Total Number of Pages: 44
Exhibit Index on Sequential Page No.: 4
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 27, 1996
ORNDA HEALTHCORP
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation)
1-11591 75-1776092
(Commission File Number) (IRS Employer Identification No.)
3401 West End Avenue, Nashville, Tennessee 37203
(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code: (615) 383-8599
<PAGE>
Item 5. Other Events.
On November 27, 1996, OrNda HealthCorp (the "Company") executed a Second
Amendment to Amended and Restated Credit, Security, Guaranty and Pledge
Agreement dated as of November 26, 1996 (the "Amended Credit Facility") among
the Company and two of its subsidiaries (OrNda Hospital Corporation and AHM
Acquisition Co., Inc.) as Borrowers, the Guarantors named therein, the Lenders
named therein, The Bank of Nova Scotia ("Scotiabank") as Administrative Agent
for the Lenders, Scotiabank and Citicorp USA Inc. ("Citicorp") as Co-Syndication
Agents for the Lenders, Citicorp as Documentation Agent for the Lenders, General
Electric Capital Corporation, The Industrial Bank of Japan Limited, New York
Branch, The Long-Term Credit Bank of Japan Limited, New York Branch, NationsBank
N.A., The Toronto-Dominion Bank and Wells Fargo Bank, as Co- Agents for the
Lenders, and AmSouth Bank of Alabama, Bank of America NT & SA, CoreStates Bank,
N.A., Credit Lyonnais Cayman Island Branch, Creditanstalt-Bankverein and
Deutsche Bank AG, New York and/or Cayman Islands Branch, as Lead Managers for
the Lenders. The Amended Credit Facility increases the Company's bank credit
facility from $866 million to $1.2 billion. The Amended Credit Facility became
effective on November 27, 1996.
The Amended Credit Facility, which matures October 30, 2001, consists of (i) a
revolving commitment of $774 million (previously, $440 million) for general
corporate purposes (including, without limitation, acquisitions) and to issue up
to $75 million of letters of credit and (ii) a $426 million term loan (principal
amount unchanged by the Amendment) borrowed originally by the Company to
refinance debt under the Company's previous bank credit facility, payable in
quarterly installments, commencing August 31, 1997. As of November 30, 1996, the
Company had approximately $792.6 million of borrowings and letters of credit
outstanding under the Amended Credit Facility.
In certain circumstances, the Company is required to make principal prepayments
on the Amended Credit Facility, including the receipt of proceeds from the
issuance of additional subordinated indebtedness, the receipt of proceeds from
the sale of certain accounts receivable, the receipt of proceeds from the sale
and leaseback of assets, certain asset sale proceeds not used to acquire
additional assets within a specified period and 50% of the proceeds from certain
issuances of equity securities after March 15, 1996 in excess of $50 million.
The Company may prepay all or part of the outstanding Amended Credit Facility
without penalty at any time.
The Amended Credit Facility provides the Company with improved interest rate
pricing compared to the prior bank credit facility. Loans under the Amended
Credit Facility bear interest, at the option of the Company, at a rate equal to
either (i) the "alternate base rate" plus a margin which ranges from 0.00% to
0.50% (depending on the Company's leverage ratio) or (ii) the LIBOR rate plus a
margin which ranges from 0.625% to 1.50% (depending on the Company's leverage
ratio).
The Amended Credit Agreement also provides the Company with additional covenant
flexibility compared to the prior bank credit faciltiy. However, the Amended
Credit Facility limits, among other things, under certain circumstances, the
Company's ability to incur additional indebtedness, incur
2
<PAGE>
liens, make investments, make capital expenditures, sell material assets,
acquire the capital stock or assets of another business, or pay dividends. The
Amended Credit Facility also requires the Company to maintain a specified net
worth and meet or exceed certain coverage and leverage ratios. Indebtedness
under the Amended Credit Facility is secured by a perfected first priority
security interest in the stock of all existing and future subsidiaries of the
Company, inter-company notes of indebtedness, majority-owned partnerships, and
certain specified investments, and is guaranteed by all active subsidiaries of
the Company.
Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits.
(c) Exhibits.
4 Second Amendment to Amended and Restated
Credit, Security, Guaranty and Pledge Agreement
dated as of November 26, 1996,among the Company,
OrNda Hospital Corporation and AHM Acquisition
Co., Inc. as Borrowers, the Guarantors named
therein, the Lenders named therein, The Bank
of Nova Scotia ("Scotiabank") as Administrative
Agent for the Lenders, Scotiabank and Citicorp
USA Inc. ("Citicorp") as Co-Syndication Agents
for the Lenders, Citicorp as Documentation Agent
for the Lenders, General Electric Capital
Corporation, The Industrial Bank of Japan Limited,
New York Branch, The Long-Term Credit Bank of
Japan Limited, New York Branch, NationsBank N.A.,
The Toronto-Dominion Bank and Wells Fargo Bank,
as Co-Agents for the Lenders, and AmSouth Bank of
Alabama, Bank of America NT & SA, CoreStates Bank,
N.A., Credit Lyonnais Cayman Island Branch,
Creditanstalt-Bankverein and Deutsche Bank AG,
New York and/or Cayman Islands Branch, as Lead
Managers for the Lenders.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ORNDA HEALTHCORP
By: /s/Ronald P. Soltman
Ronald P. Soltman
Senior Vice President
Date: December 5, 1996
3
<PAGE>
EXHIBIT INDEX
Sequential
No. Subject Matter Page No.
4 Second Amendment to Amended and Restated
Credit, Security, Guaranty and Pledge Agreement
dated as of November 26, 1996,among the Company,
OrNda Hospital Corporation and AHM Acquisition
Co., Inc. as Borrowers, the Guarantors named
therein, the Lenders named therein, The Bank
of Nova Scotia ("Scotiabank") as Administrative
Agent for the Lenders, Scotiabank and Citicorp
USA Inc. ("Citicorp") as Co-Syndication Agents
for the Lenders, Citicorp as Documentation Agent
for the Lenders, General Electric Capital
Corporation, The Industrial Bank of Japan Limited,
New York Branch, The Long-Term Credit Bank of
Japan Limited, New York Branch, NationsBank N.A.,
The Toronto-Dominion Bank and Wells Fargo Bank,
as Co-Agents for the Lenders, and AmSouth Bank of
Alabama, Bank of America NT & SA, CoreStates Bank,
N.A., Credit Lyonnais Cayman Island Branch,
Creditanstalt-Bankverein and Deutsche Bank AG,
New York and/or Cayman Islands Branch, as Lead
Managers for the Lenders.............................. 5
4
<PAGE>
Exhibit 4
5
<PAGE>
[CONFORMED COPY]
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT,
SECURITY, GUARANTY AND PLEDGE AGREEMENT
This SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT, SECURITY,
GUARANTY AND PLEDGE AGREEMENT, dated as of November 26, 1996 (this "Amendment"),
is entered into by and among ORNDA HEALTHCORP, a Delaware corporation ("OrNda"),
ORNDA HOSPITAL CORPORATION (formerly known as Summit Hospital Corporation), a
California corporation ("OHC"), and AHM ACQUISITION CO., INC., a Delaware
corporation ("AHM Acquisition") (individually, a "Borrower" and collectively,
the "Borrowers"), the Persons named as Guarantors parties hereto (individually,
a "Guarantor" and collectively, the "Guarantors"), the Persons (together with
any of their respective Affiliates signatories hereto) named as Lenders parties
hereto (individually, a "Lender" and collectively, the "Lenders"), THE BANK OF
NOVA SCOTIA, a Canadian chartered bank ("Scotiabank"), as administrative agent
(in such capacity, the "Administrative Agent") for itself and the other Lenders,
CITICORP USA INC., a Delaware corporation ("Citicorp"), as Documentation Agent
for the Lenders, Scotiabank and Citicorp, as co-syndication agents (in such
capacity, the "Co-Syndication Agents") for themselves and the other Lenders ,
GENERAL ELECTRIC CAPITAL CORPORATION, THE INDUSTRIAL BANK OF JAPAN, LIMITED, NEW
YORK BRANCH, THE LONG-TERM CREDIT BANK OF JAPAN LIMITED, NEW YORK BRANCH,
NATIONSBANK N.A., THE TORONTO-DOMINION BANK and WELLS FARGO BANK, as Co-Agents
for themselves and the other Lenders, and AMSOUTH BANK OF ALABAMA, BANK OF
AMERICA NT & SA, CORESTATES BANK, N.A., CREDIT LYONNAIS CAYMAN ISLAND BRANCH,
CREDITANSTALT- BANKVEREIN and DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN ISLANDS
BRANCH, as Lead Managers for themselves and the other Lenders.
W I T N E S S E T H:
WHEREAS, the Borrowers, the Guarantors, various financial institutions
(the "Existing Lenders") and the Agents have heretofore entered into the Amended
and Restated Credit, Security, Guaranty and Pledge Agreement, dated as of
October 27, 1995 (together with all Exhibits, Schedules and attachments thereto,
in each case as amended by the First Amendment and Limited Waiver to Amended and
Restated Credit, Security, Guaranty and Pledge Agreement, dated as of September
12, 1996, or otherwise modified prior to the date hereof, the "Credit
Agreement");
WHEREAS, the Borrowers desire to amend certain provisions of
the Credit Agreement to, among other things,
<PAGE>
(a) provide for an increase in (i) the Reducing Revolving
Commitment Amount in a maximum aggregate amount equal to $333,750,000
and (ii) the sub-facility for Letters of Credit in a maximum aggregate
stated amount equal to $25,000,000;
(b) postpone the payment of Term Loans scheduled on November
30, 1996, February 28, 1997 and May 31, 1997 to the last four principal
amortization dates of the Term Loans, including the Maturity Date;
(c) reduce the Applicable Margin applicable to the
Loans;
(d) reduce the Commitment Fee Rate; and
(e) amend the terms of certain covenants contained in
the Credit Agreement;
WHEREAS, the Guarantors will derive substantial benefits
from the amendments effected hereby; and
WHEREAS, the Agents and the other Lender Parties are willing, on and
subject to the terms and conditions set forth below, to amend certain provisions
of the Credit Agreement as provided below (the Credit Agreement, as amended
pursuant to the terms of this Amendment, being referred to as the "Amended
Credit Agreement") below;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Borrowers, the Guarantors, the Agents and the
other Lender Parties hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. The following terms (whether or not
underscored) when used in this Amendment shall have the following meanings (such
meanings to be equally applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"AHM Acquisition" is defined in the preamble.
"Amended Credit Agreement" is defined in the fourth recital.
2
<PAGE>
"Amendment" is defined in the preamble.
"Borrower" and "Borrowers" are defined in the preamble.
"Citicorp" is defined in the preamble.
"Co-Syndication Agents" is defined in the preamble.
"Credit Agreement" is defined in the first recital.
"Existing Lenders" is defined in the first recital.
"Existing Total Exposure Amount" means, with respect to each Lender, an
amount equal to the sum of (a) the outstanding principal amount of all Term
Loans of such Lender after giving effect to the reallocation thereof pursuant to
Subpart 4.1.1(b) as set forth on Schedule II attached hereto and (b) the
outstanding Reducing Revolving Loan Commitment Amount of such Lender after
giving effect to the reallocation thereof pursuant to Subpart 4.1.1(b) as set
forth on Schedule II attached hereto.
"Guarantor" and "Guarantors" are defined in the preamble.
"Lender" and "Lenders" are defined in the preamble.
"New Exposure Amount" means, with respect to each Lender, an amount
equal to the excess of (a) the aggregate sum of (i) the outstanding principal
amount of all Term Loans of such Lender after giving effect to Part II hereof as
set forth on Schedule I attached hereto and (ii) the outstanding Reducing
Revolving Loan Commitment Amount of such Lender after giving effect to Part II
hereof as set forth on Schedule I attached hereto over (b) such Lender's
Existing Total Exposure Amount.
"OHC" is defined in the preamble.
"Scotiabank" is defined in preamble.
"Second Amendment Effective Date" is defined in Subpart 3.1.
SUBPART 1.2. Other Definitions. Terms for which meanings are provided
in the Credit Agreement are, unless otherwise defined herein or the context
otherwise requires, used in this Amendment with such meanings.
PART II
AMENDMENTS
3
<PAGE>
Effective on (and subject to the occurrence of) the Second Amendment
Effective Date, the Credit Agreement is hereby amended
in accordance with this Part II; except as so amended or modified by this
Amendment, the Credit Agreement shall continue in full force and effect.
SUBPART 2.1. Amendments to Article I. Article I of the Credit Agreement
is hereby amended in accordance with Subparts 2.1.1 through 2.1.3.
SUBPART 2.1.1. Section 1.1 ("Definitions") of the Credit Agreement is
hereby amended by deleting the defined terms "Base Acquisition Level" and "Base
Acquisition Levels" in such Section.
SUBPART 2.1.2. Section 1.1 ("Definitions") of the Credit Agreement is
hereby amended by inserting in such Section the following definitions in the
appropriate alphabetical order:
"Second Amendment" means the Second Amendment to Amended and
Restated Credit, Security, Guaranty and Pledge Agreement, dated as of
November 26, 1996, among the Borrowers, the Guarantors parties thereto,
the Agents and the other Lender Parties.
"Second Amendment Effective Date" is defined in
Subpart 3.1 of the Second Amendment.
SUBPART 2.1.3. Section 1.1 of the Credit Agreement is hereby further
amended as follows:
(a) The definition of "Applicable Margin" is hereby amended
in its entirety to read as follows:
"Applicable Margin" means, during the applicable periods set
forth below: (a) with respect to the unpaid principal amount of each
Loan maintained at the Fixed Rate, the applicable percentage rate per
annum set forth below in the column entitled "Applicable Margin for
Fixed Rate Loans"; and (b) with respect to the unpaid principal amount
of each Loan maintained at the Floating Rate, the applicable percentage
rate per annum set forth below in the column entitled "Applicable
Margin for Floating Rate Loans".
<TABLE>
<CAPTION>
Consolidated Applicable Margin Applicable Margin
Cash Flow For Fixed Rate For Floating
Ratio Loans Rate Loans
<S> <C> <C>
>4.00:1.00 1.500% .500%
>3.50:1.00 1.250% .250%
4
<PAGE>
>3.00:1.00 1.000% .000%
>2.50:1.00 .875% .000%
<2.50:1.00 .625% .000%
</TABLE>
The Consolidated Cash Flow Ratio used to compute the
Applicable Margin shall be the Consolidated Cash Flow Ratio set forth
in the Compliance Certificate most recently delivered by OrNda to the
Administrative Agent pursuant to Section 5.1(d). Changes in the
Applicable Margin resulting from a change in the Consolidated Cash Flow
Ratio shall become effective upon delivery by OrNda to the
Administrative Agent of a new Compliance Certificate pursuant to
Section 5.1(d). If OrNda shall fail to deliver a Compliance Certificate
as required pursuant to Section 5.1(d), the Applicable Margin from and
including the date OrNda was required to deliver such Compliance
Certificate to the Administrative Agent until the date OrNda does
deliver such Compliance Certificate to the Administrative Agent shall
conclusively be presumed to equal the highest relevant Applicable
Margin set forth above.
(b) The definition of "CAPEX Step-Up Amount" is hereby amended in its
entirety to read as follows:
"CAPEX Step-Up Amount" for any Fiscal Year of OrNda means an
amount equal to the sum during such Fiscal Year of (a) the
Carry-Forward Amount for such Fiscal Year which is not utilized during
such Fiscal Year for Permitted Acquisitions in accordance with Section
6.6 or for Capital Expenditures in accordance with Section 6.19, plus
(b) 100% of the Cash proceeds from the issuance after the Restatement
Effective Date of any equity securities (including, without limitation,
any Approved Preferred Stock) by OrNda or any Consolidated Subsidiary
that were used to make Capital Expenditures pursuant to Section 6.19
within one year of such issuance, plus (c) for all Persons acquired by
OrNda or any Consolidated Subsidiary for aggregate consideration
exceeding $5,000,000 in any Fiscal Year (or portion thereof) ending on
or after the Second Amendment Effective Date, an amount equal to 40% of
the sum of (A) Pro Forma EBITDA of all Persons so acquired during such
Fiscal Year plus (B) EBITDA for the Trailing Period for all Persons so
acquired in any prior Fiscal Year of OrNda.
(c) The definition of "Carry-Forward Amount" is hereby
amended in its entirety to read as follows:
"Carry-Forward Amount" means, as of any date of determination
thereof, an amount equal to the excess, if
5
<PAGE>
any, of (a) the amount of Consolidated Capital Expenditures permitted
to be incurred by OrNda and the Consolidated
Subsidiaries during the Fiscal Year immediately preceding such
determination date in accordance with Section 6.19, over (b) the amount
of Consolidated Capital Expenditures incurred by OrNda and the
Consolidated Subsidiaries for such immediately preceding Fiscal Year;
provided, however, that (i) in any event the "Carry-Forward Amount"
shall, for the purposes of any determination thereof, be net of any
portion thereof which constituted part of the Acquisition Step-Up
Amount or the CAPEX Step-Up Amount during such preceding Fiscal Year
and was actually utilized for Permitted Acquisitions or Capital
Expenditures, respectively, (ii) under no circumstances shall the net
"Carry-Forward Amount" exceed $75,000,000 in any Fiscal Year of OrNda,
(iii) if the "Carry-Forward Amount" is not used in full in any Fiscal
Year of OrNda, it may not be carried forward to any subsequent Fiscal
Year of OrNda, (iv) no portion of the "Carry-Forward Amount" shall be
used in any Fiscal Year of OrNda until the entire amount of the Capital
Expenditures permitted to be made or incurred in such Fiscal Year
pursuant to Section 6.19 (exclusive of any portion thereof attributable
to the "Carry-Forward Amount") shall have been so used, and (v) the
"Carry-Forward Amount" for the 1995 Fiscal Year shall be equal to
$15,000,000.
(d) The definition of "Commitment Fee Rate" is hereby amended in its
entirety to read as follows:
"Commitment Fee Rate" means the applicable percentage set
forth below in the column entitled "Commitment Fee Rate".
Consolidated
Cash Flow Ratio Commitment Fee Rate
>4.00:1.00 .3750%
>3.50:1.00 .3750%
>3.00:1.00 .3250%
>2.50:1.00 .2500%
<2.50:1.00 .2000%
The Consolidated Cash Flow Ratio used to compute the
Commitment Fee Rate shall be the Consolidated Cash Flow Ratio set forth
in the Compliance Certificate most recently delivered by OrNda to the
Administrative Agent pursuant to Section 5.1(d); changes in the
Commitment Fee Rate resulting from a change in the Consolidated Cash
Flow Ratio shall
6
<PAGE>
become effective upon delivery by OrNda to the
Administrative Agent of a new Compliance Certificate
pursuant to Section 5.1(d). If OrNda shall fail to deliver a Compliance
Certificate as required pursuant to Section 5.1(d), the Commitment Fee
Rate from and including the date OrNda was required to deliver such
Compliance Certificate to the Administrative Agent until the date OrNda
does deliver such Compliance Certificate to the Administrative Agent
shall conclusively be presumed to equal the highest Commitment Fee Rate
set forth above.
(e) The definition of "Reducing Revolving Commitment Amount" is hereby
amended in its entirety to read as follows:
"Reducing Revolving Commitment Amount" means, with respect to
all the Reducing Revolving Lenders, $773,750,000, as such amount may be
reduced from time to time pursuant to Section 2.4.
SUBPART 2.2. Amendments to Article II. Article II of the Credit
Agreement is hereby amended in accordance with Subparts 2.2.1 through 2.2.9.
SUBPART 2.2.1. Clause (a) of Section 2.1 ("Loans and Commitments") of
the Credit Agreement is hereby amended in its entirety to read as follows:
(a) Subject to the terms and conditions hereof and of the
Second Amendment, each Reducing Revolving Lender agrees, severally and
for itself alone, that as of the Second Amendment Effective Date and
before the making of any additional Reducing Revolving Loan on or after
the Second Amendment Effective Date, such Lender shall be deemed to
have made a revolving loan in a principal amount equal to the amount
set forth opposite its name on Schedule II to the Second Amendment
under the heading "Outstanding Reducing Revolving Loans".
SUBPART 2.2.2. Clause (b) of Section 2.1 ("Loans and Commitments") of
the Credit Agreement is hereby amended in its entirety to read as follows:
(b) Subject to the terms and conditions hereof and of the
Second Amendment, each Term Loan Lender agrees, severally and for
itself alone, that as of the Second Amendment Effective Date, such
Lender shall be deemed to have made a term loan in a principal amount
equal to the amount set forth opposite its name on Schedule II to the
Second Amendment under the heading "Outstanding Term Loans".
7
<PAGE>
SUBPART 2.2.3. Clause (c) of Section 2.1 ("Loans and Commitments") of
the Credit Agreement is hereby amended in its entirety to read as follows:
(c) Subject to the terms and conditions hereof and of the
Second Amendment, at any time and from time to time from the Second
Amendment Effective Date to (but not including) the Reducing Revolving
Commitment Termination Date, each Reducing Revolving Lender agrees,
severally and for itself alone, that it shall, pro rata according to
such Lender's Reducing Revolving Pro Rata Share of the Reducing
Revolving Loan Commitment Amount, make Reducing Revolving Loans to the
Borrowers in such amounts as the Borrowers may request; provided, that
after giving effect to each such Reducing Revolving Loan, the aggregate
outstanding principal amount of all Reducing Revolving Loans (i) of all
Reducing Revolving Lenders does not exceed an amount equal to the
excess of the Reducing Revolving Commitment Amount over the aggregate
amount of all Letter of Credit Obligations then outstanding, and (ii)
of such Reducing Revolving Lender does not exceed such Lender's
Reducing Revolving Pro Rata Share of an amount equal to the excess of
the Reducing Revolving Commitment Amount over the aggregate amount of
all Letter of Credit Obligations then outstanding. On and subject to
the conditions hereof, the Borrowers may from time to time, prior to
October 30, 2001, borrow, prepay and reborrow the Reducing Revolving
Loans.
SUBPART 2.2.4. Clause (b) of Section 2.2 ("Letters of Credit") of the
Credit Agreement is hereby amended in its entirety to read as follows:
(b) Subject to the terms and conditions hereof and of the
Second Amendment, at any time and from time to time from the Second
Amendment Effective Date to (but not including) the Reducing Revolving
Commitment Termination Date, Scotiabank shall arrange, pursuant to the
terms of this Section 2.2, for the issuance by the Letter of Credit
Issuer of such Letters of Credit as the Borrowers may request by a
Request for Letter of Credit; provided, that after giving effect to the
Letter of Credit Obligations incurred by the Lenders as a result
thereof, (i) the aggregate amount of all Letter of Credit Obligations
then outstanding does not exceed $75,000,000, and (ii) the Loan
Facility Usage of the Reducing Revolving Commitment (x) of all the
Reducing Revolving Lenders does not exceed the Reducing Revolving
Commitment Amount and (y) of each Reducing Revolving Lender does not
exceed such Reducing Revolving Lender's Reducing Revolving Pro Rata
Share of the Reducing Revolving Commitment Amount. All Letters of
Credit arranged for by Scotiabank hereunder shall be standby letters of
credit,
8
<PAGE>
reasonably deemed necessary by the Borrowers to support
obligations of the Borrowers and the Consolidated Subsidiaries which
are of the type supported by letters of
credit on the Restatement Effective Date or which are incurred in the
ordinary course of business of OrNda and the Consolidated Subsidiaries.
The term of any Letter of Credit shall not exceed one year and in no
event shall any amounts be payable thereunder beyond the Maturity Date.
SUBPART 2.2.5. Clause (a) of Section 2.3 ("Participating Interests in
Letter of Credit Obligations") of the Credit Agreement is hereby amended in its
entirety to read as follows:
(a) Subject to the terms and conditions hereof and of the
Second Amendment, each Reducing Revolving Lender agrees, severally and
for itself alone, that as of the Second Amendment Effective Date and
before giving effect to the issuance of any new Letter of Credit on the
Second Amendment Effective Date, such Lender shall be deemed to have
outstanding participating interests in Letter of Credit Obligations in
an aggregate amount equal to the amount set forth opposite its name on
Schedule II to the Second Amendment under the heading "Outstanding
Participating Interests in LC Obligations".
SUBPART 2.2.6. Clause (b) of Section 2.4.2 ("Mandatory Reduction of
Lenders' Commitments") of the Credit Agreement is hereby amended in its entirety
to read as follows:
(b) On each date set forth below, the Reducing Revolving
Commitment Amount shall be permanently reduced by the amount set forth
opposite each such date:
Reducing Revolving
Date Commitment Amount
October 30, 1998 $50,000,000
October 30, 1999 $50,000,000
October 30, 2000 $90,000,000
October 30, 2001 $583,750,000
In addition, if all the Term Loans have been paid in full, the
Reducing Revolving Commitment Amount shall be permanently reduced on
the applicable dates on which mandatory prepayments of Loans shall be
required to be made pursuant to such Section 2.5.3(a) by an aggregate
amount equal to the remaining balance of all proceeds which would have
been applied by the Borrowers to the prepayment of the Term Loans if
Term Loans had been outstanding on such dates
9
<PAGE>
in the amount of such remaining balance. All such reductions in the
Reducing Revolving Commitment Amount shall be applied against the
scheduled annual reductions of the Reducing Revolving Commitment Amount
set forth above in this paragraph (b) (i) in the inverse order, in the
case of (A) Excess Asset Sale Proceeds derived from Net Cash
Proceeds as a result of Dispositions of Accounts (other than pursuant
to the sale of a Subsidiary of OrNda or all or substantially all of the
assets of a Subsidiary of OrNda, in each case in accordance with the
terms hereof) and (B) Subordinated Debt Proceeds and (ii) pro rata in
the case of (A) Excess Asset Sale Proceeds derived from all other Net
Cash Proceeds as a result of all other types of Dispositions, (B)
Equity Proceeds and (C) Sale and Leaseback Proceeds (other than any
Short-Term Sale and Leaseback Proceeds).
SUBPART 2.2.7. Section 2.5.1 ("Repayment of Loans") of the Credit
Agreement is hereby amended in its entirety to read as follows:
SECTION 2.5.1. Repayment of the Loans. The Borrowers jointly
and severally agree to repay in full the unpaid principal amount of
each Loan on the Maturity Date. In addition, the Borrowers jointly and
severally agree (subject to Sections 2.5.2 and 2.5.3), on each
Quarterly Payment Date set forth below, to make scheduled quarterly
payments on the Term Loans in the amounts set forth below,
Quarterly Payment Date Amount
February 29, 1996 $11,250,000
May 31, 1996 $11,250,000
August 31, 1996 $11,250,000
November 30, 1996 $ 0
February 28, 1997 $ 0
May 31, 1997 $ 0
August 31, 1997 $13,750,000
November 30, 1997 $13,750,000
February 28, 1998 $18,750,000
May 31, 1998 $18,750,000
August 31, 1998 $18,750,000
November 30, 1998 $18,750,000
February 28, 1999 $21,250,000
10
<PAGE>
Quarterly Payment Date Amount
May 31, 1999 $21,250,000
August 31, 1999 $21,250,000
November 30, 1999 $21,250,000
February 29, 2000 $23,750,000
May 31, 2000 $23,750,000
August 31, 2000 $23,750,000
November 30, 2000 $23,750,000
February 28, 2001 $35,000,000
May 31, 2001 $35,000,000
August 31, 2001 $35,000,000
Maturity Date $38,750,000
SUBPART 2.2.8. Section 2.10 ("Commitment Fees") of the Credit Agreement
is hereby amended in its entirety to read as follows:
SECTION 2.10. Commitment Fees. From and after the
Second Amendment Effective Date:
(a) The Borrowers jointly and severally agree to pay
to the Administrative Agent, for the account of each Reducing
Revolving Lender according to that Lender's Reducing Revolving
Pro Rata Share of the Reducing Revolving Commitment Amount, a
commitment fee equal to the Commitment Fee Rate per annum of
the average daily amount by which the Reducing Revolving
Commitment Amount exceeds the Loan Facility Usage with respect
thereto.
(b) All commitment fees shall accrue daily commencing
on the Second Amendment Effective Date and be payable in
arrears on each Quarterly Payment Date and each relevant
Commitment Termination Date with respect to each type of Loan.
SUBPART 2.2.9. Section 2.26 ("Replacement Notes") of the Credit
Agreement is hereby amended in its entirety to read as follows:
SECTION 2.26. Replacement Notes. Each Lender's Loans shall be
evidenced by a Note payable to the order of such Lender in a maximum
principal amount equal to such Lender's Pro Rata Share (as of the
Second Amendment Effective Date) of all Term Loans or Reducing
Revolving Loan Commitment
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Amount. Each Reducing Revolving Note and each
Term Loan Note issued on the Second Amendment Effective Date shall, to
the extent it evidences any portion of a Loan which was sold
and assigned to such Lender pursuant to Subpart 4.1.1(b) of the Second
Amendment, be issued in substitution and exchange for, and not in
satisfaction or payment of, the existing Note that evidenced such
existing Loan before giving effect to the Second Amendment, and the
Indebtedness (together with the obligation to pay accrued interest
thereon) originally owing to the applicable Existing Lender (as defined
in the Second Amendment) and to be evidenced by such replacement Notes
delivered pursuant to the Second Amendment shall be (and the Borrowers
hereby acknowledge and agree that such Indebtedness is) a continuing
Indebtedness, and nothing herein or therein contained shall be
construed to release or terminate any Lien or security interest given
to secure such Indebtedness. The Borrowers hereby irrevocably authorize
each Lender to make (or cause to be made) appropriate notations on the
grid attached to such Lender's Note (or on any continuation of such
grid), which notations, if made, shall evidence, inter alia, the date
of, the outstanding principal of, and the interest rate and Interest
Period applicable to the Loans evidenced thereby. Such notations shall
be conclusive and binding on the Borrowers absent manifest error;
provided, however, that the failure of any Lender to make any such
notations shall not limit or otherwise affect any Obligations of the
Borrowers or any other Credit Party.
SUBPART 2.3. Amendments to Article III. Article III of the Credit
Agreement is hereby amended in accordance with Subparts 2.3.1 and 2.3.2.
SUBPART 2.3.1. Section 3.5 ("Investments; Subsidiaries") of the Credit
Agreement is hereby amended in its entirety to read as follows:
SECTION 3.5 Investments; Subsidiaries. (a) Annexed as Schedule
3.5(a) to the Second Amendment is a correct and complete list as of the
Second Amendment Effective Date of all Subsidiaries of OrNda, other
than Joint Ventures, showing as to each such Subsidiary its name, the
jurisdiction of its incorporation and the ownership, by Borrower or
Subsidiary, of the capital stock of each such Subsidiary, and
indicating which Subsidiaries are Hospital Subsidiaries.
(b) Annexed as Schedule 3.5(b) to the Second Amendment is a
correct and complete list as of the Second Amendment Effective Date of
all Joint Ventures and related Joint Venture Agreements, other than
Joint Ventures the book value
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of the Borrowers' Investment in which does not exceed $1,500,000 in
the aggregate.
SUBPART 2.3.2. Section 3.13 ("Disclosure") of the Credit Agreement is
hereby amended in its entirety to read as follows:
SECTION 3.13. Disclosure. As of the Second Amendment Effective
Date, neither this Agreement, any other Loan Document, nor any written
statement made by a Senior Officer or Responsible Official of OrNda or
any of its Subsidiaries to the Administrative Agent or any other Lender
Party in connection with this Agreement, or any other Loan Document,
contains any untrue statement of a material fact or, taken as a whole,
omits a material fact necessary in order to make the statement made not
misleading. As of the Second Amendment Effective Date, there is no fact
known to OrNda or any of its Subsidiaries which would reasonably be
expected to constitute a Material Adverse Effect that has not been
disclosed to the Administrative Agent and the Lenders. No written
statement (including all the information delivered from time to time
pursuant to Section 5.1) made by a Senior Officer or Responsible
Official of OrNda or any of its Subsidiaries after the Second Amendment
Effective Date to the Administrative Agent or any other Lender Party in
connection with this Agreement or any other Loan Document shall contain
any untrue statement of a material fact or, taken as a whole, will omit
a material fact necessary to make such statements not misleading.
SUBPART 2.4. Amendments to Article V. Article V of the Credit Agreement
is hereby amended in accordance with Subpart 2.4.1.
SUBPART 2.4.1. Clause (s) of Section 5.1 ("Financial Statements,
Reports, Notices, etc.") of the Credit Agreement is hereby amended in its
entirety to read as follows:
(s) Notices of Permitted Acquisitions. On or prior to the
consummation of any Permitted Acquisition, evidence of compliance with
the applicable requirements, if any, of Sections 6.6(b)(ii) and (iii),
which evidence in the case of Section 6.6(b)(ii) shall be in the form
of the relevant calculations provided for in the Compliance
Certificate.
SUBPART 2.5. Amendments to Article VI. Article VI of the Credit
Agreement is hereby amended in accordance with Subparts 2.5.1 through 2.5.4.
SUBPART 2.5.1. Clause (l) of Section 6.1 ("Limitation on Indebtedness")
of the Credit Agreement is hereby amended in its entirety to read as follows:
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(l) additional unsecured Indebtedness of any Credit
Party not otherwise permitted by this Section 6.1 which, at the time
incurred, together with any other Indebtedness then outstanding and
permitted solely by this paragraph (l) and paragraphs (d), (f) (as such
paragraph (f) relates to the extension, renewal or refinancing of
Indebtedness incurred pursuant to paragraphs (d), (h) and (k)), (h),
(j)(ii)(y) and (k), does not exceed $200,000,000 in the aggregate;
SUBPART 2.5.2. Section 6.5 ("Limitation on Mergers and Consolidations,
etc.") of the Credit Agreement is hereby amended in its entirety to read as
follows:
SECTION 6.5. Limitation on Mergers and Consolidations, etc.
Merge, consolidate or amalgamate with or into, or liquidate or
dissolve, any Person, except mergers, consolidations, amalgamations,
liquidations or dissolution (a) of a wholly-owned Subsidiary of OrNda
into OrNda (with OrNda as the surviving entity) or into another
wholly-owned Subsidiary of OrNda, and (b) of a Subsidiary of OrNda in a
transaction constituting a Disposition permitted by Section 6.4 or an
Acquisition permitted by Section 6.6. OrNda will have no Subsidiaries
other than those referred to in Schedules 3.5(a) and (b) to the Second
Amendment and those which are permitted to have been organized or
acquired in accordance with this Section 6.5 and Sections 6.6 and 6.7.
SUBPART 2.5.3. Section 6.6 ("Limitation on Acquisitions") of the Credit
Agreement is hereby amended in its entirety to read as follows:
SECTION 6.6. Limitation on Acquisitions. (a) Directly or
indirectly, make any Acquisition, or enter into any agreement to make
any Acquisition, or make any public announcement or disclosure of any
intent to make any Acquisition, except (i) if each (if any), letter of
intent, commitment letter, purchase agreement or similar agreement and
public announcement relating to the subject Acquisition expressly
provides that the consummation of such Acquisition is subject to the
approval of the Required Lenders, (which approval, the parties hereto
agree, may be granted or withheld in the sole discretion of the
Required Lenders), or (ii) subject to paragraph (b), for Permitted
Acquisitions for consideration consisting of any combination of (A)
Cash, (B) Cash Equivalents, (C) common stock of OrNda (valued at the
market value thereof as of the date the relevant definitive purchase
agreement is entered into), (D) other securities or property of OrNda
or any Consolidated Subsidiary (valued in good faith by the Board of
Directors of OrNda or the Executive Committee thereof), (E) the
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assumption of any Indebtedness that would be classified as
long term indebtedness on a consolidated balance sheet of OrNda, which
consists of borrowed funds, or which is secured by any material asset
(valued at the principal amount thereof), (F) any other consideration
(valued in good faith by the Board of Directors of OrNda or the
Executive Committee thereof) or (G) any combination of the foregoing.
(b) No Permitted Acquisition (including, without limitation,
no Proposed Acquisition) (i) shall be made or committed to be made if a
Default or Event of Default exists at the time of such Permitted
Acquisition or would result therefrom, (ii) requiring the aggregate
payment by OrNda and its Subsidiaries of more than $100,000,000 shall
be consummated if OrNda fails to establish, no later than the date of
consummation of such Permitted Acquisition, compliance on a pro forma
historical basis with Sections 6.22 and 6.23 for a period of 12
consecutive calendar months immediately preceding the consummation of
each such Permitted Acquisition, (iii) shall be consummated if OrNda
fails to establish, no later than the date of consummation of such
Permitted Acquisition, to the Administrative Agent's reasonable
satisfaction that no material environmental liabilities are being
assumed by OrNda or any of its Subsidiaries, in connection with any
such Permitted Acquisition, or (iv) requiring the aggregate payment by
OrNda and its Subsidiaries of more than $180,000,000 shall be
consummated unless such Permitted Acquisition has been approved by the
Required Lenders. As used in clauses (ii) and (iv) of the immediately
preceding sentence, "aggregate payment" means (A) Cash (other than Net
Equity Cash Proceeds used, within one year of the receipt thereof by
any Borrower or any Consolidated Subsidiary, to pay the purchase price
obligations of such Permitted Acquisition), (B) assumed Indebtedness
for borrowed money, and/or (C) any Acquisition CAPEX.
SUBPART 2.5.4. Section 6.19 ("Limitation on Capital Expenditures") of
the Credit Agreement is hereby amended in its entirety to read as follows:
SECTION 6.19. Limitation on Capital Expenditures. Make or
incur any obligation to make Consolidated Capital Expenditures during
any Fiscal Year of OrNda in excess of $200,000,000 (such amount to be
increased, dollar-for-dollar, in each Fiscal Year of OrNda following
the Restatement Effective Date, by the CAPEX Step-Up Amount, if any,
for such Fiscal Year); provided, however, that to the extent that OrNda
or any Consolidated Subsidiary shall have made a Capital Expenditure
for the acquisition or construction of any assets which are the subject
of any Sale
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and Leaseback Transaction under a lease that qualifies
under GAAP as an Operating Lease within six months of the consummation
of such acquisition or the completion of such construction, the amount
originally applied against the Capital Expenditure basket provided in
this Section 6.19 as usage thereof shall, to the full extent of any
Short-Term Sale and Leaseback Proceeds realized within such six-month
period, be restored as if such Capital Expenditure had not occurred.
SUBPART 2.6. Conforming Amendments to Exhibit E to Credit Agreement.
Exhibit E (Form of Compliance Certificate) to the Credit Agreement is hereby
amended in its entirety to read as set forth in Annex I attached hereto.
SUBPART 2.7. Covenant Compliance and Rates and Fees in Respect of Loans
and Letters of Credit outstanding or issued prior to the Second Amendment
Effective Date. Notwithstanding anything in the foregoing to the contrary, any
determination of applicable interest rates and fees in respect of Loans and
Letters of Credit outstanding or issued under the Credit Agreement prior to the
Second Amendment Effective Date, and any determination of compliance with the
provisions of the Credit Agreement (including with the financial covenants set
forth in Article VI of the Credit Agreement) for any period prior to the Second
Amendment Effective Date, shall be made pursuant to the terms of the Credit
Agreement as in effect immediately prior to the Second Amendment Effective Date
and the defined terms applicable to any such determination shall have the
meanings provided in the Credit Agreement as in effect immediately prior to the
Second Amendment Effective Date.
PART III
CONDITIONS TO EFFECTIVENESS; EXPIRATION
SUBPART 3.1. Second Amendment Effective Date. This Amendment, and the
amendments and modifications contained herein, shall be and become effective on
the date (the "Second Amendment Effective Date") when each of the conditions set
forth in this Subpart 3.1 shall have been fulfilled to the satisfaction of the
Administrative Agent and each of the Lenders; provided, that, such date shall
occur prior to the termination date set forth in Subpart 3.2.
SUBPART 3.1.1. Execution of Counterparts. The Co- Syndication Agents
shall have received counterparts of this Amendment, duly executed and delivered
on behalf of the Borrowers, the Guarantors, the Co-Syndication Agents and each
other Lender Party.
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SUBPART 3.1.2. Notes. The Co-Syndication Agents shall have received,
for the account of each Lender, such Lender's replacement Notes, dated the
Second Amendment Effective Date, each duly completed and executed by a Senior
Officer of each Borrower and conforming to the requirements of Section 2.26 of
the Amended Credit Agreement. In addition, each Lender shall have delivered to
the Administrative Agent each of its existing Notes, and the Administrative
Agent shall have marked such notes "replaced" and returned them to the
Borrowers.
SUBPART 3.1.3. Supporting Documents of Credit Parties. The
Co-Syndication Agents shall have received from each Credit Party copies for each
Lender of the following:
(a) a copy of each Credit Party's certificate of incorporation
or limited partnership, as the case may be, certified as of a date
reasonably near (but prior to) the Second Amendment Effective Date, by
the Secretary of State of the State of such Credit Party's
incorporation or formation, as the case may be, or a representation and
warranty from such Credit Party (other than a Borrower) that the
certificate of incorporation or limited partnership, as the case may
be, of such Credit Party (other than a Borrower) has not been amended
or modified since the Restatement Effective Date if such Credit Party
(other than a Borrower) were a party to the Existing Credit Agreement
on the Restatement Effective Date;
(b) a certificate of each such Secretary of State, dated as of
a date reasonably near (but prior to) the Second Amendment Effective
Date, as to the good standing of and payment of taxes by such Credit
Party which, in the case of each Credit Party, lists the charter
documents on file in the office of such Secretary of State;
(c) a certificate dated as of a date reasonably near (but
prior to) the Second Amendment Effective Date as to the good standing
of each Credit Party issued by the Secretary of State of each
jurisdiction in which such Credit Party is qualified as a foreign
corporation; and
(d) a certificate of the Secretary or general partner, as the
case may be, of each Credit Party dated the Second Amendment Effective
Date and certifying, as applicable, (i) that attached thereto is a true
and complete copy of the bylaws or limited partnership agreement, as
the case may be, of such Credit Party as in effect on the date of such
certification or a representation and warranty from such Credit Party
(other than a Borrower) that the bylaws or limited partnership
agreement, as the case may be, of such
Credit Party (other than a Borrower) has not been amended or
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modified since the Restatement Effective Date if such Credit Party
(other than a Borrower) were a party to the Existing Credit Agreement
on theRestatement Effective Date, (ii) that attached thereto is a true
and complete copy of resolutions adopted by the Board of Directors or
partnership action adopted by the general partner(s), as the case may
be, of such Credit Party authorizing the execution, delivery and
performance of this Amendment and the replacement Notes and (iii) as to
the incumbency and specimen signature of each officer or general
partner, as the case may be, executing this Amendment or the
replacement Notes on behalf of such Credit Party (such certificate to
contain a certification by another officer or general partner, as the
case may be, or authorized signatory of such Credit Party as to the
incumbency and signature of each such Secretary or general partner, as
the case may be, signing the certificate referred to in this clause
(d)) or a representation and warranty from such Credit Party (other
than a Borrower) that the incumbencies of the officers or general
partners, as the case may be, authorized to execute the Existing Credit
Agreement on behalf of such Credit Party (other than a Borrower) has
not been amended or modified since the Restatement Effective Date. The
Co-Syndication Agents and the other Lender Parties may conclusively
rely on each such certificate until they shall have received a further
certificate of the Secretary or general partner, as the case may be, of
each such Credit Party cancelling or amending such prior certificate.
SUBPART 3.1.4. Required Consents and Approvals. All required consents
and approvals shall have been obtained with respect to the amendments and
transactions contemplated hereby from (i) all Governmental Authorities with
jurisdiction over the business, assets, properties or activities of the Credit
Parties and (ii) any other entity (including any trustee party to any
Subordinated Indenture) whose consent or approval the Co-Syndication Agents deem
necessary or appropriate to effect the transactions contemplated hereby.
SUBPART 3.1.5. Solvency Certificate. The Co-Syndication Agents shall
have received, with copies for each Lender, a solvency certificate in
substantially the form of Annex II attached hereto, duly executed by either the
chief financial officer or treasurer of OrNda and dated the Second Amendment
Effective Date.
SUBPART 3.1.6. Closing Date Certificates. The
Co-Syndication Agents shall have received, with copies for each
Lender, an appropriate Closing Date Certificate duly executed by
the chief financial or executive officer or treasurer of each
Borrower and dated the Second Amendment Effective Date, in which
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certificate each Borrower shall agree and acknowledge that the statements made
therein shall be true and correct representations and warranties of such
Borrower as of such date. All documents and agreements appended to the Closing
Date Certificate shall be in form and substance satisfactory to the
Co-Syndication Agents and the Lenders.
SUBPART 3.1.7. Opinions of Counsel. The Co-Syndication
Agents shall have received, with copies for each Lender, the
favorable written opinions dated the date of the Credit Extension
and addressed to the Co-Syndication Agents and the Lenders of
(a) Skadden, Arps, Slate, Meagher & Flom, special New York and
California counsel to the Credit Parties, substantially in the form of
Annex III-A attached hereto; and
(b) Ronald P. Soltman, Esq., counsel of OrNda,
substantially in the form of Annex III-B attached hereto.
SUBPART 3.1.8. Payment of Fees. The Administrative Agent shall have
received (a) for each Lender an amendment fee equal to the sum of (i) 7.5 basis
points on such Lender's Existing Total Exposure Amount plus (ii) 25 basis points
on such Lender's New Exposure Amount and (b) all other fees payable to the Co-
Syndication Agents on or prior to the Second Amendment Effective Date.
SUBPART 3.1.9. Material Adverse Change. There has been no material
adverse change in the consolidated financial condition, results of operations,
assets, business, properties or prospects of OrNda and the Consolidated
Subsidiaries, taken as a whole, from the circumstances as reflected in the
audited financial statements of OrNda and the Consolidated Subsidiaries, OHC and
its consolidated Subsidiaries, and AHM Acquisition and its consolidated
Subsidiaries, in each case as of August 31, 1996, true and correct copies of
which were delivered pursuant to Section 5.1(a) of the Credit Agreement.
SUBPART 3.1.10. Other Documents. The Co-Syndication Agents
shall have received such other documents as the Co-Syndication
Agents may reasonably request.
SUBPART 3.1.11. Legal Details, etc. All documents executed or submitted
pursuant hereto shall be satisfactory in form and substance to the
Co-Syndication Agents and their counsel. The Co-Syndication Agents and their
counsel shall have received all information and such counterpart originals or
such certified or other copies or such materials as the Co-Syndication Agents or
their counsel may reasonably request, and all legal
matters incident to the transactions contemplated by this
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Amendment shall be satisfactory to the Co-Syndication Agents and their counsel.
SUBPART 3.2. Expiration. If the Second Amendment Effective Date shall
not have occurred on or prior to December 2, 1996, the agreements of the parties
hereto contained in this Amendment shall terminate effective immediately on such
date and without any further action.
PART IV
REALLOCATION AND ASSIGNMENT OF
LOANS AND COMMITMENTS
SUBPART 4.1. Reallocation and Assignment of Loans and Commitments.
Subject to the terms and conditions set forth in this Amendment (including Part
III), each Existing Lender agrees, severally and for itself alone, to assign the
Loans and Commitments in accordance with this Subpart 4.1.
SUBPART 4.1.1. Reallocation and Assignments. Each of the
Existing Lenders, the Co-Syndication Agents and the Lenders
agrees that upon the occurrence of the Second Amendment Effective
Date,
(a) each of the Existing Lenders with a Reducing Revolving
Commitment shall be deemed to have sold and assigned to the
Co-Syndication Agents the portion (if any) of such Existing Lender's
Term Loans, Reducing Revolving Commitment and Reducing Revolving Loans
and its Participation Interest in Letter of Credit Obligations, before
giving effect to Part II hereof, which is in excess of the amount of
such Existing Lender's Pro Rata Share of all outstanding Term Loans,
Reducing Revolving Commitment, and outstanding Reducing Revolving
Loans, and participation interest in all Letter of Credit Obligations,
respectively, after giving effect to Part II hereof;
(b) the Co-Syndication Agents shall be deemed to have (i)
purchased and assumed that portion of the Term Loans, Reducing
Revolving Commitments and Reducing Revolving Loans and Participation
Interests in Letter of Credit Obligations, of each Existing Lender
which are being sold pursuant to paragraph (a) above and (ii)
reallocated, sold and assigned such portions to the Lenders, and the
Lenders shall be deemed to have purchased and assumed such portions
being so sold and assigned, in such a manner and in such amounts so as
to cause each Lender's Reducing Revolving Commitments and its Pro Rata
Share of all Loans and Letter of Credit
Obligations, including the portions thereof being sold to
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such Lender pursuant to this paragraph, to be in each case as set forth
on Schedule I hereto.
SUBPART 4.1.2. Additional Provisions for Reallocations and
Assignments.
(a) Each Existing Lender hereby represents and warrants to the
Co-Syndication Agents and each Lender, that immediately before giving effect to
Part II hereof, (i) its Reducing Revolving Commitment, its Term Loans, its
Reducing Revolving Loans and Participation Interest in Letter of Credit
Obligations are in the amounts set forth on Schedule II hereto and that it is
the legal and beneficial owner thereof; and (ii) to the extent that such
Existing Lender is making a sale and assignment pursuant to Subpart 4.1.1, the
rights and interests being assigned and sold are free and clear of any adverse
claim or encumbrance created by such Existing Lender (other than any encumbrance
to be released automatically upon receipt of payment in respect of such sale and
assignment), and without recourse or representation or warranty of any kind
whatsoever except for the representations and warranties set forth in this
Subpart 4.1.2.
(b) Each Co-Syndication Agent hereby represents and warrants to each
Lender, that immediately before giving effect to the effectiveness of Subpart
4.1.1, to the extent the Co-Syndication Agents are making a sale and assignment
pursuant to Subpart 4.1.1, the rights and interests being assigned and sold are
free and clear of any adverse claim or encumbrance (other than any encumbrance
to be released automatically upon receipt of payment in respect of such sale and
assignment) created by such Co-Syndication Agent, and without recourse or
representation or warranty of any kind whatsoever except for the representations
and warranties set forth in this Subpart 4.1.2.
(c) Each of the Lenders hereby acknowledges and agrees that (i) other
than the representations and warranties contained in paragraphs (a) and (b)
above, neither the Existing Lenders nor the Co-Syndication Agents have made
representations or warranties or assumed any responsibility with respect to (x)
any statements, warranties or representations made in or in connection with this
Amendment or the execution, legality, validity, enforceability, genuineness or
sufficiency of this Amendment, the Credit Agreement, or any other Loan Document,
or (y) the financial condition of the Borrowers or any other Credit Party or the
performance by the Borrowers or any other Credit Party of the Obligations; (ii)
it has received such information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Amendment and; (iii) it has made
and continues to make its own credit decisions in taking or not taking action
under this Amendment, independently and without reliance upon the
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Co-Syndication Agents or any Existing Lender (other than itself, if applicable).
(d) The Borrowers, the Existing Lenders, the Administrative Agent and
the Co-Syndication Agents agree that each Existing Lender which is making a sale
and assignment pursuant to Subpart 4.1.1(a) shall, as of the Second Amendment
Effective Date, relinquish its rights and be discharged and released from its
obligations under this Amendment and the Credit Agreement to the extent of the
rights and interests so sold and assigned.
(e) The Borrowers, the Lenders, the Administrative Agent and the
Co-Syndication Agents also agree that each Co-Syndication Agent shall, as of the
Second Amendment Effective Date, relinquish its rights and be discharged and
released from its obligations under this Amendment and the Credit Agreement to
the extent of the rights and interests sold and assigned by it to the Lenders
pursuant to Subpart 4.1.1(b)(ii).
(f) Concurrently with the occurrence of the Second Amendment Effective
Date, (i) each Lender which is purchasing any portion of Term Loans, Reducing
Revolving Commitments and Reducing Revolving Loans and/or Participation
Interests in Letter of Credit Obligations pursuant to Subpart 4.1.1(b)(ii) shall
deliver to the Administrative Agent immediately available funds in the full
amount of the purchase made by it, and (ii) the Administrative Agent shall, to
the extent of the funds so received, disburse such funds to the Existing Lenders
which are making sales and assignments pursuant to Subpart 4.1.1(a) in the
amount of the portions so sold and assigned.
(g) The Borrowers agree that, concurrently with the occurrence of the
Second Amendment Effective Date, the Borrowers will (i) convert all Loans which
are Fixed Rate Loans into Floating Rate Loans on the Second Amendment Effective
Date, and (ii) jointly and severally pay to the Administrative Agent for the
account of each Existing Lender all interest, fees and other amounts (including,
without limitation, all amounts owed by the Borrowers under Section 2.15 of the
Credit Agreement in respect of breakage for funding losses; but excluding
principal) owed to such Existing Lender under the Credit Agreement.
PART V
MISCELLANEOUS; REPRESENTATIONS
SUBPART 5.1. Cross-References. References in this Amendment to any Part
or Subpart are, unless otherwise specified or otherwise required by the context,
to such Part or Subpart of this Amendment.
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SUBPART 5.2. Loan Document and Assignment and Acceptance
Pursuant to Credit Agreement.
(a) This Amendment is a Loan Document executed pursuant to the Credit
Agreement and shall be construed, administered and applied in accordance with
all of the terms and provisions of the Credit Agreement (and, following the
Second Amendment Effective Date, the Amended Credit Agreement).
(b) This Amendment shall be deemed to be an Assignment and Acceptance
Agreement executed in accordance with the all of the terms and provisions of the
Credit Agreement (and, following the Second Amendment Effective Date, the
Amended Credit Agreement). Schedule III hereto contains the notice address of
any Lenders which are not Existing Lenders.
SUBPART 5.3. Full Force and Effect; Limited Amendment. Except as
expressly amended hereby, all of the representations, warranties, terms,
covenants, conditions and other provisions of the Credit Agreement and the other
Loan Documents shall remain unamended and shall continue to be, and shall
remain, in full force and effect in accordance with their respective terms. The
amendments set forth herein shall be limited precisely as provided for herein to
the provisions expressly amended herein and shall not be deemed to be an
amendment to or modification of any other term or provision of the Credit
Agreement, any other Loan Document referred to therein or herein or of any
transaction or further or future action on the part of any Borrower or any other
Obligor which would require the consent of the Lenders under the Credit
Agreement or any of the other Loan Documents.
SUBPART 5.4. Payment of Fees and Expenses. The Borrowers, jointly and
severally, hereby agree to pay and reimburse the Administrative Agent for all of
its reasonable fees and expenses incurred in connection with the negotiation,
preparation, execution and delivery of this Amendment and related documents,
including all reasonable fees and disbursements of counsel to the Administrative
Agent.
SUBPART 5.5. Successors and Assigns. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SUBPART 5.6. Counterparts. This Amendment may be executed by the
parties hereto in several counterparts, each of which when executed and
delivered shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
SUBPART 5.7. Governing Law. THIS AMENDMENT SHALL BE DEEMED
TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE
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OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES (OTHER THAN SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATION LAW).
SUBPART 5.8. Compliance with Warranties, No Default, etc. Both before
and after giving effect to the occurrence of the Second Amendment Effective Date
and the amendments to the Credit Agreement set forth above, the Borrowers
represent and warrant the following statements shall be true and correct:
(a) the representations and warranties set forth in Article
III and in Sections 7.13 and 9.15 of the Credit Agreement (excluding,
however, Sections 3.6 and 3.17 of the Credit Agreement) shall, in each
case, be true and correct in all material respects with the same effect
as if made on and as of the Second Amendment Effective Date (except to
the extent that such representations and warranties relate solely to an
earlier date, in which case such representations and warranties shall
be true and correct as of such earlier date).
(b) except as disclosed by the Borrowers to the
Co-Syndication Agents and Lenders pursuant to Sections 3.6
and 3.17 of the Credit Agreement,
(i) no labor controversy, litigation, arbitration or
governmental investigation or proceeding shall be pending or,
to the best knowledge of the Borrowers (after due inquiry),
threatened against the Borrowers or any of their Subsidiaries
which would reasonably be expected to have a Material Adverse
Effect or would adversely affect the legality, validity or
enforceability of this Amendment, the Credit Agreement, the
Notes or any other Loan Document; and
(ii) no development shall have occurred in any labor
controversy, litigation, arbitration or governmental
investigation or proceeding disclosed pursuant to Sections 3.6
and 3.17 of the Credit Agreement which would reasonably be
expected to have a Material Adverse Effect; and
(c) No Default shall have then occurred and be continuing, and
neither the Borrowers nor any of their Subsidiaries is in material
violation of any law or governmental regulation or court order or
decree, which violation would, individually or in the aggregate, have a
Material Adverse Effect.
SUBPART 5.9. Additional General Representations. In order
to induce the Lenders and the Agents to enter into this
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<PAGE>
Amendment, the Borrowers hereby additionally represent and warrant as follows:
(a) the execution and delivery of this Amendment and the
performance by each of the Borrowers, each of their respective
Subsidiaries and each other Obligor of each of their respective
obligations hereunder, under each other Loan Document, under the Credit
Agreement as amended hereby and, upon the occurrence of the Second
Amendment Effective Date, under the Amended Credit Agreement are within
such Person's corporate powers, have been duly authorized by all
necessary corporate action, have received all necessary governmental
approval (if any shall be required), and do not (i) contravene such
Person's organic documents, (ii) contravene any contractual
restriction, law or governmental regulation or court decree or order
binding on or affecting such Person or (iii) result in, or require the
creation or imposition of, any Lien on any of such Person's properties
(other than pursuant to a Loan Document); and
(b) this Amendment, each other Loan Document, the Credit
Agreement as amended hereby and, upon the occurrence of the Second
Amendment Effective Date, the Amended Credit Agreement are the legal,
valid and binding obligations of each of the Borrowers, each of their
respective Subsidiaries and each other Obligor enforceable in
accordance with their respective terms (except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally and by principles of
equity).
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective duly authorized officers as of the day and year
first above written.
BORROWERS:
ORNDA HEALTHCORP
By /s/ Russell F. Tonnies
Title: Vice President and Treasurer
ORNDA HOSPITAL CORPORATION (formerly
known as Summit Hospital
Corporation)
By /s/ Russell F. Tonnies
Title: Vice President and Treasurer
AHM ACQUISITION CO., INC.
By /s/ Russell F. Tonnies
Title: Vice President and Treasurer
GUARANTORS:
AHM CGH, INC.
AHM GEMCH, INC.
AHM JACKSON HOSPITAL INC.
AHM MINDEN HOSPITAL, INC.
AHM SMC, INC.
AHM WCH, INC.
AHMJV, INC.
AMERICAN HEALTHCARE MANAGEMENT
DEVELOPMENT COMPANY
BONE MARROW/STEM CELL TRANSPLANT
INSTITUTE OF FLORIDA, INC.
CFMC LP, INC.
CGH REALTY HOLDING, INC.
CHHP, INC.
CHR SERVICE CORP.
CLINIC HOLDINGS, INC.
26
<PAGE>
CLINI-TECH LABORATORIES, INC.
COASTAL COMMUNITIES HEALTH SYSTEMS,
INC.
COMMONWEALTH CONTINENTAL HEALTH
CARE, INC.
COMMONWEALTH CONTINENTAL HEALTH CARE
III, INC.
CORAL GABLES HOSPITAL, INC.
CORAL GABLES HOSPITAL PARTNERS, INC.
CVHS HOSPITAL CORPORATION
CYPRESS FAIRBANKS MEDICAL CENTER,
INC.
DAVENPORT MEDICAL CENTER, INC.
DOCTORS' HOSPITAL MEDICAL CENTER,
INC.
EGH, INC.
FMC CENTER, INC.
FOUNTAIN VALLEY HEALTH CARE, INC.
FOUNTAIN VALLEY IMAGING CORPORATION
FOUNTAIN VALLEY PHARMACY, INC.
FOUNTAIN VALLEY REGIONAL HOSPITAL &
MEDICAL CENTER
FRENCH HOSPITAL MEDICAL CENTER
GCPG, INC.
GGH, INC.
GULF COAST COMMUNITY HOSPITAL, INC.
HARBOR VIEW HEALTH SYSTEMS, INC.
HARBOR VIEW MEDICAL CENTER
HCW, INC.
HEALTH CHOICE ARIZONA, INC.
HEALTH CHOICE HMO, INC.
HEALTH CHOICE PARTNERS, INC.
HEALTH HOLDING COMPANY, INC.
HEALTH RESOURCES CORPORATION OF
AMERICA - CALIFORNIA
HEALTH RESOURCES CORPORATION OF
AMERICA - FLORIDA
HNMC, INC.
HNPG, INC.
HOUSTON NORTHWEST HEALTH SYSTEM,
INC.
HOUSTON NORTHWEST HOME HEALTHCARE,
INC.
HOUSTON NORTHWEST MANAGEMENT
SERVICES, INC.
HOUSTON NORTHWEST MEDICAL CENTER,
INC.
HOUSTON NORTHWEST PROVIDERS
ALLIANCE, INC.
INDIANAPOLIS HEALTH SYSTEMS, INC.
LANDER VALLEY REGIONAL MEDICAL
CENTER
LBPG, INC.
LCMH, INC.
LEWISBURG COMMUNITY HOSPITAL, INC.
MANAGED HEALTH ALLIANCE
MCF, INC.
MCS ADMINISTRATIVE SERVICES, INC.
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<PAGE>
MEDI-HEALTH OF FLORIDA, INC.
MESA GENERAL HOSPITAL MEDICAL
CENTER, INC.
MIDWAY HOSPITAL MEDICAL CENTER, INC.
MONTEREY PARK HOSPITAL
NAI COMMUNITY HOSPITAL OF PHOENIX,
INC.
NLVH, INC.
NLVPG OF NEVADA, INC.
OHM HEALTH INITIATIVES, INC
OHM SERVICES, INC.
ORNDA ACQUISITION CORPORATION
ORNDA ACCESS, INC.
ORNDA AMBULATORY NETWORK, INC.
ORNDA HEALTH INITIATIVES, INC.
ORNDA HEALTHCHOICE, INC.
ORNDA HEALTHCORP OF FLORIDA, INC.
ORNDA HEALTHCORP OF MASSACHUSETTS,
INC.
ORNDA HEALTHCORP OF PHOENIX, INC.
ORNDA HOSPITAL INVESTMENT CORP.
ORNDA INVESTMENTS, INC.
ORNDA MANAGEMENT SERVICES, INC.
ORNDA OF SOUTH FLORIDA, INC.
ORNDA OF SOUTH FLORIDA SERVICES
CORPORATION
ORNDA PHYSICIANS SERVICES, INC.
ORNDA RECEIVABLES CO.
POWAY HEALTH SYSTEMS, INC.
PREMIER HEALTH RESOURCES, INC.
PROVIDENT NURSING HOMES, INC.
PSH, INC.
QUALICARE OF MISSISSIPPI, INC.
QUALICARE OF WYOMING, INC.
REPUBLIC HEALTH CORPORATION OF
CENTRAL GEORGIA
REPUBLIC HEALTH CORPORATION OF
INDIANAPOLIS
REPUBLIC HEALTH CORPORATION OF
MEREDIAN
REPUBLIC HEALTH CORPORATION OF
MESQUITE
REPUBLIC HEALTH CORPORATION OF NORTH
MIAMI
REPUBLIC HEALTH CORPORATION OF
ROCKWALL COUNTY
REPUBLIC HEALTH CORPORATION OF SAN
BERNARDINO
REPUBLIC HEALTH CORPORATION OF TEXAS
REPUBLIC HEALTH OF NORTH TEXAS, INC.
REPUBLIC HEALTH PARTNERS, INC.
RHC FLORIDA, INC.
RHC PARKWAY, INC.
RHCMS, INC.
RHPC, INC.
28
<PAGE>
S.C. CAL., INC.
S.C. MANAGEMENT, INC.
S.C. SAN ANTONIO, INC.
SAN JUAN MEDICAL CENTER, INC.
SANTA ANA HOSPITAL MEDICAL CENTER,
INC.
SHL/O CORP.
SNF PHARMACY, INC.
SOUTH FLORIDA PHYSICIANS SERVICES,
INC.
SOUTH PARK MEDICAL CENTER, INC.
ST. LUKE MEDICAL CENTER
STH CORPORATION
THE DAVENPORT CLINIC, INC.
TUSCON GENERAL HOSPITAL, INC.
USDHC, INC.
VALLEY COMMUNITY HOSPITAL
WCH MANAGEMENT SERVICES, INC.
WEST LOS ANGELES HEALTH SYSTEMS,
INC.
WESTCENTER REHABILITATION FACILITY,
INC.
WHITTIER HOSPITAL MEDICAL CENTER,
INC.
WOODLAND PARK HOSPITAL, INC.
WPH MANAGEMENT SERVICES, INC.
By /s/ Russell F. Tonnies
Title: Vice President and Treasurer
BROTMAN PARTNERS, L.P.
By West Los Angeles Health Systems,
Inc., its sole general partner
By /s/ Russell F. Tonnies
Title: Vice President and Treasurer
FLORIDA MEDICAL CENTER, LTD.,
By MCF, Inc., its sole general
partner
By /s/ Russell F. Tonnies
Title: Vice President and Treasurer
29
<PAGE>
FOUNTAIN VALLEY IMAGING CENTER LIMITED
PARTNERSHIP,
By Fountain Valley Imaging Corporation,
its sole general partner
By /s/ Russell F. Tonnies
Title: Vice President and Treasurer
FOUNTAIN VALLEY OUTPATIENT SURGICAL
CENTER LIMITED PARTNERSHIP,
By Fountain Valley Health Care, Inc.,
its sole general partner
By /s/ Russell F. Tonnies
Title: Vice President and Treasurer
GARLAND COMMUNITY HOSPITAL, LTD.,
By GCPG, Inc., its sole general partner
By /s/ Russell F. Tonnies
Title: Vice President and Treasurer
HARBOR VIEW HEALTH PARTNERS, L.P.
By Harbor View Health Systems, Inc.,
its sole general partner
By /s/ Russell F. Tonnies
Title: Vice President and Treasurer
30
<PAGE>
LAKE POINTE MEDICAL CENTER, LTD.
By Republic Health Partners, Inc., its
sole general partner
By /s/ Russell F. Tonnies
Title: Vice President and Treasurer
NEW MEDICAL HORIZONS II, LTD.
By Cupress Fairbanks Medical Center,
Inc., its sole general partner
By /s/ Russell F. Tonnies
Title: Vice President and Treasurer
S.V. HOSPITAL, L.L.C.,
By OrNda Hospital Investment Corp.,
as Managing Member
By /s/ Russell F. Tonnies
Title: Vice President and Treasurer
WHITTIER SURGERY CENTER, L.P.
By Whittier Hospital Medical Center,
Inc., its sole general partner
By /s/ Russell F. Tonnies
Title: Vice President and Treasurer
31
<PAGE>
WINONA MEMORIAL HOSPITAL LIMITED
PARTNERSHIP
By Republic Health Corporation of
Indianapolis, its sole general
partner
By /s/ Russell F. Tonnies
Title: Vice President and Treasurer
32
<PAGE>
THE BANK OF NOVA SCOTIA, as
Administrative Agent, a
Co-Syndication Agent, a Letter
of Credit Issuer and a Lender
By /s/ Dana Maloney
Title: Relationship Manager
CITICORP USA INC., as Documentation
Agent, a Co-Syndication Agent, a
Letter of Credit Issuer and a Lender
By /s/ Margaret Au Brown
Title: Managing Director
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Co-Agent and a Lender
By /s/ Cheryl P. Boyd
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
NEW YORK BRANCH, as a Co-Agent and a
Lender
By /s/ Junri Oda
Title: Senior Vice President
and Senior Manager
THE LONG-TERM CREDIT BANK OF JAPAN
LIMITED, NEW YORK BRANCH, as a Co-
Agent and a Lender
By /s/ John Sullivan
Title: Joint General Manager
33
<PAGE>
NATIONSBANK N.A., as a Co-Agent and a
Lender
By /s/ S. Walker Choppin
Title: Senior Vice President
THE TORONTO-DOMINION BANK, as a
Co-Agent and a Lender
By /s/ Frederic B. Hawley
Title: Manager, Credit Administration
WELLS FARGO BANK, as a Co-Agent and a
Lender
By /s/ Kathleen S. Barnes
Title: Vice President
AMSOUTH BANK OF ALABAMA, as a Lead
Manager and a Lender
By /s/ Timothy L. Vardaman
Title: Officer
BANK OF AMERICA NT & SA, as a Lead
Manager and a Lender
By /s/ Wyatt R. Ritchie
Title: Managing Director
34
<PAGE>
CORESTATES BANK, N.A., as a Lead
Manager and a Lender
By /s/ Elizabeth D. Morris
Title: Vice President
CREDIT LYONNAIS CAYMAN ISLAND BRANCH,
as a Lender
By /s/ Farboud Tavangar
Title: Authorized Signature
CREDIT LYONNAIS NEW YORK BRANCH, as a
Lead Manager and a Lender
By /s/ Farboud Tavangar
Title: Authorized Signature
CREDITANSTALT-BANKVEREIN, as a Lead
Manager and a Lender
By /s/ Richard P. Buckanavage
Title: Vice President
By /s/ Alan B. Offenberg
Title: Senior Associate
35
<PAGE>
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCH, as Lead
Managers and Lenders
By /s/ Alka Jain Goyal
Title: Assistant Vice President
By /s/ Ian Stewart
Title: Assistant Vice President
ABN-AMRO BANK, as a Lender
By /s/ Larry Kelley
Title: Group Vice President
By /s/ Robert Budnek
Title: Assistant Vice President
BANC ONE, as a Lender
By /s/ Glenn T. Campbell
Title: Vice President
BANK OF IRELAND, GRAND CAYMAN BRANCH,
as a Lender
By /s/ Roger M. Burns
Title: Vice President
36
<PAGE>
DRESDNER BANK, AG, NEW YORK BRANCH AND
GRAND CAYMAN BRANCH, as a Lender
By /s/ Andrew P. Nesi
Title: Vice President
By /s/ B. Craig Erickson
Title: Vice President
FIRST AMERICAN NATIONAL BANK, as a
Lender
By /s/ Allison H. Jones
Title: Senior Vice President
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, as a Lender
By /s/ Ann M. Dodd
Title: Senior Vice President
FLEET NATIONAL BANK, as a Lender
By /s/ Ginger Stolzenthaler
Title: Vice President
MERRILL LYNCH SENIOR FLOATING RATE
FUND, INC., as a Lender
By /s/ R. Douglas Henderson
Title: Authorized Signatory
37
<PAGE>
MICHIGAN NATIONAL BANK, as a Lender
By /s/ Lisa Davidson McKinnon
Title: Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION, CHICAGO BRANCH, as a
Lender
By /s/ Masaaki Yamagishi
Title: Chief Manager
FLEET BANK, N.A. successor to NATWEST
BANK N.A., as a Lender
By /s/ Pauline McHugh
Title: Vice President
PNC BANK KENTUCKY, INC., as a Lender
By /s/ Kathryn M. Bohr
Title: Vice President
RESTRUCTURED OBLIGATIONS BACKED BY
SENIOR ASSETS, B.V., as a Lender
By Chancellor LGT Senior Secured
Management Inc. as Portfolio Advisor
By /s/ Stephen M. Alfieri
Title: Managing Director
38
<PAGE>
STICHTING RESTRUCTURED OBLIGATIONS
BACKED BY SENIOR ASSETS 2, (ROSA 2),
as a Lender
By Chancellor LGT Senior Secured
Management Inc. as Portfolio Advisor
By /s/ Stephen M. Alfieri
Title: Managing Director
THE SUMITOMO BANK, LTD., CHICAGO
BRANCH, as a Lender
By /s/ E.B. Buchanan, Jr.
Title: Vice President
By /s/ Diane M. Rhoades
Title: Executive Officer
THE SUMITOMO TRUST & BANKING CO., LTD.,
NEW YORK BRANCH, as a Lender
By /s/ Suraj P. Bhatia
Title: Senior Vice President
Manager, Corporate Finance Dept.
SUNTRUST BANK, NASHVILLE, N.A., as a
Lender
By /s/ Mark D. Matteson
Title: Vice President
UNITED STATES NATIONAL BANK OF OREGON,
as a Lender
By /s/ Chris J. Karlin
Title: Vice President
39
