of all or a portion of a Person or a
\n Facility or Facilities of a Person, permitted under Section 8.8;
\n provided such Person or Facilities is in substantially the same line of
\n business engaged in by Borrower or its Consolidated Entities.<\/p>\n
“Actual\/360 Basis” shall mean a method of computing interest
\n or other charges hereunder on the basis of an assumed year of 360 days
\n for actual number of days elapsed, meaning that interest or other
\n charges accrued for each day will be computed by multiplying the rate
\n applicable on that day by the unpaid principal balance (or other
\n relevant sum) on that day and dividing the result by 360.<\/p>\n
“Advance” means a borrowing under the Short Term Credit
\n Facility consisting of the aggregate principal amount of a Loan.<\/p>\n
“Affiliate” of any specified Person means any other Person (i)
\n which directly or indirectly through one or more intermediaries
\n controls, or is controlled by, or is under common control with, such
\n specified Person; or (ii) which beneficially owns or holds 5% or more
\n of any class of the outstanding voting stock (or in the case of a
\n Person which is not a corporation, 5% or more of the equity interest)
\n of such specified Person; or 5% or more of any class of the outstanding
\n voting stock (or in the case of a Person which is not a corporation, 5%
\n or more of the equity interest) of which is beneficially owned or held
\n by such specified Person. The term “control” means the possession,
\n directly or indirectly, of the power to direct or cause the direction
\n of the management and policies of a Person, whether through ownership
\n of voting stock, by contract or otherwise.<\/p>\n
“Applicable Commitment Percentage” means, with respect to each
\n Lender, that portion of the Total Short Term Credit Commitment
\n allocable to such Lender (a) with respect to Lenders as of the Closing
\n Date, as set forth on Exhibit A, and (b) with respect to any Person who
\n becomes a Lender thereafter, as reflected in each Assignment and
\n Acceptance to which such Lender is a party assignee; provided that the
\n Applicable Commitment Percentage of each Lender shall be increased or
\n decreased to reflect any assignments to or by such Lender effected in
\n accordance with Section 11.1.<\/p>\n
“Applicable Lending Office” means, for each Lender and for
\n each Type of Loan, the “Lending Office” of such Lender (or an affiliate
\n of such Lender) designated for such Type of Loan on the signature pages
\n hereof or such other office of such Lender (or an affiliate of such
\n Lender) as such Lender may from time to time specify to the Agent and
\n the Borrower<\/p>\n
2<\/p>\n
by written notice in accordance with the terms hereof as the office by
\n which its Loans of such Type are to be made and maintained.<\/p>\n
“Applicable Margin” means that number of basis points per
\n annum set forth below determined based upon the more favorable to the
\n Borrower of either (i) the highest Rating of outstanding senior
\n unsecured Indebtedness of the Borrower from time to time as specified
\n in Table I below (provided that in the event of a Rating split between
\n Tiers, then the Tier next above the Tier corresponding to the lower
\n Rating shall apply) or (ii) the ratio of Consolidated Indebtedness at
\n the date of determination to Consolidated EBITDA for the Four-Quarter
\n Period most recently ended as specified in Table II below:<\/p>\n
================================================================================
\n TABLE I<\/p>\n
Tier Rating Applicable Margin
\n S&P or Moody’s<\/p>\n
I A- A3 40 b.p.
\n II BBB+ Baa1 45
\n III BBB Baa2 50
\n IV BBB- Baa3 60
\n V BB+ Ba1 80
\n VI BB Ba2 115
\n or lower or lower
\n================================================================================<\/p>\n
================================================================================
\n TABLE II<\/p>\n
Tier Ratio of Consolidated Indebtedness to Applicable Margin
\n Consolidated EBITDA<\/p>\n
I Less than 1.50 to 1.00 45 b.p.
\n II Equal to or greater than 1.50 to 1.00 50
\n but less than 2.00 to 1.00
\n III Equal to or greater than 2.00 to 1.00 60
\n but less than 2.50 to 1.00
\n IV Equal to or greater than 2.50 to 1.00 80
\n but less than 3.00 to 1.00
\n V Equal to or greater than 3.00 to 1.00 115
\n================================================================================<\/p>\n
3<\/p>\n
; provided, however, that any time during which the sum of Short Term
\n Credit Outandings, and Letter of Credit Outstandings exceed
\n $166,666,500, 7.5 basis points shall automatically be added to the
\n Applicable Margin set forth in Tables I and II above; provided,
\n further, that any time during which the sum of Short Term Credit
\n Outstandings and Letter of Credit Outstandings exceed $333,333,000,
\n another 7.5 basis points (in addition to the 7.5 basis points added
\n pursuant to the preceding proviso) shall automatically be added to the
\n Applicable Margin set forth in Tables I and II above.<\/p>\n
The Applicable Margin shall be established in the case of a Rating from
\n time to time based upon the Rating then in effect and, in the case of
\n the ratio, at the end of each fiscal quarter of the Borrower (the
\n “Ratio Determination Date”). Any change in the Applicable Margin
\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 Margin shall be 2% until the appropriate
\n certificate is so delivered. From the Closing Date to the first Ratio
\n Determination Date, the Applicable Margin shall be 50 basis points
\n (subject to the provisos in the first sentence of this definition).<\/p>\n
“Applicable Unused Fee” means that number of basis points per
\n annum set forth below determined based upon the more favorable to the
\n Borrower of either (i) the highest Rating of outstanding senior
\n unsecured Indebtedness of the Borrower from time to time as specified
\n in Table III below (provided that in the event of a Rating split
\n between Tiers, then the Tier next above the Tier corresponding to the
\n lower Rating shall apply) or (ii) the ratio of Consolidated
\n Indebtedness at the date of determination to Consolidated EBITDA for
\n the Four-Quarter Period most recently ended as specified in Table IV
\n below:<\/p>\n
================================================================================
\n TABLE III<\/p>\n
Tier Rating Applicable Unused
\n S&P or Moody’s Fee<\/p>\n
I A- A3 9.0 b.p.
\n II BBB+ Baa1 10.0
\n III BBB Baa2 12.5
\n IV BBB- Baa3 15.0
\n V BB+ Ba1 20.0<\/p>\n
VI BB Ba2 25.0
\n or lower or lower<\/p>\n
================================================================================<\/p>\n
4<\/p>\n
================================================================================<\/p>\n
TABLE IV<\/p>\n
Tier Ratio of Consolidated Indebtedness to Applicable Unused
\n Consolidated EBITDA Fee<\/p>\n
I Less than 1.50 to 1.00 10.0 b.p.
\n II Equal to or greater than 1.50 to 1.00 12.5
\n but less than 2.00 to 1.00
\n III Equal to or greater than 2.00 to 1.00 15.0
\n but less than 2.50 to 1.00
\n IV Equal to or greater than 2.50 to 1.00 20.0
\n but less than 3.00 to 1.00
\n V Equal to or greater than 3.00 to 1.00 25.0<\/p>\n
================================================================================<\/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 12.5 basis points.<\/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
5<\/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, for any day, the rate per annum equal to
\n the higher of (i) the Prime Rate for such day or (ii) the Federal Funds
\n Rate for such day plus one-half of one percent (1\/2%). Any change in
\n the Base Rate due to a change in the Prime Rate or the Federal Funds
\n Rate shall be effective on the effective date of such change in the
\n Prime Rate or Federal Funds Rate.<\/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 Refunding Loan” means an Advance under the Short
\n Term 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 Short Term
\n Credit Facility, in the form of Exhibit D.<\/p>\n
“Business Day” means, (i) except in the case of a Eurodollar
\n Rate Loan, any day which is not a Saturday, Sunday or a day on which
\n banks 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
6<\/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 exchangeable for such
\n Voting Stock) representing 15% or more of the combined voting
\n power of all Voting Stock of the Borrower (on a fully diluted
\n basis) or (B) otherwise has the ability, directly or
\n indirectly, to elect a majority of the board of directors of
\n the Borrower;<\/p>\n
(ii) during any period of up to 24 consecutive
\n months, 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
\n concert shall have acquired by contract or otherwise, or shall
\n have entered into a contract or arrangement that, upon
\n consummation thereof, will result in its or their acquisition,
\n of the power to exercise, directly or indirectly, a
\n controlling influence on the management or policies of the
\n 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
“Common Stock” means the common stock, par value $.01 per
\n share, of the Borrower.<\/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<\/p>\n
7<\/p>\n
extent included in the computation of Consolidated Net Income),
\n determined on a consolidated 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 the income of Consolidated
\n Entities for such period, all determined on a consolidated basis in
\n accordance with GAAP applied on a 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
“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<\/p>\n
8<\/p>\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 extraordinary
\n loss), together with any related provision for taxes or tax benefit
\n resulting from any such extraordinary gain or loss, realized by the
\n Borrower or its Consolidated Entities during such period; and (vi) in
\n the case of a successor to any Person by consolidation, merger or
\n transfer of its assets, any earnings of the successor prior to such
\n merger, consolidation or transfer of assets; provided, further,
\n however, that there shall be added back to net income non-recurring,
\n non-cash expenses and cash transaction costs relating to professional
\n fees arising in conjunction with an Acquisition provided such expenses
\n do not exceed 10% of the Cost of 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<\/p>\n
9<\/p>\n
otherwise), capitalized expenses, unamortized debt discount and
\n expense, consignment inventory rights, patents, trademarks, trade
\n names, 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 Entities as determined on a
\n consolidated basis in accordance with GAAP applied on a Consistent
\n 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 Stockholders’ Equity of the Borrower and
\n its Consolidated Entities.<\/p>\n
“Continue”, “Continuation”, and “Continued” shall refer to the
\n continuation pursuant to Section 2.8 hereof of a Eurodollar Rate Loan
\n of one Type as a Eurodollar Rate Loan of the same Type from one
\n Interest Period to the next Interest Period.<\/p>\n
“Convert”, “Conversion” and “Converted” shall refer to a
\n conversion pursuant to Section 2.8 or Article IV of one Type of Loan
\n into another Type of Loan.<\/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<\/p>\n
10<\/p>\n
of the Borrower and its Consolidated Entities in connection with
\n Generally Accepted Accounting Principles, (v) all amounts paid in
\n respect of covenants not to compete, consulting agreements and other
\n affiliated contracts in connection with such Acquisition and (vi) the
\n aggregate fair market value of all other consideration given by the
\n Borrower and its Consolidated Entities in connection with such
\n Acquisition.<\/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, until the end of the Interest Period applicable thereto, a rate
\n of two percent (2%) plus the Eurodollar Rate applicable to such Loan,
\n and thereafter at a rate of interest per annum which shall be two
\n percent (2%) plus the Base Rate, (ii) with respect to Base Rate Loans,
\n at a rate of interest per annum which shall be two percent (2%) plus
\n the Base Rate and (iii) in any case, the maximum rate permitted by
\n applicable 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 Short Term 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
“Eligible Assignee” means (i) a Lender, (ii) an affiliate of a
\n Lender, and (iii) any other Person approved by the Agent and, unless an
\n Event of Default has occurred and is continuing at the time any
\n assignment is effected in accordance with Section 11.1, the Borrower,
\n such approval not to be unreasonably withheld or delayed by the
\n Borrower or the Agent and such approval to be deemed given by the
\n Borrower if no objection is received by the assigning Lender and the
\n Agent from the Borrower within two Business Days after written notice
\n of such proposed assignment has been provided by the assigning Lender
\n to the Borrower; provided, however, that neither the Borrower nor an
\n affiliate of the Borrower shall qualify as an Eligible Assignee.<\/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 any federal, state or local
\n statute, law, ordinance, code, rule, regulation, order, decree, permit
\n or license regulating, relating to, or imposing liability or standards
\n of conduct concerning any environmental matters or conditions,
\n environmental<\/p>\n
11<\/p>\n
protection or conservation, including without limitation, the
\n Comprehensive Environmental Response, Compensation and Liability Act of
\n 1980, as amended; the Superfund Amendments and Reauthorization Act of
\n 1986, the 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; together with all regulations promulgated
\n thereunder, and any other “Superfund” or “Superlien” law.<\/p>\n
“ERISA” means the Employee Retirement Income Security Act of
\n 1974, as amended from time to time, and any successor statute and all
\n rules 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 is under
\n common control with the Borrower, who together with the Borrower, is
\n treated as a single employer within the meaning of Section 414(b) and
\n (c) of the Code.<\/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- Reserve Requirement Margin<\/p>\n
“Eurodollar Rate Loan” means a Loan for which the rate of
\n interest is determined by reference to the Eurodollar Rate.<\/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 J.<\/p>\n
“Existing Availability” means that, at any point in time,
\n there shall be available to the Borrower under the Existing Credit
\n Agreement for borrowing or issuance of letters of credit an amount of
\n $5,000,000 or more.<\/p>\n
“Existing Credit Agreement” means the Credit Agreement dated
\n June 23, 1998 among the Borrower, NationsBank, N.A. as agent, and the
\n lenders party thereto from time to time, as amended, modified,
\n supplemented or amended and restated.<\/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<\/p>\n
12<\/p>\n
center, medical office building, outpatient surgery center or
\n outpatient diagnostic center with all buildings and improvements
\n associated therewith, that is owned or leased, in whole or part, by the
\n Borrower or a Subsidiary or any Controlled Partnership.<\/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 Rate” means, for any day, the rate per annum
\n (rounded upwards, if necessary, to the nearest 1\/100th of 1%) equal to
\n the weighted average of the rates on overnight Federal funds
\n transactions with members of the Federal Reserve System arranged by
\n Federal funds brokers on such day, as published by the Federal Reserve
\n Bank of New York on the Business Day next succeeding such day, provided
\n that (a) if such day is not a Business Day, the Federal Funds Rate for
\n such day shall be such rate on such transactions on the next preceding
\n Business Day as so published on the next succeeding Business Day, and
\n (b) if no such rate is so published on such next succeeding Business
\n Day, the Federal Funds Rate for such day shall be the average rate
\n charged to the Agent (in its individual capacity) on such day on such
\n transaction as determined by the Agent.<\/p>\n
“Fiscal Year” means, with respect to the Borrower, the twelve
\n month fiscal period of the Borrower commencing on January 1 of each
\n calendar year and ending on December 31 of each calendar year.<\/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.<\/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
13<\/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, or to purchase or to
\n otherwise pay or acquire, Indebtedness of others; provided, however,
\n that such term shall not include obligations under leases and other
\n contracts initially incurred directly by another Person and
\n subsequently directly assumed by the Person in question, but such term
\n shall include obligations that, if the same had been initially incurred
\n directly by the Person in question, would have constituted Guaranteed
\n Obligations.<\/p>\n
“Hazardous Material” means and includes any pollutant,
\n contaminant, or hazardous, toxic or dangerous waste, substance or
\n material (including without limitation petroleum products,
\n asbestos-containing materials, and lead), 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, supplemented or restated in its entirety from
\n 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<\/p>\n
14<\/p>\n
services, except trade payables and accrued expenses incurred in the
\n ordinary course of business; (vi) all Capitalized Lease Obligations of
\n such Person; (vii) all indebtedness of others secured by a Lien on any
\n assets of such Person, whether or not such indebtedness is assumed by
\n such Person; (viii) all Guaranteed Obligations; (ix) the Headquarters
\n Obligations; and (x) all obligations of a like nature to those
\n described in clauses (i) through (ix) above of a partnership of which
\n such Person is a general partner or of a limited liability company of
\n which such Person is a member. The amount of Indebtedness of any Person
\n at any date shall be the outstanding balance at such date of all
\n unconditional obligations as described above, the maximum liability of
\n such Person for any such contingent obligations at such date and, in
\n the case of clause (vii), the amount of the Indebtedness secured.<\/p>\n
“Interbank Offered Rate” means, for any Eurodollar Rate Loan
\n for the Interest Period applicable thereto, the rate per annum (rounded
\n upwards, if necessary, to the nearest one-one hundredth (1\/100) of one
\n percent) appearing on Dow Jones Telerate Page 3750 (or any successor
\n page) as the London interbank offered rate for deposits in Dollars at
\n approximately 11:00 a.m. (London time) two Business Days prior to the
\n first day of such Interest Period for a term comparable to such
\n Interest Period. If for any reason such rate is not available, the term
\n “Interbank Offered Rate” shall mean, for any Eurodollar Rate Loan for
\n the Interest Period applicable thereto, the rate per annum (rounded
\n upwards, if necessary, to the nearest 1\/100 of 1%) appearing on Reuters
\n Screen LIBO Page as the London interbank offered rate for deposits in
\n Dollars at approximately 11:00 a.m. (London time) two Business Days
\n prior to the first day of such Interest Period for a term comparable to
\n such Interest Period; provided, however, if more than one rate is
\n specified on Reuters Screen LIBO Page, the applicable rate shall be the
\n arithmetic mean of all such rates (rounded upwards, if necessary, to
\n the nearest 1\/100 of 1%).<\/p>\n
“Interest Period” means, with respect to any Eurodollar Rate
\n Loan, each period commencing on the date such Eurodollar Rate Loan is
\n made or Converted from a Loan of another Type or the last day of the
\n next preceding Interest Period for such Loan and ending on the
\n numerically corresponding day in the first, second, third or sixth
\n calendar month thereafter, as the Borrower may select as provided in
\n Section 2.2, except that each Interest Period that commences on the
\n last Business Day of a calendar month (or on any day for which there is
\n no numerically corresponding day in the appropriate subsequent calendar
\n month) shall end on the last Business Day of the appropriate subsequent
\n calendar month. Notwithstanding the foregoing: (i) if any Interest
\n Period for any Eurodollar Rate Loan would otherwise end after the Short
\n Term Credit Termination Date, such Interest Period shall end on the
\n Short Term Credit Termination Date; (ii) each Interest Period that
\n would otherwise end on a day which is not a Business Day shall end on
\n the next succeeding Business Day (or, in the case of an Interest Period
\n for a Eurodollar Rate Loan if such next succeeding Business Day falls
\n in the next succeeding calendar month, on the next preceding Business
\n Day); and (iii) notwithstanding clauses (i) and (ii) above, no Interest
\n Period for any Loan shall have a duration of less than one month (in
\n the case of a Eurodollar Rate Loan) and, if the Interest Period for any
\n Eurodollar Rate Loan would otherwise be a shorter period, such Loan
\n shall not be available hereunder for such period.<\/p>\n
15<\/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 the Conversion of any Eurodollar Rate Loan into a Base Rate Loan or
\n the Conversion of any Base Rate Loan into a Eurodollar Rate Loan, in
\n the form of Exhibit E.<\/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
“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
“Loan” or “Loans” means any borrowing made pursuant to an
\n Advance under the Short Term Credit Facility in accordance with Section
\n 2.1(a) and all extensions and renewals thereof.<\/p>\n
16<\/p>\n
“Loan Documents” means this Agreement, the Notes, the LC
\n Account Agreement, the Applications and Agreements for Letter of Credit
\n 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 (a) whose assets,
\n in the aggregate, constitute 5% or more of the assets of the Borrower
\n and the Consolidated Entities on a consolidated basis or (b) whose net
\n revenues, in the aggregate, constitute 5% or more of the net revenues
\n of the Borrower and the Consolidated Entities on a 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<\/p>\n
17<\/p>\n
promulgated pursuant to or in connection with the statutes described in
\n clause (ii) above, in each case as may be amended, supplemented or
\n otherwise modified from time to 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 patients in
\n accordance with the terms of the agreement and Medicare 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, N.A.<\/p>\n
“1997 10-K” means the Borrower’s Annual Report on Form 10-K
\n for the Fiscal Year Ended December 31, 1997.<\/p>\n
“Notes” means, collectively, the promissory notes of the
\n Borrower evidencing Loans executed and delivered to the Lenders as
\n provided in Section 2.5, substantially in the form of Exhibit F, with
\n appropriate insertions as to amounts, dates and names of Lenders.<\/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, (iii)
\n all liabilities of the Borrower to any Lender which arise under a Swap
\n Agreement, and (iv) the payment and performance of all other
\n obligations, liabilities and Indebtedness of the<\/p>\n
18<\/p>\n
Borrower to the Lenders or the Agent hereunder, under any one or more
\n of the other Loan Documents or with respect to 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 Trustee, the Holders identified therein, the Lenders
\n identified therein, and NationsBank, National Association, as Agent, as
\n such Participation Agreement may be amended, modified, supplemented or
\n restated in its entirety from time to time.<\/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
\n the 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
\n governmental charges that are not delinquent or that are being
\n contested in good faith by appropriate proceedings duly
\n pursued;<\/p>\n
(2) mechanic’s, materialmen’s, contractor’s,
\n landlord’s or other similar liens arising in the ordinary
\n course of business, securing obligations that are not
\n delinquent or that are being contested in good faith by
\n appropriate proceedings duly pursued;<\/p>\n
(3) restrictions, exceptions, reservations,
\n easements, conditions, limitations and other matters of record
\n that do not materially adversely affect the value or utility
\n of the affected property;<\/p>\n
(4) Liens on assets securing Indebtedness the
\n proceeds of which are used to acquire such assets;<\/p>\n
(5) Liens and other matters approved in writing by
\n the Required Lenders; and<\/p>\n
19<\/p>\n
(6) Liens in favor of landlords, the amount secured
\n by which landlords’ Liens, in the aggregate, would not
\n materially adversely affect the Borrower or a Material Group.<\/p>\n
“Permitted Investments” shall mean:<\/p>\n
(1) direct obligations of, or obligations the payment
\n of which is guaranteed by, the United States of America or an
\n interest in any trust or fund that invests solely in such
\n obligations or repurchase agreements, properly secured, with
\n respect to such obligations.<\/p>\n
(2) direct obligations of agencies or
\n instrumentalities of the United States of America having a
\n rating of A or higher by S&P 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 which is a Lender or an
\n affiliate of a Lender, or a bank having its principal place of
\n business in the United States of America and having equity
\n 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
\n in, and loans made by the Borrower to, Controlled Partnerships
\n and Subsidiaries;<\/p>\n
(6) prime commercial paper maturing within 270 days
\n of the acquisition thereof and, at the time of acquisition,
\n having a rating of A-1 or higher by S&P, or P-1 or higher by
\n Moody’s;<\/p>\n
(7) eligible banker’s acceptances, repurchase
\n agreements and tax-exempt municipal bonds having a maturity of
\n less than one year, in each case having a rating, or that is
\n the full recourse obligation of a person whose senior debt is
\n rated, A or higher by S&P or A2 or higher by Moody’s;<\/p>\n
(8) loans made by the Borrower or a Consolidated
\n Entity in an aggregate amount of $2,000,000 or less to
\n employees of the Borrower or of a Consolidated Entity;<\/p>\n
(9) loans made by the Borrower or a Controlled
\n Partnership in an aggregate amount of $1,000,000 or less to
\n limited partners (or potential limited<\/p>\n
20<\/p>\n
partners) of Controlled Partnerships for the purpose of
\n enabling such limited partners to acquire limited partnership
\n interests in Controlled Partnerships, to operate their
\n practices or to restructure partnership interests;<\/p>\n
(10) loans in an aggregate amount of up to
\n $20,000,000 made by the Borrower to the HEALTHSOUTH Employee
\n Stock Benefit Plan;<\/p>\n
(11) scholarship loans made by the Borrower in an
\n aggregate amount not exceeding $1,000,000 to individuals who
\n meet 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
\n higher or A-1 or higher by S&P or A2 or higher or P-1 or
\n higher by Moody’s;<\/p>\n
(15) loans to health care practitioners and other
\n persons not to exceed in the aggregate $5,000,000;<\/p>\n
(16) investments in Acacia Venture Partners,
\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
\n Date and described in Exhibit G.<\/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 per annum rate of interest established
\n from time to time by NationsBank as its prime rate, which rate may not
\n be the lowest rate of interest charged by NationsBank to its Customers.<\/p>\n
“Principal Office” means the office of the Agent at
\n NationsBank, N.A., 101 North Tryon Street, 15th Floor, NC1-001-15-04,
\n Charlotte, North Carolina 28255, Attention: Agency Services, or such
\n other office and address as the Agent may from time to time designate.<\/p>\n
21<\/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 the Borrower or such Consolidated
\n Entity from the fluctuations of interest rates, exchange rates or
\n forward rates applicable to such party’s assets, liabilities or
\n exchange transactions, including, but not limited to,
\n Dollar-denominated or cross-currency interest rate exchange agreements,
\n forward currency exchange agreements, interest rate cap or collar
\n protection agreements, forward rate currency or interest rate options,
\n puts, warrants and those commonly known as interest rate “swap”
\n agreements; and (ii) any and all cancellations, buybacks, reversals,
\n terminations or assignments 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, so long as there exists no Event of Default, owing to such
\n Lender plus the aggregate unutilized amounts of such Lender’s Short
\n Term 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
“Reserve Requirement” means, at any time, the maximum rate at
\n which reserves (including, without limitation, any marginal, special,
\n supplemental, or emergency reserves) are required to be maintained
\n under regulations issued from time to time by the Board by member banks
\n of the Federal Reserve System (or any successor) by member banks of the
\n Federal Reserve System against “Eurocurrency liabilities” (as such term
\n is used in Regulation D). Without limiting the effect of the foregoing,
\n the Reserve Requirement shall reflect any other reserves required to be
\n maintained by such member banks with respect to<\/p>\n
22<\/p>\n
(i) any category of liabilities which includes deposits by reference to
\n which the Eurodollar Rate is to be determined, or (ii) any category of
\n extensions of credit or other assets which include Eurodollar Rate
\n Loans. The Eurodollar Rate shall be adjusted automatically on and as of
\n the effective date of any change in the Reserve Requirement.<\/p>\n
“Restricted Payment” means (a) any dividend or other
\n distribution, direct or indirect, on account of any shares of any class
\n of stock of Borrower or any of its Consolidated Entities (other than
\n those payable or distributable solely to the Borrower) now or hereafter
\n outstanding, except a dividend payable solely in shares of a class of
\n stock to the holders of that class; (b) any redemption, conversion,
\n exchange, retirement or similar payment, purchase or other acquisition
\n for value, direct or indirect, of any shares of any class of stock of
\n the Borrower or any of its Consolidated Entities (other than those
\n 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
“S&P” means Standard & Poor’s Rating Group, a division of The
\n McGraw Hill Companies.<\/p>\n
“Short Term Credit Commitment” means, with respect to each
\n Lender, the obligation of such Lender to make Loans to the Borrower up
\n to an aggregate principal amount at any one time outstanding equal to
\n such Lender’s Applicable Commitment Percentage of the Total Short Term
\n Credit Commitment.<\/p>\n
“Short Term Credit Facility” means the facility described in
\n Article II providing for Loans to the Borrower by the Lenders in the
\n aggregate principal amount of the Total Short Term Credit Commitment.<\/p>\n
“Short Term Credit Outstandings” means, as of any date of
\n determination, the aggregate principal amount of all Loans then
\n outstanding.<\/p>\n
“Short Term Credit Termination Date” means (i) the Stated
\n Termination Date or (ii) such earlier date of termination of Lenders’
\n Obligations as may be determined pursuant to Section 9.1 upon the
\n occurrence of an Event of Default, or (iii) such date as the Borrower
\n may voluntarily and permanently terminate the Short Term Credit
\n Facility by payment in full of all Short Term Credit Outstandings and
\n all Letter of Credit Outstandings and cancellation of all Letters of
\n Credit, together with all accrued and unpaid interest and fees thereon.<\/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
23<\/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 September 27, 1999.<\/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
“Termination Event” means: (i) a “Reportable Event” described
\n in Section 4043 of ERISA and the regulations issued thereunder (unless
\n the notice requirement has been waived by applicable regulation); or
\n (ii) the withdrawal of the Borrower or any ERISA Affiliate from a
\n Pension Plan during a plan year in which it was a “substantial
\n employer” as defined in Section 4001(a)(2) of ERISA or was deemed such
\n under Section 4062(e) of ERISA; or (iii) the termination of a Pension
\n Plan, the filing of a notice of intent to terminate a Pension Plan or
\n the treatment of a Pension Plan amendment as a termination under
\n Section 4041 of ERISA; or (iv) the institution of proceedings to
\n terminate a Pension Plan by the PBGC; or (v) any other event or
\n condition which would constitute grounds under Section 4042(a) of ERISA
\n for the termination of, or the appointment of a trustee to administer,
\n any Pension Plan; or (vi) the partial or complete withdrawal of the
\n Borrower or any ERISA Affiliate from a Multiemployer Plan; or (vii) the
\n imposition of a Lien pursuant to Section 412 of the Code or Section 302
\n of ERISA; or (viii) any event or condition which results in the
\n reorganization or insolvency of a Multiemployer Plan under Section 4241
\n or Section 4245 of ERISA,<\/p>\n
24<\/p>\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
\n exceed $25,000,000.<\/p>\n
“Total Short Term Credit Commitment” means a principal amount
\n equal to $500,000,000, as reduced from time to time in accordance with
\n Section 2.1(a) and Section 2.7.<\/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 if the right so to vote has been
\n suspended by the happening of such a contingency.<\/p>\n
1.2. Rules of Interpretation.<\/p>\n
(a) All accounting terms not specifically defined herein shall
\n have the meanings assigned to such terms and shall be interpreted in
\n 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 herein
\n 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 such
\n as “hereunder”, “hereto”, “hereof” and “herein” and other words of like
\n import shall, unless the context clearly indicates to the contrary,
\n refer to the whole of the applicable document and not to any particular
\n article, section, subsection, paragraph or clause thereof.<\/p>\n
25<\/p>\n
(f) References to “including” means including without limiting
\n the generality of any description preceding such term, and for purposes
\n hereof the rule of ejusdem generis shall not be applicable to limit a
\n general statement, followed by or referable to an enumeration of
\n specific matters, to matters similar to those specifically mentioned.<\/p>\n
(g) All dates and times of day specified herein shall refer to
\n 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
(i) Any reference to an officer of the Borrower or any other
\n Person by reference to the title of such officer shall be deemed to
\n refer to each other officer of such Person, however titled, exercising
\n the same or substantially similar functions.<\/p>\n
(j) All references to any agreement or document as amended,
\n modified or supplemented, or words of similar effect, shall mean such
\n document or agreement, as the case may be, as amended, modified or
\n supplemented from time to time only as and to the extent permitted
\n therein and in the Loan Documents.<\/p>\n
1.3. Classes and Types of Loans. Loans hereunder are distinguished by
\n“Type”. The “Type” of a Loan refers to whether such Loan is a Base Rate Loan or
\na Eurodollar Rate Loan, each of which constitutes a Type.<\/p>\n
26<\/p>\n
ARTICLE II<\/p>\n
The Loans<\/p>\n
2.1. Loans.<\/p>\n
(a) Commitment. Subject to the terms and conditions of this
\nAgreement, each Lender severally agrees to make Advances to the Borrower under
\nthe Short Term Credit Facility from time to time from the Closing Date until the
\nShort Term Credit Termination Date on a pro rata basis as to the total borrowing
\nrequested by the Borrower on any day determined by such Lender’s Applicable
\nCommitment Percentage up to but not exceeding the Short Term Credit Commitment
\nof such Lender, provided, however, that the Lenders will not be required and
\nshall have no obligation to make any such Advance (i) so long as a Default or an
\nEvent of Default has occurred and is continuing or (ii) if the maturity of any
\nof the Notes has been accelerated as a result of an Event of Default or (iii)
\nthere is Existing Availability; provided further, however, that immediately
\nafter giving effect to each such Advance, the principal amount of Short Term
\nCredit Outstandings plus Letters of Credit Outstandings shall not exceed the
\nTotal Short Term Credit Commitment. Within such limits, the Borrower may borrow,
\nrepay and reborrow under the Short Term Credit Facility on a Business Day from
\nthe Closing Date until, but (as to borrowings and reborrowings) not including,
\nthe Short Term Credit Termination Date; provided, however, that (y) no Loan that
\nis a Eurodollar Rate Loan shall be made which has an Interest Period that
\nextends beyond the Short Term Credit Termination Date and (z) each Loan that is
\na Eurodollar Rate Loan may, subject to the provisions of Section 2.3, be repaid
\nonly on the last day of the Interest Period with respect thereto unless such
\npayment is accompanied by the additional payment, if any, required by Section
\n4.5.<\/p>\n
(b) Amounts. The aggregate unpaid principal amount of the
\nShort Term Credit Outstandings plus Letter of Credit Outstandings shall not
\nexceed the Total Short Term Credit Commitment and, in the event there shall be
\noutstanding any such excess, the Borrower shall immediately make such payments
\nand prepayments as shall be necessary to comply with this restriction. Each Loan
\nhereunder, other than Base Rate Refunding Loans, and each Conversion under
\nSection 2.8, shall be in an amount of at least $5,000,000, and, if greater than
\n$5,000,000, an integral multiple of $1,000,000.<\/p>\n
(c) Advances. (i) An Authorized Representative shall give the
\nAgent (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 Loan that is a Eurodollar Rate Loan (whether representing an additional
\nborrowing hereunder or the Conversion of a borrowing hereunder from Base Rate
\nLoans to Eurodollar Rate Loans) prior to 10:30 A.M. and (2) irrevocable written
\nnotice by telefacsimile transmission of a Borrowing Notice or Interest Rate
\nSelection Notice (as applicable) with appropriate insertions, effective upon
\nreceipt, of each Loan (other than Base Rate Refunding Loans to the extent the
\nsame are effected without notice pursuant to Section 2.1(c)(iv)) that is a Base
\nRate Loan (whether representing an additional borrowing hereunder or the
\nConversion of borrowing hereunder from Eurodollar Rate Loans to Base Rate Loans)
\nprior to 10:30 A.M. on the day of such proposed Loan.<\/p>\n
27<\/p>\n
Each such notice shall specify the amount of the borrowing, the Type of Loan
\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
(ii) Not later than 2:00 P.M. on the date specified for each borrowing
\nunder this Section 2.1, each Lender shall, pursuant to the terms and subject to
\nthe conditions of this Agreement, make the amount of the Loan or Loans to be
\nmade by it on such day available by wire transfer to the Agent in the amount of
\nits pro rata share, determined according to such Lender’s Applicable Commitment
\nPercentage of the Loan or Loans to be made on such day. Such wire transfer shall
\nbe directed to the Agent at the Principal Office and shall be in the form of
\nDollars constituting immediately available funds. The amount so received by the
\nAgent shall, subject to the terms and conditions of this Agreement, be made
\navailable to the Borrower by delivery of the proceeds thereof as shall be
\ndirected in the applicable Borrowing Notice by the Authorized Representative and
\nreasonably 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 Loans in
\naccordance with Section 2.8. 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 having more than eight (8) different Interest Periods. If
\nthe Agent does not receive a Borrowing Notice or an Interest Rate Selection
\nNotice giving notice of election of the duration of an Interest Period or of
\nConversion of any Loan to or Continuation of a Loan as a Eurodollar Rate Loan by
\nthe time prescribed by Section 2.1(c) or 2.8, the Borrower shall be deemed to
\nhave elected to Convert such Loan to (or Continue such Loan as) a Base Rate Loan
\nuntil the Borrower notifies the Agent in accordance with Section 2.8.<\/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 Short
\nTerm 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 Loan as herein provided shall then be satisfied, the
\nReimbursement Obligation arising from such drawing shall be paid to the Issuing
\nBank by the Agent without the requirement of notice to or from the Borrower from
\nimmediately available funds which shall be advanced as a Base Rate Refunding
\nLoan by each Lender under the Short Term Credit Facility in an amount equal to
\nsuch Lender’s Applicable Commitment Percentage of such Reimbursement Obligation,
\nand (B) if the conditions to making a Loan as herein provided shall not then be
\nsatisfied, each of the Lenders shall fund by payment to the Agent (for the
\nbenefit of the Issuing Bank) in immediately available funds the purchase from
\nthe Issuing Bank of their respective Participations in the related Reimbursement
\nObligation based on their respective Applicable Commitment Percentages. If a
\ndrawing is presented under any Letter of Credit in accordance with the terms
\nthereof and the Borrower shall not immediately reimburse the Issuing Bank in
\nrespect thereof, then notice of such drawing or payment shall be provided
\npromptly by the Issuing Bank to<\/p>\n
28<\/p>\n
the Agent and the Agent shall provide notice to each Lender by telephone or
\ntelefacsimile transmission. If notice to the Lenders of a drawing under any
\nLetter of Credit is given by the Agent at or before 12:00 noon on any Business
\nDay, each Lender shall, pursuant to the conditions specified in this Section
\n2.1(c)(iv), either make a Base Rate Refunding Loan or fund the purchase of its
\nParticipation in the amount of such Lender’s Applicable Commitment Percentage of
\nsuch drawing or payment and shall pay such amount to the Agent for the account
\nof the Issuing Bank at the Principal Office in Dollars and in immediately
\navailable funds before 2:30 P.M. on the same Business Day. If notice to the
\nLenders of a drawing under a Letter of Credit is given by the Agent after 12:00
\nnoon on any Business Day, each Lender shall, pursuant to the conditions
\nspecified in this Section 2.1(c)(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 2.8.<\/p>\n
2.2. Payment of Interest. (a) The Borrower shall pay interest to the
\nAgent 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 Eurodollar Rate for Eurodollar Rate Loans, as
\ndesignated by the Authorized Representative pursuant to Section 2.1; 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 December
\n31, 1998, for each Base Rate Loan, (ii) on the last day of the applicable
\nInterest Period for each Eurodollar Rate Loan and, if such Interest Period
\nextends for more than three (3) months, at intervals of three (3) months after
\nthe first day of such Interest Period, and (iii) upon the Short Term Credit
\nTermination Date. Interest payable at the Default Rate shall be payable on
\ndemand.<\/p>\n
2.3. Payment of Principal. The principal amount of each Loan shall be
\ndue and payable to the Agent for the benefit of each Lender in full on the
\nStated Termination Date, or earlier as specifically provided herein. No
\nprincipal amount shall be repaid under the Existing Credit Agreement so long as
\nthere are Short Term Credit Outstandings. Any principal payments made to the
\nAgent shall be applied first to the Short Term Credit Outstandings and then to
\nany outstandings under the Existing Credit Agreement. The principal amount of
\nany Base Rate Loan may be prepaid in whole or in part at any time. The principal
\namount of any Eurodollar Rate Loan may be prepaid only at the end of the
\napplicable Interest Period unless the Borrower shall pay to the Agent for the
\naccount of the Lenders the additional amount, if any, required under Section
\n4.5. All prepayments of Loans made by the Borrower shall be in the amount of
\n$5,000,000 or such greater amount which<\/p>\n
29<\/p>\n
is an integral multiple of $1,000,000, or the amount equal to all Short Term
\nCredit Outstandings, as the case may be, or such other amount as necessary to
\ncomply with Section 2.1(b) or Section 2.8.<\/p>\n
2.4. 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, without setoff, deduction or counterclaim before
\n10:00 A.M. on the date such payment is due. The Agent may, but shall not be
\nobligated to, debit the amount of any such payment which is not made by such
\ntime to any ordinary deposit account, if any, of the Borrower with the Agent.
\nThe Agent shall promptly notify the Borrower of any such debit; however, failure
\nto give such notice shall not affect the validity 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 becomes
\ndue and payable on a day other than a Business Day, then such due date shall be
\nextended to the next succeeding Business Day unless provided otherwise under the
\ndefinition of “Interest Period”; provided that interest shall continue to accrue
\nduring the period of any such extension and provided further, that in no event
\nshall any such due date be extended beyond the Stated Termination Date.<\/p>\n
2.5. Notes. Loans made by each Lender shall be evidenced by the Note
\npayable to the order of such Lender in the respective amount of its Applicable
\nCommitment Percentage of the Total Short Term Credit Commitment, which Note
\nshall be dated the Closing Date or a later date pursuant to an Assignment and
\nAcceptance and shall be duly completed, executed and delivered by the Borrower.<\/p>\n
2.6. Pro Rata Payments. Except as otherwise provided herein, (a) each
\npayment on account of the principal of and interest on the Loans and the fees
\ndescribed in Section 2.9 and the first sentence of Section 3.3(a) shall be made
\nto the Agent for the account of the Lenders pro rata based on their Applicable
\nCommitment Percentages, (b) all payments to be made by the Borrower for the
\naccount of each of the Lenders on account of principal, interest and fees, shall
\nbe made without diminution, setoff, recoupment or counterclaim, and (c) the
\nAgent will promptly distribute to the Lenders in immediately available funds
\npayments received in fully collected, immediately available funds from the
\nBorrower.<\/p>\n
30<\/p>\n
2.7. 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 Short Term Credit Commitment. The Agent shall give each Lender, within
\none (1) Business Day of receipt of such notice, telefacsimile notice, or
\ntelephonic notice (confirmed in writing), of such reduction. Each such reduction
\nshall be in the aggregate amount of $10,000,000 or such greater amount which is
\nin an integral multiple of $1,000,000, or the entire remaining Total Short Term
\nCredit Commitment, and shall permanently reduce the Total Short Term Credit
\nCommitment. Each reduction of the Total Short Term Credit Commitment shall be
\naccompanied by payment of Loans to the extent that the principal amount of Short
\nTerm Credit Outstandings plus Letter of Credit Outstandings exceeds the Total
\nShort Term Credit Commitment after giving effect to such reduction, together
\nwith accrued and unpaid interest on the amounts prepaid. If any such reduction
\nshall result in the payment of any Eurodollar Rate Loan other than on the last
\nday of the Interest Period of such Eurodollar Rate Loan such prepayment shall be
\naccompanied by amounts due, if any, under Section 4.5.<\/p>\n
2.8. Conversions and Elections of Subsequent Interest Periods. Subject
\nto the limitations set forth below and in Article IV, the Borrower 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 to Base Rate
\nLoans on the last day of the Interest Period for such Eurodollar Rate Loans; and<\/p>\n
(b) provided that no Default or Event of Default shall have
\noccurred and be continuing 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 or a
\n portion of Eurodollar Rate Loans to begin on the last day of
\n the then current Interest Period for such Eurodollar Rate
\n Loans; and<\/p>\n
(ii) Convert Base Rate Loans to Eurodollar Rate Loans
\n on any Business Day.<\/p>\n
Each election and Conversion pursuant to this Section 2.8 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 2.3 and Article IV. The
\nAgent shall give written notice to each Lender of such notice of election or
\nConversion prior to 3:00 P.M. on the day such notice of election or Conversion
\nis received. All such Continuations or Conversions of Loans shall be effected
\npro rata based on the Applicable Commitment Percentages of the Lenders.<\/p>\n
2.9. Unused Fees.<\/p>\n
31<\/p>\n
(a) For the period beginning on the Closing Date and ending on the
\nShort Term Credit Termination Date, the Borrower agrees to pay to the Agent, for
\nthe benefit of each Lender, an unused fee equal to the Applicable Unused Fee
\nmultiplied by the average daily amount by which the Total Short Term Credit
\nCommitment exceeds the aggregate principal amount of Short Term Credit
\nOutstandings plus Letter of Credit Outstandings. Such fees shall be due in
\narrears on the last Business Day of each March, June, September and December
\ncommencing December 31, 1998 to and on the Short Term Credit Termination Date.<\/p>\n
(b) Notwithstanding the foregoing, so long as any Lender fails to make
\navailable any portion of its Short Term Credit Commitment when requested, such
\nLender shall not be entitled to receive payment of its pro rata share of such
\nfees until such Lender shall make available such portion. All fees payable
\npursuant to this Section 2.9 shall be calculated on an Actual\/360 Basis.<\/p>\n
2.10. 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 Short
\nTerm Credit Commitment of any Lender hereunder be increased as a result of such
\ndefault of any other Lender. Without limiting the generality of the foregoing,
\nin the event any Lender shall fail to advance funds to the Borrower under the
\nShort Term Credit Facility as herein provided, the Agent may in its discretion,
\nbut shall not be obligated to, advance under the Note in its favor as a Lender
\nall or any portion of such amount or amounts (each, a “deficiency advance”) and
\nshall thereafter be entitled to payments of principal of and interest on such
\ndeficiency advance in the same manner and at the same interest rate or rates to
\nwhich such other Lender would have been entitled had it made such advance under
\nits Note; provided that, upon payment to the Agent from such other Lender of the
\nentire outstanding amount of each such deficiency advance, together with accrued
\nand unpaid interest thereon, from the most recent date or dates interest was
\npaid to the Agent by the Borrower on each Loan comprising such deficiency
\nadvance at the interest rate per annum for overnight borrowing by the Agent from
\nthe Federal Reserve Bank of Richmond, Virginia, then such payment shall be
\ncredited against the applicable Note of the Agent in full payment of such
\ndeficiency advance and the Borrower shall be deemed to have borrowed the amount
\nof such deficiency advance from such other Lender as of the most recent date or
\ndates, as the case may be, upon which any payments of interest were made by the
\nBorrower thereon.<\/p>\n
2.11. Use of Proceeds. The proceeds of the Loans made pursuant to this
\nAgreement shall be used by the Borrower to repay existing indebtedness and for
\ngeneral corporate purposes, including working capital needs, capital
\nexpenditures and permitted Acquisitions.<\/p>\n
2.12. Increase and Decrease in Amounts. The amount of the Total Short
\nTerm 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
32<\/p>\n
ARTICLE III<\/p>\n
Letters of Credit<\/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, (iii) no Letter of Credit
\nshall be issued if, after giving effect thereto, Letter of Credit Outstandings
\nplus the aggregate principal amount of Short Term Credit Outstandings shall
\nexceed the Total Short Term Credit Commitment and (iv) no Letter of Credit shall
\nbe issued if there is Existing Availability. No Letter of Credit shall have an
\nexpiry date (including all rights of the Borrower or any beneficiary named in
\nsuch Letter of Credit to require renewal) or payment date occurring later than
\nthe fifth Business Day prior to the Short Term 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 Short Term Credit
\nFacility if permitted by Section 2.1(c)) 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(c)(iv), amounts shall be paid pursuant to Advances under the Short Term
\nCredit Facility. The Borrower agrees to pay the Issuing Bank interest on any
\nReimbursement Obligations not paid when due hereunder at the Default Rate.<\/p>\n
(b) In accordance with the provisions of Section 2.1(c), 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
(c) Each Lender (other than the Issuing Bank) shall
\nautomatically acquire on the date of issuance thereof a Participation in the
\nliability of the Issuing Bank in respect of each Letter of Credit in an amount
\nequal to such Lender’s Applicable Commitment Percentage of such liability, and
\nto the extent that the Borrower is obligated to pay the Issuing Bank under
\nSection 3.2(a), each Lender (other than the Issuing Bank) thereby shall
\nabsolutely, unconditionally and irrevocably assume, and shall be unconditionally
\nobligated to pay to the Issuing Bank as hereinafter described,<\/p>\n
33<\/p>\n
its Applicable Commitment Percentage of the liability of the Issuing Bank under
\nsuch Letter of Credit.<\/p>\n
(i) Each Lender (including the Issuing Bank in its
\n capacity as a Lender) shall, subject to the terms and conditions of
\n Article II, pay to the Agent for the account of the Issuing Bank at the
\n Principal Office in Dollars and in immediately available funds, an
\n amount equal to its Applicable Commitment Percentage of any drawing
\n under a Letter of Credit, such funds to be provided in the manner
\n described in Section 2.1(c)(iv).<\/p>\n
(ii) Simultaneously with the making of each payment
\n by a Lender to the Issuing Bank pursuant to Section 2.1(c)(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(c)(iv)
\n or otherwise.<\/p>\n
(iii) Each Lender’s obligation to make payment to the
\n Agent for the account of the Issuing Bank pursuant to Section
\n 2.1(c)(iv) and this Section 3.2(c), and the right of the Issuing Bank
\n to receive the same, shall be absolute and unconditional, shall not be
\n affected by any circumstance whatsoever and shall be made without any
\n offset, abatement, withholding or reduction whatsoever. If any Lender
\n is obligated to pay but does not pay amounts to the Agent for the
\n account of the Issuing Bank in full upon such request as required by
\n Section 2.1(c)(iv) or this Section 3.2(c), such Lender shall, on
\n demand, pay to the Agent for the account of the Issuing Bank interest
\n on the unpaid amount for each day during the period commencing on the
\n date of notice given to such Lender pursuant to Section 2.1(c) until
\n such Lender pays such amount to the Agent for the account of the
\n Issuing Bank in full at the interest rate per annum for overnight
\n borrowing by the Agent from the Federal Reserve Bank of Richmond,
\n Virginia.<\/p>\n
(iv) In the event the Lenders have purchased
\n Participations in any Reimbursement Obligation as set forth in clause
\n (ii) above, then at any time payment (in fully collected, immediately
\n available funds) of such Reimbursement Obligation, in whole or in part,
\n is received by the Issuing Bank from the Borrower, the Issuing Bank
\n shall promptly pay to each Lender an amount equal to its Applicable
\n Commitment Percentage of 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<\/p>\n
34<\/p>\n
consistent with the then current practices and procedures of the Issuing Bank
\nwith respect to similar letters of credit, and the Borrower shall have executed
\nand delivered such other instruments and agreements relating to such Letters of
\nCredit as the Issuing Bank shall have reasonably requested consistent with such
\npractices and procedures and shall not be in conflict with any of the express
\nterms herein contained. All Letters of Credit shall be issued pursuant to and
\nsubject to the Uniform Customs and Practice for Documentary Credits, 1993
\nrevision, International Chamber of Commerce Publication No. 500 and all
\nsubsequent amendments and revisions thereto.<\/p>\n
(f) The Borrower agrees that the 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
\nSection 11.12, the Borrower hereby agrees to indemnify and hold harmless the
\nIssuing Bank, each other Lender and the Agent from and against any and all
\nclaims and damages, losses, liabilities, reasonable costs and expenses which the
\nIssuing Bank, such other Lender or the Agent may incur (or which may be claimed
\nagainst the Issuing Bank, such other Lender or the Agent) by any Person by
\nreason of or in connection with the issuance or transfer of or payment or
\nfailure to pay under any Letter of Credit; provided that the Borrower shall not
\nbe required to indemnify the Issuing Bank, any other Lender or the Agent for any
\nclaims, damages, losses, liabilities, costs or expenses to the extent, but only
\nto the extent, (i) caused by the willful misconduct or negligence of the party
\nto be indemnified or (ii) in the case of the Issuing Bank, caused by the failure
\nof the Issuing Bank to pay under any Letter of Credit after the presentation to
\nit of 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
\nShort Term Credit Termination Date and expiration or termination of this
\nAgreement.<\/p>\n
(h) Without limiting the Borrower’s rights as set forth in
\nSection 3.2(g), the obligation of the Borrower to immediately reimburse the
\nIssuing Bank for drawings made under Letters of Credit and to repay Loans made
\nunder Section 2.1(c) and the Issuing Bank’s and each Lender’s right to receive
\nsuch payment shall be absolute, unconditional and irrevocable, and such
\nobligations of the Borrower shall be performed strictly in accordance with the
\nterms of this Agreement and such Letters of Credit and the related Applications
\nand Agreement for any Letter of Credit, under all circumstances whatsoever,
\nincluding the following circumstances:<\/p>\n
(i) any lack of validity or enforceability of any
\n Letter of Credit, the obligation supported by any Letter of Credit or
\n any other agreement or instrument relating thereto (collectively, the
\n “Related LC Documents”);<\/p>\n
35<\/p>\n
(ii) any amendment or waiver of or any consent to or
\n departure from all or any of the Related LC Documents;<\/p>\n
(iii) the existence of any claim, setoff, defense
\n (other than the defense of payment in accordance with the terms of this
\n Agreement) or other rights which the Borrower may have at any time
\n against any beneficiary or any transferee of a Letter of Credit (or any
\n persons or entities for whom any such beneficiary or any such
\n transferee may be acting), the Agent, the Lenders or any other Person,
\n whether in connection with the Loan Documents, the Related LC Documents
\n or any unrelated transaction;<\/p>\n
(iv) any breach of contract or other dispute between
\n the Borrower and any beneficiary or any transferee of a Letter of
\n Credit (or any persons or entities for whom such beneficiary or any
\n such transferee may be acting), the Agent, the Lenders or any other
\n Person;<\/p>\n
(v) any draft, statement or any other document
\n presented under any Letter of Credit proving to be forged, fraudulent,
\n invalid or insufficient in any respect or any statement therein being
\n untrue or inaccurate in any respect whatsoever;<\/p>\n
(vi) any delay, extension of time, renewal,
\n compromise or other indulgence or modification granted or agreed to by
\n the Agent or the requisite number of Lenders, with or without notice to
\n or approval by the Borrower in respect of any of Borrower’s Obligations
\n under this Agreement; or<\/p>\n
(vii) any other circumstance or happening whatsoever,
\n whether 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 June
\n30, 1998. The fees described in this Section 3.3 shall be calculated on an
\nActual\/360 Basis.<\/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<\/p>\n
36<\/p>\n
for a Participation in such liability. The Borrower agrees to promptly reimburse
\nthe Issuing 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
37<\/p>\n
ARTICLE IV<\/p>\n
Change in Circumstances<\/p>\n
4.1. Increased Cost and Reduced Return.<\/p>\n
(a) If, after the date hereof, the adoption of any applicable
\nlaw, rule, or regulation, or any change in any applicable law, rule, or
\nregulation, or any change in the interpretation or administration thereof by any
\ngovernmental authority, central bank, or comparable agency charged with the
\ninterpretation or administration thereof, or compliance by any Lender (or its
\nApplicable Lending Office) with any request or directive (whether or not having
\nthe force of law) of any such governmental authority, central bank, or
\ncomparable agency:<\/p>\n
(i) shall subject such Lender (or its Applicable
\n Lending Office) to any tax, duty, or other charge with respect to any
\n Eurodollar Rate Loans, its Note, or its obligation to make Eurodollar
\n Rate Loans, or change the basis of taxation of any amounts payable to
\n such Lender (or its Applicable Lending Office) under this Agreement or
\n its Note in respect of any Eurodollar Rate Loans (other than taxes
\n imposed on the overall net income of such Lender by the jurisdiction in
\n which such Lender has its principal office or such Applicable Lending
\n Office);<\/p>\n
(ii) shall impose, modify, or deem applicable any
\n reserve, special deposit, assessment, or similar requirement (other
\n than the Reserve Requirement utilized in the determination of the
\n Eurodollar Rate) relating to any extensions of credit or other assets
\n of, or any deposits with or other liabilities or commitments of, such
\n Lender (or its Applicable Lending Office), including the Short Term
\n Credit Commitment of such Lender hereunder; or<\/p>\n
(iii) shall impose on such Lender (or its Applicable
\n Lending Office) or on the London interbank market any other condition
\n affecting this Agreement or its Note or any of such extensions of
\n credit or liabilities or commitments;<\/p>\n
and the result of any of the foregoing is to increase the cost to such Lender
\n(or its Applicable Lending Office) of making, Converting into, Continuing, or
\nmaintaining any Eurodollar Rate Loans or to reduce any sum received or
\nreceivable by such Lender (or its Applicable Lending Office) under this
\nAgreement or its Note with respect to any Eurodollar Rate Loans, then the
\nBorrower shall pay to such Lender on demand such amount or amounts as will
\ncompensate such Lender for such increased cost or reduction; provided that no
\nLender will be entitled to any compensation for any such increased cost or
\nreduction if demand for payment thereof is made by such Lender more than 180
\ndays after the occurrence of the circumstances giving rise to such claim. If any
\nLender requests compensation by the Borrower under this Section 4.1(a), the
\nBorrower may, by notice to such Lender (with a copy to the Agent), suspend the
\nobligation of such Lender to make or Continue Loans of the Type with respect to
\nwhich such compensation is requested, or to Convert Loans of any other Type into
\nLoans of such Type, until the event or condition giving rise to such request
\nceases to be<\/p>\n
38<\/p>\n
in effect (in which case the provisions of Section 4.4 shall be applicable);
\nprovided that such suspension shall not affect the right of such Lender to
\nreceive the compensation so requested.<\/p>\n
(b) If, after the date hereof, any Lender shall have determined that
\nthe adoption of any applicable law, rule, or regulation regarding capital
\nadequacy or any change therein or in the interpretation or administration
\nthereof by any governmental authority, central bank, or comparable agency
\ncharged with the interpretation or administration thereof, or any request or
\ndirective regarding capital adequacy (whether or not having the force of law) of
\nany such governmental authority, central bank, or comparable agency, has or
\nwould have the effect of reducing the rate of return on the capital of such
\nLender or any corporation controlling such Lender as a consequence of such
\nLender’s obligations hereunder to a level below that which such Lender or such
\ncorporation could have achieved but for such adoption, change, request, or
\ndirective (taking into consideration its policies with respect to capital
\nadequacy), then from time to time upon demand the Borrower shall pay to such
\nLender such additional amount or amounts as will compensate such Lender for such
\nreduction.<\/p>\n
(c) Each Lender shall promptly notify the Borrower and the Agent of any
\nevent of which it has knowledge, occurring after the date hereof, which will
\nentitle such Lender to compensation pursuant to this Section and will designate
\na different Applicable Lending Office if such designation will avoid the need
\nfor, or reduce the amount of, such compensation and will not, in the reasonable
\njudgment of such Lender, be otherwise disadvantageous to it. Any Lender claiming
\ncompensation under this Section shall furnish to the Borrower and the Agent a
\nstatement setting forth the additional amount or amounts to be paid to it
\nhereunder which shall be conclusive in the absence of manifest error. In
\ndetermining such amount, such Lender may use any reasonable averaging and
\nattribution methods that such Lender uses for its customers that are similarly
\nsituated to the Borrower.<\/p>\n
4.2. Limitation on Types of Loans. If on or prior to the first day of
\nany Interest Period for any Eurodollar Rate Loan:<\/p>\n
(a) the Agent reasonably determines (which determination shall
\n be conclusive) that by reason of circumstances affecting the relevant
\n market, adequate and reasonable means do not exist for ascertaining the
\n Eurodollar Rate for such Interest Period; or<\/p>\n
(b) the Required Lenders reasonably determine (which
\n determination shall be conclusive) and notify the Agent that the
\n Eurodollar Rate will not adequately and fairly reflect the cost to the
\n Lenders of funding Eurodollar Rate Loans for such Interest Period;<\/p>\n
then the Agent shall give the Borrower prompt notice thereof specifying the
\nrelevant Type of Loans and the relevant amounts or periods, and so long as such
\ncondition remains in effect, the Lenders shall be under no obligation to make
\nadditional Loans of such Type, Continue Loans of such Type, or to Convert Loans
\nof any other Type into Loans of such Type and the Borrower shall, on the last
\nday(s) of the then current Interest Period(s) for the outstanding Loans of the
\naffected Type, either prepay such Loans or Convert such Loans into another Type
\nof Loan in accordance with the terms of this Agreement.<\/p>\n
39<\/p>\n
4.3. Illegality. Notwithstanding any other provision of this Agreement,
\nin the event that it becomes unlawful for any Lender or its Applicable Lending
\nOffice to make, maintain, or fund Eurodollar Rate Loans hereunder, then such
\nLender shall promptly notify the Borrower thereof and such Lender’s obligation
\nto make or Continue Eurodollar Rate Loans and to Convert other Types of Loans
\ninto Eurodollar Rate Loans shall be suspended until such time as such Lender may
\nagain make, maintain, and fund Eurodollar Rate Loans (in which case the
\nprovisions of Section 4.4 shall be applicable).<\/p>\n
4.4. Treatment of Affected Loans. If the obligation of any Lender to
\nmake a Eurodollar Rate Loan or to Continue, or to Convert Loans of any other
\nType into, Loans of a particular Type shall be suspended pursuant to Section 4.1
\nor 4.3 hereof (Loans of such Type being herein called “Affected Loans” and such
\nType being herein called the “Affected Type”), such Lender’s Affected Loans
\nshall be automatically Converted into Base Rate Loans on the last day(s) of the
\nthen current Interest Period(s) for Affected Loans (or, in the case of a
\nConversion required by Section 4.3 hereof, on such earlier date as such Lender
\nmay specify to the Borrower with a copy to the Agent) and, unless and until such
\nLender gives notice as provided below that the circumstances specified in
\nSection 4.1 or 4.3 hereof that gave rise to such Conversion no longer exist:<\/p>\n
(a) to the extent that such Lender’s Affected Loans have been
\n so Converted, all payments and prepayments of principal that would
\n otherwise be applied to such Lender’s Affected Loans shall be applied
\n instead to its Base Rate Loans; and<\/p>\n
(b) all Loans that would otherwise be made or Continued by
\n such Lender as Loans of the Affected Type shall be made or Continued
\n instead as Base Rate Loans, and all Loans of such Lender that would
\n otherwise be Converted into Loans of the Affected Type shall be
\n Converted instead into (or shall remain as) Base Rate Loans.<\/p>\n
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
\ncircumstances specified in Section 4.1 or 4.3 hereof that gave rise to the
\nConversion of such Lender’s Affected Loans pursuant to this Section 4.4 no
\nlonger exist (which such Lender agrees to do promptly upon such circumstances
\nceasing to exist) at a time when Loans of the Affected Type made by other
\nLenders are outstanding, such Lender’s Base Rate Loans shall be automatically
\nConverted, on the first day(s) of the next succeeding Interest Period(s) for
\nsuch outstanding Loans of the Affected Type, to the extent necessary so that,
\nafter giving effect thereto, all Loans held by the Lenders holding Loans of the
\nAffected Type and by such Lender are held pro rata (as to principal amounts,
\nTypes, and Interest Periods) in accordance with their respective Short Term
\nCredit Commitments.<\/p>\n
4.5. Compensation. Upon the request of any Lender, the Borrower shall
\npay to such Lender such amount or amounts as shall be sufficient (in the
\nreasonable opinion of such Lender) to compensate it for any loss, cost, or
\nexpense (including loss of anticipated profits) incurred by it as a result of:<\/p>\n
40<\/p>\n
(a) any payment, prepayment, or Conversion of a Eurodollar
\n Rate Loan for any reason (including, without limitation, the
\n acceleration of the Loans pursuant to Section 9.1) on a date other than
\n the last day of the Interest Period for such Loan; or<\/p>\n
(b) any failure by the Borrower for any reason (including,
\n without limitation, the failure of any condition precedent specified in
\n Article V to be satisfied) to borrow, Convert, Continue, or prepay an
\n Eurodollar Rate Loan on the date for such borrowing, Conversion,
\n Continuation, or prepayment specified in the relevant notice of
\n borrowing, prepayment, Continuation, or Conversion under this
\n Agreement.<\/p>\n
4.6. Taxes. (a) Any and all payments by the Borrower to or for the
\naccount of any Lender or the Agent hereunder or under any other Loan Document
\nshall be made free and clear of and without deduction for any and all present or
\nfuture taxes, duties, levies, imposts, deductions, charges or withholdings, and
\nall liabilities with respect thereto, excluding, in the case of each Lender and
\nthe Agent, taxes imposed on its income, and franchise taxes imposed on it, by
\nthe jurisdiction under the laws of which such Lender (or its Applicable Lending
\nOffice) or the Agent (as the case may be) is organized or any political
\nsubdivision thereof (all such non-excluded taxes, duties, levies, imposts,
\ndeductions, charges, withholdings, and liabilities being hereinafter referred to
\nas “Taxes”). If the Borrower shall be required by law to deduct any Taxes from
\nor in respect of any sum payable under this Agreement or any other Loan Document
\nto any Lender or the Agent, (i) the sum payable shall be increased as necessary
\nso that after making all required deductions (including deductions applicable to
\nadditional sums payable under this Section 4.6) such Lender or the Agent
\nreceives an amount equal to the sum it would have received had no such
\ndeductions been made, (ii) the Borrower shall make such deductions, (iii) the
\nBorrower shall pay the full amount deducted to the relevant taxation authority
\nor other authority in accordance with applicable law, and (iv) the Borrower
\nshall furnish to the Agent, at its address referred to in Section 11.2, the
\noriginal or a certified copy of a receipt evidencing payment thereof.<\/p>\n
(b) In addition, the Borrower agrees to pay any and all present or
\nfuture stamp or documentary taxes and any other excise or property taxes or
\ncharges or similar levies which arise from any payment made under this Agreement
\nor any other Loan Document or from the execution or delivery of, or otherwise
\nwith respect to, this Agreement or any other Loan Document (hereinafter referred
\nto as “Other Taxes”).<\/p>\n
(c) The Borrower agrees to indemnify each Lender and the Agent for the
\nfull amount of Taxes and Other Taxes (including, without limitation, any Taxes
\nor Other Taxes imposed or asserted by any jurisdiction on amounts payable under
\nthis Section 4.6) paid by such Lender or the Agent (as the case may be) and any
\nliability (including penalties, interest, and expenses) arising therefrom or
\nwith respect thereto.<\/p>\n
(d) Each Lender organized under the laws of a jurisdiction outside the
\nUnited States, on or prior to the date of its execution and delivery of this
\nAgreement in the case of each Lender listed on the signature pages hereof and on
\nor prior to the date on which it becomes a Lender in the case of each other
\nLender, and from time to time thereafter if requested in writing by the Borrower
\nor the Agent (but only so long as such Lender remains lawfully able to do so),
\nshall provide the Borrower<\/p>\n
41<\/p>\n
and the Agent with (i) Internal Revenue Service Form 1001 or 4224, as
\nappropriate, or any successor form prescribed by the Internal Revenue Service,
\ncertifying that such Lender is entitled to benefits under an income tax treaty
\nto which the United States is a party which reduces the rate of withholding tax
\non payments of interest or certifying that the income receivable pursuant to
\nthis Agreement is effectively connected with the conduct of a trade or business
\nin the United States, (ii) Internal Revenue Service Form W-8 or W-9, as
\nappropriate, or any successor form prescribed by the Internal Revenue Service,
\nand (iii) any other form or certificate required by any taxing authority
\n(including any certificate required by Sections 871(h) and 881(c) of the
\nInternal Revenue Code), certifying that such Lender is entitled to an exemption
\nfrom or a reduced rate of tax on payments pursuant to this Agreement or any of
\nthe other Loan Documents.<\/p>\n
(e) For any period with respect to which a Lender has failed to provide
\nthe Borrower and the Agent with the appropriate form pursuant to Section 4.6(d)
\n(unless such failure is due to a change in treaty, law, or regulation occurring
\nsubsequent to the date on which a form originally was required to be provided),
\nsuch Lender shall not be entitled to indemnification under Section 4.6(a),
\n4.6(b), or 4.6(c) with respect to Taxes imposed by the United States; provided,
\nhowever, that should a Lender, which is otherwise exempt from or subject to a
\nreduced rate of withholding tax, become subject to Taxes because of its failure
\nto deliver a form required hereunder, the Borrower shall take such steps as such
\nLender shall reasonably request to assist such Lender to recover such Taxes.<\/p>\n
(f) If the Borrower is required to pay additional amounts to or for the
\naccount of any Lender pursuant to this Section 4.6, then such Lender will agree
\nto use reasonable efforts to change the jurisdiction of its Applicable Lending
\nOffice so as to eliminate or reduce any such additional payment which may
\nthereafter accrue if such change, in the judgment of such Lender, is not
\notherwise disadvantageous to such Lender.<\/p>\n
(g) Within thirty (30) days after the date of any payment of Taxes, the
\nBorrower shall furnish to the Agent the original or a certified copy of a
\nreceipt evidencing such payment.<\/p>\n
(h) Without prejudice to the survival of any other agreement of the
\nBorrower hereunder, the agreements and obligations of the Borrower contained in
\nthis Section 4.6 shall survive the termination of the Short Term Credit
\nCommitments and the payment in full of the Notes.<\/p>\n
42<\/p>\n
ARTICLE V<\/p>\n
Conditions to Making Loans and Issuing Letters of Credit<\/p>\n
5.1. Conditions of Initial Advance. This Agreement shall not become
\neffective until the following conditions precedent have been satisfied in the
\nsole judgment of the Agent:<\/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,
\n the Notes, the LC Account Agreement and the other Loan
\n Documents, together with all schedules and exhibits thereto;<\/p>\n
(ii) the favorable written opinion or opinions with
\n respect to the Loan Documents and the transactions
\n contemplated thereby of counsel to the Borrower dated the
\n Closing Date, addressed to the Agent and the Lenders and
\n satisfactory to Smith Helms Mulliss & Moore, L.L.P., special
\n counsel to the Agent, substantially in the form of Exhibit H;<\/p>\n
(iii) resolutions of the board of directors of the
\n Borrower certified by its secretary or assistant secretary as
\n of the Closing Date, approving and adopting the Loan Documents
\n to be executed by the Borrower, and authorizing the execution
\n and delivery and performance thereof;<\/p>\n
(iv) specimen signatures of officers of the
\n Borrower executing the Loan Documents on behalf of the
\n Borrower, certified by the secretary or assistant secretary of
\n the Borrower;<\/p>\n
(v) the charter documents of the Borrower
\n certified as of a recent date by the Secretary of State of its
\n state of organization;<\/p>\n
(vi) the bylaws of the Borrower certified as of the
\n Closing Date as true and correct by its secretary or assistant
\n secretary;<\/p>\n
(vii) certificates issued as of a recent date by the
\n Secretary of State of the jurisdiction of formation of the
\n Borrower as to the valid existence and good standing of the
\n Borrower;<\/p>\n
(viii) notice of appointment of the initial
\n Authorized Representative(s);<\/p>\n
(ix) evidence of all insurance required by the Loan
\n Documents;<\/p>\n
(x) evidence that all fees payable by the Borrower
\n on the Closing Date to the Agent and the Lenders have been
\n paid in full;<\/p>\n
43<\/p>\n
(xiii) such other documents, instruments,
\n certificates and opinions as the Agent or any Lender may
\n reasonably request on or prior to the Closing Date in
\n connection with the consummation of the transactions
\n 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
\n to the Agent or the Lenders any event, condition, situation or
\n status since December 31, 1997 that has had or could
\n reasonably be expected to result in a Material Adverse Effect;<\/p>\n
(ii) no litigation, action, suit, investigation or
\n other arbitral, administrative or judicial proceeding shall be
\n pending or threatened which could reasonably be expected to
\n result in a Material Adverse Effect; and<\/p>\n
(iii) the Borrower and its Consolidated Entities
\n shall have received all approvals, consents and waivers, and
\n shall have made or given all necessary filings and notices, as
\n shall be required to consummate the transactions contemplated
\n hereby without the occurrence of any default under, conflict
\n with or violation of (A) any applicable law, rule, regulation,
\n order or decree of any Governmental Authority or arbitral
\n authority or (B) any agreement, document or instrument to
\n which any of the Borrower or any Consolidated Entity is a
\n party or by which any of them or their properties is bound,
\n except for such approvals, consents, waivers, filings and
\n notices the receipt, making or giving of which will not have a
\n Material 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
\n required 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 the 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
44<\/p>\n
(d) at the time of (and after giving effect to) each Advance
\n or the issuance of a Letter of Credit, no Default or Event of Default
\n shall have occurred and be continuing and there shall not be any
\n Existing Availability; and<\/p>\n
(e) immediately after giving effect to:<\/p>\n
(i) a Loan, the aggregate principal balance of all
\n outstanding Loans for each 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 Short Term Credit Commitment;<\/p>\n
(ii) a Letter of Credit or renewal thereof, the
\n aggregate principal balance of all outstanding Participations
\n in 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
(iii) a Loan or a Letter of Credit or renewal
\n thereof, the sum of Letter of Credit Outstandings plus the
\n aggregate principal amount of Short Term Credit Outstandings
\n shall not exceed the Total Short Term Credit Commitment.<\/p>\n
Each borrowing hereunder and each issuance of a Letter of Credit
\nhereunder shall constitute a representation and warranty by the Borrower to the
\neffect that the conditions set forth in clauses (b) and (d) have been satisfied
\nas of the date of such borrowing.<\/p>\n
45<\/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
\n corporation, partnership or limited liability company duly organized
\n and validly existing under the laws of the jurisdiction of its
\n 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,
\n deliver and perform this Agreement and the Notes, and to borrow and
\n obtain other extensions of credit hereunder, and to execute, deliver
\n and perform each of the other Loan Documents to which it is a party;
\n 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
\n actions (including any required shareholder approval) of the Borrower
\n required for the lawful execution, delivery and performance thereof;<\/p>\n
(b) do not violate any provisions of (i) applicable law, rule
\n or regulation, (ii) any judgment, writ, order, determination, decree or
\n arbitral award of any Governmental Authority or arbitral authority
\n binding on the Borrower or any Subsidiary or its or any Subsidiary’s
\n properties, or (iii) the charter documents or bylaws of the Borrower;<\/p>\n
(c) do not and will not be in conflict with, result in a
\n breach of or constitute an event of default, or an event which, with
\n notice or lapse of time or both, would constitute an event<\/p>\n
46<\/p>\n
of default, under any contract, indenture, agreement or other
\n instrument or document to which Borrower or any Consolidated Entity is
\n a party, or by which the properties or assets of the Borrower or any
\n Consolidated Entity are bound; and<\/p>\n
(d) do not and will not result in the creation or imposition
\n of 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 Interests. 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 the Agent and
\n each Lender an audited consolidated balance sheet of the Borrower and
\n its Consolidated Entities as at December 31, 1997 and the notes thereto
\n and the related consolidated statements of income, stockholders’ equity
\n and cash flows for the Fiscal Year then ended as examined and certified
\n by Ernst & Young LLP. Except as set forth therein, such financial
\n statements (including the notes thereto) present fairly the financial
\n condition of the Borrower and its Consolidated Entities as of the end
\n of such Fiscal Year and results of their operations and the changes in
\n its stockholders’ equity for the Fiscal Year, all in conformity with
\n GAAP applied on a Consistent Basis, subject however, in the case of
\n unaudited interim statements to year end audit adjustments;<\/p>\n
(b) since December 31, 1997, there has been no material
\n adverse change in the condition, financial or otherwise, of the
\n Borrower or any of its Consolidated Entities, or in the businesses,
\n properties, performance, prospects or operations of the Borrower or any
\n of its Consolidated Subsidiaries nor have such businesses or properties
\n been 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; 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, (b) $567,750,000 aggregate principal amount of
\n the Borrower’s 3.25% Convertible Subordinated Debentures due 2003, (c)
\n $250,000,000 aggregate principal amount of the Borrower’s 6.875% Senior
\n Notes due 2005 and $250,000,000 aggregate principal amount of the
\n Borrower’s 7.0% Senior Notes due 2005,<\/p>\n
47<\/p>\n
(d) Obligations arising under this Agreement, and (e) liabilities
\n incurred in the ordinary 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. Except as disclosed in or incorporated by
\nreference in the 1997 10-K:<\/p>\n
(a) neither the Borrower nor any Consolidated Entity is a
\n party to 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 likely to
\n 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 agreement or instrument to which the Borrower
\n or any Consolidated Entity is a party, which default has, or if not
\n remedied within any applicable grace period could reasonably be likely
\n to have, a Material 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 likely 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<\/p>\n
48<\/p>\n
of such Person, which revocation, termination, cancellation or
\n suspension could reasonably be likely to have a Material Adverse
\n Effect.<\/p>\n
6.10. Litigation. Except as disclosed in or incorporated by reference
\nin the 1997 10-K, there is no action, suit, investigation or proceeding at law
\nor in equity or by or before any governmental instrumentality or agency or
\narbitral 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 likely (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. Margin Stock. The proceeds of the borrowings and other extensions
\nof credit made hereunder will be used by the Borrower only for the purposes
\nexpressly authorized herein. None of such proceeds will be used, directly or
\nindirectly, for the purpose of purchasing or carrying any margin stock or for
\nthe purpose of reducing or retiring any Indebtedness which was originally
\nincurred to purchase or carry margin stock or for any other purpose which might
\nconstitute any of the Loans or Letters of Credit under this Agreement a “purpose
\ncredit” within the meaning of Regulation U or Regulation X of the Board. Neither
\nthe Borrower nor any agent acting in its behalf has taken or will take any
\naction which might cause this Agreement or any of the documents or instruments
\ndelivered pursuant hereto to violate any regulation of the Board or to violate
\nthe Exchange Act or the Securities Act of 1933, as amended, or any state
\nsecurities laws, in each case 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. Patents, Etc. Except as set forth on Schedule 6.13, the Borrower
\nand each Consolidated Entity owns or has the right to use, under valid license
\nagreements or otherwise, all material patents, licenses, franchises, trademarks,
\ntrademark rights, trade names, trade name rights, trade secrets, service marks,
\nservice mark rights and copyrights necessary to or used in the conduct of its
\nbusinesses as now conducted and as contemplated by the Loan Documents, without
\nknown conflict by, or with, any patent, license, franchise, trademark, trade
\nsecret, trade name, service mark, copyright or other proprietary right of, any
\nother Person.<\/p>\n
49<\/p>\n
6.14. No Untrue Statement. Neither (a) this Agreement nor any other
\nLoan Document or certificate or document executed and delivered by or on behalf
\nof the Borrower or any Consolidated Entity in accordance with or pursuant to any
\nLoan Document nor (b) any statement, representation, or warranty provided to the
\nAgent or any Lender in connection with the negotiation or preparation of the
\nLoan Documents contains any misrepresentation or untrue statement of material
\nfact or omits to state a material fact necessary, in light of the circumstance
\nunder which it was made, in order to make any such warranty, representation or
\nstatement contained therein not misleading.<\/p>\n
6.15. No Consents, Etc. Neither the respective businesses or properties
\nof the Borrower or any Consolidated Entity, nor any relationship between the
\nBorrower or any Consolidated Entity and any other Person, nor any circumstance
\nin connection with the execution, delivery and performance of the Loan Documents
\nand the transactions contemplated thereby, is such as to require a consent,
\napproval or authorization 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 or
\nenforceability of, the Loan Documents, which, if not obtained or effected, would
\nbe reasonably likely to have a Material Adverse Effect, or if so, such consent,
\napproval, authorization, filing, registration or qualification has been duly
\nobtained 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 material to the operations of the
\nBorrower or such Consolidated Entity to be subject to any material restrictions
\non ownership, use, occupancy or transferability under any Environmental 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<\/p>\n
50<\/p>\n
charges, equal 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 likely, individually or in the
\naggregate, to have a Material Adverse Effect; and<\/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
6.22. Year 2000 Compliance. The Borrower has (i) initiated a review and
\nassessment of all areas within its and each of its Consolidated Entities’
\nbusiness and operations (including those affected by suppliers, vendors, and
\ncustomers) that could be adversely affected by the “Year 2000 Problem” (that is,
\nthe risk that computer applications used by the Borrower or any of its
\nConsolidated Entities (or suppliers, vendors and customers) may be unable to
\nrecognize and perform properly date-sensitive functions involving certain dates
\nprior to and any date after December 31, 1999), (ii) developed a plan and
\ntimeline for addressing the Year 2000 Problem on a timely basis, and (iii) to
\ndate, implemented that plan in accordance with that timetable. Based on the
\nforegoing, the Borrower believes that all computer applications (including those
\nof its suppliers, vendors and customers) that are material to its or any of its
\nConsolidated Entities’ business and operations are reasonably expected on a
\ntimely basis to be able to perform proper date-sensitive functions for all dates
\nbefore and after January 1, 2000 (that is, be “Year 2000 compliant”), except to
\nthe extent that a failure to do so could not reasonably be expected to have a
\nMaterial Adverse Effect.<\/p>\n
51<\/p>\n
ARTICLE VII<\/p>\n
Affirmative Covenants<\/p>\n
Until the Short Term Credit Termination Date and termination of this
\nAgreement in accordance with the terms hereof, unless the Required Lenders shall
\notherwise consent in writing, the Borrower will, and where applicable will cause
\neach Consolidated 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 income of the Borrower and its Consolidated Entities on a consolidated
\n basis and a statement of cash flow of the Borrower and its Consolidated
\n Entities on a consolidated basis for such calendar quarter and for the
\n period beginning on the first day of such Fiscal Year and ending on the
\n last day of such quarter (in sufficient detail to indicate the
\n Borrower’s and each Consolidated Entity’s compliance with the financial
\n covenants set forth in Section 8.1), together with statements in
\n comparative form for the corresponding date or period in the preceding
\n Fiscal Year as summarized in the Borrower’s Form 10-Q for the
\n 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 income,
\n a statement of changes in shareholders’ equity and a statement of cash
\n flow) of the Borrower and its Consolidated Entities on a consolidated
\n basis for such Fiscal Year (in sufficient detail to indicate the
\n Borrower’s and each Consolidated Entity’s compliance with the financial
\n covenants set forth in Section 8.1), together with statements in
\n comparative form as of the end of and for the preceding Fiscal Year as
\n summarized in the Borrower’s Form 10-K for the corresponding period,
\n and accompanied by an opinion of certified public accountants
\n acceptable to the Agent, which opinion shall state in effect that such
\n financial statements (A) were audited using generally accepted auditing
\n standards, (B) were prepared in accordance with generally accepted
\n accounting principles applied on a Consistent Basis, and (C) present
\n fairly the financial condition and results of operations of the
\n Borrower and its Consolidated Entities for the periods covered.<\/p>\n
(c) Together with the financial statements required by
\n subsections (a) and (b) above a compliance certificate duly executed by
\n the chief executive officer or chief financial officer or Treasurer of
\n the Borrower in the form of Exhibit I (“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<\/p>\n
52<\/p>\n
or filed with the Securities and Exchange Commission (including reports
\n on SEC Forms 10-K, 10-Q and 8-K).<\/p>\n
(e) Promptly after the Borrower knows or has reason to know of
\n the 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
\n its 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
\n financial condition or operations of the Borrower or its Consolidated
\n Entities as the Agent shall reasonably request from time to time or at
\n any time.<\/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
53<\/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 may be required by GAAP with respect to
\ndoubtful accounts and all taxes, assessments, charges, levies and claims and
\nwith respect to its business in general, and include such reserves in interim as
\nwell as year-end financial statements.<\/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
\nlikely 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 likely to have a Material Adverse Effect.<\/p>\n
54<\/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 other proceedings being
\ninstituted (i) against the Borrower or any Subsidiary, or any attachment, levy,
\nexecution or other process being instituted against any assets of the Borrower
\nor any Subsidiary or Controlled Partnership, which if adversely determined could
\nreasonably be likely to have a Material Adverse Effect or (ii) against the
\nBorrower, any Subsidiary or any Contract Provider (but only with respect to
\nservices provided to the Borrower or any Consolidated Entity) to suspend, revoke
\nor terminate any Medicaid Provider Agreement, Medicaid Certification, Medicare
\nProvider Agreement or Medicare Certification, which suspension, revocation or
\ntermination could reasonably be likely to have a Material Adverse Effect, cause
\nsuch Executive Officer or an Authorized Representative to promptly deliver to
\nthe Agent written notice thereof stating the nature and status of such
\nlitigation, dispute, proceeding, levy, execution or 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<\/p>\n
55<\/p>\n
contested by the Borrower or the applicable Consolidated Entity by appropriate
\nproceedings diligently conducted and all reserves with respect thereto as may be
\nrequired under GAAP, if any, have been made, and no Lien in connection therewith
\nshall have attached to any property of the Borrower or the applicable
\nConsolidated Entity which shall have become enforceable against creditors of
\nsuch Person.<\/p>\n
7.15. Continuation of Current Business. Not engage in any business
\nother than the business now being conducted by the Borrower (including its
\nConsolidated Entities) and other businesses directly 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 management of the
\nFacility owned by Vanderbilt Stallworth Rehabilitation Hospital, L.P. is vested
\nin part in a Governance Committee and in part in a Subsidiary of the Borrower
\npursuant to the applicable limited partnership agreement and a management
\nagreement.<\/p>\n
7.17. Year 2000 Compliance. The Borrower will promptly notify the Agent
\nin the event the Borrower discovers or determines that any computer application
\n(including those of its suppliers, vendors, and customers) that is material to
\nits or any of its Consolidated Entities’ business and operations will not be
\nYear 2000 compliant, except to the extent that such failure could not reasonably
\nbe expected to have a Material Adverse Effect.<\/p>\n
56<\/p>\n
ARTICLE VIII<\/p>\n
Negative Covenants<\/p>\n
Until the Short Term Credit Termination Date and termination of this
\nAgreement in accordance with the terms hereof, unless the Required Lenders shall
\notherwise consent in writing, the Borrower will not, nor will it permit any
\nConsolidated Entity to:<\/p>\n
8.1. Financial Covenants.<\/p>\n
(a) Minimum Net Worth. Permit Consolidated Net Worth to be
\n less than $2,750,000,000 plus (A) 50% of Consolidated Net Income (if
\n positive 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 June 30, 1998, 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
\n Ratio. 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 0.65 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 other
\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 of Indebtedness to the
\nBorrower) in an aggregate amount at any time exceeding the greater of
\n$70,000,000 or 15% of Consolidated Tangible Net Worth, excluding, however,
\nIndebtedness of Subsidiaries and Controlled Partnerships existing as of the date
\nhereof and described on Schedule 8.3.<\/p>\n
57<\/p>\n
8.4. Disposition of Assets. Sell, lease or otherwise dispose of assets
\nin excess of 15% of Consolidated Total Assets as at the Closing Date plus an
\namount 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, with the effect that amounts not paid in any
\nFiscal Year may not be carried over for payment in a subsequent period) if
\nimmediately prior and immediately after giving effect thereto no Default or
\nEvent of Default shall exist or occur and be continuing.<\/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
58<\/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 (other than a change to
\nconform the fiscal year of a Consolidated Entity to that of the Borrower).<\/p>\n
8.12. Dissolution, etc. Wind up, liquidate or dissolve (voluntarily or
\ninvoluntarily) or commence or suffer any proceedings seeking any such winding
\nup, liquidation or dissolution, except in connection with a merger or
\nconsolidation permitted pursuant to Section 8.5 or where the liquidation or
\ndissolution of a Consolidated Entity occurs in the ordinary course of business
\nand does not have a Material Adverse Effect.<\/p>\n
8.13. Transactions with Affiliates. Other than transactions permitted
\nunder Sections 8.2 and 8.5, enter into any transaction after the Closing Date,
\nincluding, without limitation, the purchase, sale, lease or exchange of
\nproperty, real or personal, or the rendering of any service, with any Affiliate
\nof the Borrower, except (a) that such Persons may render services to the
\nBorrower for compensation at the same rates generally paid by Persons engaged in
\nthe same or similar businesses for the same or similar services, (b) that the
\nBorrower may render services to such Persons for compensation at the same rates
\ngenerally charged by the Borrower and (c) in either case in the<\/p>\n
59<\/p>\n
ordinary course of business and pursuant to the reasonable requirements of the
\nBorrower’s business consistent with past practice of the Borrower and upon fair
\nand reasonable terms no less favorable to the Borrower than would be obtained in
\na comparable arm’s-length transaction with a Person not an Affiliate;<\/p>\n
60<\/p>\n
ARTICLE IX<\/p>\n
Events of Default and 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 to
\n cause such Indebtedness to become due prior to its stated maturity, and
\n such default shall not be cured within 10 days after the occurrence of
\n such default, and the amount of the Indebtedness involved exceeds
\n $5,000,000; or<\/p>\n
61<\/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 Authority or termination of any contract with any
\n such authority, in either case which cancellation, revocation,
\n suspension, termination or loss (X) in the case of any suspension or
\n temporary loss only, continues for a period greater than 60 days and
\n (Y) results in the suspension or termination of operations of the
\n Borrower or any Subsidiary or in the failure of the Borrower or any
\n Subsidiaries or any Contract Provider to be eligible to participate in
\n Medicare or Medicaid programs or to accept assignments of rights to
\n reimbursement under Medicaid Regulations or Medicare Regulations, if
\n and only if such Person, in the ordinary course of business,
\n participates in the Medicare or Medicare programs or accepts
\n assignments of rights to reimbursement thereunder; provided that any
\n such events described in this Section 9.1(l) shall constitute an<\/p>\n
62<\/p>\n
Event of Default only if such event shall result either singly or in
\n the aggregate in the termination, cancellation, suspension or material
\n impairment of operations or rights to reimbursement which produce 5% or
\n more of the 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; and<\/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
63<\/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 2.9 or
\n Section 11.6;<\/p>\n
(ii) amounts due to the Agent and the Issuing Bank pursuant to
\n Section 10.8, Section 3.3 and Section 3.4;<\/p>\n
(iii) payments of interest, to be applied pro rata based on
\n the 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
(iv) payments of principal, to be applied pro rata based on
\n the 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
\n 9.1(B);<\/p>\n
(vi) payments of all other amounts due under this Agreement,
\n if any, to be applied in accordance with each Lender’s pro rata share
\n of 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
64<\/p>\n
ARTICLE X<\/p>\n
The Agent<\/p>\n
10.1. Appointment, Powers, and Immunities. Each Lender hereby
\nirrevocably appoints and authorizes the Agent to act as its agent under this
\nAgreement and the other Loan Documents with such powers and discretion as are
\nspecifically delegated to the Agent by the terms of this Agreement and the other
\nLoan Documents, together with such other powers as are reasonably incidental
\nthereto. The Agent (which term as used in this sentence and in Section 10.5 and
\nthe first sentence of Section 10.6 hereof shall include its affiliates and its
\nown and its affiliates’ officers, directors, employees, and agents): (a) shall
\nnot have any duties or responsibilities except those expressly set forth in this
\nAgreement and shall not be a trustee or fiduciary for any Lender; (b) shall not
\nbe responsible to the Lenders for any recital, statement, representation, or
\nwarranty (whether written or oral) made in or in connection with any Loan
\nDocument or any certificate or other document referred to or provided for in, or
\nreceived by any of them under, any Loan Document, or for the value, validity,
\neffectiveness, genuineness, enforceability, or sufficiency of any Loan Document,
\nor any other document referred to or provided for therein or for any failure by
\nany Person to perform any of its obligations thereunder; (c) shall not be
\nresponsible for or have any duty to ascertain, inquire into, or verify the
\nperformance or observance of any covenants or agreements by any Person or the
\nsatisfaction of any condition or to inspect the property (including the books
\nand records) of any Person; (d) shall not be required to initiate or conduct any
\nlitigation or collection proceedings under any Loan Document; and (e) shall not
\nbe responsible for any action taken or omitted to be taken by it under or in
\nconnection with any Loan Document, except for its own negligence or willful
\nmisconduct. The Agent may employ agents and attorneys-in-fact and shall not be
\nresponsible for the negligence or misconduct of any such agents or
\nattorneys-in-fact selected by it with reasonable care.<\/p>\n
10.2. Reliance by Agent. The Agent shall be entitled to rely upon any
\ncertification, notice, instrument, writing, or other communication (including,
\nwithout limitation, any thereof by telephone or telefacsimile) believed by it to
\nbe genuine and correct and to have been signed, sent or made by or on behalf of
\nthe proper Person or Persons, and upon advice and statements of legal counsel,
\nindependent accountants, and other experts selected by the Agent. The Agent may
\ndeem and treat the payee of any Note as the holder thereof for all purposes
\nhereof unless and until the Agent receives and accepts an Assignment and
\nAcceptance executed in accordance with Section 11.1 hereof. As to any matters
\nnot expressly provided for by this Agreement, the Agent shall not be required to
\nexercise any discretion or take any action, but shall be required to act or to
\nrefrain from acting (and shall be fully protected in so acting or refraining
\nfrom acting) upon the instructions of the Required Lenders, and such
\ninstructions shall be binding on all of the Lenders; provided, however, that the
\nAgent shall not be required to take any action that exposes the Agent to
\npersonal liability or that is contrary to any Loan Document or applicable law or
\nunless it shall first be indemnified to its satisfaction by the Lenders against
\nany and all liability and expense which may be incurred by it by reason of
\ntaking any such action.<\/p>\n
10.3. Defaults. The Agent shall not be deemed to have knowledge or
\nnotice of the occurrence of a Default or Event of Default unless the Agent has
\nreceived written notice from a<\/p>\n
65<\/p>\n
Lender or the Borrower specifying such Default or Event of Default and stating
\nthat such notice is a “Notice of Default”. In the event that the Agent receives
\nsuch a notice of the occurrence of a Default or Event of Default, the Agent
\nshall give prompt notice thereof to the Lenders. The Agent shall (subject to
\nSection 10.2 hereof) take such action with respect to such Default or Event of
\nDefault as shall reasonably be directed by the Required Lenders, provided that,
\nunless and until the Agent shall have received such directions, the Agent may
\n(but shall not be obligated to) take such action, or refrain from taking such
\naction, with respect to such Default or Event of Default as it shall deem
\nadvisable in the best interest of the Lenders.<\/p>\n
10.4. Rights as Lender. With respect to its Short Term Credit
\nCommitment and the Loans made by it, NationsBank (and any successor acting as
\nAgent) in its capacity as a Lender hereunder shall have the same rights and
\npowers hereunder as any other Lender and may exercise the same as though it were
\nnot acting as the Agent, and the term “Lender” or “Lenders” shall, unless the
\ncontext otherwise indicates, include the Agent in its individual capacity.
\nNationsBank (and any successor acting as Agent) and its affiliates may (without
\nhaving to account therefor to any Lender) accept deposits from, lend money to,
\nmake investments in, provide services to, and generally engage in any kind of
\nlending, trust, or other business with the Borrower or any of its Subsidiaries
\nor affiliates as if it were not acting as Agent, and NationsBank (and any
\nsuccessor acting as Agent) and its affiliates may accept fees and other
\nconsideration from the Borrower or any of its Subsidiaries or affiliates for
\nservices in connection with this Agreement or otherwise without having to
\naccount for the same to the Lenders.<\/p>\n
10.5. Indemnification. The Lenders agree to indemnify the Agent (to the
\nextent not reimbursed under Section 11.12 hereof, but without limiting the
\nobligations of the Borrower under such Section) ratably in accordance with their
\nrespective Short Term Credit Commitments, for any and all liabilities,
\nobligations, losses, damages, penalties, actions, judgments, suits, reasonable
\ncosts and expenses (including attorneys’ fees), or disbursements of any kind and
\nnature whatsoever that may be imposed on, incurred by or asserted against the
\nAgent (including by any Lender) in any way relating to or arising out of any
\nLoan Document or the transactions contemplated thereby or any action taken or
\nomitted by the Agent under any Loan Document; provided that no Lender shall be
\nliable for any of the foregoing to the extent they arise from the gross
\nnegligence or willful misconduct of the Person to be indemnified. Without
\nlimitation of the foregoing, each Lender agrees to reimburse the Agent promptly
\nupon demand for its ratable share of any costs or expenses payable by the
\nBorrower under Section 11.6, to the extent that the Agent is not promptly
\nreimbursed for such costs and expenses by the Borrower. The agreements contained
\nin this Section shall survive payment in full of the Loans and all other amounts
\npayable under this Agreement.<\/p>\n
10.6.Non-Reliance on Agent and Other Lenders. Each Lender agrees that
\nit has, independently and without reliance on the Agent or any other Lender, and
\nbased on such documents and information as it has deemed appropriate, made its
\nown credit analysis of the Borrower and its Subsidiaries and decision to enter
\ninto this Agreement and that it will, independently and without reliance upon
\nthe Agent or any other Lender, and based on such documents and information as it
\nshall deem appropriate at the time, continue to make its own analysis and
\ndecisions in taking or not taking action under the Loan Documents. Except for
\nnotices, reports, and other documents and information expressly required to be
\nfurnished to the Lenders by the Agent hereunder, the Agent<\/p>\n
66<\/p>\n
shall not have any duty or responsibility to provide any Lender with any credit
\nor other information concerning the affairs, financial condition, or business of
\nthe Borrower or any of its Subsidiaries or affiliates that may come into the
\npossession of the Agent or any of its affiliates.<\/p>\n
10.7. Resignation of Agent. The Agent may resign at any time by giving
\nnotice thereof to the Lenders and the Borrower. Upon any such resignation, the
\nRequired Lenders shall have the right to appoint a successor Agent subject to
\nthe approval of the Borrower so long as no Default or Event of Default shall
\nhave occurred and be continuing, such approval not to be unreasonably withheld.
\nIf no successor Agent shall have been so appointed by the Required Lenders and
\nshall have accepted such appointment within thirty (30) days after the retiring
\nAgent’s giving of notice of resignation, then the retiring Agent may, on behalf
\nof the Lenders, appoint a successor Agent which shall be a commercial bank
\norganized under the laws of the United States of America having combined capital
\nand surplus of at least $100,000,000. Upon the acceptance of any appointment as
\nAgent hereunder by a successor, such successor shall thereupon succeed to and
\nbecome vested with all the rights, powers, discretion, privileges, and duties of
\nthe retiring Agent, and the retiring Agent shall be discharged from its duties
\nand obligations hereunder. After any retiring Agent’s resignation hereunder as
\nAgent, the provisions of this Article X shall continue in effect for its benefit
\nin respect of any actions taken or omitted to be taken by it while it was acting
\nas Agent.<\/p>\n
10.8. Fees. The Borrower agrees to pay to the Agent, for its individual
\naccount, an annual Administrative Agent’s fee as from time to time agreed to by
\nthe Borrower and Agent in writing.<\/p>\n
67<\/p>\n
ARTICLE XI<\/p>\n
Miscellaneous<\/p>\n
11.1. Assignments and Participations. (a) Each Lender may assign to one
\nor more Eligible Assignees all or a portion of its rights and obligations under
\nthis Agreement (including, without limitation, all or a portion of its Loans,
\nits Note, and its Short Term Credit Commitment); provided, however, that<\/p>\n
(i) each such assignment shall be to an Eligible Assignee;<\/p>\n
(ii) except in the case of an assignment to another Lender or
\nan assignment of all of a Lender’s rights and obligations under this Agreement,
\nany such partial assignment shall be in an amount at least equal to $5,000,000
\nor an integral multiple of $1,000,000 in excess thereof;<\/p>\n
(iii) each such assignment by a Lender shall be of a constant,
\nand not varying, percentage of all of its rights and obligations under this
\nAgreement and the Note; and<\/p>\n
(iv) the parties to such assignment shall execute and deliver
\nto the Agent for its acceptance an Assignment and Acceptance in the form of
\nExhibit B hereto, together with any Note subject to such assignment and a
\nprocessing fee of $3,000.<\/p>\n
Upon execution, delivery, and acceptance of such Assignment and Acceptance, the
\nassignee thereunder shall be a party hereto and, to the extent of such
\nassignment, have the obligations, rights, and benefits of a Lender hereunder and
\nthe assigning Lender shall, to the extent of such assignment, relinquish its
\nrights and be released from its obligations under this Agreement. Upon the
\nconsummation of any assignment pursuant to this Section, the assignor, the Agent
\nand the Borrower shall make appropriate arrangements so that, if required, new
\nNotes are issued to the assignor and the assignee. If the assignee is not
\nincorporated under the laws of the United States of America or a state thereof,
\nit shall deliver to the Borrower and the Agent certification as to exemption
\nfrom deduction or withholding of Taxes in accordance with Section 4.6.<\/p>\n
(b) The Agent shall maintain at its address referred to in Section 11.2
\na copy of each Assignment and Acceptance delivered to and accepted by it and a
\nregister for the recordation of the names and addresses of the Lenders and the
\nShort Term Credit Commitment of, and principal amount of the Loans owing to,
\neach Lender from time to time (the “Register”). The entries in the Register
\nshall be conclusive and binding for all purposes, absent manifest error, and the
\nBorrower, the Agent and the Lenders may treat each Person whose name is recorded
\nin the Register as a Lender hereunder for all purposes of this Agreement. The
\nRegister shall be available for inspection by the Borrower or any Lender at any
\nreasonable time and from time to time upon reasonable prior notice.<\/p>\n
(c) Upon its receipt of an Assignment and Acceptance executed by the
\nparties thereto, together with any Note subject to such assignment and payment
\nof the processing fee, the Agent shall, if such Assignment and Acceptance has
\nbeen completed and is in substantially the form of<\/p>\n
68<\/p>\n
Exhibit B hereto, (i) accept such Assignment and Acceptance, (ii) record the
\ninformation contained therein in the Register and (iii) give prompt notice
\nthereof to the parties thereto.<\/p>\n
(d) Each Lender may sell participations to one or more Persons in all
\nor a portion of its rights, obligations or rights and obligations under this
\nAgreement (including all or a portion of its Short Term Credit Commitment or its
\nLoans); provided, however, that (i) any such participation in a Short Term
\nCredit Commitment, but not its Loans, shall be in an amount at least equal to
\n$5,000,000 or an integral multiple of $1,000,000 in excess thereof, (ii) such
\nLender’s obligations under this Agreement shall remain unchanged, (iii) such
\nLender shall remain solely responsible to the other parties hereto for the
\nperformance of such obligations, (iv) the participant shall be entitled to the
\nbenefit of the yield protection provisions contained in Article IV and the right
\nof set-off contained in Section 11.4, and (v) the Borrower shall continue to
\ndeal solely and directly with such Lender in connection with such Lender’s
\nrights and obligations under this Agreement, and such Lender shall retain the
\nsole right to enforce the obligations of the Borrower relating to its Loans and
\nits Note and to approve any amendment, modification, or waiver of any provision
\nof this Agreement (other than amendments, modifications, or waivers decreasing
\nthe amount of principal of or the rate at which interest is payable on such
\nLoans or Note, extending any scheduled principal payment date or date fixed for
\nthe payment of interest on such Loans or Note, or extending its Short Term
\nCredit Commitment).<\/p>\n
(e) Notwithstanding any other provision set forth in this Agreement,
\nany Lender may at any time assign and pledge all or any portion of its Loans and
\nits Note to any Federal Reserve Bank as collateral security pursuant to
\nRegulation A and any Operating Circular issued by such Federal Reserve Bank. No
\nsuch assignment shall release the assigning Lender from its obligations
\nhereunder.<\/p>\n
(f) Any Lender may furnish any information concerning the Borrower or
\nany of its Subsidiaries in the possession of such Lender from time to time to
\nassignees and participants (including prospective assignees and participants);
\nprovided, however that such Lender shall (a) take reasonable and customary
\nmeasures to safeguard the confidentiality of non-public information, (b) advise
\nsuch assignees or participants of the confidentiality of such non-public
\ninformation and (c) obtain the agreement of such assignees or participants to
\nmaintain the confidentiality thereof.<\/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
69<\/p>\n
Michael D. Martin, Executive Vice President, Chief
\n Financial Officer and Treasurer
\n HEALTHSOUTH Corporation
\n One HealthSouth Parkway
\n Birmingham, Alabama 35243<\/p>\n
with a copy to:<\/p>\n
William W. Horton
\n HEALTHSOUTH Corporation
\n One HealthSouth Parkway
\n Birmingham, Alabama 35243<\/p>\n
(b) if to the Agent at:<\/p>\n
One Independence Center, 15th Floor
\n 101 North Tryon Street
\n Charlotte, North Carolina 28255
\n Attention: Agency Services
\n Reference: HEALTHSOUTH Corporation<\/p>\n
(c) 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
11.4. Rights of Setoff; Adjustments. (a) The Borrower agrees that the
\nAgent and each Lender shall have a Lien for all the Obligations of the Borrower
\nupon all deposits or deposit accounts, of any kind, or any interest in any
\ndeposits or deposit accounts thereof, now or hereafter pledged, mortgaged,
\ntransferred or assigned to the Agent or such Lender or otherwise in the
\npossession or control of the Agent or such Lender (other than for safekeeping)
\nfor any purpose for the account or benefit of the Borrower and including any
\nbalance of any deposit account or of any credit of the Borrower with the Agent
\nor such Lender, whether now existing or hereafter established, hereby
\nauthorizing the Agent and each Lender at any time or times from and after the
\noccurrence of a Default or an Event of Default with or without prior notice to
\nset off against and apply such balances or any part thereof to such of the
\nObligations of the Borrower to the Lenders then past due and in such amounts as
\nthey may elect, and whether or not the collateral or the responsibility of other
\nPerson primarily, secondarily or otherwise liable may be deemed adequate. For
\nthe purposes of this<\/p>\n
70<\/p>\n
paragraph, all remittances and property shall be deemed to be in the possession
\nof the Agent or such Lender as soon as the same may be put in transit to it by
\nmail or carrier or by other bailee.<\/p>\n
(b) If any Lender (a “benefited Lender”) shall at any time receive any
\npayment of all or part of the Loans owing to it, or interest thereon, or receive
\nany collateral in respect thereof (whether voluntarily or involuntarily, by
\nset-off, or otherwise), in a greater proportion than any such payment to or
\ncollateral received by any other Lender, if any, in respect of such other
\nLender’s Loans owing to it, or interest thereon, such benefitted Lender shall
\npurchase for cash from the other Lenders a participating interest in such
\nportion of each such other Lender’s Loans owing to it, or shall provide such
\nother Lenders with the benefits of any such collateral, or the proceeds thereof,
\nas shall be necessary to cause such benefitted Lender to share the excess
\npayment or benefits of such collateral or proceeds ratably with each of the
\nLenders; provided, however, that if all or any portion of such excess payment or
\nbenefits is thereafter recovered from such benefitted Lender, such purchase
\nshall be rescinded, and the purchase price and benefits returned, to the extent
\nof such recovery, but without interest. The Borrower agrees that any Lender so
\npurchasing a participation from a Lender pursuant to this Section 11.4 may, to
\nthe fullest extent permitted by law, exercise all of its rights of payment
\n(including the right of set-off) with respect to such participation as fully as
\nif such Person were the direct creditor of the Borrower in the amount of such
\nparticipation.<\/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 in paying, documentary, stamp, excise, withholding and other
\nsimilar taxes, if any, which may be payable or determined to be payable in
\nconnection with the execution and delivery of, or consummation of any amendment,
\nsupplement or modification of, or any waiver or consent under or in respect of,
\nthis Agreement, and (d) from and after the occurrence of any Event of Default to
\npay, and indemnify and hold harmless<\/p>\n
71<\/p>\n
the Agent and each Lender from and against, any and all other liabilities,
\nobligations, losses, damages, penalties, actions, judgments, suits, costs,
\nexpenses or disbursements of any kind or nature whatsoever with respect to the
\nexecution, delivery, enforcement, performance and administration of this
\nAgreement or in any respect relating to the transactions contemplated hereby or
\nthereby, (all the foregoing, collectively, the “indemnified liabilities”);
\nprovided, however, that the Borrower shall have no obligation hereunder with
\nrespect to indemnified liabilities arising from (i) the willful misconduct or
\nnegligence of the party seeking indemnification, (ii) legal proceedings
\ncommenced against the Agent or any Lender by any security holder or creditor
\nthereof arising out of and based upon rights afforded any such security holder
\nor creditor solely in its capacity as such, (iii) any taxes imposed upon the
\nAgent or any Lender other than the documentary, stamp, excise, withholding and
\nsimilar taxes described in clause (c) above or any tax resulting from any change
\ndescribed in Section 4.1, which tax would be payable to Lenders by Borrower
\npursuant to Article IV, (iv) taxes imposed as a result of a transfer or
\nassignment of any Note, participation or assignment of a portion of its rights,
\n(v) any taxes imposed upon any transferee of any Note, or (vi) by reason of the
\nfailure of the Agent or any Lender to perform its or their obligations under
\nthis Agreement. The agreements in this subsection shall survive the Short Term
\nCredit Termination Date.<\/p>\n
11.7. Amendments and Waivers. Any provision of this Agreement or any
\nother Loan Document may be amended or waived if, but only if, such amendment or
\nwaiver is in writing and is signed by the Borrower and the Required Lenders
\n(and, if Article X or the rights or duties of the Agent are affected thereby, by
\nthe Agent); provided that no such amendment or waiver shall, unless signed by
\nall the Lenders, (i) increase the Short Term Credit Commitments or the Letter of
\nCredit Commitment of the Lenders, (ii) reduce the principal of or rate of
\ninterest on any Loan or any fees or other amounts payable hereunder, (iii)
\npostpone any date fixed for the payment of any scheduled installment of
\nprincipal of or interest on any Loan or any fees or other amounts payable
\nhereunder or for termination of any Short Term Credit Commitment, (iv) change
\nthe percentage of the Short Term Credit Commitments or of the unpaid principal
\namount of the Notes, or the percentage of Lenders that constitute Required
\nLenders or (v) amend the definition of “Required Lenders” or amend Section
\n11.15.<\/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
72<\/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
\ntransactions 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
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<\/p>\n
73<\/p>\n
COURTS OF NORTH CAROLINA FOR THE PURPOSES OF RESOLVING DISPUTES HEREUNDER OR
\nARISING OUT OF THE TRANSACTION CONTEMPLATED HEREBY OR FOR THE PURPOSES OF
\nCOLLECTION.<\/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 Short
\nTerm Credit Commitments, and so long as the Agent and Lenders have fulfilled
\ntheir obligations hereunder, the Borrower hereby indemnifies, exonerates and
\nholds free 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
except for any such Indemnified Liabilities arising for the account of a
\nparticular Indemnified Party by reason of the relevant Indemnified Party’s
\nnegligence or willful misconduct, and if and to the extent that the foregoing
\nundertaking may be unenforceable for any reason, the Borrower hereby agrees to
\nmake the maximum contribution to the payment and satisfaction of each of the
\nIndemnified Liabilities which is permissible under applicable law. The
\nagreements in this Section 11.12 shall survive the Short Term Credit Termination
\nDate.<\/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
74<\/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 interest set forth in this Agreement
\nhad at all times been in effect, then to the extent permitted by law, the
\nBorrower shall pay to the Agent an amount equal to the difference between the
\namount of the interest paid and the amount of interest which would have been
\npaid if the Highest Lawful Rate had at all times been in effect. Notwithstanding
\nthe foregoing, it is the intention of the Lenders and the Borrower to conform
\nstrictly to any applicable usury laws. Accordingly, if any Lender contracts for,
\ncharges, or receives any consideration which constitutes interest in excess of
\nthe Highest Lawful Rate, then any such excess shall be canceled automatically
\nand, if previously paid, shall at such Lender’s option be applied to the
\noutstanding amount of the Loans made hereunder or be refunded to the Borrower.
\nAs used in this paragraph, the term “Highest Lawful Rate” means, as to any
\nLender, the maximum lawful interest rate, if any, that at any time or from time
\nto time may be contracted for, charged, or received under the laws applicable to
\nsuch Lender which are presently in effect or, to the extent allowed by law,
\nunder such applicable laws which may hereafter be in effect and which allow a
\nhigher maximum nonusurious interest rate than applicable laws now allow.<\/p>\n
75<\/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<\/p>\n
WITNESS:<\/p>\n
\/s\/ William W. Horton
\n————————
\n By: \/s\/ Leif M. Murphy
\n ———————-
\n \/s\/ Stacey S. Fleenor Name: Leif M. Murphy
\n———————— Title: Vice President – Finance<\/p>\n
Signature Page<\/p>\n
NATIONSBANK, N.A.
\n as Agent for the Lenders<\/p>\n
By: \/s\/ Michael S. Sylvester
\n ——————————–
\n Name: Michael S. Sylvester
\n Title: Vice President<\/p>\n
NATIONSBANK, N.A.<\/p>\n
By: \/s\/ Michael S. Sylvester
\n ——————————–
\n Name: Michael S. Sylvester
\n Title: Vice President<\/p>\n
Applicable Lending Office:
\n 101 North Tryon Street, 15th Floor
\n Charlotte, North Carolina 28255<\/p>\n
Wire Transfer Instructions:
\n NationsBank, N.A.
\n Charlotte, North Carolina
\n ABA #053000196
\n Account #136621-2250600
\n Attention: Corporate Credit Services
\n Reference: HEALTHSOUTH Corporation<\/p>\n
Signature Page<\/p>\n
EXHIBIT A<\/p>\n
Applicable Commitment Percentages<\/p>\n
Applicable
\n Short Term Credit Commitment
\nLender Commitment Percentage
\n—— ———- ———-<\/p>\n
NationsBank, N.A. $500,000,000.00 100%<\/p>\n
————— ——-<\/p>\n
$500,000,000.00 100%<\/p>\n
A-1<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6846,7751],"corporate_contracts_industries":[9415,9438],"corporate_contracts_types":[9561,9560],"class_list":["post-41317","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-bank-of-america-corp","corporate_contracts_companies-healthsouth-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\/41317","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=41317"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41317"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41317"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41317"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}