<PAGE>
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 17, 1997
PHP HEALTHCARE CORPORATION
(Exact name of Registrant as specified in its charter)
State or other jurisdiction of incorporation: Delaware
Commission File No.: 0-16235
I.R.S. Employer Identification No.: 54-1023168
Address of principal executive offices: 11440 Commerce Park Drive
Reston, VA 22091
Registrant's telephone number, including area code: (703) 758-3600
Former name or former address, if changed since last report: Not applicable
Page 1 of 9 Pages
Exhibit Index at Page 8
<PAGE>
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
------------------------------------
On November 7, 1997, PHP Healthcare Corporation ("PHP" or the
"Company") announced the completion of its previously announced acquisition of
18 health centers and related assets from HIP of New Jersey, Inc. ("HIP") for
approximately $73 million. HIP is a New Jersey not-for-profit health
maintenance organization.
The acquisition was accomplished through arms' length negotiations
between the management of the Company and the management of HIP. There is no
material relationship between HIP and the Company, any affiliate of the Company,
any director or officer of the Company, or any associate of any such director or
officer.
The property, plant and equipment acquired has been and will continue
to be used primarily for the operation of 18 health care centers in New Jersey.
In connection with the acquisition, the Company also entered into a
Health Services Agreement with HIP. Pursuant to the Health Services Agreement,
PHP will arrange for the provision of health care services for more than 200,000
HIP members over the next 20 years on a capitated basis.
To finance the acquisition, pay related expenses and provide future
working capital, the Company obtained a $75,000,000 secured credit facility
pursuant to a Credit Agreement, dated as of October 31, 1997, by and among the
Company, the lenders named therein (the "Initial Lenders"), NationsBank, N.A.
("NationsBank"), as initial issuing bank (in such capacity, the "Initial Issuing
Bank"), and NationsBank, as administrative agent and collateral agent (in such
capacities, the "Administrative Agent") for the lenders. Under the Credit
Agreement, the lenders have made available to the Company up to $75,000,000
principal amount of senior secured financing in the form of (i) a term facility
in the principal amount of $40,000,000 maturing in two years (the "Term
Facility"), and (ii) a revolving credit facility in an aggregate principal
amount of up to $35,000,000 (the "Revolving Facility").
Page 2 of 9 Pages
<PAGE>
PHP will be required to make quarterly amortization payments in
connection with the Term Facility. All amounts outstanding under the Credit
Agreement will bear interest at the Alternate Base Rate or Eurodollar Rate (as
defined in the Credit Agreement), plus the Applicable Margin (as defined in the
Credit Agreement) based upon the type of loan. The Alternate Base Rate is
defined as the higher of (i) the rate of interest announced publicly by
NationsBank from time to time as its prime rate, and (ii) 1/2 of 1 percent per
annum above the Federal Funds Rate, as published by the Federal Reserve Bank of
New York. With respect to the Term Facility, the applicable margin is initially
4% per annum for Alternate Base Rate Advances and 5% for Eurodollar Advances.
With respect to the Revolving Credit Facility, the Applicable Margin is
initially 3.5% for Alternate Base Rate Advances and 4.5% for Eurodollar
Advances. The initial Applicable Margins are effective from November 1, 1997
through January 31, 1998, and automatically increase by 50 basis points in each
successive three month period thereafter.
The Credit Agreement provides for certain customary affirmative and
negative covenants and events of default, including, but not limited to,
covenants regarding the Company's capital expenditures, funded debt, tangible
net worth, leverage, working capital, interest coverage and fixed charge
coverage, as well as limitations on other indebtedness, mergers, acquisitions
(and asset sales), other liens and investments. The Company's obligations under
the Credit Agreement have been guaranteed by certain of the Company's
subsidiaries. As security for the obligations of the Company and its
subsidiaries under the Credit Agreement and the Subsidiary Guaranty, the banks
have been granted a security interest in substantially all the assets owned or
hereafter acquired by the Company and certain of its subsidiaries.
Under the Credit Agreement, the loans are subject to certain mandatory
prepayments of excess cashflow (as defined), proceeds from sales of assets,
insurance recoveries and issuances of debt and equity. In addition, voluntary
prepayments are
Page 3 of 9 Pages
<PAGE>
permitted in whole or in part, with prior notice but without premium or penalty
for base rate loans or upon the expiration date of each Eurodollar Loan having
an unexpired interest period.
In addition, PHP granted NationsBank warrants to acquire 500,150
shares of PHP Common Stock with no cost to exercise. January 31, 1998 if any
borrowings under the Credit Agreement remain outstanding. NationsBank will be
able to exercise warrants to acquire 920,850 additional shares of PHP Common
Stock with no cost to exercise.
The descriptions of the Asset Purchase Agreement, the Credit
Agreement, the Security Agreement, the Guaranty Agreement and the Warrant
Agreement are qualified in their entirety by reference to the copies of those
agreements which are filed as exhibits hereto and incorporated herein by
reference.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
---------------------------------
(a) Financial Statements of Business Acquired. It is impractical to
-----------------------------------------
provide the required financial information at this time. The required financial
information for the business acquired will be filed under cover of Form 8-K/A
within 60 days after the date this Form 8-K was required to be filed.
(b) Pro Forma Financial Information. It is impractical to provide the
-------------------------------
required pro forma financial information at this time. The required financial
information for the business acquired will be filed under cover of Form 8-K/A
within 60 days after the date this Form 8-K was required to be filed.
Page 4 of 9 Pages
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<TABLE>
<CAPTION>
(c) Exhibits. The following exhibits are furnished as part of this report:
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Exhibit Description
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<S> <C>
4.1 Warrant Agreement between PHP Healthcare Corporation
and First Trust of New York, National Association,
Warrant Agent, dated as of October 31, 1997
10.1 Asset Purchase Agreement by and between PHP
Healthcare Corporation and HIP of New Jersey, Inc.,
dated as of July 24, 1997*
10.2 Credit Agreement, dated October 31, 1997, among PHP
Healthcare Corporation as Borrower and The Initial
Lenders and Initial Issuing Bank Named Herein as
Initial Lenders and Initial Issuing Bank and
NationsBank, N.A. as Collateral Agent and
Administrative Agent
10.3 Security Agreement, dated as of October 31, 1997,
from PHP Healthcare Corporation, The Other Grantors
Referred to Herein and The Additional Grantors
Referred to Herein as Grantors to NationsBank, N.A.
as Administrative Agent
</TABLE>
- ------------------------
* Document filed as an exhibit to the Company's 10-Q Report (File No.
0-16235) for the period ended July 31, 1997, bearing the same exhibit
number, which is incorporated herein by reference.
Page 5 of 9 Pages
<PAGE>
<TABLE>
<CAPTION>
Exhibit Description
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<S> <C>
10.4 Subsidiary Guaranty, dated as of October 31, 1997, from Each of
the Subsidiaries of PHP Healthcare Corporation Listed on the
Signature Pages Hereof and The Additional Subsidiary Guarantors
Referred to Herein as Guarantors in favor of The Secured Parties
Referred to in The Credit Agreement Referred to Herein
</TABLE>
FORWARD LOOKING STATEMENTS
- --------------------------
This Report contains forward-looking statements. The words "believe,"
"expect" and "anticipate" and similar expressions identify such forward-looking
statements. These forward-looking statements reflect the Company's views with
respect to future events and financial performance. Such statements are subject
to risks and uncertainties that could cause the Company's actual results and
financial position to differ materially from those projected in the forward-
looking statements. Risks associated with the Company's forward-looking
statements include, but are not limited to, those risk factors described in the
Company's Form 10-K under the caption "Business -- Risk Factors." Readers are
cautioned not to place undue reliance on these forward-looking statements, which
speak only as of their dates. The Company undertakes no obligation to publicly
update or revise any forward-looking statements, whether as a result of new
information, future events or otherwise.
Page 6 of 9 Pages
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
PHP HEALTHCARE CORPORATION
By: /s/ Anthony M. Picini
----------------------------
Name: Anthony M. Picini
Title: Senior Vice President and
Chief Financial Officer
Dated: November 17, 1997
Page 7 of 9 Pages
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description
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<C> <S>
4.1 Warrant Agreement between PHP Healthcare Corporation
and First Trust of New York, National Association,
Warrant Agent, dated as of October 31, 1997
10.1 Asset Purchase Agreement by and between PHP
Healthcare Corporation and HIP of New Jersey, Inc.,
dated as of July 24, 1997*
10.2 Credit Agreement, dated October 31, 1997, among PHP
Healthcare Corporation as Borrower and The Initial
Lenders and Initial Issuing Bank Named Herein as
Initial Lenders and Initial Issuing Bank and
NationsBank, N.A. as Collateral Agent and
Administrative Agent
10.3 Security Agreement, dated as of October 31, 1997,
from PHP Healthcare Corporation, The Other Grantors
Referred to Herein and The Additional Grantors
Referred to Herein as Grantors to NationsBank, N.A.
as Administrative Agent
</TABLE>
- ------------------------------
* Document filed as an exhibit to the Company's 10-Q Report (File No. 0-
16235) for the period ended July 31, 1997, bearing the same exhibit
number, which is incorporated herein by reference.
Page 8 of 9 Pages
<PAGE>
<TABLE>
<CAPTION>
Exhibit Description
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<S> <C>
10.4 Subsidiary Guaranty, dated as of October 31, 1997, from Each of
the Subsidiaries of PHP Healthcare Corporation Listed on the
Signature Pages Hereof and The Additional Subsidiary Guarantors
Referred to Herein as Guarantors in favor of The Secured Parties
Referred to in The Credit Agreement Referred to Herein
</TABLE>
Page 9 of 9 Pages
<PAGE>
Exhibit 4.1
WARRANT AGREEMENT
AGREEMENT dated as of October 31, 1997 between PHP Healthcare Corporation,
a Delaware corporation (the "Company"), and First Trust of New York, National
Association, Warrant Agent (the "Warrant Agent").
The Company proposes to issue and deliver its warrant certificates (the
"Warrant Certificates") evidencing warrants (the "Warrants") to acquire, under
certain circumstances, up to an aggregate of 1,429,000 Warrant Shares, subject
to adjustment. Each such Warrant will entitle the registered holder thereof to
acquire one Warrant Share, subject to adjustment.
In consideration of the foregoing and for the purpose of defining the terms
and provisions of the Warrants and the respective rights and obligations
thereunder of the Company and the record holders of the Warrants, the Company
and the Warrant Agent each hereby agrees as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings:
Affiliate: of any Person, any Person directly or indirectly controlling or
---------
controlled by or under direct or indirect common control with such Person. For
purposes of this definition, "control" when used with respect to any Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
Common Stock: the authorized Common Stock, par value $0.01 per share, of
------------
the Company and any other capital stock of the Company into which such common
stock may be converted or reclassified or that may be issued in respect of, in
exchange for, or in substitution of, such common stock by reason of any stock
splits, stock dividends, distributions, mergers, consolidations or other like
events.
Company: the meaning set forth in the preamble to this Agreement and its
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successors and assigns.
Current Market Value: the meaning set forth in Section 7.1(f).
--------------------
Exchange Act: the Securities Exchange Act of 1934, as amended.
------------
Expiration Date: October 31, 2007.
---------------
<PAGE>
Holders: from time to time, the holders of the Warrants and, unless
-------
otherwise provided or indicated herein, the holders of the Registrable Warrant
Shares.
Independent Financial Expert: a nationally recognized investment banking
----------------------------
firm that does not (and whose directors, officers, employees and Affiliates do
not) have a direct or indirect financial interest in the Company or any of its
Affiliates, that has not been and at the time it is called upon to give
independent financial advice to the Company, is not (and none of whose
directors, officers, employees or Affiliates is) a promoter, director or officer
of the Company or any of its Affiliates or an underwriter or placement agent
with respect to any of the securities of the Company or any of its Affiliates,
and that does not provide any advice or opinions to the Company or any of its
Affiliates except as an Independent Financial Expert.
Merger Transaction: any merger, consolidation or other business
------------------
combination by the Company with one or more Persons (other than a wholly owned
subsidiary of the Company) in which the Company or such other Person is the
survivor, or a sale of all or substantially all of the assets of the Company to
one or more such other Persons, and with respect to which cash or non-cash
consideration is distributed to holders of Common Stock in exchange for all or
substantially all of their equity interest in the Company.
Person: any individual, corporation, partnership, joint venture,
------
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Piggyback Registration Rights: the meaning set forth in Section 5.2.
-----------------------------
Prospectus: the prospectus included in any Registration Statement, as
----------
amended or supplemented by any prospectus supplement with respect to the terms
of the offering of any of the Registrable Warrant Shares covered by such
Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material incorporated by
reference in such prospectus.
Registrable Warrant Shares: all Warrant Shares; provided, however, that
-------------------------- -------- -------
particular Warrant Shares shall cease to be Registrable Warrant Shares when (i)
a registration statement covering the sale of such shares shall have been
declared effective under the Securities Act and such shares shall have been
disposed of in accordance with such registration statement; (ii) such shares
have been distributed to the public pursuant to Rule 144 (or any successor
provision) under the Securities Act or (iii) such shares shall have otherwise
been transferred and new shares not subject to transfer restrictions under the
Securities Act and not bearing any legend restricting further transfer shall
have been delivered by the Company, and no other applicable and legally binding
restriction on transfer shall exist.
As used in Section 5, the number of shares of "Registrable Warrant Shares
deemed outstanding" on a particular date shall be equal to the sum of (i) the
number of Registrable Warrant Shares issuable upon exercise of Warrants
outstanding on such date, plus (ii) the number of Registrable Warrant Shares
outstanding on such date.
<PAGE>
Registration Demand: the meaning set forth in Section 5.1.
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Registration Rights: the rights of Holders set forth in Sections 5.1, 5.2
-------------------
and 5.3 to have Registrable Warrant Shares registered under the Securities Act
for sale under one or more effective Registration Statements.
Registration Statement: any registration statement filed by the Company
----------------------
under the Securities Act that covers any of the Registrable Warrant Shares,
including the Prospectus, any amendments and supplements to such Registration
Statement, including post-effective amendments, and all exhibits and all
material incorporated by reference in such registration statement.
SEC: the Securities and Exchange Commission.
---
Securities Act: the Securities Act of 1933, as amended.
--------------
Warrant Agent: the meaning set forth in the preamble to this Agreement or
-------------
the successor or successors of such Warrant Agent appointed in accordance with
the terms hereof.
Warrant Certificates: the meaning set forth in the preamble to this
--------------------
Agreement.
Warrant Shares: the Shares of Common Stock deliverable upon exercise of
--------------
any Warrant, as adjusted from time to time.
Warrants: the meaning set forth in the preamble to this Agreement.
--------
Certain terms, used principally in Sections 4, 5 and 6, are defined in
those Sections.
2. ORIGINAL ISSUE OF WARRANTS.
2.1. Form of Warrant Certificates. The Warrant Certificates shall be in
----------------------------
registered form only and substantially in the form attached hereto as Exhibit A,
shall be dated the date on which countersigned by the Warrant Agent and may have
such legends and endorsements typed, stamped, printed, lithographed or engraved
thereon as the Company may deem appropriate and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation pursuant thereto or with any rule or regulation of
any securities exchange on which the Warrants may be listed, or to conform to
usage.
Pending the preparation of definitive Warrant Certificates, temporary
Warrant Certificates may be issued, which may be printed, lithographed,
typewritten, mimeographed or otherwise produced, and which will be substantially
of the tenor of the definitive Warrant Certificates in lieu of which they are
issued.
<PAGE>
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates to the Warrant Agent, without
charge to the Holder. Until so exchanged the temporary Warrant Certificates
shall in all respects be entitled to the same benefits under this Agreement as
definitive Warrant Certificates.
2.2. Execution and Delivery of Warrant Certificates. Warrant Certificates
----------------------------------------------
evidencing Warrants to purchase initially an aggregate of up to 1,429,000
Warrant Shares may be executed, on or after the date of this Agreement, by the
Company and delivered to the Warrant Agent for countersignature, and the Warrant
Agent shall thereupon countersign and deliver such Warrant Certificates upon the
order and at the direction of the Company to the purchasers thereof on the date
of issuance. The Warrant Agent is hereby authorized to countersign and deliver
Warrant Certificates as required by this Section 2.2 or by Section 3.4, 8 or
12.4. The Warrant Certificates shall be executed on behalf of the Company by its
Chairman of the Board, Chief Executive Officer, President or Vice President,
either manually or by facsimile signature printed thereon. The Warrant
Certificates shall be manually countersigned by the Warrant Agent and shall not
be valid for any purpose unless so countersigned. In case any officer of the
Company whose signature shall have been placed upon any of the Warrant
Certificates shall cease to be such officer of the Company before
countersignature by the Warrant Agent and issue and delivery thereof, such
Warrant Certificates may, nevertheless, be countersigned by the Warrant Agent
and issued and delivered with the same force and effect as though such person
had not ceased to be such officer of the Company.
3. EXERCISE PRICE AND EXERCISE OF WARRANTS GENERALLY.
3.1. Exercise Price. Each Warrant Certificate shall, when countersigned
--------------
by the Warrant Agent, entitle the Holder thereof, subject to the provisions of
this Agreement, to purchase one Warrant Share for each Warrant represented
thereby at an exercise price of zero ($0.00) per share.
3.2. Exercise of Warrants. Subject to the terms and conditions set forth
--------------------
herein, the Warrants shall be exercisable on or prior to the Expiration Date at
any time or from time to time on or after October 31, 1997.
3.3. Expiration of Warrants. The Warrants shall terminate and become void
----------------------
as of the close of business on the Expiration Date.
The Company shall give notice not less than 90, and not more than 120, days
prior to the Expiration Date to the Holders of all then outstanding Warrants to
the effect that the Warrants will terminate and become void as of the close of
business on the Expiration Date.
3.4. Method of Exercise. In order to exercise a Warrant, the Holder
------------------
thereof must surrender the Warrant Certificate evidencing such Warrant to the
Warrant Agent, with one of the forms on the reverse of or attached to the
Warrant Certificate duly executed.
<PAGE>
If fewer than all the Warrants represented by a Warrant Certificate are
surrendered, such Warrant Certificate shall be surrendered and a new Warrant
Certificate of the same tenor and for the number of Warrants that were not
surrendered shall be executed by the Company. The Warrant Agent shall
countersign the new Warrant Certificate, register it in such name or names as
may be directed in writing by the Holder and deliver the new Warrant Certificate
to the Person or Persons entitled to receive the same.
Upon surrender of a Warrant Certificate in conformity with the foregoing
provisions, the Warrant Agent shall thereupon promptly notify the Company, and
the Company shall transfer to the Holder of such Warrant Certificate appropriate
evidence of ownership of any Warrant Shares or other securities or property
(including any money) to which the Holder is entitled, registered or otherwise
placed in, or payable to the order of, such name or names as may be directed in
writing by the Holder, and shall deliver such evidence of ownership and any
other securities or property (including any money) to the Person or Persons
entitled to receive the same, together with an amount in cash in lieu of any
fraction of a share as provided in Section 7.4.
3.5. Compliance with the Securities Act. (a) No Warrant may be sold,
----------------------------------
transferred or otherwise disposed of (any such sale, transfer or other
disposition, a "sale"), except in compliance with this Section 3.5.
(b) A Holder may sell its Warrants or any Registrable Warrant Shares to
a transferee that is an "accredited investor" or a "qualified institutional
buyer", as defined in Regulation D and Rule 144A under the Securities Act,
respectively, provided that each of the following conditions is satisfied:
(i) such transferee establishes to the reasonable satisfaction of
the Company that it is an "accredited investor" or a "qualified institutional
buyer"; and
(ii) such transferee represents that it is acquiring the Warrant
Shares (in the case of an exercise) or the Warrants or Registrable Warrant
Shares (in the case of a sale) for its own account and that it is not acquiring
such Warrant Shares or the Warrants or Registrable Warrant Shares with a view
to, or for offer or sale in connection with, any distribution thereof (within
the meaning of the Securities Act) that would be in violation of the securities
laws of the United States or any state thereof, but subject, nevertheless, to
the disposition of its property being at all times within its control; and
(iii) such transferee agrees to be bound by the provisions of this
Section 3.5 with respect to any exercise of the Warrants and any sale of the
Warrants or Registrable Warrant Shares.
(c) In the event of a proposed sale that does not qualify under Section
3.5(b), a Holder may sell its Warrants or Registrable Warrant Shares only if:
<PAGE>
(i) such Holder gives written notice to the Company of its
intention to effect such sale, which notice (A) shall describe the manner and
circumstances of the proposed transaction in reasonable detail and (B) shall
designate the counsel for such Holder, which counsel shall be satisfactory to
the Company;
(ii) counsel for the Holder shall render an opinion, in form and
substance satisfactory to the Company, to the effect that such proposed sale may
be effected without registration under the Securities Act or under applicable
Blue Sky laws; and
(iii) such Holder or transferee complies with Sections 3.5(b)(ii)
and 3.5(b)(iii).
(d) All stock certificates issued pursuant to the exercise of the
Warrants shall bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER APPLICABLE STATE
SECURITIES LAWS. SUCH SHARES MAY BE OFFERED, SOLD OR TRANSFERRED ONLY IN
COMPLIANCE WITH THE REQUIREMENTS OF SUCH ACT AND OF ANY APPLICABLE STATE
SECURITIES LAWS AND SUBJECT TO THE PROVISIONS OF THE WARRANT CERTIFICATE
REPRESENTING THE WARRANTS OF REFERRED TO IN THE WARRANT AGREEMENT DATED OCTOBER
31, 1997. A COPY OF SUCH WARRANT CERTIFICATE IS AVAILABLE AT THE OFFICES OF THE
COMPANY.
(e) Each certificate representing the Warrants shall bear the following
legend:
THESE WARRANTS AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER
APPLICABLE STATE SECURITIES LAWS. THESE WARRANTS AND SUCH SECURITIES MAY BE
OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF ONLY IN COMPLIANCE WITH THE
REQUIREMENTS OF SUCH ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS AND SUBJECT
TO THE PROVISIONS OF THIS WARRANT CERTIFICATE.
(f) The provisions of Section 3.5(a) shall not apply to any sale of a
Warrant or Registrable Warrant Shares in a transaction that is registered under
the Securities Act.
4. RIGHTS OF HOLDERS UPON OCCURRENCE OF CERTAIN EVENTS.
4.1. Dividend Declarations. After the Company declares a dividend on the
----------------------
Common Stock (other than in shares of capital stock of the Company), it shall
give the Holders the notice required to be given under Section 11.2. Except as
expressly provided in Section 7.1, if the Company declares a dividend or makes
any other distribution to all holders of its Common Stock
<PAGE>
(other than in shares of capital stock of the Company), the Holders will be
required to exercise their Warrants in order to receive any such distribution.
If a Holder fails to exercise his Warrant, no adjustment will be made to the
number of Warrant Shares issuable upon the exercise of such Holder's Warrants.
4.2. Merger Transaction. (a) If the Company proposes, prior to the
------------------
Expiration Date, to enter into a transaction that would constitute a Merger
Transaction if consummated, the Company shall give written notice thereof to the
Holders of Warrants, promptly after an agreement or agreement in principle is
reached with respect to the Merger Transaction but in no event less than 30 days
prior to the closing thereof. Such notice shall describe the transaction in
reasonable detail and specify whether the consideration to be received by the
Holders consists of cash or items other than cash. The Company shall also
furnish to each Holder of Warrants all notices and materials furnished to its
stockholders in connection with such transaction.
(b) The Company agrees that it will not enter into an agreement
providing for a Merger Transaction in which only cash is paid to the holders of
Common Stock, unless the party to such transaction that is the surviving entity
(the "Survivor") shall be obligated to purchase each outstanding Warrant for a
cash purchase price equal to cash amount the Holder of such Warrant would have
received if such Holder had exercised such Warrant immediately prior to such
Merger Transaction (or, if applicable, the record date therefor) and the
Survivor had purchased the number of Registrable Warrant Shares then issuable
upon such exercise in such Merger Transaction.
(c) The Company agrees that it will not enter into an agreement
providing for a Merger Transaction in which all or a portion of the
consideration paid to the holders of Common Stock is not cash, unless the
Survivor shall be obligated to distribute or pay to each Holder of Warrants the
number of shares of stock or other securities or other property (including any
money) of the Survivor that would have been distributable or payable on account
of the Registrable Warrant Shares if such Holder's Warrants had been exercised
immediately prior to such Merger Transaction (or, if applicable, the record date
therefor).
(d) The Warrants shall terminate and become void as of the closing date
of any Merger Transaction.
(e) In the event of a Merger Transaction in which all or a portion of
the consideration to be received by Holders of Warrants consists of securities,
the Survivor shall obtain the written opinion of independent counsel as to
whether such securities may be resold by such Holders immediately after the
closing of the Merger Transaction without registration of such securities under
Section 5 of the Securities Act. In the event such counsel shall be of the
opinion that such registration is required, the Company agrees that it will not
enter into an agreement providing for such Merger Transaction, unless the
Survivor shall have provided such Holders the same Registration Rights with
respect to such securities that they would have been entitled to had the Merger
Transaction not occurred.
<PAGE>
5. REGISTRATION RIGHTS AND PROCEDURES.
5.1. Demand Registration. (a) At any time and from time to time after
-------------------
October 31, 1997, the Holders of at least 10% of the Registrable Warrant Shares
then deemed outstanding shall have the right to request in writing that the
Company effect a registration of such Holders' Registrable Warrant Shares
pursuant to the provisions of this Section 4.1 (each such request, a
"Registration Demand"). Subject to Section 5.2, the Holders may make two
Registration Demands. Each Registration Demand shall specify the number of
Registrable Warrant Shares that each such Holder proposes to sell in the
offering.
(b) Upon receipt of a Registration Demand, the Company shall give
written notice thereof to all the other Holders of Warrants or Registrable
Warrant Shares at least 30 days prior to the initial filing of a Registration
Statement relating to such Registration Demand. Each of the other Holders shall
have the right, within 20 days after the delivery of such notice, to request
that the Company include all or a portion of such Holder's Registrable Warrant
Shares in such Registration Statement.
(c) Upon receipt of a Registration Demand, the Company shall have the
right, but not the obligation, to purchase, in currently available funds and at
the Current Market Price, all, but not less than all, of the Registrable Warrant
Shares of such requesting Holders that such Holders have requested to be
included in a Registration Statement pursuant to Sections 5.1(a) and 5.1(b).
Such purchase shall be consummated within 90 days after the Company receives a
Registration Demand.
(d) In the event that the Company does not exercise its right to
purchase all of the Registrable Warrant Shares pursuant to clause (c) above,
then as promptly as practicable and in no event later than 90 days after the
Company receives a Registration Demand, the Company shall file with the SEC a
Registration Statement, on any form that shall be available and appropriate for
the sale of the Registrable Warrant Shares in accordance with the intended
method of distribution thereof. The Company shall include in such Registration
Statement all of the Registrable Warrant Shares of such requesting Holders that
such Holders have requested to be included therein pursuant to Sections 5.1(a)
and 5.1(b); provided, however, that, if the requested registration involves an
-------- -------
underwritten offering, the Registrable Warrant Shares to be registered may be
reduced if the underwriter for the public offering or the underwriter managing
the public offering (in either case, the "managing underwriter") managing
underwriter delivers a notice (a "Cutback Notice") pursuant to Section 5.1(h) or
5.1(i).
(e) The Company shall use its best efforts to cause each such
Registration Statement to be declared effective and to keep such Registration
Statement continuously effective and usable for resale of such Registrable
Warrant Shares, for a period of 90 days from the date on which the SEC declares
such Registration Statement effective or such shorter period as is necessary to
complete the distribution of the securities registered thereunder.
<PAGE>
(f) The Holders of a majority of the Registrable Warrant Shares to be
included in any registration requested pursuant to a Registration Demand shall
determine the method of distribution of such shares.
(g) If a Registration Demand involves an underwritten offering, the
Company shall have the right to select the managing underwriter for such
offering; provided that such managing underwriter shall be reasonably
--------
satisfactory to the Holders of at least a majority of the Registrable Warrant
Shares to be included in such underwritten offering.
(h) If the proposed offering only includes Registrable Warrant Shares
to be offered for the account of requesting Holders pursuant to a Registration
Demand, the provisions of this Section 5.1(h) shall be applicable if the
managing underwriter delivers a Cutback Notice stating that, in its opinion, the
number of Registrable Warrant Shares that the Holders have requested to be sold
exceeds the maximum number of shares specified by the managing underwriter in
such Cutback Notice that may be distributed without adversely affecting the
price, timing or distribution of the Registrable Warrant Shares being
distributed. If the managing underwriter delivers such Cutback Notice, the
number of Registrable Warrant Shares entitled to be included in such
Registration Statement shall be allocated among requesting Holders in proportion
to the respective number of Registrable Warrant Shares that each Holder owns or
has the right to acquire.
(i) In the event that the proposed offering is an underwritten offering
and includes shares of Common Stock to be offered for the account of selling
stockholders, whether or not such selling stockholders have the right to include
shares in such offering (the "Other Demand Shares"), plus securities to be
offered for the account of the Company (the "Company Demand Shares"), the
provisions of this Section 5.1(i) shall be applicable if the managing
underwriter delivers a Cutback Notice stating that, in its opinion, the
aggregate number of Registrable Warrant Shares, plus the Other Demand Shares and
the Company Demand Shares proposed to be sold therein, exceeds the maximum
number of shares (the "Includible Demand Shares") specified by the managing
underwriter in such Cutback Notice that may be distributed without adversely
affecting the price, timing or distribution of the Common Stock being
distributed. If the managing underwriter delivers such Cutback Notice, the
requesting Holders shall first be entitled to include in such offering all of
the Registrable Warrant Shares such requesting Holders desire to sell therein,
allocated among the requesting Holders in proportion to the respective numbers
of Registrable Warrant Shares that each Holder owns or has the right to acquire,
and the Company and the selling stockholders shall then be entitled to
participate in such offering in the proportions that they shall have agreed to.
(j) The underwriting agreement relating to any Registration Demand
shall provide that each requesting Holder shall have the right to sell either
its Warrants or its Registrable Warrant Shares to the underwriters.
(k) No Registration Demand may be made until the expiration of six
months following the completion of the distribution of the securities registered
under any Registration Statement that has been filed and has become effective
pursuant to a prior Registration Demand.
<PAGE>
(l) The Company shall not be obligated to file a Registration Statement
relating to any Registration Demand unless the requests by the Holders for such
registration cover an aggregate of 10% or more of the Registrable Warrant Shares
then deemed outstanding.
(m) If the Board of Directors of the Company, in its good faith
judgment, determines that any registration of Registrable Warrant Shares
pursuant to this Section 5.1 should not be made or continued because it would
materially interfere with any material financing, acquisition, corporate
reorganization or merger or other material transaction involving the Company or
any of its subsidiaries (a "Valid Business Reason"), (x) the Company may
postpone filing a registration statement relating to a Registration Demand until
such Valid Business Reason no longer exists, but in no event for more than three
months, and (y) in case a registration statement has been filed relating to a
Registration Demand, and subject to the terms of any agreement with underwriters
or agents, if any, the Company may cause such registration statement to be
withdrawn and its effectiveness terminated or may postpone amending or
supplementing such registration statement until such Valid Business Reason no
longer exists, but in no event for more than three months (such period of
postponement or withdrawal under sub clause (x) or (y) of this clause (m), the
"Postponement Period"); and the Company shall give written notice of its
determination to postpone or withdraw a registration statement and of the fact
that the Valid Business Reason for such postponement or withdrawal no longer
exists, in each case, promptly after the occurrence thereof; provided, however,
the Company shall not be permitted to postpone or withdraw a registration
statement within 12 months after the expiration of any Postponement Period.
If the Company shall give any notice of postponement or withdrawal of any
registration statement, the Company shall not, during the period of postponement
or withdrawal, register any Common Stock, other than pursuant to a registration
statement on Form S-4 or S-8 (or an equivalent registration from then in
effect). The Holders agree that, upon receipt of any notice from the Company
that the Company has determined to withdraw any registration statement pursuant
to this clause (m), the Holders of Registrable Warrant Shares will discontinue
any disposition of Registrable Warrant Shares pursuant to such registration
statement. If the Company shall have withdrawn or prematurely terminated a
registration statement filed under this Section 5.1 (whether pursuant to this
clause (m) or as a result of any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court), the Company
shall not be considered to have effected an effective registration for the
purposed of this Agreement until the Company shall have filed a new registration
statement covering Registrable Warrant Shares covered by the withdrawn
registration statement and such registration statement shall have been declared
effective and shall not have been withdrawn. If the Company shall give any
notice of withdrawal or postponement of a registration statement, the Company
shall, at such time as the Valid Business Reason that caused such withdrawal or
postponement no longer exists (but in no event later than three months after the
date of the postponement or withdrawal), use its best efforts to effect the
registration under the Securities Act of Registrable Warrant Shares covered by
the withdrawn or postponed registration statement in accordance with this
Section 5.1 (unless the Holder shall have withdrawn such request, in which case
the Company shall not be considered to have effected an effective registration
for the purposes of this Agreement), and such registration shall not be
withdrawn or postponed pursuant to this clause (m).
<PAGE>
5.2. Piggyback Registration Rights. (a) If the Company proposes to file
-----------------------------
a Registration Statement with the SEC respecting an offering, whether primary or
secondary, of any equity securities of the Company, the Company shall give
written notice to all the Holders of Warrants or Registrable Warrant Shares at
least 30 days prior to the initial filing of the Registration Statement relating
to such offering. Each such Holder shall have the right, within 20 days after
delivery of such notice, to request in writing that the Company include all or a
portion of such Holder's Registrable Warrant Shares in such Registration
Statement ("Piggyback Registration Rights"). The Company shall include in the
public offering all of the Registrable Warrant Shares that a Holder has
requested be included, unless the managing underwriter delivers a Cutback Notice
pursuant to Section 5.2(b) or 5.2(c). The managing underwriter may deliver one
or more Cutback Notices at any time prior to the execution of the underwriting
agreement for the public offering.
(b) If the proposed public offering includes securities to be offered
for the account of the Company ("Company Shares"), the provisions of this
Section 5.2(b) shall be applicable if the managing underwriter delivers a
Cutback Notice stating that, in its opinion, the number of shares of Common
Stock that selling stockholders propose to sell therein, whether or not such
selling stockholders have the right to include shares therein (the "Other
Shares"), plus the number of Registrable Warrant Shares that the Holders have
requested to be sold therein, plus the Company Shares, exceeds the maximum
number of shares specified by the managing underwriter in such Cutback Notice
that may be distributed without adversely affecting the price, timing or
distribution of the Company Shares. Such maximum number of shares that may be so
sold, excluding the Company Shares, are referred to as the "Includible Shares".
If the managing underwriter delivers such Cutback Notice, the Company shall
be entitled to include all of the Company Shares in the public offering, to the
extent that the number of Company Shares is less than the number of shares
specified in the Cutback Notice, the remaining shares to be included in such
registration shall be allocated on a pro rata basis among (x) all other persons
exercising rights to include Common Stock in such registration and (y) the
Registrable Warrant Shares requested to be registered, provided, however, that
the Holders of Registrable Warrant Shares shall be subject to any agreements
between the Company and any such other person as of a date prior to the date
hereof in respect of the allocation set forth in this clause (b). The number of
Registrable Warrant Shares entitled to be included in such registration
statement shall be allocated among requesting Holders in proportion to the
respective numbers of Registrable Warrant Shares that each Holder owns or has
the right to acquire.
(c) If the proposed public offering is entirely a secondary offering,
the provisions of this Section 5.2(c) shall be applicable if the managing
underwriter delivers a Cutback Notice stating that, in its opinion, the
aggregate number of Registrable Warrant Shares and Other Shares proposed to be
sold therein exceeds the maximum number of shares (the "Includible Secondary
Shares") specified by the managing underwriter in such Cutback Notice that may
be distributed without adversely affecting the price, timing or distribution of
the Common Stock being distributed. If the managing underwriter delivers such
Cutback Notice, the requesting Holders shall be entitled to include in the
public offering up to the aggregate number of Registrable
<PAGE>
Warrant Shares that equals the greater of (i) 50% of the Includible Secondary
Shares and (ii) the number of Includible Secondary Shares minus the number of
Other Shares. The number of Registrable Warrant Shares included in such
Registration Statement shall be allocated pro rata among Holders as described in
Section 5.2(b).
(d) The provisions of this Section 5.2 shall not become applicable in
connection with (i) a registration statement filed by the Company pursuant to a
Registration Demand or (ii) a transaction in which a registration statement is
filed by the Company on Form S-4 or S-8 or any successor forms.
5.3. Underwriters' Green Shoe Option. If any registration pursuant to
-------------------------------
this Section 5 involves an underwritten offering and the managing underwriter
requests that the participants in such offering grant the underwriters an over-
allotment or "green shoe" option for the purpose of covering over-allotments
that may be made by the underwriters in connection with such offering, then a
portion of the shares proposed to be sold by each Holder, which portion shall
not exceed the maximum amount then permitted by the rules of the National
Association of Securities Dealers, Inc. (currently 15%) and shall equal the
portion of the shares proposed to be sold by other sellers in the offering that
is applied to the same purpose, shall be made subject to such over-allotment
option, unless otherwise agreed in the underwriting agreement relating thereto.
5.4. Holder Withdrawal Rights. The Company shall withdraw from
------------------------
registration any Registrable Warrant Shares on request of a Holder, at the
Company's expense; provided that, in the case of a Registration Demand under
Section 5.1, a Demand Registration shall be deemed to have been made for the
purpose of calculating the number of such Demands permitted to be made under
Section 5.1(a). The Company shall not be obligated to maintain the effectiveness
of any Registration Statement if, after any withdrawal of Registrable Warrant
Shares by a Holder, the number of Registrable Warrant Shares remaining subject
to such Registration Statement is less than 10% of the Registrable Warrant
Shares deemed outstanding, unless (i) the Company is also registering securities
on such Registration Statement for its own account or (ii) if such Registration
Statement relates to securities other than for the account of the Company, the
Company shall be reimbursed by the non-withdrawing selling Holders for their pro
rata share of all the expenses thereafter incurred for maintaining the
registration of the Registrable Warrant Shares remaining subject to such
registration.
6. REGISTRATION PROCEDURES.
6.1. Covenants of the Company Applicable to All Registration Statements.
------------------------------------------------------------------
This Section 6.1 applies to all Registration Statements filed by the Company and
referred to in Section 5.1 or 5.2. The securities covered by each such
Registration Statement are referred to as the "Registered Securities". Each
underwriter, agent, selling broker, dealer manager or similar securities
industry professional participating in any offering of the Registered Securities
is referred to as an "underwriter" or "agent" and any agreement entered into
with an underwriter or agent is referred to as an "underwriting or agency
agreement". In connection with each such
<PAGE>
registration, the Company covenants with each Holder participating in such
offering (each, a "selling holder") and each underwriter or agent participating
therein as follows:
(a) The Company will notify the selling holders and the managing
underwriter or agent, immediately, and confirm the notice in writing, (i) when
the Registration Statement, or any post-effective amendment to the Registration
Statement, shall have become effective, or any supplement to the Prospectus or
any amended Prospectus shall have been filed, (ii) of the receipt of any
comments from the SEC, (iii) of any request by the SEC to amend the Registration
Statement or amend or supplement the Prospectus or for additional information,
(iv) of the issuance by the SEC of any stop order suspending the effectiveness
of the Registration Statement or of any order preventing or suspending the use
of any preliminary prospectus, or of the suspension of the qualification of the
Registered Securities for offering or sale in any jurisdiction, or of the
institution or threatening of any proceedings for any of such purposes, (v) if
at any time when a prospectus is required by the Securities Act to be delivered
in connection with sales of the Registered Securities the representations and
warranties of the Company contemplated by Section 6.1(j) cease to be true and
correct and (vi) of the existence of any fact that results in the Registration
Statement, the Prospectus or any document incorporated therein by reference
containing an untrue statement of material fact or omitting to state a material
fact required to be stated therein or necessary to make any statement therein
not misleading.
(b) The Company will use every reasonable effort to prevent the
issuance of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus and, if any such order is issued, to obtain the lifting thereof at
the earliest possible moment.
(c) The Company will not at any time file or make any amendment to the
Registration Statement, or any amendment of or supplement to the Prospectus
(including amendments of the documents incorporated by reference into the
Prospectus), of which the selling holders or the managing underwriter or agent
shall not have previously been advised and furnished a copy, or to which the
selling holders, the managing underwriter or agent or counsel for the selling
holders or counsel for the underwriters or agents shall reasonably object.
(d) The Company will furnish to each selling holder and to the managing
underwriter or agent, without charge, as many signed copies of the Registration
Statement (as originally filed) and of all amendments thereto, whether filed
before or after the Registration Statement becomes effective, copies of all
exhibits and documents filed therewith, including documents incorporated by
reference into the Prospectus, and signed copies of all consents and
certificates of experts, as such selling holder or the managing underwriter or
agent may reasonably request, and will furnish to the managing underwriter, for
each other underwriter participating in an underwritten offering, one conformed
copy of the Registration Statement as originally filed and of each amendment
thereto (including documents incorporated by reference into the Prospectus but
without exhibits).
(e) The Company will deliver to each selling holder and each
underwriter or agent participating in such offering, without charge, as many
copies of each preliminary prospectus as
<PAGE>
such selling holder or such underwriter or agent may reasonably request, and the
Company hereby consents to the use of such copies for purposes permitted by the
Securities Act. The Company will deliver to each selling holder and each
underwriter or agent participating in such offering, without charge, from time
to time during the period when the Prospectus is required to be delivered under
the Securities Act, such number of copies of the Prospectus (as supplemented or
amended) as such selling holder or such underwriter or agent may reasonably
request.
(f) The Company will comply to the best of its ability with the
Securities Act and the rules and regulations of the SEC thereunder, and the
Exchange Act and the rules and regulations of the SEC thereunder so as to permit
the completion of the distribution of the Registered Securities in accordance
with the intended method or methods of distribution contemplated in the
Prospectus. If at any time when a prospectus is required by the Securities Act
to be delivered in connection with sales of the Registered Securities any event
shall occur or condition exist as a result of which it is necessary, in the
opinion of counsel for the selling holders, counsel for the underwriters or
agents or counsel for the Company, to amend the Registration Statement or amend
or supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion any of such counsel, at any such time to
amend the Registration Statement or amend or supplement the Prospectus in order
to comply with the requirements of the Securities Act or the rules and
regulations of the SEC thereunder, the Company will promptly prepare and file
with the SEC, subject to Section 6.1(c), such amendment or supplement as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements.
(g) The Company will use its best efforts, in cooperation with the
selling holders or the underwriters or agents, as the case may be, to qualify
the Registered Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions as the selling holders or the
managing underwriter or agents, as the case may be, may designate; provided,
--------
however, that the Company shall not be obligated to file any general consent to
- -------
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. The Company will file such statements and reports
as may be required by the laws of each jurisdiction in which the Registered
Securities have been qualified as above provided.
(h) The Company will use its best efforts to effect the listing of the
Registered Securities covered by a Registration Statement on each securities
exchange on which similar securities issued by the Company are then listed if
requested by the holders of at least a majority of the Registered Securities, or
if requested by the managing underwriter.
(i) If any of the Registered Securities are debt securities, the
Company will use its best efforts to cause such Registered Securities to be
rated with Moody's Investors Services, Inc. and Standard & Poor's Corporation or
other appropriate rating agencies, if so requested by the
<PAGE>
holders of at least a majority of such Registered Securities, or if requested by
the managing underwriter.
(j) The Company shall make such representations and warranties to the
selling holders in form, substance and scope as are customarily made by issuers
to selling holders in public offerings of the type contemplated by the
Registration Statement and the Company shall make such representations and
warranties to the underwriters or agents, if any, in form, substance and scope
as are customarily made by issuers to underwriters or agents in secondary
underwritten public offerings.
(k) On the effective day of the Registration Statement or, in the case
of an underwritten offering, on the date of delivery of the Registered
Securities sold pursuant thereto, the Company shall cause to be delivered to the
selling holders and the underwriters or agents, if any, opinions of counsel for
the Company, which counsel, and opinions (in form, scope and substance), shall
be reasonably satisfactory to counsel for the underwriters or agents, if any,
and counsel for the selling holders, covering the matters customarily covered in
opinions given to underwriters in primary underwritten public offerings.
(l) Immediately prior to the effectiveness of the Registration
Statement or, in the case of an underwritten offering, at the time of delivery
of any Registered Securities sold pursuant thereto, the Company shall cause to
be delivered to the selling holders and the underwriters or agents, if any,
letters from the Company's independent public accountants stating that such
accountants are independent public accountants with respect to the Company
within the meaning of the Securities Act and the applicable published rules and
regulations of the SEC thereunder, and otherwise in customary form and covering
such financial and accounting matters as are customarily covered by letters of
the independent public accountants delivered in connection with primary
underwritten public offerings.
(m) If the managing underwriter or agent so requests, the underwriting
or agency agreement shall set forth in full the provisions hereof relating to
covenants, registration expenses, lock-up agreements, indemnification and
contribution contained in Sections 6.1, 6.2, 6.3, 6.4, 6.8 and 6.9, with such
changes therein as may be agreed to by the managing underwriter or agent, the
Company and the selling holders.
(n) The Company shall deliver such documents and certificates as may be
reasonably requested by any selling holder or the underwriters or agents, if
any, to evidence compliance with Section 6.1(j) and with any customary
conditions contained in the underwriting or agency agreement, if any.
(o) The Company will make available for inspection by representatives
of the selling holders and the underwriters or agents participating in such
offering and any attorney or accountant retained by such selling holders or
underwriters or agents, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
such representative, underwriter or agent, attorney or accountant in connection
with the preparation of
<PAGE>
the Registration Statement; provided, however, that any non-public records,
-------- -------
information or documents shall be kept confidential by each such person unless
such records, information or documents become part of the public domain through
no fault of such person or unless disclosure thereof is required by court or
administrative order.
(p) The Company will make generally available to its security holders
as soon as practicable, but not later than 45 days after the close of the period
covered thereby (or 90 days if such period is a fiscal year), an earnings
statement of the Company (in form complying with the provisions of Rule 158
under the rules and regulations of the SEC under the Securities Act), covering a
period of 12 months beginning after the effective date of the Registration
Statement but not later than the first day of the Company's fiscal quarter next
following such effective date.
(q) The Company will enter into such customary agreements, including a
customary underwriting or agency agreement with the underwriters or agents, if
any, and take all such other actions in connection with the offering in order to
expedite or facilitate the disposition of the Registered Securities.
6.2. Covenants of the Selling Holders. (a) Each selling holder shall use
--------------------------------
its best efforts to furnish to the Company such information regarding the
distribution of such Registered Securities as the Company may from time to time
reasonably request in writing.
(b) Each selling holder agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
6.1(a)(vi), such selling holder will forthwith discontinue the disposition of
its Registered Securities pursuant to the Registration Statement until such
selling holder's receipt of the copies of a supplemented or amended Prospectus
contemplated by Section 6.1(f), or until it is advised in writing by the Company
that the use of such Prospectus may be resumed. If the Company shall give any
such notice, the Company shall extend the period of time during which the
Company is required to keep the Registration Statement effective and usable by
the number of days during the period from the date of receipt of such notice to
the date when each selling holder of Registered Securities covered by such
Registration Statement either receives the copies of a supplemented or amended
Prospectus contemplated by Section 6.1(f) or is advised in writing by the
Company that the use of such Prospectus may be resumed.
(c) Each selling holder agrees to make customary representations and
warranties to the Company and the underwriters or agents, if any, in form,
substance and scope as are customarily made by selling holders in underwritten
public offerings, but no selling holders, as such, shall be required to make any
representation or warranty as to the accuracy or completeness of the
Registration Statement (except as to written information furnished to the
Company by such selling holder expressly for use therein).
6.3. Registration Expenses. (a) The Company will pay and bear all costs
---------------------
and expenses incident to the performance of its obligations under this Agreement
with respect to each registration pursuant to Section 5.1 or 5.2, including:
<PAGE>
(i) the preparation, printing and filing of the Registration
Statement (including financial statements and exhibits), as originally filed and
as amended, any preliminary prospectuses and the Prospectus and any amendments
or supplements thereto, and the cost of furnishing copies thereof to the selling
holders or the underwriters or agents, as the case may be;
(ii) the preparation, printing and distribution of any
underwriting or agency agreement, certificates representing the Registered
Securities, any Blue Sky Survey and other documents relating to the performance
of and compliance with this Agreement;
(iii) the fees and disbursements of the Company's counsel and
accountants and the reasonable fees and disbursements of one counsel retained by
the selling holders pursuant to Section 6.3(b);
(iv) the fees and disbursements of the underwriters or agents
customarily paid by issuers or sellers of securities and the reasonable fees and
expenses of any special experts retained in connection with the Registration
Statement, but excluding underwriting discounts and commissions and transfer
taxes, if any;
(v) the qualification of the Registered Securities under
applicable securities laws in accordance with Section 6.1(g) and any filing for
review of the offering with the National Association of Securities Dealers,
Inc., including filing fees and fees and disbursements of counsel for the
selling holders and the underwriters or agents, as the case may be, in
connection therewith, in connection with any Blue Sky Survey and in connection
with any reserve share program;
(vi) all fees and expenses incurred in connection with the
listing, if any, of any of the Registered Securities on any securities exchange
pursuant to Section 6.1(h); and
(vii) the fees charged by any rating agency in connection with the
rating, if any, of the Registered Securities pursuant to Section 6.1(i).
(b) In connection with the filing of each Registration Statement, the
Company will reimburse the selling holders for the reasonable fees and
disbursements of one firm of legal counsel, which shall be chosen by the holders
of at least a majority of the Registered Securities to be included in such
offering and shall be reasonably satisfactory to the Company.
(c) Each selling holder will pay and bear all costs and expenses incident
to the delivery of the Registered Securities to be sold by it, including any
stock transfer taxes payable upon the sale of such Registered Securities to the
purchaser thereof and any underwriting discounts or commissions payable to
underwriters or agents in connection therewith.
6.4. Indemnification. (a) In connection with each registration pursuant
---------------
to Section 5.1 or 5.2, the Company agrees to indemnify and hold harmless each
selling holder, each underwriter or agent participating in such offering, and
each person, if any, who controls any selling holder or any such underwriter or
agent within the meaning of Section 15 of the Securities Act as follows:
<PAGE>
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein
not misleading or arising out of an untrue statement of a material fact included
in any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including
fees and disbursements of counsel chosen by the selling holders and by the
underwriters or agents), reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that this indemnity does not apply to any loss, liability,
- -------- -------
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by any selling
holder or any underwriter or agent expressly for use in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(b) Each selling holder agrees severally, and not jointly, to indemnify
and hold harmless the Company, its directors, each of its officers who signed a
Registration Statement, each underwriter or agent participating in such offering
and the other selling holders, and each person, if any, who controls the
Company, any such underwriter or agent and any other selling holder within the
meaning of Section 15 of the Securities Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
Section 6.4(a), as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such selling
holder expressly for use in the Registration Statement (or any amendment
thereto), or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), provided, however, that the liability
-------- -------
<PAGE>
of each selling holder pursuant to this Section 6.4(b) is limited to the
proceeds received by such selling holder from the sale of Registered Securities.
(c) The obligations of the Company under Section 6.4(a) and of the selling
holders under Section 6.4(b) to indemnify any underwriter or agent who
participates in an offering (or any person, if any, controlling such underwriter
or agent within the meaning of Section 15 of the Securities Act) shall be
conditioned upon the underwriting or agency agreement with such underwriter or
agent containing an agreement by such underwriter or agent to indemnify and hold
harmless the Company, its directors, each of its officers who signed a
Registration Statement, and each selling holder, and each person, if any, who
controls the Company or any such selling holder within the meaning of Section 15
of the Securities Act, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in Section 6.4(a), as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto), or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such underwriter or agent expressly for use in the
Registration Statement (or any amendment thereto), or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(d) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such action. In no event shall the indemnifying party
or parties be liable for the fees and expenses of more than one counsel for the
Company, its officers, directors and controlling persons as a group, for the
selling holders and their controlling persons as a group, and for the
underwriters or agents and their controlling persons as a group, in connection
with any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
6.5. Contribution. (a) In order to provide for just and equitable
------------
contribution in circumstances under which the indemnity provided for in this
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company, the selling
holders and the underwriters or agents shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity incurred by the Company, the selling holders and one or more of the
underwriters or agents, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the selling holders(s)
on the one hand and the underwriters or agents on the other hand from the
offering of the Registered Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
selling holder(s) on the one hand and of the underwriters or agents on the other
hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
<PAGE>
The relative benefits received by the Company and the selling holder(s) on
the one hand and the underwriters or agents on the other hand in connection with
the offering of the Registered Securities pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of the Registered Securities pursuant to this Agreement (before
deducting expenses) received by the Company and the selling holder(s) and the
total underwriting discount received by the underwriters or agents, in each case
as set forth on the cover of the Prospectus, bear to the aggregate public
offering price of the Registered Securities as set forth on such cover.
The relative fault of the Company and the selling holder(s) on the one hand
and the underwriters or agents on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact related to information supplied by the Company or the selling holder(s) or
by the underwriters or agents and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company, the selling holder(s) and the underwriters or agents agree
that it would not be just and equitable if contribution pursuant to this Section
were determined by pro rata allocation (even if the underwriters or agents were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
(b) No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 6.5, each person, if any, who controls an underwriter or agent
within the meaning of Section 15 of the Securities Act shall have the same
rights to contribution as such underwriter or agent, and each director of the
Company, each officer of the Company who signed a Registration Statement, and
each person, if any, who controls the Company or a selling holder within the
meaning of Section 15 of the Securities Act shall have the same rights to
contribution as the Company or such selling holder, as the case may be.
6.6. Representations, Warranties and Indemnities to Survive. The
------------------------------------------------------
indemnity and contribution agreements contained in this Section 5 and the
representations and warranties of the Company referred to in Section 6.1(j)
shall remain operative and in full force and effect regardless of (i) any
termination of any underwriting or agency agreement, (ii) any investigation made
by or on behalf of the selling holders, the Company or any underwriter or agent
or controlling person or (iii) the consummation of the sale or successive
resales of the Registered Securities.
<PAGE>
6.7. Rule 144. The Company covenants that it will file the reports
--------
required to be filed by it under the Securities Act and the rules and
regulations of the SEC thereunder and the Exchange Act and the rules and
regulations of the SEC thereunder and it will take such further action as any
Holder of Registrable Warrant Shares may reasonably request, all to the extent
required from time to time to enable such Holder to sell Registrable Warrant
Shares without registration under the Securities Act within the limitation of
the exemptions provided by Rule 144 under the Securities Act, as such Rule may
be amended from time to time. Upon the request of any Holder of Registrable
Warrant Shares, the Company will deliver to such Holder a written statement as
to whether it has complied with such information and requirements.
6.8. Participation in Underwritten Offerings. No Holder may participate
---------------------------------------
in any underwritten offering hereunder unless:
(a) Such Holder executes a power of attorney appointing one or more
attorneys designated by the selling holders proposing to sell a majority of the
Registrable Warrant Shares proposed to be sold by all selling holders. Each
such attorney shall be authorized, on customary terms, to execute the
underwriting agreement on behalf of each selling holder and to otherwise act for
the selling holders in connection with the offering.
(b) Such Holder, through one of its powers of attorney, enters into an
underwriting agreement with the Company, the other selling holders, any selling
stockholders and the underwriters, which underwriting agreement shall comply
with the provisions of this Section 6.
(c) Such Holder executes all questionnaires and other documents required
by such power of attorney or the underwriting agreement to be executed by such
Holder.
6.9. Lock-Up Agreements. (a) The Company agrees that it will not, directly
------------------
or indirectly, sell, offer to sell, grant any option for the sale of, or
otherwise dispose of, any Common Stock or securities convertible into or
exchangeable or exercisable for Common Stock, other than any such sale or
distribution of Common Stock upon exercise of the Company's outstanding Warrants
in the case of any registration pursuant to Sections 5.1 and 5.2, for a period
of 90 days from the effective date of the Registration Statement pertaining
thereto.
(b) Each Holder of Registrable Warrant Shares whose Registrable Warrant
Shares are covered by a Registration Statement filed pursuant to Section 5.1 or
5.2 agrees that it will not, directly or indirectly, sell, offer to sell, grant
any option for the sale of, or otherwise dispose of, any shares of Common Stock
or any Warrants or other securities convertible into or exchangeable or
exercisable for Common Stock, for a period of 90 days from the effective date of
the Registration Statement pertaining thereto.
(c) The lock-up agreements set forth in Sections 6.9(a) and 6.9(b) shall
be subject to customary exceptions that may be contained in an underwriting
agreement if any such registration involves an underwritten offering.
<PAGE>
7. ADJUSTMENTS.
7.1. Adjustments. The number of Warrant Shares issuable upon exercise of
-----------
each Warrant shall be subject to adjustment from time to time as follows:
(a) Stock Dividends; Stock Splits; Reverse Stock Splits;
----------------------------------------------------
Reclassifications. In case the Company shall (i) pay a dividend or make any
- -----------------
other distribution with respect to its Common Stock in shares of its capital
stock, (ii) subdivide its outstanding Common Stock, (iii) combine its
outstanding Common Stock into a smaller number of shares, or (iv) issue any
shares of its capital stock in a reclassification of the Common Stock (including
any such reclassification in connection with a merger, consolidation or other
business combination in which the Company is the continuing corporation), the
number of shares of Common Stock issuable upon exercise of each Warrant
immediately prior to the record date for such dividend or distribution or the
effective date of such subdivision or combination shall be adjusted so that the
Holder of each Warrant shall thereafter be entitled to receive the kind and
number of shares of Common Stock or other securities of the Company that such
Holder would have owned or have been entitled to receive after the happening of
any of the events described above, had such Warrant been exercised immediately
prior to the happening of such event or any record date with respect thereto. An
adjustment made pursuant to this Section 7.1(a) shall become effective
immediately after the effective date of such event retroactive to the record
date, if any, for such event.
(b) Rights; Options; Warrants. In case the Company shall issue rights,
-------------------------
options, warrants or convertible or exchangeable securities (other than a
convertible or exchangeable security subject to Section 7.1(a)) to all holders
of its Common Stock, entitling them to subscribe for or purchase Common Stock at
a price per share that is lower (at the record date for such issuance) than the
Current Market Value per share of Common Stock, the number of shares of Common
Stock thereafter issuable upon the exercise of all Warrants then outstanding
shall be determined by adding the number of shares of Common Stock theretofore
issuable upon exercise of all Warrants then outstanding to the product of (x)
the Cheap Stock Issued (as defined below), multiplied by (y) the Ownership Ratio
(as defined below). Such adjustment shall be made whenever such rights, options,
warrants or convertible or exchangeable securities are issued, and shall become
effective retroactively immediately after the record date for the determination
of stockholders entitled to receive such rights, options, warrants or
convertible or exchangeable securities.
For purposes of this Section 7.1(b), (i) the "Cheap Stock Issued" shall be
the number of additional shares of any Common Stock offered by the Company for
subscription or purchase as described above minus the number of shares of Common
Stock that the aggregate offering price of the total number of shares of Common
Stock so offered would purchase at the then Current Market Value per share of
Common Stock and (ii) the "Ownership Ratio" shall be a fraction, the numerator
of which shall be the number of shares of Common Stock theretofore issuable upon
exercise of all Warrants then outstanding, and the denominator of which shall be
the fully diluted shares of Common Stock then outstanding on the date of
issuance of such rights, options,
<PAGE>
warrants or convertible or exchangeable securities minus the number of shares of
Common Stock theretofore issuable upon the exercise of all Warrants then
outstanding.
Any adjustment to the number of shares of Common Stock issuable upon
exercise of all Warrants then outstanding made pursuant to this Section 7.1(b)
shall be allocated among the Warrants then outstanding on a pro rata basis.
(c) Issuance of Common Stock at Lower Values. In case the Company shall,
----------------------------------------
in a transaction in which Section 7.1(b) is inapplicable, issue or sell shares
of Common Stock, or rights, options, warrants or convertible or exchangeable
securities containing the right to subscribe for or purchase shares of Common
Stock, at a price per share of Common Stock (determined in the case of such
rights, options, warrants or convertible or exchangeable securities, by dividing
(A) the total amount receivable by the Company in consideration of the issuance
and sale of such rights, options, warrants or convertible or exchangeable
securities, plus the total consideration, if any, payable to the Company upon
exercise, conversion or exchange thereof, by (B) the total number of shares of
Common Stock covered by such rights, options, warrants or convertible or
exchangeable securities) that is lower than the then Current Market Value per
share of the Common Stock in effect immediately prior to such sale or issuance,
then the number of shares of Common Stock thereafter issuable upon the exercise
of all Warrants then outstanding shall be determined by adding the number of
shares of Common Stock theretofore issuable upon exercise of all Warrants then
outstanding to the product of (x) the Cheap Stock Issued, multiplied by (y) the
Ownership Ratio. Such adjustment shall be made successively whenever any such
sale or issuance is made.
For purposes of this Section 7.1(c), (i) the "Cheap Stock Issued" shall be
the number of additional shares of any Common Stock issued or offered by the
Company for subscription or purchase as described above minus the number of
shares of Common Stock that the aggregate offering price of the total number of
shares of Common Stock so offered would purchase at the then Current Market
Value per share of Common Stock and (ii) the "Ownership Ratio" shall be a
fraction, the numerator of which shall be the number of shares of Common Stock
theretofore issuable upon exercise of all Warrants then outstanding, and the
denominator of which shall be the fully diluted shares of Common Stock then
outstanding on the date of issuance of such Common Stock or such rights,
options, warrants or convertible or exchangeable securities minus the number of
shares of Common Stock theretofore issuable upon the exercise of all Warrants
then outstanding. For the purposes of such adjustments, the shares of Common
Stock which the holder of any such rights, options, warrants or convertible or
exchangeable securities shall be entitled to subscribe for or purchase shall be
deemed to be issued and outstanding as of the date of the sale and issuance of
the rights, warrants or convertible or exchangeable securities and the
consideration received by the Company therefor shall be deemed to be the
consideration received by the Company for such rights, options, warrants or
convertible or exchangeable securities, plus the consideration or premiums
stated in such rights, options, warrants or convertible or exchangeable
securities to be paid for the shares of Common Stock covered thereby.
In case the Company shall issue and sell shares of Common Stock or rights,
options, warrants or convertible or exchangeable securities containing the right
to subscribe for or
<PAGE>
purchase shares of Common Stock for a consideration consisting, in whole or in
part, of consideration other than cash or its equivalent, then in determining
the "price per share of Common Stock" and the "consideration" receivable by or
payable to the Company for purposes of the first sentence of this Section
7.1(c), the Board of Directors of the Company shall determine, in good faith,
the fair value of such consideration. In case the Company shall issue and sell
rights, options, warrants or convertible or exchangeable securities containing
the right to subscribe for or purchase shares of Common Stock, together with one
or more other securities as part of a unit at a price per unit, then in
determining the "price per share of Common Stock" and the "consideration"
receivable by or payable to the Company for purposes of the first sentence of
this Section 7.1(c), the Board of Directors of the Company shall determine, in
good faith, the fair value of the rights, options, warrants or convertible or
exchangeable securities then being sold as part of such unit.
Any adjustment to the number of shares of Common Stock issuable upon
exercise of all Warrants then outstanding made pursuant to this Section 7.1(c)
shall be allocated among each Warrant then outstanding on a pro rata basis.
The provisions of this Section 7.1(c) shall not apply to (i) shares issued
pursuant to employee stock options, warrants or upon conversion of the Company's
6.5% Convertible Subordinated Debentures, in each case outstanding on the date
hereof, and (ii) shares issued pursuant to an employee stock option plan or
similar plan providing for options or other similar rights to purchase (or
issuances pursuant to incentive bonus plans) covering not in the aggregate in
excess of the lesser of 400,000 shares of Common Stock per year or 2.6% of the
fully diluted shares of Common Stock then outstanding at the end of the most
recent fiscal quarter of each year.
(d) Distributions of Debt, Assets, Subscription Rights or Convertible
-----------------------------------------------------------------
Securities. In case the Company shall fix a record date for the making of a
- ----------
distribution to all holders of shares of its Common Stock of evidences of
indebtedness of the Company, assets (other than cash dividends payable out of
earnings and profits arising after the date hereof) or securities (excluding
those referred to in Sections 7.1(a), 7.1(b) and 7.1(c)) (any such evidences of
indebtedness, assets or securities, the "assets or securities"), then in each
case the Holders, upon the exercise of the Warrants, shall be entitled to
receive in addition to the shares of Common Stock, (i) the assets or securities
to which such Holder would have been entitled as a holder of Common Stock if
such Holder had exercised his Warrants immediately prior to the record date for
such distribution and (ii) any income earned on the assets or securities
distributed from the distribution date to the date of exercise. At the time of
any such distribution, the Company shall either (A) deposit the assets or
securities payable to Holders pursuant hereto in trust for the Holders with an
"eligible institution" with instructions as to the investment of such property
and any proceeds therefrom so as to protect the value of such property for the
Holders or (B) distribute to the Holders the assets or securities to which they
would be entitled upon exercise and, upon any such distribution pursuant to this
Clause (B), the provisions of this Section 7.1(d) shall no longer apply to such
event. Such election shall be made by the Company giving written notice thereof
to the Holders.
<PAGE>
For purposes of this Section 7.1(d), the term "eligible institution" shall
mean a corporation organized and doing business under the laws of the United
States of America or of any state thereof, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000, and subject to supervision or examination by federal or state
authority.
(e) Expiration of Rights, Options and Conversion Privileges. Upon the
-------------------------------------------------------
expiration of any rights, options, warrants or conversion or exchange privileges
that have previously resulted in an adjustment hereunder, if any thereof shall
not have been exercised, the number of shares of Common Stock issuable upon the
exercise of each Warrant shall, upon such expiration, be readjusted and shall
thereafter, upon any future exercise, be such as they would have been had they
been originally adjusted (or had the original adjustment not been required, as
the case may be) as if (i) the only shares of Common Stock so issued were the
shares of Common Stock, if any, actually issued or sold upon the exercise of
such rights, options, warrants or conversion or exchange rights and (ii) such
shares of Common Stock, if any, were issued or sold for the consideration
actually received by the Company upon such exercise plus the consideration, if
any, actually received by the Company for issuance, sale or grant of all such
rights, options, warrants or conversion or exchange rights whether or not
exercised; provided, further, that no such readjustment shall have the effect of
-------- -------
decreasing the number of shares issuable upon exercise of each Warrant by a
number in excess of the number of the adjustment initially made in respect to
the issuance, sale or grant of such rights, options, warrants or conversion or
exchange rights.
(f) Current Market Value. For the purposes of any computation under this
--------------------
Section 7, the Current Market Value per share of Common Stock or of any other
equity security (herein collectively referred to as a "security") at the date
herein specified shall be:
(i) if the security is not registered under the Exchange Act, the
value of the security (A) determined in good faith in the most recently
completed arm's-length transaction between the Company and an unaffiliated third
party in which such determination is necessary and the closing of which shall
have occurred within the six months preceding such date or (B) if no such
transaction shall have occurred within such six-month period, determined as of
such date by an Independent Financial Expert, which shall be selected by the
Board of Directors of the Company, and retained on customary terms and
conditions, using one or more valuation methods that the Independent Financial
Expert, in its best professional judgment, determines to be most appropriate,
giving effect to any discount attributable to any lack of liquidity of the
Common Stock or to the fact that the Company may have no class of equity
securities registered under the Exchange Act; provided, however, that in
-------- -------
determining the value of the Common Stock under Section 7.4, if the foregoing
subparagraph (A) shall not be applicable, the Current Market Value per share of
Common Stock shall be determined in good faith by the Board of Directors of the
Corporation, or
(ii) if the security is registered under the Exchange Act, deemed to
be the average of the daily market prices of the security for the 10 consecutive
trading days immediately preceding the day as of which "Current Market Value" is
being determined or, if the security has been registered under the Exchange Act
for less than 10 consecutive trading days before such
<PAGE>
date, then the average of the daily market prices for all of the trading days
before such date for which daily market prices are available. The market price
for each such trading day shall be: (A) in the case of a security listed or
admitted to trading on any securities exchange, the closing price, regular way,
on such day, or if no sale takes place on such day, the average of the closing
bid and asked prices on such day, (B) in the case of a security not then listed
or admitted to trading on any securities exchange, the last reported sale price
on such day, or if no sale takes place on such day, the average of the closing
bid and asked prices on such day, as reported by a reputable quotation source
designated by the Company, (C) in the case of a security not then listed or
admitted to trading on any securities exchange and as to which no such reported
sale price or bid and asked prices are available, the average of the reported
high bid and low asked prices on such day, as reported by a reputable quotation
service, or a newspaper of general circulation in the Borough of Manhattan, City
and State of New York, customarily published on each business day, designated by
the Company, or if there shall be no bid and asked prices on such day, the
average of the high bid and low asked prices, as so reported, on the most recent
day (not more than 10 days prior to the date in question) for which prices have
been so reported, and (D) if there are no bid and asked prices reported during
the 10 days prior to the date in question, the Current Market Value of the
security shall be determined as if the security were not registered under the
Exchange Act.
(g) De Minimis Adjustments. Except as provided in Section 7.1(c) with
----------------------
reference to adjustments required by such Section 7.1(c), no adjustment in the
number of shares of Common Stock issuable hereunder shall be required unless
such adjustment would require an increase or decrease of at least one percent
(1%) in the number of shares of Common Stock purchasable upon an exercise of
each Warrant; provided, however, that any adjustments which by reason of this
-------- -------
Section 7.1(g) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations shall be made to the
nearest one-thousandth of a share.
7.2. Notice of Adjustment. Whenever the number of shares of Common Stock
--------------------
or other stock or property issuable upon the exercise of each Warrant is
adjusted, as herein provided, the Company shall cause the Warrant Agent promptly
to mail by first class mail, postage prepaid, to each Holder notice of such
adjustment or adjustments and shall deliver to the Warrant Agent a certificate
of a firm of independent public accountants selected by the Board of Directors
of the Company (who may be the regular accountants employed by the Company)
setting forth the number of shares of Common Stock or other stock or property
issuable upon the exercise of each Warrant after such adjustment, setting forth
a brief statement of the facts requiring such adjustment and setting forth the
computation by which such adjustment was made. The Warrant Agent shall be
entitled to rely on such certificate and shall be under no duty or
responsibility with respect to any such certificate, except to exhibit the same
from time to time, to any Holder desiring an inspection thereof during
reasonable business hours. The Warrant Agent shall not at any time be under any
duty or responsibility to any Holders to determine whether any facts exist that
may require any adjustment of the number of shares of Common Stock or other
stock or property issuable on exercise of the Warrants, or with respect to the
nature or extent of any such adjustment when made, or with respect to the method
employed in making such adjustment or the validity or value (or the kind or
amount) of any shares of Common Stock or other stock or
<PAGE>
property which may be issuable on exercise of the Warrants. The Warrant Agent
shall not be responsible for any failure of the Company to make any cash payment
or to issue, transfer or deliver any shares of Common Stock or stock
certificates or other common stock or properties upon the exercise of any
Warrant.
7.3. Statement on Warrants. Irrespective of any adjustment in the number
---------------------
or kind of shares issuable upon the exercise of the Warrants, Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the Warrants initially issuable
pursuant to this Agreement.
7.4. Fractional Interest. The Company shall not be required to issue
-------------------
fractional shares of Common Stock on the exercise of Warrants. If more than one
Warrant shall be presented for exercise in full at the same time by the same
Holder, the number of full shares of Common Stock which shall be issuable upon
such exercise thereof shall be computed on the basis of the aggregate number of
shares of Common Stock acquirable on exercise of the Warrants so presented. If
any fraction of a share of Common Stock would, except for the provisions of this
Section be issuable on the exercise of any Warrant (or specified portion
thereof), the Company shall pay an amount in cash calculated by it to be equal
to the then Current Market Value per share of Common Stock multiplied by such
fraction computed to the nearest whole cent.
8. WARRANT TRANSFER BOOKS.
The Warrant Certificates shall be issued in registered form only. The
Company shall cause to be kept at the office of the Warrant Agent a register in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Warrant Certificates and of transfers or
exchanges of Warrant Certificates as herein provided.
At the option of the Holder, Warrant Certificates may be exchanged at such
office, and upon payment of the charges hereinafter provided. Whenever any
Warrant Certificates are so surrendered for exchange, the Company shall execute,
and the Warrant Agent shall countersign and deliver, the Warrant Certificates
that the Holder making the exchange is entitled to receive.
All Warrant Certificates issued upon any registration of transfer or
exchange of Warrant Certificates shall be the valid obligations of the Company,
evidencing the same obligations, and entitled to the same benefits under this
Agreement, as the Warrant Certificates surrendered for such registration of
transfer or exchange.
Every Warrant Certificate surrendered for registration of transfer or
exchange shall (if so required by the Company or the Warrant Agent) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Warrant Agent, duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Warrant Certificates. The Company may require payment of a sum
sufficient to cover any tax or other
<PAGE>
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Warrant Certificates.
Any Warrant Certificate when duly endorsed in blank shall be deemed
negotiable and when a Warrant Certificate shall have been so endorsed, the
Holder thereof may be treated by the Company, the Warrant Agent and all other
persons dealing therewith as the absolute owner thereof for any purpose and as
the Person entitled to exercise the rights represented thereby, or to the
transfer thereof on the register of the Company maintained by the Warrant Agent,
any notice to the contrary notwithstanding; but until such transfer on such
register, the Company and the Warrant Agent may treat the registered Holder
thereof as the owner for all purposes.
9. WARRANT HOLDERS.
9.1. No Voting Rights. Prior to the exercise of the Warrants, no Holder
----------------
of a Warrant Certificate, as such, shall be entitled to any rights of a
stockholder of the Company, including, without limitation, the right to vote, to
consent, to exercise any preemptive right, to receive any notice of meetings of
stockholders for the election of directors of the Company or any other matter or
to receive any notice of any proceedings of the Company, except as may be
specifically provided for herein.
9.2. Right of Action. All rights of action in respect of this Agreement
---------------
are vested in the Holders of the Warrants, and any Holder of any Warrant,
without the consent of the Warrant Agent or the Holder of any other Warrant,
may, in such Holder's own behalf and for such Holder's own benefit, enforce, and
may institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, such Holder's right to
exercise, exchange or tender for purchase such Holder's Warrants in the manner
provided in this Agreement.
10. WARRANT AGENT.
10.1. Nature of Duties and Responsibilities Assumed. The Company hereby
---------------------------------------------
appoints the Warrant Agent to act as agent of the Company as set forth in this
Agreement. The Warrant Agent hereby accepts the appointment as agent of the
Company and agrees to perform that agency upon the terms and conditions herein
set forth, by all of which the Company and the Holders of Warrants, by their
acceptance thereof, shall be bound. The Warrant Agent shall not by
countersigning Warrant Certificates or by any other act hereunder be deemed to
make any representations as to validity or authorization of the Warrants or the
Warrant Certificates (except as to its countersignature thereon) or of any
securities or other property delivered upon exercise or tender of any Warrant,
or as to the accuracy of the computation of the number or kind or amount of
stock or other securities or other property deliverable upon exercise of any
Warrant, the independence of any Independent Financial Expert or the correctness
of the representations of the Company made in such certificates that the Warrant
Agent receives. The Warrant Agent shall not have any duty to calculate or
determine any adjustments with respect to the kind and
<PAGE>
amount of shares or other securities or any property receivable by Holders upon
the exercise or tender of Warrants required from time to time, and the Warrant
Agent shall have no duty or responsibility in determining the accuracy or
correctness of such calculation. The Warrant Agent shall not (a) be liable for
any recital or statement of fact contained herein or in the Warrant Certificates
or for any action taken, suffered or omitted by it in good faith on the belief
that any Warrant Certificate or any other documents or any signatures are
genuine or properly authorized, (b) be responsible for any failure on the part
of the Company to comply with any of its covenants and obligations contained in
this Agreement or in the Warrant Certificates, (c) as to compliance with the
Securities Act, or (d) be liable for any act or omission in connection with this
Agreement except for its own negligence or willful misconduct. The Warrant Agent
is hereby authorized to accept instructions with respect to the performance of
its duties hereunder from the President, any Vice President or the Secretary of
the Company and to apply to any such officer for instructions (which
instructions will be promptly given in writing when requested) and the Warrant
Agent shall not be liable for any action taken or suffered to be taken by it in
good faith in accordance with the instructions of any such officer, but in its
discretion the Warrant Agent may in lieu thereof accept other evidence of such
or may require such further or additional evidence as it may deem reasonable.
The Warrant Agent may execute and exercise any of the rights and powers
hereby vested in it or perform any duty hereunder either itself or by or through
its attorneys, agents or employees, provided reasonable care has been exercised
in the selection and in the continued employment of any such attorney, agent or
employee. The Warrant Agent shall not be under any obligation or duty to
institute, appear in or defend any action, suit or legal proceeding in respect
hereof, unless first indemnified to its satisfaction, but this provision shall
not affect the power of the Warrant Agent to take such action as the Warrant
Agent may consider proper, whether with or without such indemnity. The Warrant
Agent shall promptly notify the Company in writing of any claim made or action,
suit or proceeding instituted against it arising out of or in connection with
this Agreement.
The Company will perform, execute, acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such further acts,
instruments and assurances as may reasonably be required by the Warrant Agent in
order to enable it to carry out or perform its duties under this Agreement.
The Warrant Agent shall act solely as agent of the Company hereunder. The
Warrant Agent shall not be liable except for the failure to perform such duties
as are specifically set forth herein, and no implied covenants or obligations
shall be read into this Agreement against the Warrant Agent, whose duties and
obligations shall be determined solely by the express provisions hereof.
10.2. Right to Consult Counsel. The Warrant Agent may at any time consult
------------------------
with legal counsel satisfactory to it (who may be legal counsel for the
Company), and the Warrant Agent shall incur no liability or responsibility to
the Company or to any Holder for any action taken, suffered or omitted by it in
good faith in accordance with the opinion or advice of such counsel.
<PAGE>
10.3. Compensation and Reimbursement. The Company agrees to pay to the
------------------------------
Warrant Agent from time to time compensation for all services rendered by it
hereunder as the Company and the Warrant Agent may agree from time to time, and
to reimburse the Warrant Agent for reasonable expenses and disbursements
incurred in connection with the execution and administration of this Agreement
(including the reasonable compensation and the expenses of its counsel), and
further agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance and
administration of this Agreement, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The provisions of this
Section 10.3 shall survive termination of this Agreement and expiration of the
Warrants.
10.4. Warrant Agent May Hold Company Securities. The Warrant Agent and
-----------------------------------------
any stockholder, director, officer or employee of the Warrant Agent may buy,
sell or deal in any of the Warrants or other securities of the Company or its
Affiliates or become pecuniarily interested in transactions in which the Company
or its Affiliates may be interested, or contract with or lend money to the
Company or its Affiliates or otherwise act as fully and freely as though it were
not the Warrant Agent under this Agreement. Nothing herein shall preclude the
Warrant Agent from acting in any other capacity for the Company or for any other
legal entity.
10.5. Resignation and Removal; Appointment of Successor. (a) No
-------------------------------------------------
resignation or removal of the Warrant Agent and no appointment of a successor
warrant agent shall become effective until the acceptance of appointment by the
successor warrant agent as provided herein. The Warrant Agent may resign its
duties and be discharged from all further duties and liability hereunder (except
liability arising as a result of the Warrant Agent's own negligence or willful
misconduct) after giving written notice to the Company. The Company may remove
the Warrant Agent upon written notice, and the Warrant Agent shall thereupon in
like manner be discharged from all further duties and liabilities hereunder,
except as aforesaid. The Warrant Agent shall, at the Company's expense, cause to
be mailed (by first-class mail, postage prepaid) to each Holder of a Warrant at
his last address as shown on the register of the Company maintained by the
Warrant Agent a copy of said notice of resignation or notice of removal, as the
case may be. Upon such resignation or removal, the Company shall appoint in
writing a new warrant agent. If the Company shall fail to make such appointment
within a period of 30 days after it has been notified in writing of such
resignation by the resigning Warrant Agent or after such removal, then the
Holder of any Warrant may apply to any court of competent jurisdiction for the
appointment of a new warrant agent. Any new warrant agent, whether appointed by
the Company or by such a court, shall be a corporation doing business under the
laws of the United States or any state thereof, in good standing and having a
combined capital and surplus of not less than $50,000,000. The combined capital
and surplus of any such new warrant agent shall be deemed to be the combined
capital and surplus as set forth in the most recent annual report of its
condition published by such warrant agent prior to its appointment, provided
that such reports are published at least annually pursuant to law or to the
requirements of a Federal or state supervising or examining authority. After
acceptance in writing of such appointment by the new warrant agent, it shall be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named herein as the Warrant Agent, without any further
assurance,
<PAGE>
conveyance, act or deed; but if for any reason it shall be necessary or
expedient to execute and deliver any further assurance, conveyance, act or deed,
the same shall be done at the expense of the Company and shall be legally and
validly executed and delivered by the resigning or removed Warrant Agent. Not
later than the effective date of any such appointment, the Company shall give
notice thereof to the resigning or removed Warrant Agent. Failure to give any
notice provided for in this Section, however, or any defect therein, shall not
affect the legality or validity of the resignation of the Warrant Agent or the
appointment of a new warrant agent, as the case may be.
(b) Any corporation into which the Warrant Agent or any new warrant agent
may be merged or any corporation resulting from any consolidation to which the
Warrant Agent or any new warrant agent shall be a party, shall be a successor
Warrant Agent under this Agreement without any further act, provided that such
corporation would be eligible for appointment as successor to the Warrant Agent
under the provisions of Section 10.5(a). Any such successor Warrant Agent shall
promptly cause notice of its succession as Warrant Agent to be mailed (by first-
class mail, postage prepaid) to each Holder of a Warrant at such Holder's last
address as shown on the register of the Company maintained by the Warrant Agent.
11. COVENANTS OF THE COMPANY.
11.1. Reservation of Common Stock for Issuance on Exercise of Warrants.
----------------------------------------------------------------
The Company covenants that it will at all times reserve and keep available, free
from pre-emptive rights, out of its authorized but unissued Common Stock, solely
for the purpose of issue upon exercise of Warrants as herein provided, such
number of shares of Common Stock as shall then be issuable upon the exercise of
all outstanding Warrants. The Company covenants that all shares of Common Stock
which shall be so issuable shall, upon such issue, be duly and validly issued
and fully paid and non-assessable.
11.2. Notice of Dividends. At any time when the Company declares any
-------------------
dividend on its Common Stock, it shall give notice to the Holders of all the
then outstanding Warrants of any such declaration not less than 50 days prior to
the related record date for payment of the dividend so declared.
11.3. Reports to Holders. (a) The Company will supply without cost to
------------------
each Holder and file with the Warrant Agent, (i) within 15 days after the
Company is required to file the same with the SEC, copies of the annual reports
and quarterly reports and proxy statements which the Company may be required to
file with the SEC pursuant to Section 13(a), 13(c), 14(a) or 15(d) of the
Exchange Act and (ii) copies of all other communications sent to stockholders of
the Company.
(b) If the Company is not required to file with the SEC such reports and
other information and documents referred to in Section 11.3(a), the Company
shall supply without cost to the Warrant Agent for transmittal to each Holder of
the Warrants (i) within 135 days after the end of each fiscal year, annual
reports containing the information required to be contained in
<PAGE>
Items 1, 2, 3, 5, 6, 7, 8 and 9 of Form 10-K promulgated under the Exchange Act,
or substantially the same information required to be contained in comparable
items of any successor form, (ii) within 60 days after the end of each of the
first three fiscal quarters of each fiscal year, quarterly reports containing
the information required to be contained in Form 10-Q promulgated under the
Exchange Act, or substantially the same information required to be contained in
any successor form and (iii) promptly from time to time after the occurrence of
an event required to be therein reported, such other reports containing
information required to be contained in Form 8-K promulgated under the Exchange
Act, or substantially the same information required to be contained in any
successor form.
11.4. Certain Agreements Respecting Registration Rights. (a) The Company
-------------------------------------------------
will not enter into any agreement with a holder of Common Stock (other than
Registrable Warrant Shares) permitting such holder to include more shares of
Common Stock in any other offering than it would be permitted to include under
the applicable provisions of Section 5.
(b) The Company agrees that it will not grant any rights to register
Warrants, or the related Warrant Shares, that are not granted to all Holders of
the then outstanding Warrants.
12. MISCELLANEOUS.
12.1. Money and Other Property Deposited with the Warrant Agent. Any
---------------------------------------------------------
moneys, securities or other property which at any time shall be deposited by the
Company or on its behalf with the Warrant Agent pursuant to this Agreement shall
be and are hereby assigned, transferred and set over to the Warrant Agent in
trust for the purpose for which such moneys, securities or other property shall
have been deposited; but such moneys, securities or other property need not be
segregated from other funds, securities or other property except to the extent
required by law. The Warrant Agent shall distribute any money deposited with it
for payment and distribution to the Holders by mailing by first-class mail a
check in such amount as is appropriate, to each such Holder at the address shown
on the Warrant register of the Company, or as it may be otherwise directed in
writing by such Holder, upon surrender of such Holder's Warrants or Registrable
Warrant Shares, as the case may be. Any money deposited with the Warrant Agent
for payment and distribution to the Holders that remains unclaimed for two years
after the date the money was deposited with the Warrant Agent shall be paid to
the Company upon its request therefor.
12.2. Payment of Taxes. The Company shall pay all taxes and other
----------------
governmental charges that may be imposed on the Company or on the Warrants or on
any securities deliverable upon exercise of Warrants with respect thereto. The
Company shall not be required, however, to pay any tax or other charge imposed
in connection with any transfer involved in the issue of any certificate for
shares of Common Stock or other securities underlying the Warrants or payment of
cash to any Person other than the Holder of a Warrant Certificate surrendered
upon the exercise or purchase of a Warrant, and in case of such transfer or
payment, the Warrant Agent and the Company shall not be required to issue any
stock certificate or pay any cash until such tax or charge has been paid or it
has been established to the Warrant Agent's and the Company's satisfaction that
no such tax or other charge is due.
<PAGE>
12.3. Surrender of Certificates. Any Warrant Certificate surrendered for
-------------------------
exercise or purchase shall, if surrendered to the Company, be delivered to the
Warrant Agent, and all Warrant Certificates surrendered or so delivered to the
Warrant Agent shall be promptly cancelled by such Warrant Agent and shall not be
reissued by the Company. The Warrant Agent shall destroy such cancelled Warrant
Certificates and deliver its certificate of destruction to the Company unless
the Company shall otherwise direct.
12.4. Mutilated, Destroyed, Lost and Stolen Warrant Certificates. If (a)
----------------------------------------------------------
any mutilated Warrant Certificate is surrendered to the Warrant Agent or (b) the
Company and the Warrant Agent receive evidence to their satisfaction of the
destruction, loss or theft of any Warrant Certificate, and there is delivered to
the Company and the Warrant Agent such security or indemnity as may be required
by them to save each of them harmless, then, in the absence of notice to the
Company or the Warrant Agent that such Warrant Certificate has been acquired by
a bona fide purchaser, the Company shall execute and upon its written request
the Warrant Agent shall countersign and deliver, in exchange for any such
mutilated Warrant Certificate or in lieu of any such destroyed, lost or stolen
Warrant Certificate, a new Warrant Certificate of like tenor and for a like
aggregate number of Warrants.
Upon the issuance of any new Warrant Certificate under this Section 12.4,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and other
expenses (including the reasonable fees and expenses of the Warrant Agent and of
counsel to the Company) in connection therewith.
Every new Warrant Certificate executed and delivered pursuant to this
Section 12.4 in lieu of any destroyed, lost or stolen Warrant Certificate shall
constitute an original contractual obligation of the Company, whether or not the
destroyed, lost or stolen Warrant Certificate shall be at any time enforceable
by anyone, and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly executed and
delivered hereunder.
The provisions of this Section 12.4 are exclusive and shall preclude (to
the extent lawful) all other rights or remedies with respect to the replacement
of mutilated, destroyed, lost, stolen or Warrant Certificates.
12.5. Notices. (a) Except as otherwise provided in Section 12.5(b), any
-------
notice, demand or delivery authorized by this Agreement shall be sufficiently
given or made when mailed if sent by first-class mail, postage prepaid,
addressed to any Holder of a Warrant at such Holder's address shown on the
register of the Company maintained by the Warrant Agent and to the Company or
the Warrant Agent as follows:
If to the Company: PHP Healthcare Corporation
11440 Commerce Park Drive
Reston, VA 22091
Attention: Anthony M. Picini
<PAGE>
If to the Warrant Agent: First Trust of New York, National Association
100 Wall Street, Suite 1600
New York, NY 10005
Attention: Frank J. Gillhaus
or such other address as shall have been furnished to the party giving or making
such notice, demand or delivery.
(b) Any notice required to be given by the Company to the Holders
pursuant to Section 5.1 or 5.2 shall be made by mailing by registered mail,
return receipt requested, to the Holders at their respective addresses shown on
the register of the Company maintained by the Warrant Agent. The Company hereby
irrevocably authorizes the Warrant Agent, in the name and at the expense of the
Company, to mail any such notice upon receipt thereof from the Company. Any
notice that is mailed in the manner herein provided shall be conclusively
presumed to have been duly given when mailed, whether or not the Holder receives
the notice.
12.6. Applicable Law. This Agreement and each Warrant issued hereunder
--------------
and all rights arising hereunder shall be governed by the laws of the State of
New York.
12.7. Persons Benefitting. This Agreement shall be binding upon and inure
-------------------
to the benefit of the Company and the Warrant Agent, and their respective
successors, assigns, beneficiaries, executors and administrators, and the
Holders from time to time of the Warrants. Nothing in this Agreement is
intended or shall be construed to confer upon any Person, other than the
Company, the Warrant Agent and the Holders of the Warrants, any right, remedy or
claim under or by reason of this Agreement or any part hereof.
12.8. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed an original, but all of which
together constitute one and the same instrument.
12.9. Amendments. The Company may, without the consent of the Holders of
----------
the Warrants, by supplemental agreement or otherwise, make any changes or
corrections in this Agreement that it shall have been advised by counsel (a) are
required to cure any ambiguity or to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein or (b)
add to the covenants and agreements of the Company for the benefit of the
Holders, or surrender any rights or power reserved to or conferred upon the
Company in this Agreement; provided, that, in each case, such changes or
--------
corrections shall not adversely affect the interests of the Holders in any
material respect. The Warrant Agent shall join with the Company in the execution
and delivery of any such supplemental agreements unless it affects the Warrant
Agent's own rights, duties or immunities hereunder, in which case the Warrant
Agent may, but shall not be required to, join in such execution and delivery.
<PAGE>
12.10. Headings. The descriptive headings of the several Sections of this
--------
Agreement are inserted for convenience and shall not control or affect the
meaning or construction of any of the provisions hereof.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
PHP HEALTHCARE CORPORATION
By /s/ Anthony M. Picini
--------------------------------
Name: Anthony M. Picini
Title: Executive Vice President and
Chief Financial Officer
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION, as
Warrant Agent
By /s/ Frank J. Gillhaus, Jr.
----------------------------------------
Name: Frank J. Gillhaus, Jr.
Title: Vice President
<PAGE>
Exhibit 10.2
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of October 31, 1997 (this "Agreement") among PHP
---------
Healthcare Corporation, a Delaware corporation (the "Borrower"), the banks,
--------
financial institutions and other institutional lenders listed on the signature
pages hereof as the Initial Lenders (the "Initial Lenders"), NationsBank, N.A.,
---------------
("NationsBank"), as initial issuing bank (in such capacity, the "Initial Issuing
----------- ---------------
Bank"), and NationsBank, as administrative agent and collateral agent (in such
- ----
capacities and together with any successor appointed pursuant to Article VII,
the "Administrative Agent") for the Lender Parties (as hereinafter defined).
--------------------
PRELIMINARY STATEMENTS:
(1) The Borrower has entered into an Asset Purchase Agreement dated as of
July 24, 1997 (as amended, modified or otherwise supplemented in accordance with
its terms and the provisions of the Loan Documents (as hereinafter defined), the
"Purchase Agreement") with HIP of New Jersey, Inc., a New Jersey health
------------------
maintenance organization ("HIP"), pursuant to the Purchase Agreement, the
---
Borrower has agreed to purchase (the "Acquisition"), the assets of eighteen (18)
-----------
health care centers from HIP. The Borrower has designated, pursuant to the
terms of the Purchase Agreement, Pinnacle Health Enterprises, L.L.C., a Delaware
limited liability company ("PHE") to assume all of its rights and obligations
---
under the Purchase Agreement.
(2) PHE has entered into a twenty-year service contract (as amended,
modified or supplemented from time to time, the "Service Contract") with HIP
----------------
pursuant to which PHE will arrange for the delivery of healthcare services for
HIP's members. In connection with the Acquisition and the Service Contract, the
Borrower will pay HIP no more than $72,600,000 excluding fees and expenses and
any working capital adjustments.
(3) The Borrower has requested that, in connection with the Transaction (as
hereinafter defined), the Lender Parties lend to the Borrower an aggregate
principal amount of up to $75,000,000 to finance the Transaction, pay related
costs and expenses of the Borrower, and that, from time to time, the Lender
Parties lend to the Borrower and issue Letters of Credit (as hereinafter
defined) for the benefit of the Borrower to provide working capital for the
Borrower and its Subsidiaries (as hereinafter defined). The Lender Parties have
indicated their willingness to agree to lend such amounts on the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
<PAGE>
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
---------------------
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Acquisition" has the meaning specified in Preliminary Statement (1) to
-----------
this Agreement.
"Administrative Agent" has the meaning specified in the recital of parties
--------------------
to this Agreement.
"Administrative Agent's Account" means the account of the Administrative
------------------------------
Agent maintained at its office at NationsBank, N.A., 100 North Tryon Street, 8th
Floor, Charlotte, North Carolina 28255, Account No. 136621-22506, Attention:
Corporate Credit Services.
"Advance" means a Term Advance, a Revolving Credit Advance or a Letter of
-------
Credit Advance.
"Affiliate" means, as to any Person, any other Person that, directly or
---------
indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this
definition, the term "control" (including the terms "controlling," "controlled
by" and "under common control with") of a Person means the possession, direct or
indirect, of the power to vote 5% or more of the Voting Stock of such Person or
to direct or cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or otherwise.
"Alternate Base Rate" means a fluctuating interest rate per annum in effect
-------------------
from time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest announced publicly by NationsBank in Charlotte,
North Carolina, from time to time, as its prime rate; and
(b) 1/2 of 1% per annum above the Federal Funds Rate.
"Alternate Base Rate Advance" means an Advance that bears interest as
---------------------------
provided in Section 2.07(a)(i).
"Applicable Lending Office" means, with respect to each Lender Party, such
-------------------------
Lender Party's Domestic Lending Office in the case of a Alternate Base Rate
Advance and such Lender Party's Eurodollar Lending Office in the case of a
Eurodollar Rate Advance.
<PAGE>
"Applicable Margin" means a percentage per annum as it may be in effect
-----------------
from time to time, as set forth below:
<TABLE>
<CAPTION>
=====================================================================================================
FOR THE THREE MONTH PERIOD FROM: EURODOLLAR ALTERNATE BASE
ADVANCES RATE ADVANCES
- -----------------------------------------------------------------------------------------------------
Term REVOLVING Term REVOLVING
CREDIT CREDIT
November 1, 1997 through January 31, 1998
<S> <C> <C> <C> <C>
------------------------------------------------------
5.0% 4.5% 4.0% 3.5%
- -----------------------------------------------------------------------------------------------------
February 1, 1998 through April 30, 1998 5.5% 5.0% 4.5% 4.0%
- -----------------------------------------------------------------------------------------------------
May 1, 1998 through July 31, 1998 6.0% 5.5% 5.0% 4.5%
- -----------------------------------------------------------------------------------------------------
August 1, 1998 through October 31, 1998 6.5% 6.0% 5.5% 5.0%
- -----------------------------------------------------------------------------------------------------
November 1, 1998 through January 31, 1999 7.0% 6.5% 6.0% 5.5%
- -----------------------------------------------------------------------------------------------------
February 1, 1999 through April 30, 1999 7.5% 7.0% 6.5% 6.0%
- -----------------------------------------------------------------------------------------------------
May 1, 1999 through July 31, 1999 8.0% 7.5% 7.0% 6.5%
- -----------------------------------------------------------------------------------------------------
August 1, 1999 through the Termination Date 8.5% 8.0% 7.5% 7.0%
=====================================================================================================
</TABLE>
"Appropriate Lender" means, at any time, with respect to (a) either the
------------------
Term Facility or Revolving Credit Facility, a Lender that has a Commitment with
respect to such Facility at such time and (b) the Letter of Credit Facility, (i)
the Issuing Bank and (ii) if the other Revolving Credit Lenders have made Letter
of Credit Advances pursuant to Section 2.03(b) that are outstanding at such
time, each such other Revolving Credit Lender.
"Assignment and Acceptance" means an assignment and acceptance entered
-------------------------
into by a Lender Party and an Eligible Assignee, and accepted by the
Administrative Agent, in accordance with Section 8.07 and in substantially the
form of Exhibit C hereto.
"Available Amount" of any Letter of Credit means, at any time, the
----------------
maximum amount available to be drawn under such Letter of Credit at such time
(assuming compliance at such time with all conditions to drawing).
"BCBSNJ" means Blue Cross and Blue Shield of New Jersey.
------
"Borrower" has the meaning specified in the recital of parties to this
--------
Agreement.
<PAGE>
"Borrower's Account" means the account of the Borrower maintained by the
------------------
Borrower with NationsBank, N.A. at its office at 100 North Tryon Street,
Charlotte, North Carolina 28255, Account No. 3750527254.
"Borrowing" means a Term Borrowing or a Revolving Credit Borrowing.
---------
"BCBSNJ" means Blue Cross and Blue Shield of New Jersey.
------
"Business Day" means a day of the year on which banks are not required or
------------
authorized by law to close in Charlotte, North Carolina and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings are
carried on in the London interbank market.
"Capital Expenditures" means, for any Person for any period, the sum of
--------------------
(a) all expenditures made, directly or indirectly, by such Person or any of its
Subsidiaries during such period for equipment, fixed assets, real property or
improvements, or for replacements or substitutions therefor or additions
thereto, that have been or should be, in accordance with GAAP, reflected as
additions to property, plant or equipment on a Consolidated balance sheet of
such Person or have a useful life of more than one year plus (b) the aggregate
----
principal amount of all Debt (including Obligations under Capitalized Leases)
assumed or incurred in connection with any such expenditures.
"Capitalized Leases" means all leases that have been or should be, in
------------------
accordance with GAAP, recorded as capitalized leases.
"Cash Collateral Account" has the meaning specified in the Security
-----------------------
Agreement.
"Cash Equivalents" means any of the following, to the extent owned by the
----------------
Borrower or any of its Subsidiaries free and clear of all Liens other than Liens
created under the Collateral Documents and having a maturity of not greater than
180 days from the date of issuance thereof: (a) readily marketable direct
obligations of the Government of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by the full
faith and credit of the Government of the United States, (b) insured
certificates of deposit of or time deposits with any commercial bank that is a
Lender Party or a member of the Federal Reserve System, issues (or the parent of
which issues) commercial paper rated as described in clause (c), is organized
under the laws of the United States or any State thereof and has total assets in
excess of $500,000,000, (c) commercial paper in an aggregate amount of no more
than $5,000,000 per issuer outstanding at any time, issued by any corporation
organized under the laws of any State of the United States and rated at least
"Prime-1" (or the then equivalent grade) by Moody's Investors Service, Inc. or
"A-1" (or the then equivalent grade) by Standard & Poor's Ratings Group, (d)
investments in money market or mutual funds which invest solely in assets of the
type described in clauses (a), (b) or (c) above or (e) unleveraged repurchase
obligations with respect to any security described in clause (a) above and
entered into with a depositary institution or trust company (acting as
principal) whose long-term credit rating is at least "A1" (or the then
equivalent grade) by Moody's Investors Service or "A+" (or the then equivalent
grade) by
<PAGE>
Standard & Poor's Ratings Group or whose short-term credit rating is at least
"Prime-1" (or the then equivalent grade) by Moody's Investors Service, Inc. or
"A-1" (the then equivalent grade) by Standard & Poor's Ratings Group.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
------
Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
-------
and Liability Information System maintained by the U.S. Environmental Protection
Agency.
"Closing Date" means November 6, 1997.
------------
"Collateral" means all "Collateral" referred to in the Collateral
----------
Documents and all other property that is or is intended to be subject to any
Lien in favor of the Administrative Agent for the benefit of the Secured
Parties.
"Collateral Documents" means the Security Agreement, the Mortgages and
--------------------
any other agreement that creates or purports to create a Lien in favor of the
Administrative Agent for the benefit of the Secured Parties.
"Collateral Grantor" means each of the Borrower and each Subsidiary
------------------
Guarantor.
"Commitment" means a Term Commitment, a Revolving Credit Commitment or a
----------
Letter of Credit Commitment.
"Confidential Information" means information that the Borrower furnishes
------------------------
to the Administrative Agent or any Lender Party in a writing designated as
confidential, but does not include any such information that is or becomes
generally available to the public or that is or becomes available to the
Administrative Agent or such Lender Party from a source other than the Borrower.
"Consolidated" refers to the consolidation of accounts in accordance with
------------
GAAP.
"Constitutive Documents" means, with respect to any Person, the
----------------------
certificate of incorporation or registration (including, if applicable,
certificate of change of name), articles of incorporation or association,
memorandum of association, charter, bylaws, partnership agreement, trust
agreement, joint venture agreement, limited liability company operating or
members agreement, joint venture agreement or one or more similar agreements,
instruments or documents constituting the organization or formation of such
Person.
"Conversion", "Convert" and "Converted" each refer to a conversion of
---------- ------- ---------
Advances of one Type into Advances of the other Type pursuant to Section 2.09 or
2.10.
"Current Assets" of any Person means all assets of such Person that
--------------
would, in accordance with GAAP, be classified as current assets of a company
conducting a business the same as or
<PAGE>
similar to that of such Person, after deducting adequate reserves in each case
in which a reserve is proper in accordance with GAAP.
"Current Liabilities" of any Person means (a) all Debt of such Person
-------------------
except Funded Debt that by its terms is payable on demand or matures within one
year after the date of determination (excluding any Debt renewable or
extendible, at the option of such Person, to a date more than one year from such
date or arising under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one year from
such date)] and (b) all other items (including taxes accrued as estimated) that
in accordance with GAAP would be classified as current liabilities of such
Person.
"Debt" of any Person means (a) all indebtedness of such Person for
----
borrowed money, (b) all Obligations of such Person for the deferred purchase
price of property or services (other than trade payables not overdue by more
than 60 days incurred in the ordinary course of such Person's business), (c) all
Obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments, (d) all Obligations of such Person created or arising under
any conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (e) all Obligations of such Person as lessee under
Capitalized Leases, (f) all Obligations, contingent or otherwise, of such Person
under acceptance, letter of credit or similar facilities, (g) all Obligations of
such Person to purchase, redeem, retire, defease or otherwise make any payment
in respect of any capital stock of or other ownership or profit interest in such
Person or any other Person or any warrants, rights or options to acquire such
capital stock, valued, in the case of Redeemable Preferred Stock, at the greater
of its voluntary or involuntary liquidation preference plus accrued and unpaid
----
dividends, (h) all Obligations of such Person in respect of Hedge Agreements,
(i) all Debt of others referred to in clauses (a) through (h) above or clause
(j) below guaranteed directly or indirectly in any manner by such Person, or in
effect guaranteed directly or indirectly by such Person through an agreement (i)
to pay or purchase such Debt or to advance or supply funds for the payment or
purchase of such Debt, (ii) to purchase, sell or lease (as lessee or lessor)
property, or to purchase or sell services, primarily for the purpose of enabling
the debtor to make payment of such Debt or to assure the holder of such Debt
against loss, (iii) to supply funds to or in any other manner invest in the
debtor (including any agreement to pay for property or services irrespective of
whether such property is received or such services are rendered) or (iv)
otherwise to assure a creditor against loss, and (j) all Debt referred to in
clauses (a) through (i) above of another Person secured by (or for which the
holder of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien on property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such Debt.
"Default" means any Event of Default or any event that would constitute
-------
an Event of Default but for the requirement that notice be given or time elapse
or both.
"Defaulted Advance" means, with respect to any Lender Party at any time,
-----------------
the portion of any Advance required to be made by such Lender Party to the
Borrower pursuant to Section 2.01
<PAGE>
or 2.02 at or prior to such time which has not been made by such Lender Party or
by the Administrative Agent for the account of such Lender Party pursuant to
Section 2.02(d) as of such time. In the event that a portion of a Defaulted
Advance shall be deemed made pursuant to Section 2.15(a), the remaining portion
of such Defaulted Advance shall be considered a Defaulted Advance originally
required to be made pursuant to Section 2.01 on the same date as the Defaulted
Advance so deemed made in part.
"Defaulted Amount" means, with respect to any Lender Party at any time,
----------------
any amount required to be paid by such Lender Party to the Administrative Agent
or any other Lender Party hereunder or under any other Loan Document at or prior
to such time which has not been so paid as of such time, including, without
limitation, any amount required to be paid by such Lender Party to (a) the
Issuing Bank pursuant to Section 2.03(b) to purchase a portion of a Letter of
Credit Advance made by the Issuing Bank, (b) the Administrative Agent pursuant
to Section 2.02(d) to reimburse the Administrative Agent for the amount of any
Advance made by the Administrative Agent for the account of such Lender Party,
(c) any other Lender Party pursuant to Section 2.13 to purchase any
participation in Advances owing to such other Lender Party and (d) the
Administrative Agent or the Issuing Bank pursuant to Section 7.05 to reimburse
the Administrative Agent or the Issuing Bank for such Lender Party's ratable
share of any amount required to be paid by the Lender Parties to the
Administrative Agent or the Issuing Bank as provided therein. In the event that
a portion of a Defaulted Amount shall be deemed paid pursuant to Section
2.15(b), the remaining portion of such Defaulted Amount shall be considered a
Defaulted Amount originally required to be paid hereunder or under any other
Loan Document on the same date as the Defaulted Amount so deemed paid in part.
"Defaulting Lender" means, at any time, any Lender Party that, at such
-----------------
time, (a) owes a Defaulted Advance or a Defaulted Amount or (b) shall take any
action or be the subject of any action or proceeding of a type described in
Section 6.01(f).
"Disclosed Litigation" has the meaning specified in Section 3.01(f).
--------------------
"Domestic Lending Office" means, with respect to any Lender Party, the
-----------------------
office of such Lender Party specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant to
which it became a Lender Party, as the case may be, or such other office of such
Lender Party as such Lender Party may from time to time specify to the Borrower
and the Administrative Agent.
"EBITDA" means, for any period, the sum, determined on a Consolidated
------
basis, of (a) net income (or net loss), (b) interest expense, (c) income tax
expense, (d) depreciation expense and (e) amortization expense, in each case of
the Borrower and its Subsidiaries, determined in accordance with GAAP for such
period.
"Eligible Assignee" means (a) with respect to any Facility (other than
-----------------
the Letter of Credit Facility), (i) a Lender; (ii) an Affiliate of a Lender;
(iii) a commercial bank organized under the laws of the United States, or any
State thereof, and having total assets in excess of $500,000,000; (iv) a savings
and loan association or savings bank organized under the laws of the United
States,
<PAGE>
or any State thereof, and having total assets in excess of $500,000,000; (v) a
commercial bank organized under the laws of any other country that is a member
of the OECD or has concluded special lending arrangements with the International
Monetary Fund associated with its General Arrangements to Borrow, or a political
subdivision of any such country, and having total assets in excess of
$500,000,000, so long as such bank is acting through a branch or agency located
in the United States; (vi) the central bank of any country that is a member of
the OECD; (vii) a finance company, insurance company or other financial
institution or fund (whether a corporation, partnership, trust or other entity)
that is engaged in making, purchasing or otherwise investing in commercial loans
in the ordinary course of its business and having total assets in excess of
$500,000,000; and (viii) any other Person approved by NationsBridge and
NationsBank, such approval not to be unreasonably withheld or delayed and (b)
with respect to the Letter of Credit Facility, a Person that is an Eligible
Assignee under subclause (iii) or (v) of clause (a) of this definition and is
approved by NationsBridge and NationsBank, such approval not to be unreasonably
withheld or delayed; provided, however, that neither any Loan Party nor any
-------- -------
Affiliate of a Loan Party shall qualify as an Eligible Assignee under this
definition.
"Environmental Action" means any action, suit, demand, demand letter,
--------------------
claim, notice of non-compliance or violation, notice of liability or potential
liability, investigation, proceeding, consent order or consent agreement
relating in any way to any Environmental Law, any Environmental Permit or
Hazardous Material or arising from alleged injury or threat to health, safety or
the environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response, remedial or
other actions or damages and (b) by any governmental or regulatory authority or
third party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign statute,
-----------------
law, ordinance, rule, regulation, code, order, writ, judgment, injunction,
decree or judicial or agency interpretation, policy or guidance relating to
pollution or protection of the environment, health, safety or natural resources,
including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of Hazardous
Materials.
"Environmental Permit" means any permit, approval, identification number,
--------------------
license or other authorization required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of ERISA
---------------
is a member of the controlled group of any Loan Party, or under common control
with any Loan Party, within the meaning of Section 414 of the Internal Revenue
Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event, within
-----------
the meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day
notice requirement with respect to such event has been waived by the PBGC, or
(ii) the requirements of subsection (1) of Section 4043(b) of ERISA (without
regard to subsection (2) of such Section) are met with
<PAGE>
respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA,
of a Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of
Section 4043(c) of ERISA is reasonably expected to occur with respect to such
Plan within the following 30 days; (b) the application for a minimum funding
waiver with respect to a Plan; (c) the provision by the administrator of any
Plan of a notice of intent to terminate such Plan, pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan amendment
referred to in Section 4041(e) of ERISA); (d) the cessation of operations at a
facility of any Loan Party or any ERISA Affiliate in the circumstances described
in Section 4062(e) of ERISA; (e) the withdrawal by any Loan Party or any ERISA
Affiliate from a Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the
conditions for imposition of a lien under Section 302(f) of ERISA shall have
been met with respect to any Plan; (g) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to Section 307 of
ERISA; or (h) the institution by the PBGC of proceedings to terminate a Plan
pursuant to Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the termination
of, or the appointment of a trustee to administer, such Plan.
"Eurocurrency Liabilities" has the meaning specified in Regulation D of
------------------------
the Board of Governors of the Federal Reserve System, as in effect from time to
time.
"Eurodollar Lending Office" means, with respect to any Lender Party, the
-------------------------
office of such Lender Party specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender Party (or, if no such office is specified,
its Domestic Lending Office), or such other office of such Lender Party as such
Lender Party may from time to time specify to the Borrower and the
Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for all Eurodollar Rate
---------------
Advances comprising part of the same Borrowing, an interest rate per annum equal
to the rate per annum obtained by dividing (a) the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on Telerate Page
3750 (or any successor page) as the London interbank offered rate for deposits
in U.S. dollars at 11:00 A.M. (London time) two Business Days before the first
day of such Interest Period in an amount substantially equal to NationsBank's
Eurodollar Rate Advance comprising part of such Borrowing to be outstanding
during such Interest Period (or, if NationsBank shall not have such a Eurodollar
Rate Advance, $1,000,000) and for a period equal to such Interest Period
(provided that if for any reason such rate is not available, the term
--------
"Eurodollar Rate" shall mean, for any Interest Period for all Eurodollar Rate
Advances comprising part of the same Borrowing, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen
LIBO Page as the London interbank offered rate for deposits in Dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period; provided,
--------
however, if more than one rate is specified on Reuters Screen LIBO Page, the
- -------
applicable rate shall be the arithmetic mean of all such rates) by (b) a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for such
Interest Period.
<PAGE>
"Eurodollar Rate Advance" means an Advance that bears interest as
-----------------------
provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" means, for any Interest Period for
----------------------------------
all Eurodollar Rate Advances comprising part of the same Borrowing, the reserve
percentage applicable two Business Days before the first day of such Interest
Period under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate on
Eurodollar Rate Advances is determined) having a term equal to such Interest
Period.
"Events of Default" has the meaning specified in Section 6.01.
-----------------
"Excess Cash Flow" means, for any period, an amount equal to (i)
----------------
Consolidated net income (or loss) of the Borrower and its Subsidiaries for such
period plus (ii) the aggregate amount of all non-cash charges deducted in
----
arriving at such Consolidated net income (or loss) plus (iii) if there was a net
----
increase in Consolidated Current Liabilities of the Borrower and its
Subsidiaries during such period, the amount of such net increase plus (iv) if
----
there was a net decrease in Consolidated Current Assets (excluding cash and Cash
Equivalents) of the Borrower and its Subsidiaries during such period, the amount
of such net decrease less (v) the aggregate amount of all non-cash credits
----
included in arriving at such Consolidated net income (or loss) less (vi) if
----
there was a net decrease in Consolidated Current Liabilities of the Borrower and
its Subsidiaries during such period since the date of the initial Borrowing, the
amount of such net decrease less (vii) if there was a net increase in
----
Consolidated Current Assets (excluding cash and Cash Equivalents) of the
Borrower and its Subsidiaries during such period, the amount of such net
increase less (viii) the aggregate amount of cash Capital Expenditures
----
(including any payments made under Capital Leases) made by the Borrower and its
Subsidiaries during such period less (ix) the aggregate principal amount of all
----
Advances paid by the Borrower during such period (which are accompanied, in the
case of any repayment of the Revolving Credit Advances, with a similar permanent
reduction of the Revolving Credit Commitments) less (x) the aggregate amount of
----
payments made by the Borrower pursuant to the terms of Health Center Purchase
Agreement dated as of December 16, 1996, as heretofore amended, among the
Borrower, BCBSNJ and certain other parties thereto in respect of the repurchase
of up to 90,000 shares of common stock of the Borrower, provided that the
--------
aggregate amount of all payments deducted from Excess Cash Flow pursuant to this
clause (x) shall not exceed $2.4 million.
"Existing Debt" has the meaning specified in Section 4.01(gg) hereof.
-------------
"Extraordinary Receipt" means any cash received by or paid to or for the
---------------------
account of any Person not in the ordinary course of business to the extent that
such receipts or payments are not taken into account in calculating Excess Cash
Flow for the related period, including, without limitation, any payments made in
respect of past due claims which are owing from the District of
<PAGE>
Columbia in respect of the contract periods from 1991 to 1994 and from 1994 to
1996, tax refunds, pension plan reversions, proceeds of insurance (other than
(x) proceeds of business interruption insurance to the extent such proceeds
constitute compensation for lost earnings and (y) proceeds from stop loss
reinsurance), condemnation awards (and payments in lieu thereof) and indemnity
payments.
"Facility" means the Term Facility, the Revolving Credit Facility or the
--------
Letter of Credit Facility.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
------------------
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fiscal Year" means a fiscal year of the Borrower and its Consolidated
-----------
Subsidiaries ending on April 30 in any calendar year.
"Founders" means (i) Charles H. Robbins, and his "affiliates" and
--------
"associates" (within the meanings ascribed to such terms in Rule 12b-2 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934)
and (ii) Jack M. Mazur and his "affiliates" and "associates."
"Funded Debt" of any Person means Debt in respect of the Advances, in the
-----------
case of the Borrower, and all other Debt of such Person that by its terms
matures more than one year after the date of determination or matures within one
year from such date but is renewable or extendible, at the option of such
Person, to a date more than one year after such date or arises under a revolving
credit or similar agreement that obligates the lender or lenders to extend
credit during a period of more than one year after such date, including, without
limitation, all amounts of Funded Debt of such Person required to be paid or
prepaid within one year after the date of its creation.
"GAAP" has the meaning specified in Section 1.03.
----
"Hazardous Materials" means (a) petroleum or petroleum products, by-
-------------------
products or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and radon gas and (b) any other chemicals,
materials or substances designated, classified or regulated as hazardous or
toxic or as a pollutant or contaminant under any Environmental Law.
<PAGE>
"Hedge Agreements" means interest rate swap, cap or collar agreements,
----------------
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other similar agreements.
"HIP" has the meaning specified in Preliminary Statement (1) to this
---
Agreement.
"Indemnified Party" has the meaning specified in Section 8.04(b).
-----------------
"Information" means the Information and Projections as defined in the
-----------
Senior Bank Facilities Commitment Letter dated as of October 31, 1997 between
the Borrower, NationsBridge and NationsBank.
"Initial Extension of Credit" means the earlier to occur of the initial
---------------------------
Borrowing and the initial issuance of a Letter of Credit hereunder.
"Initial Issuing Bank" has the meaning specified in the recital of
--------------------
parties to this Agreement.
"Initial Lenders" has the meaning specified in the recital of parties to
---------------
this Agreement.
"Insufficiency" means, with respect to any Plan, the amount, if any, of
-------------
its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
"Interest Period" means, for each Eurodollar Rate Advance comprising part
---------------
of the same Borrowing, the period commencing on the date of such Eurodollar Rate
Advance or the date of the Conversion of any Alternate Base Rate Advance into
such Eurodollar Rate Advance, and ending on the last day of the period selected
by the Borrower pursuant to the provisions below and, thereafter, each
subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by the
Borrower pursuant to the provisions below. The duration of each such Interest
Period shall be one, two or three months (or such other period as each Lender
and the Borrower may agree), as the Borrower may, upon notice received by the
Administrative Agent not later than 10:00 A.M. (Charlotte, North Carolina time)
on the third Business Day prior to the first day of such Interest Period,
select; provided, however, that:
-------- -------
(a) the Borrower may not select any Interest Period with respect to any
Eurodollar Rate Advance under a Facility that ends after any principal repayment
installment date for such Facility unless, after giving effect to such
selection, the aggregate principal amount of Alternate Base Rate Advances and of
Eurodollar Rate Advances having Interest Periods that end on or prior to such
principal repayment installment date for such Facility shall be at least equal
to the aggregate principal amount of Advances under such Facility due and
payable on or prior to such date;
(b) Interest Periods commencing on the same date for Eurodollar Rate
Advances comprising part of the same Borrowing shall be of the same duration;
<PAGE>
(c) whenever the last day of any Interest Period would otherwise occur on
a day other than a Business Day, the last day of such Interest Period shall be
extended to occur on the next succeeding Business Day; provided, however, that,
-------- -------
if such extension would cause the last day of such Interest Period to occur in
the next following calendar month, the last day of such Interest Period shall
occur on the next preceding Business Day; and
(d) whenever the first day of any Interest Period occurs on a day of an
initial calendar month for which there is no numerically corresponding day in
the calendar month that succeeds such initial calendar month by the number of
months equal to the number of months in such Interest Period, such Interest
Period shall end on the last Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
---------------------
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"Investment" in any Person means any loan or advance to such Person, any
----------
purchase or other acquisition of any capital stock or other ownership or profit
interest, warrants, rights, options, obligations or other securities of such
Person, any capital contribution to such Person or any other investment in such
Person, including, without limitation, any arrangement pursuant to which the
investor incurs Debt of the types referred to in clause (i) or (j) of the
definition of "Debt" in respect of such Person.
----
"Issuing Bank" means the Initial Issuing Bank and each Eligible Assignee
------------
to which a Letter of Credit Commitment hereunder has been assigned pursuant to
Section 8.07.
"L/C Cash Collateral Account" has the meaning specified in the Security
---------------------------
Agreement.
"L/C Related Documents" has the meaning specified in Section
---------------------
2.04(c)(ii)(A).
"Lender Party" means the Administrative Agent, any Lender or the Issuing
------------
Bank.
"Lenders" means the Initial Lenders and each Person that shall become a
-------
Lender hereunder pursuant to Section 8.07.
"Letter of Credit" has the meaning specified in Section 2.01(c).
----------------
"Letter of Credit Advance" means an advance made by the Issuing Bank or
------------------------
any Revolving Credit Lender pursuant to Section 2.03(b).
"Letter of Credit Agreement" has the meaning specified in Section
--------------------------
2.03(a).
"Letter of Credit Commitment" means, with respect to the Issuing Bank at
---------------------------
any time, the amount set forth opposite the Issuing Bank's name on Schedule I
hereto under the caption "Letter of Credit Commitment" or, if the Issuing Bank
has entered into one or more Assignments and
<PAGE>
Acceptances, set forth for the Issuing Bank in the Register maintained by the
Administrative Agent pursuant to Section 8.07(d) as such Issuing Bank's "Letter
of Credit Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"Letter of Credit Facility" means, at any time, an amount equal to the
-------------------------
amount of the Issuing Bank's Letter of Credit Commitment at such time, as such
amount may be reduced at or prior to such time pursuant to Section 2.05.
"Leverage Ratio" means, for any fiscal quarter of the Borrower, a ratio
--------------
of Funded Debt as at the end of such fiscal quarter to Consolidated EBITDA for
the most recently completed four fiscal quarters of the Borrower and its
Subsidiaries; provided, however, that for the fiscal quarter of the Borrower
-------- -------
ending on October 31, 1997 and January 31, 1997, Consolidated EBITDA for the
four fiscal quarters then ended shall be the actual Consolidated EBITDA for the
period since May 1, 1997 multiplied by a fraction the numerator of which is four
and the denominator of which is the number of fiscal quarters that have elapsed
since May 1, 1997.
"Lien" means any lien, security interest or other charge or encumbrance
----
of any kind, or any other type of preferential arrangement, including, without
limitation, the lien or retained security title of a conditional vendor and any
easement, right of way or other encumbrance on title to real property.
"Loan Documents" means (a) for purposes of this Agreement and the Notes
--------------
and any amendment or modification hereof or thereof and for all other purposes
other than for purposes of the Subsidiary Guaranty and the Collateral Documents,
(i) this Agreement, (ii) the Notes, (iii) the Subsidiary Guaranty, (iv) the
Collateral Documents and (v) each Letter of Credit Agreement, and (b) for
purposes of the Subsidiary Guaranty and the Collateral Documents, (i) this
Agreement, (ii) the Notes, (iii) the Subsidiary Guaranty, (iv) the Collateral
Documents, and (v) each Letter of Credit Agreement and in each case as amended
or otherwise modified from time to time.
"Loan Parties" means the Borrower and each Subsidiary Guarantor.
------------
"Lockbox Account" has the meaning specified in the Security Agreement.
---------------
"Lockbox Bank" has the meaning specified in the Security Agreement.
------------
"Lockbox Letter" has the meaning specified in the Security Agreement.
--------------
"Margin Stock" has the meaning specified in Regulation U.
------------
"Material Adverse Change" means, with respect to any Person or group of
-----------------------
Persons, any material adverse change in the business, condition (financial or
otherwise), operations, performance, properties or prospects of such Person or
group of Persons.
<PAGE>
"Material Adverse Effect" means, with respect to any Person or group of
-----------------------
Persons, a material adverse effect on (a) the business, condition (financial or
otherwise), operations, performance, properties or prospects of such Person or
group of Persons, (b) the rights and remedies of such Person or group of Persons
under any Loan Document or Related Document or (c) the ability of such Person or
group of Persons to perform its Obligations under any Loan Document or Related
Document to which it is or is to be a party.
"Material Contract" means, with respect to any Loan Party, each contract
-----------------
to which such Person is a party involving aggregate consideration payable to or
by such Person of $10,000,000 or more in any year or otherwise material to the
business, condition (financial or otherwise), operations, performance,
properties or prospects of such Loan Party.
"Material Subsidiary" means all domestic wholly-owned Subsidiaries of the
-------------------
Borrower other than any such Subsidiary which does not account for 5% of the
Borrower's Consolidated total assets or gross revenues, provided that all such
--------
excluded Subsidiaries do not, in the aggregate, account for 10% of the
Borrower's Consolidated total assets or gross revenues.
"Mortgage" has the meaning specified in Section 5.01(q)(iii).
--------
"Mortgage Policy" has the meaning specified in Section 5.01(q)(iii).
---------------
"Multiemployer Plan" means a multiemployer plan, as defined in Section
------------------
4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is making or
accruing an obligation to make contributions, or has within any of the preceding
five plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
----------------------
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan
Party or any ERISA Affiliate and at least one Person other than the Loan Parties
and the ERISA Affiliates or (b) was so maintained and in respect of which any
Loan Party or any ERISA Affiliate could have liability under Section 4064 or
4069 of ERISA in the event such plan has been or were to be terminated.
"NationsBridge" means NationsBridge, L.L.C., a Delaware limited liability
-------------
company.
"Net Cash Proceeds" means, with respect to any sale, lease, transfer or
-----------------
other disposition of any asset or the sale or issuance of any Debt or capital
stock or other ownership or profit interest, any securities convertible into or
exchangeable for capital stock or other ownership or profit interest or any
warrants, rights, options or other securities to acquire capital stock or other
ownership or profit interest by any Person, or any Extraordinary Receipt
received by or paid to or for the account of any Person, the aggregate amount of
cash received from time to time (whether as initial consideration or through
payment or disposition of deferred consideration) by or on behalf of such Person
in connection with such transaction after deducting therefrom only (without
duplication) (a) reasonable and customary brokerage commissions, underwriting
fees and discounts, legal fees, finder's fees and other similar fees and
commissions and (b) the amount of taxes payable in connection with or as a
result of such transaction and (c) the amount of any
<PAGE>
Debt secured by a Lien on such asset that, by the terms of the agreement or
instrument governing such Debt, is required to be repaid upon such disposition,
in each case to the extent, but only to the extent, that the amounts so deducted
are, at the time of receipt of such cash, actually paid or are accrued and owing
to a Person that is not an Affiliate of such Person or any Loan Party or any
Affiliate of any Loan Party and are properly attributable to such transaction or
to the asset that is the subject thereof, provided that any such amounts
--------
deducted which are accrued and owing must be paid within 30 days after the date
of receipt of such proceeds.
"Nonratable Assignment" means an assignment by a Lender Party pursuant to
---------------------
Section 8.07(a) of a portion of its rights and obligations under this Agreement,
other than an assignment of a uniform, and not a varying, percentage of all of
the rights and obligations of such Lender Party under and in respect of all of
the Facilities (other than the Letter of Credit Facility).
"Note" means a Term Note or a Revolving Credit Note.
----
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
-------------------
"Notice of Issuance" has the meaning specified in Section 2.03(a).
------------------
"Notice of Renewal" has the meaning specified in Section 2.01(c).
-----------------
"Notice of Termination" has the meaning specified in Section 2.01(c).
---------------------
"NPL" means the National Priorities List under CERCLA.
---
"Obligation" means, with respect to any Person, any payment, performance
----------
or other obligation of such Person of any kind, including, without limitation,
any liability of such Person on any claim, whether or not the right of any
creditor to payment in respect of such claim is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, disputed, undisputed, legal,
equitable, secured or unsecured, and whether or not such claim is discharged,
stayed or otherwise affected by any proceeding referred to in Section 6.01(f).
Without limiting the generality of the foregoing, the Obligations of the Loan
Parties under the Loan Documents include (a) the obligation to pay principal,
interest, Letter of Credit commissions, charges, expenses, fees, attorneys' fees
and disbursements, indemnities and other amounts payable by any Loan Party under
any Loan Document and (b) the obligation of any Loan Party to reimburse any
amount in respect of any of the foregoing that any Lender Party, in its sole
discretion, may elect to pay or advance on behalf of such Loan Party.
"OECD" means the Organization for Economic Cooperation and Development.
----
"Open Year" has the meaning specified in Section 4.01(aa).
---------
"Other Taxes" has the meaning specified in Section 2.12(b).
-----------
"PBGC" means the Pension Benefit Guaranty Corporation (or any successor).
----
<PAGE>
"Permitted Encumbrances" has the meaning specified in the Mortgages.
----------------------
"Permitted Liens" means such of the following as to which no enforcement,
---------------
collection, execution, levy or foreclosure proceeding shall have been commenced:
(a) Liens for taxes, assessments and governmental charges or levies not yet due
and payable; (b) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's Liens and other similar Liens arising in
the ordinary course of business securing obligations that are not overdue for a
period of more than 30 days; (c) pledges or deposits to secure obligations under
workers' compensation laws or similar legislation or to secure public or
statutory obligations; and (d) easements, rights of way and other encumbrances
on title to real property that do not render title to the property encumbered
thereby unmarketable or materially adversely affect the use of such property for
its present purposes.
"Person" means an individual, partnership, corporation (including a
------
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"PHE" has the meaning specified in Preliminary Statement (1) of this
---
Agreement.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
----
"Preferred Stock" means, with respect to any corporation, capital stock
---------------
issued by such corporation that is entitled to a preference or priority over any
other capital stock issued by such corporation upon any distribution of such
corporation's assets, whether by dividend or upon liquidation.
"Pro Rata Share" of any amount means, with respect to any Revolving
--------------
Credit Lender at any time, the product of such amount times a fraction the
-----
numerator of which is the amount of such Lender's Revolving Credit Commitment at
such time and the denominator of which is the Revolving Credit Facility at such
time.
"Purchase Agreement" has the meaning specified in Preliminary Statement
------------------
(1) of this Agreement.
"Redeemable" means, with respect to any capital stock or other ownership
----------
or profit interest, Debt or other right or Obligation, any such right or
Obligation that (a) the issuer has undertaken to redeem at a fixed or
determinable date or dates, whether by operation of a sinking fund or otherwise,
or upon the occurrence of a condition not solely within the control of the
issuer or (b) is redeemable at the option of the holder.
"Reduction Amount" has the meaning specified in Section 2.06(b)(v).
----------------
"Register" has the meaning specified in Section 8.07(d).
--------
<PAGE>
"Regulation U" means Regulation U of the Board of Governors of the
------------
Federal Reserve System, as in effect from time to time.
"Related Documents" means the Purchase Agreement (and all schedules and
-----------------
exhibits thereto) and the Service Contract (and all schedules and exhibits
thereto).
"Required Lenders" means at any time Lenders owed or holding more than
----------------
50% of the sum of (a) the aggregate principal amount of the Advances outstanding
at such time, (b) the aggregate Available Amount of all Letters of Credit
outstanding at such time, (c) the aggregate unused Commitments under the Term
Facility at such time and (d) the aggregate Unused Revolving Credit Commitments
at such time; provided, however, that if any Lender shall be a Defaulting Lender
-------- -------
at such time, there shall be excluded from the determination of Required Lenders
at such time (A) the aggregate principal amount of the Advances owing to such
Lender (in its capacity as a Lender) and outstanding at such time, (B) such
Lender's Pro Rata Share of the aggregate Available Amount of all Letters of
Credit issued by such Lender and outstanding at such time, (C) the aggregate
unused Term Commitment of such Lender at such time and (D) the Unused Revolving
Credit Commitment of such Lender at such time. For purposes of this definition,
the aggregate principal amount of Letter of Credit Advances owing to the Issuing
Bank and the Available Amount of each Letter of Credit shall be considered to be
owed to the Revolving Credit Lenders ratably in accordance with their respective
Revolving Credit Commitments.
"Requirements of Law" means, with respect to any Person, all laws,
-------------------
constitutions, statutes, treaties, ordinances, rules and regulations, all
orders, writs, decrees, injunctions, judgments, determinations or awards of an
arbitrator, a court or any other governmental authority, and all governmental
authorizations, binding upon or applicable to such Person or to any of its
properties, assets or businesses.
"Responsible Officer" means any officer of any Loan Party or any of its
-------------------
Subsidiaries.
"Revolving Credit Advance" has the meaning specified in Section 2.01(b).
------------------------
"Revolving Credit Borrowing" means a borrowing consisting of simultaneous
--------------------------
Revolving Credit Advances of the same Type made by the Revolving Credit Lenders.
"Revolving Credit Commitment" means, with respect to any Revolving Credit
---------------------------
Lender at any time, the amount set forth opposite such Lender's name on Schedule
I hereto under the caption Revolving Credit Commitment" or, if such Lender has
entered into one or more Assignments and Acceptances, set forth for such Lender
in the Register maintained by the Administrative Agent pursuant to Section
8.07(d) as such Lender's "Revolving Credit Commitment", as such amount may be
reduced at or prior to such time pursuant to Section 2.05.
"Revolving Credit Facility" means, at any time, the aggregate amount of
-------------------------
the Revolving Credit Lenders' Revolving Credit Commitments at such time.
<PAGE>
"Revolving Credit Lender" means any Lender that has a Revolving Credit
-----------------------
Commitment.
"Revolving Credit Note" means a promissory note of the Borrower payable
---------------------
to the order of any Revolving Credit Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the aggregate indebtedness of the Borrower to
such Lender resulting from the Revolving Credit Advances made by such Lender.
"Secured Parties" means the Administrative Agent, the Lender Parties and
---------------
any other Persons the Obligations owing to which are or are purported to be
secured by the Collateral under the terms of the Collateral Documents.
"Security Agreement" has the meaning specified in Section 3.01(k)(viii).
------------------
"Senior Debt" means all Debt of the Borrower and its Subsidiaries other
-----------
than Subordinated Debentures.
"Senior Leverage Ratio" means, for any fiscal quarter of the Borrower, a
---------------------
ratio of Senior Debt as at the end of such fiscal quarter to Consolidated EBITDA
for the most recently completed four fiscal quarters of the Borrower and its
Subsidiaries; provided, however, that for the fiscal quarter of the Borrower
-------- -------
ending on October 31, 1997 and January 31, 1997, Consolidated EBITDA for the
four fiscal quarters then ended shall be the actual Consolidated EBITDA for the
period since May 1, 1997 and multiplied by a fraction the numerator of which is
four and the denominator of which is the number of fiscal quarters that have
elapsed since May 1, 1997.
"Service Contract" has the meaning specified in Preliminary Statement
----------------
(2) to this Agreement.
"Single Employer Plan" means a single employer plan, as defined in
--------------------
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan
Party or any ERISA Affiliate and no Person other than the Loan Parties and the
ERISA Affiliates or (b) was so maintained and in respect of which any Loan Party
or any ERISA Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a particular
------- --------
date, that on such date (a) the fair value of the property of such Person is
greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Person, (b) the present fair salable value of
the assets of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they become absolute
and matured, (c) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay such debts
and liabilities as they mature and (d) such Person is not engaged in business or
a transaction, and is not about to engage in business or a transaction, for
which such Person's property would constitute an unreasonably small capital.
The amount of contingent liabilities at any time shall be computed as the amount
that, in the light of all the facts
<PAGE>
and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"Subordinated Debentures" means the 6- 1/2% Convertible Subordinated
-----------------------
Debentures due 2002 of the Borrower in an aggregate principal amount of
$69,000,000.
"Subordinated Debenture Documents" means the Indenture dated December 15,
--------------------------------
1995 between the Borrower and IBJ Shroeder Bank & Trust Company and all other
agreements, indentures and instruments pursuant to which the Subordinated
Debentures were issued.
"Subsidiary" of any Person means any corporation, partnership, joint
----------
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such partnership,
joint venture or limited liability company or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or controlled
by such Person, by such Person and one or more of its other Subsidiaries or by
one or more of such Person's other Subsidiaries.
"Subsidiary Guarantors" means, all existing and hereafter acquired direct
---------------------
or indirect domestic Material Subsidiaries of the Borrower which are permitted
by law to guarantee Debt.: provided that in the case of D.C. Chartered Health
Plan, Inc. and Virginia Chartered Health Plan, Inc., such Subsidiaries shall not
be Subsidiary Guarantors unless, in each case, prior regulatory approval has
been obtained.
"Subsidiary Guaranty" has the meaning set forth in Section 3.01(k)(ix).
-------------------
"Surviving Debt" has the meaning specified in Section 3.01(d).
--------------
"Tax Certificate" has the meaning specified in Section 5.03(o).
---------------
"Taxes" has the meaning specified in Section 2.12(a).
-----
"Term Advance" has the meaning specified in Section 2.01(a).
------------
"Term Borrowing" means a borrowing consisting of simultaneous Term
--------------
Advances of the same Type made by the Term Lenders.
"Term Commitment" means, with respect to any Term Lender at any time, the
---------------
amount set forth opposite such Lender's name on Schedule I hereto under the
caption "Term Commitment" or, if such Lender has entered into one or more
Assignments and Acceptances, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 8.07(d) as such
Lender's "Term Commitment", as such amount may be reduced at or prior to such
time pursuant to Section 2.05.
<PAGE>
"Term Facility" means, at any time, the aggregate amount of the Term
-------------
Lenders' Term Commitments at such time.
"Term Lender" means any Lender that has a Term Commitment.
-----------
"Term Note" means a promissory note of the Borrower payable to the order
---------
of any Term Lender, in substantially the form of Exhibit A-1 hereto, evidencing
the indebtedness of the Borrower to such Lender resulting from the Term Advance
made by such Lender.
"Termination Date" means the earlier of October 31, 1999 and the date of
----------------
termination in whole of the Term Commitments, the Revolving Credit Commitments
and the Letter of Credit Commitments pursuant to Section 2.05 or 6.01.
"Transaction" means the Acquisition and the entering into of the Service
-----------
Contract.
"Type" refers to the distinction between Advances bearing interest at the
----
Alternate Base Rate and Advances bearing interest at the Eurodollar Rate.
"Unused Revolving Credit Commitment" means, with respect to any Revolving
----------------------------------
Credit Lender at any time, (a) such Lender's Revolving Credit Commitment at such
time minus (b) the sum of (i) the aggregate principal amount of all Revolving
-----
Credit Advances and Letter of Credit Advances made by such Lender (in its
capacity as a Lender) and outstanding at such time, plus (ii) such Lender's Pro
----
Rata Share of (A) the aggregate Available Amount of all Letters of Credit
outstanding at such time and (B) the aggregate principal amount of all Letter of
Credit Advances made by the Issuing Bank pursuant to Section 2.03(b) and
outstanding at such time.
"Voting Stock" means capital stock issued by a corporation, or equivalent
------------
interests in any other Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even if the right so to
vote has been suspended by the happening of such a contingency.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of ERISA,
------------
that is maintained for employees of any Loan Party or in respect of which any
Loan Party could have liability.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle E
--------------------
of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
---------------------------
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not specifically
----------------
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with
<PAGE>
those applied in the preparation of the financial statements referred to in
Section 4.01(f) ("GAAP").
----
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances. (a) The Term Advances. Each Term
------------ -----------------
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make a single advance (a "Term Advance") to the Borrower on any Business Day
------------
during the period from the date hereof until the Closing Date in an amount not
to exceed such Lender's Term Commitment at such time. The Term Borrowing shall
consist of Term Advances made simultaneously by the Term Lenders ratably
according to their Term Commitments. Amounts borrowed under this Section
2.01(a) and repaid or prepaid may not be reborrowed.
(b) The Revolving Credit Advances. Each Revolving Credit Lender
-----------------------------
severally agrees, on the terms and conditions hereinafter set forth, to make
advances (each a "Revolving Credit Advance") to the Borrower from time to time
------------------------
on any Business Day during the period from the date hereof until the Termination
Date in an amount for each such Advance not to exceed such Lender's Unused
Revolving Credit Commitment at such time. Each Revolving Credit Borrowing shall
be in an aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in
excess thereof (other than a Borrowing the proceeds of which shall be used
solely to repay or prepay in full outstanding Letter of Credit Advances) and
shall consist of Revolving Credit Advances made simultaneously by the Revolving
Credit Lenders ratably according to their Revolving Credit Commitments. Within
the limits of each Revolving Credit Lender's Unused Revolving Credit Commitment
in effect from time to time, the Borrower may borrow under this Section 2.01(b),
prepay pursuant to Section 2.06 and reborrow under this Section 2.01(b).
(c) Letters of Credit. The Issuing Bank agrees, on the terms and
-----------------
conditions hereinafter set forth, to issue standby letters of credit (the
"Letters of Credit") for the account of the Borrower from time to time on any
- ------------------
Business Day during the period from the date hereof until 60 days before the
Termination Date (i) in an aggregate Available Amount for all Letters of Credit
issued by the Issuing Bank not to exceed at any time the Issuing Bank's Letter
of Credit Commitment at such time and (ii) in an Available Amount for each such
Letter of Credit not to exceed the lesser of (x) the Letter of Credit Facility
at such time and (y) the Unused Revolving Credit Commitments of the Revolving
Credit Lenders at such time. No Letter of Credit shall have an expiration date
(including all rights of the Borrower or the beneficiary to require renewal)
later than the earlier of 60 days before the Termination Date and one year after
the date of issuance thereof, but may by its terms be renewable annually upon
notice (a "Notice of Renewal") given to the Issuing Bank and the Administrative
-----------------
Agent on or prior to any date for notice of renewal set forth in such Letter of
Credit but in any event at least three Business Days prior to the date of the
proposed renewal of such Letter of Credit and upon fulfillment of the applicable
conditions set forth in Article III unless the Issuing Bank has notified the
Borrower
<PAGE>
(with a copy to the Administrative Agent) on or prior to the date for notice of
termination set forth in such Letter of Credit but in any event at least 30
Business Days prior to the date of automatic renewal of its election not to
renew such Letter of Credit (a "Notice of Termination"); provided that the terms
---------------------
of each Letter of Credit that is automatically renewable annually shall (x)
require the Issuing Bank to give the beneficiary named in such Letter of Credit
notice of any Notice of Termination, (y) permit such beneficiary, upon receipt
of such notice, to draw under such Letter of Credit prior to the date such
Letter of Credit otherwise would have been automatically renewed and (z) not
permit the expiration date (after giving effect to any renewal) of such Letter
of Credit in any event to be extended to a date later than 60 days before the
Termination Date. If either a Notice of Renewal is not given by the Borrower or
a Notice of Termination is given by the Issuing Bank pursuant to the immediately
preceding sentence, such Letter of Credit shall expire on the date on which it
otherwise would have been automatically renewed; provided, however, that even in
the absence of receipt of a Notice of Renewal the Issuing Bank may in its
discretion, unless instructed to the contrary by the Administrative Agent or the
Borrower, deem that a Notice of Renewal had been timely delivered and in such
case, a Notice of Renewal shall be deemed to have been so delivered for all
purposes under this Agreement. Within the limits of the Letter of Credit
Facility, and subject to the limits referred to above, the Borrower may request
the issuance of Letters of Credit under this Section 2.01(c), repay any Letter
of Credit Advances resulting from drawings thereunder pursuant to Section
2.03(c) and request the issuance of additional Letters of Credit under this
Section 2.01(c).
SECTION 2.02. Making the Advances. (a) Except as otherwise provided
-------------------
in Section 2.02(b) or 2.03, each Borrowing shall be made on notice, given not
later than 11:00 A.M. (Charlotte, North Carolina time) on the third Business Day
prior to the date of the proposed Borrowing in the case of a Borrowing
consisting of Eurodollar Rate Advances, or on the date of the proposed Borrowing
in the case of a Borrowing consisting of Alternate Base Rate Advances, by the
Borrower to the Administrative Agent, which shall give to each Appropriate
Lender prompt notice thereof by telex or telecopier. Each such notice of a
Borrowing (a "Notice of Borrowing") shall be by telephone, confirmed immediately
-------------------
in writing, or telex or telecopier, in substantially the form of Exhibit B
hereto, specifying therein the requested (i) date of such Borrowing, (ii)
Facility under which such Borrowing is to be made, (iii) Type of Advances
comprising such Borrowing, (iv) aggregate amount of such Borrowing and (v) in
the case of a Borrowing consisting of Eurodollar Rate Advances, initial Interest
Period for each such Advance. Each Appropriate Lender shall, before 10:00 A.M.
(Charlotte, North Carolina time) on the date of such Borrowing, make available
for the account of its Applicable Lending Office to the Administrative Agent at
the Administrative Agent's Account, in same day funds, such Lender's ratable
portion of such Borrowing in accordance with the respective Commitments under
the applicable Facility of such Lender and the other Appropriate Lenders. After
the Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to the Borrower by crediting the Borrower's Account;
provided, however, that, in the case of any Revolving Credit Borrowing, the
- -------- -------
Administrative Agent shall first make a portion of such funds equal to the
aggregate principal amount of any Letter of Credit Advances made by the Issuing
Bank and by any other Revolving Credit Lender and outstanding on the date of
such Revolving Credit Borrowing, plus interest accrued and unpaid thereon to and
as of such date, available to the
<PAGE>
Issuing Bank and such other Revolving Credit Lenders for repayment of such
Letter of Credit Advances.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrower may not select Eurodollar Rate Advances for the initial
Borrowing hereunder or for any Borrowing if the aggregate amount of such
Borrowing is less than $5,000,000 or if the obligation of the Appropriate
Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.09 or Section 2.10 and (ii) the Term Advances may not be outstanding
as part of more than one separate Borrowing and the Revolving Credit Advances
made on any date may not be outstanding as part of more than seven separate
Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Appropriate Lender against any loss, cost or expense incurred by
such Lender as a result of any failure to fulfill on or before the date
specified in such Notice of Borrowing for such Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Advance to be made by such Lender as part of such Borrowing
when such Advance, as a result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice from an
Appropriate Lender prior to the date of any Borrowing under a Facility under
which such Lender has a Commitment that such Lender will not make available to
the Administrative Agent such Lender's ratable portion of such Borrowing, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (a) or (b) of this Section 2.02 and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such ratable portion available to the Administrative Agent, such Lender and
the Borrower severally agree to repay or pay to the Administrative Agent
forthwith on demand such corresponding amount and to pay interest thereon, for
each day from the date such amount is made available to the Borrower until the
date such amount is repaid or paid to the Administrative Agent, at (i) in the
case of the Borrower, the interest rate applicable at such time under Section
2.07 to Advances comprising such Borrowing and (ii) in the case of such Lender,
the Federal Funds Rate. If such Lender shall pay to the Administrative Agent
such corresponding amount, such amount so paid shall constitute such Lender's
Advance as part of such Borrowing for all purposes.
(e) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Advance to
be made by such other Lender on the date of any Borrowing.
<PAGE>
SECTION 2.03. Issuance of and Drawings and Reimbursement Under
------------------------------------------------
Letters of Credit. (a) Request for Issuance. Each Letter of Credit shall be
- ----------------- --------------------
issued upon notice, given not later than 10:00 A.M. (Charlotte, North Carolina
time) on the fifth Business Day prior to the date of the proposed issuance of
such Letter of Credit, by the Borrower to the Issuing Bank, which shall give to
the Administrative Agent and each Revolving Credit Lender prompt notice thereof
by telex or telecopier. Each such notice of issuance of a Letter of Credit (a
"Notice of Issuance") shall be by telephone, confirmed immediately in writing,
- -------------------
or telex or telecopier, specifying therein the requested (A) date of such
issuance (which shall be a Business Day), (B) Available Amount of such Letter of
Credit, (C) expiration date of such Letter of Credit, (D) name and address of
the beneficiary of such Letter of Credit and (E) form of such Letter of Credit,
and shall be accompanied by such application and agreement for letters of credit
as the Issuing Bank may specify to the Borrower for use in connection with such
requested Letter of Credit (a "Letter of Credit Agreement"). If (x) the
--------------------------
requested form of such Letter of Credit is acceptable to the Issuing Bank in its
sole discretion and (y) it has not received notice of objection to such issuance
from Lenders holding more than 50% of the Revolving Credit Commitments, the
Issuing Bank will, upon fulfillment of the applicable conditions set forth in
Article III, make such Letter of Credit available to the Borrower at its office
referred to in Section 8.02 or as otherwise agreed with the Borrower in
connection with such issuance. In the event and to the extent that the
provisions of any Letter of Credit Agreement shall conflict with this Agreement,
the provisions of this Agreement shall govern.
(b) Drawing and Reimbursement. The payment by the Issuing Bank of a
-------------------------
draft drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by the Issuing Bank of a Letter of Credit Advance, which
shall be a Alternate Base Rate Advance, in the amount of such draft. Upon
written demand by the Issuing Bank with an outstanding Letter of Credit Advance,
with a copy of such demand to the Administrative Agent, each Revolving Credit
Lender shall purchase from the Issuing Bank, and the Issuing Bank shall sell and
assign to each such Revolving Credit Lender, such Lender's Pro Rata Share of
such outstanding Letter of Credit Advance as of the date of such purchase, by
making available for the account of its Applicable Lending Office to the
Administrative Agent for the account of the Issuing Bank, by deposit to the
Administrative Agent's Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of such Letter of Credit Advance to
be purchased by such Lender. Promptly after receipt thereof, the Administrative
Agent shall transfer such funds to the Issuing Bank. The Borrower hereby agrees
to each such sale and assignment. Each Revolving Credit Lender agrees to
purchase its Pro Rata Share of an outstanding Letter of Credit Advance on (i)
the Business Day on which demand therefor is made by the Issuing Bank provided
notice of such demand is given not later than 10:00 A.M. (Charlotte, North
Carolina time) on such Business Day or (ii) the first Business Day next
succeeding such demand if notice of such demand is given after such time. Upon
any such assignment by the Issuing Bank to any other Revolving Credit Lender of
a portion of a Letter of Credit Advance, the Issuing Bank represents and
warrants to such other Lender that the Issuing Bank is the legal and beneficial
owner of such interest being assigned by it, free and clear of any liens, but
makes no other representation or warranty and assumes no responsibility with
respect to such Letter of Credit Advance, the Loan Documents or any Loan Party.
If and to the extent that any Revolving Credit Lender shall not have so made the
amount of such Letter of Credit Advance available to the Administrative Agent,
such Revolving
<PAGE>
Credit Lender agrees to pay to the Administrative Agent forthwith on demand such
amount together with interest thereon, for each day from the date of demand by
the Issuing Bank until the date such amount is paid to the Administrative Agent,
at the Federal Funds Rate for its account or the account of the Issuing Bank, as
applicable. If such Lender shall pay to the Administrative Agent such amount
for the account of the Issuing Bank on any Business Day, such amount so paid in
respect of principal shall constitute a Letter of Credit Advance made by such
Lender on such Business Day for purposes of this Agreement, and the outstanding
principal amount of the Letter of Credit Advance made by the Issuing Bank shall
be reduced by such amount on such Business Day.
(c) Failure to Make Letter of Credit Advances. The failure of any
-----------------------------------------
Lender to make the Letter of Credit Advance to be made by it on the date
specified in Section 2.03(b) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
SECTION 2.04. Repayment of Advances. (a) Term Advances. The
--------------------- -------------
Borrower shall repay to the Administrative Agent for the ratable account of the
Term Lenders the aggregate outstanding principal amount of the Term Advances on
the following dates in the amounts indicated (which amounts shall be reduced as
a result of the application of prepayments in accordance with the order of
priority set forth in Section 2.06):
<TABLE>
<CAPTION>
Date Amount
---- ------
<S> <C>
January 31, 1998 $2,500,000
April 30, 1998 $5,000,000
July 31, 1998 $5,000,000
October 31, 1998 $5,000,000
January 31, 1999 $5,000,000
April 30, 1999 $5,000,000
July 31, 1999 $5,000,000
October 31, 1999 $7,500,000
</TABLE>
provided, however, that the final principal installment shall be repaid on the
- -------- -------
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the Term Advances outstanding on such date.
(b) Revolving Credit Advances. The Borrower shall repay to the Administrative
-------------------------
Agent for the ratable account of the Revolving Credit Lenders on the Termination
Date the aggregate outstanding principle amount of the Revolving Credit Advances
then outstanding.
(c) Letter of Credit Advances. (i) The Borrower shall repay to the
-------------------------
Administrative Agent for the account of the Issuing Bank and each other
Revolving Credit Lender that has made a Letter of Credit Advance on the earlier
of demand and the Termination Date the outstanding principal amount of each
Letter of Credit Advance made by each of them.
<PAGE>
(ii) The Obligations of the Borrower under this Agreement, any Letter of
Credit Agreement and any other agreement or instrument relating to any Letter of
Credit shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement, such Letter of Credit Agreement and
such other agreement or instrument under all circumstances, including, without
limitation, the following circumstances (it being understood that any such
payment by the Borrower is without prejudice to, and does not constitute a
waiver of, any rights the Borrower might have or might acquire as a result of
the payment by the Issuing Bank of any draft or the reimbursement by the
Borrower thereof):
(A) any lack of validity or enforceability of any Loan Document, any
Letter of Credit Agreement, any Letter of Credit or any other agreement or
instrument relating thereto (all of the foregoing being, collectively, the
"L/C Related Documents");
---------------------
(B) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of the Borrower in respect of
any L/C Related Document or any other amendment or waiver of or any consent
to departure from all or any of the L/C Related Documents;
(C) the existence of any claim, set-off, defense or other right that
the Borrower may have at any time against any beneficiary or any transferee
of a Letter of Credit (or any Persons for whom any such beneficiary or any
such transferee may be acting), the Issuing Bank or any other Person,
whether in connection with the transactions contemplated by the L/C Related
Documents or any unrelated transaction;
(D) any statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect;
(E) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit, provided that such noncompliance is not
--------
material;
(F) any exchange, release or non-perfection of any Collateral or
other collateral, or any release or amendment or waiver of or consent to
departure from the Guaranty or any other guarantee, for all or any of the
Obligations of the Borrower in respect of the L/C Related Documents; or
(G) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Borrower or a guarantor.
SECTION 2.05. Termination or Reduction of the Commitments. (a) Optional.
------------------------------------------- --------
The Borrower may, upon at least five Business Days' notice to the Administrative
Agent, terminate in
<PAGE>
whole or reduce in part the unused portions of the Term Commitments, the Letter
of Credit Facility and the Unused Revolving Credit Commitments; provided,
--------
however, that each partial reduction of a Facility (i) shall be in an aggregate
- -------
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and
(ii) shall be made ratably among the Appropriate Lenders in accordance with
their Commitments with respect to such Facility.
(b) Mandatory. (i) On the date of the Term Borrowing, after giving effect
---------
to such Term Borrowing, and from time to time thereafter upon each repayment or
prepayment of the Term Advances, the aggregate Term Commitments of the Term
Lenders shall be automatically and permanently reduced, on a pro rata basis, by
an amount equal to the amount by which the aggregate Term Commitments
immediately prior to such reduction exceed the aggregate unpaid principal amount
of the Term Advances then outstanding.
(ii) The Revolving Credit Commitments shall be automatically and
permanently reduced, on a pro rata basis, on (x) January 31, 1998 by $5,000,000,
(y) April 30, 1998 by $5,000,000 and (z) October 31, 1998 by $10,000,000 (in
each case, after giving effect to all reductions in such amounts on or prior to
such date as a result of the application of commitment reductions in accordance
with subsection (a) of this Section 2.05 or clause (iii) of this Section
2.05(b)); provided, however, that, notwithstanding the foregoing provisions of
this clause (ii), the Commitments of the Revolving Credit Lenders shall be
terminated in whole on the Termination Date.
(iii) The Revolving Credit Facility shall be automatically and
permanently reduced on a pro rata basis on each date on which prepayment thereof
is required to be made pursuant to Section 2.06(b)(i) or (ii) in an amount equal
to the applicable Reduction Amount, provided that each such reduction of the
--------
Revolving Credit Facility shall be made ratably among the Revolving Credit
Lenders in accordance with their Revolving Credit Commitments.
(iv) The Letter of Credit Facility shall be permanently reduced from
time to time on the date of each reduction in the Revolving Credit Facility by
the amount, if any, by which the amount of the Letter of Credit Facility exceeds
the Revolving Credit Facility after giving effect to such reduction of the
Revolving Credit Facility.
SECTION 2.06. Prepayments. (a) Optional. The Borrower may, upon at least
----------- --------
five Business Days' notice to the Administrative Agent stating the proposed date
and aggregate principal amount of the prepayment, and if such notice is given
the Borrower shall, prepay the outstanding aggregate principal amount of the
Advances comprising part of the same Borrowing in whole or ratably in part,
together with (i) accrued interest to the date of such prepayment on the
aggregate principal amount prepaid; provided, however, that (x) each partial
-------- -------
prepayment shall be in an aggregate principal amount of $1,000,000 or an
integral multiple of $1,000,000 in excess thereof and (y) if any prepayment of a
Eurodollar Rate Advance is made on a date other than the last day of an Interest
Period for such Advance the Borrower shall also pay any amounts owing pursuant
to Section 8.04(c). Each such prepayment of any Term Advances shall be applied
to the installments thereof in inverse order of maturity.
<PAGE>
(b) Mandatory. (i) The Borrower shall, on the 45th day following the end of
---------
each fiscal quarter of the Borrower, commencing with the fiscal quarter ended
January 31, 1998, prepay an aggregate principal amount of the Advances
comprising part of the same Borrowings equal to seventy-five per cent (75%) of
the amount of Excess Cash Flow for such fiscal quarter. Each such prepayment
shall be applied ratably first to the Term Facility and to the installments
-----
thereof in inverse order of maturity and second to the Revolving Credit Facility
------
as set forth in clause (v) below.
(ii) The Borrower shall, on the date of receipt of the Net Cash Proceeds
by the Borrower or any of its Subsidiaries from (A) the sale, lease, transfer or
other disposition of any assets of the Borrower or any of its Subsidiaries
(other than any sale, lease, transfer or other disposition of assets pursuant to
clause (i) of Section 5.02(e)), (B) the incurrence or issuance by the Borrower
or any of its Subsidiaries of any Debt (other than Debt incurred or issued
pursuant to Section 5.02(b)), (C) the sale or issuance by the Borrower or any of
its Subsidiaries of any capital stock or other ownership or profit interest, any
securities convertible into or exchangeable for capital stock or other ownership
or profit interest or any warrants, rights or options to acquire capital stock
or other ownership or profit interest (other than in respect of stock options or
warrants currently outstanding or hereafter issued pursuant to any stock option,
plan or other compensation arrangement approved by the Borrower's Board of
Directors) and (D) any Extraordinary Receipt received by or paid to or for the
account of the Borrower or any of its Subsidiaries and not otherwise included in
clause (A), (B) or (C) above, prepay an aggregate principal amount of the
Advances comprising part of the same Borrowings equal to the amount of such Net
Cash Proceeds. Each such prepayment shall be applied first to the Term Facility
-----
and to the installments thereof in inverse order of maturity and second to the
------
Revolving Credit Facility as set forth in clause (v) below.
(iii) The Borrower shall, on each Business Day, prepay an aggregate
principal amount of the Revolving Credit Advances comprising part of the same
Borrowings and the Letter of Credit Advances equal to the amount by which (A)
the sum of the aggregate principal amount of (x) the Revolving Credit Advances
and (y) the Letter of Credit Advances then outstanding plus the aggregate
Available Amount of all Letters of Credit then outstanding exceeds (B) the
Revolving Credit Facility on such Business Day.
(iv) The Borrower shall, on each Business Day, pay to the Administrative
Agent for deposit in the L/C Cash Collateral Account an amount sufficient to
cause the aggregate amount on deposit in such Account to equal the amount by
which the aggregate Available Amount of all Letters of Credit then outstanding
exceeds the Letter of Credit Facility on such Business Day.
(v) Prepayments of the Revolving Credit Facility made pursuant to clause
(i), (ii) or (iii) above shall be first applied to prepay Letter of Credit
-----
Advances then outstanding until such Advances are paid in full, and second
------
applied to prepay Revolving Credit Advances then outstanding comprising part of
the same Borrowings until such Advances are paid in full; and, in the case of
prepayments of the Revolving Credit Facility required pursuant to clause (i) or
(ii) above, the amount remaining (if any) after the prepayment in full of the
Revolving Credit
<PAGE>
Advances then outstanding (the sum of such prepayment amounts and remaining
amount being referred to herein as the "Reduction Amount") may be retained by
----------------
the Borrower and the Revolving Credit Facility shall be permanently reduced as
set forth in Section 2.05(b)(iii).
(vi) All prepayments under this subsection (b) shall be made together
with accrued interest to the date of such prepayment on the principal amount
prepaid.
SECTION 2.07. Interest. (a) Scheduled Interest. The Borrower shall pay
-------- ------------------
interest on the unpaid principal amount of each Advance owing to each Lender
from the date of such Advance until such principal amount shall be paid in full,
at the following rates per annum:
(i) Alternate Base Rate Advances. During such periods as such Advance is
----------------------------
a Alternate Base Rate Advance, a rate per annum equal at all times to the sum of
(A) the Alternate Base Rate in effect from time to time plus (B) the Applicable
----
Margin in effect from time to time, payable in arrears quarterly on the last day
of each fiscal quarter during such periods and on the date such Alternate Base
Rate Advance shall be Converted or paid in full;
(ii) Eurodollar Rate Advances. During such periods as such Advance is a
------------------------
Eurodollar Rate Advance, a rate per annum equal at all times during each
Interest Period for such Advance to the sum of (A) the Eurodollar Rate for such
Interest Period for such Advance plus (B) the Applicable Margin in effect from
----
time to time, payable in arrears on the last day of such Interest Period and, if
such Interest Period has a duration of more than three months, on each day that
occurs during such Interest Period every three months from the first day of such
Interest Period and on the date such Eurodollar Rate Advance shall be Converted
or paid in full;
provided, however, that, except as otherwise provided in Section 2.07(b), in no
- -------- -------
event shall the rate of interest payable on any Advance exceed 17% per annum at
any time.
(b) Default Interest. Upon the occurrence and during the continuance of a
----------------
Default, the Borrower shall pay interest on (i) the unpaid principal amount of
each Advance owing to each Lender, payable in arrears on the dates referred to
in clause (a)(i) or (a)(ii) above and on demand, at a rate per annum equal at
all times to 2% per annum above the rate per annum required to be paid on such
Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the fullest
extent permitted by law, the amount of any interest, fee or other amount payable
hereunder that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid, in the case
of interest, on the Type of Advance on which such interest has accrued pursuant
to clause (a)(i) or (a)(ii) above, and, in all other cases, on Alternate Base
Rate Advances pursuant to clause (a)(i) above.
(c) Notice of Interest Rate. Promptly after receipt of a Notice of Borrowing
-----------------------
pursuant to Section 2.02(a), the Administrative Agent shall give notice to the
Borrower and each Appropriate Lender of the applicable interest rate determined
by the Administrative Agent for purposes of clause (a)(i) or (ii).
<PAGE>
SECTION 2.08. Fees. (a) Commitment Fee. The Borrower shall pay to the
---- --------------
Administrative Agent for the account of the Lenders a commitment fee, from the
date of the side letter referred to in Section 3.01(i) in the case of each
Initial Lender and from the effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender in the case of each other Lender
until the Termination Date, payable in arrears on the date of the initial
Borrowing hereunder, thereafter quarterly on the last Business Day of each
fiscal quarter, commencing January 31, 1998, and on the Termination Date, at the
rate of 1/2 of 1% per annum on the average daily Unused Revolving Credit
Commitment of such Lender; provided, however, that any commitment fee accrued
-------- -------
with respect to any of the Commitments of a Defaulting Lender during the period
prior to the time such Lender became a Defaulting Lender and unpaid at such time
shall not be payable by the Borrower so long as such Lender shall be a
Defaulting Lender except to the extent that such commitment fee shall otherwise
have been due and payable by the Borrower prior to such time; and provided
--------
further that no commitment fee shall accrue on any of the Commitments of a
- -------
Defaulting Lender so long as such Lender shall be a Defaulting Lender.
(b) Letter of Credit Fees, Etc. (i) The Borrower shall pay to the
--------------------------
Administrative Agent for the account of each Revolving Credit Lender a
commission, payable in arrears quarterly on the last Business Day of each fiscal
quarter, commencing January 31, 1998, and on the earliest to occur of the full
drawing expiration, termination or cancellation of any such Letter of Credit and
on the Termination Date, on such Lender's Pro Rata Share of the average daily
aggregate Available Amount during such quarter of the sum of all Letters of
Credit then outstanding at a per annum rate equal to the Applicable Margin for
Eurodollar Advances in effect for such quarter.
(ii) The Borrower shall pay to the Issuing Bank, for its own account, (A)
a fronting fee, payable in arrears quarterly on the last Business Day of each
fiscal quarter, commencing January 31, 1998, and on the Termination Date, on the
average daily amount of its Letter of Credit Commitment during such quarter,
from the date hereof until the Termination Date, at the rate of 0.125% per
annum, and (B) such other commissions, transfer fees and other fees and charges
in connection with the issuance or administration of each Letter of Credit as
the Borrower and the Issuing Bank shall agree.
(c) Administrative Agent's Fees. The Borrower shall pay to the Administrative
---------------------------
Agent for its own account such fees as may from time to time be agreed between
the Borrower and the Administrative Agent.
SECTION 2.09. Conversion of Advances. (a) Optional. The Borrower may on
---------------------- --------
any Business Day, upon notice given to the Administrative Agent not later than
10:00 A.M. (Charlotte, North Carolina time) on the third Business Day prior to
the date of the proposed Conversion and subject to the provisions of Sections
2.07 and 2.10, Convert all or any portion of the Advances of one Type comprising
the same Borrowing into Advances of the other Type; provided, however, that any
-------- -------
Conversion of Eurodollar Rate Advances into Alternate Base Rate Advances shall
be made only on the last day of an Interest Period for such Eurodollar Rate
Advances, any Conversion of Alternate Base Rate Advances into Eurodollar Rate
Advances shall
<PAGE>
be in an amount not less than the minimum amount specified in Section 2.02(b),
no Conversion of any Advances shall result in more separate Borrowings than
permitted under Section 2.02(b) and each Conversion of Advances comprising part
of the same Borrowing under any Facility shall be made ratably among the
Appropriate Lenders in accordance with their Commitments under such Facility.
Each such notice of Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Advances to be Converted and
(iii) if such Conversion is into Eurodollar Rate Advances, the duration of the
initial Interest Period for such Advances. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
(b) Mandatory. (i) On the date on which the aggregate unpaid principal
---------
amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $5,000,000, such Advances shall
automatically Convert into Alternate Base Rate Advances.
(ii) If the Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Appropriate
Lenders, whereupon each such Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Alternate
Base Rate Advance.
(iii) Upon the occurrence and during the continuance of any Default, (x)
each Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Alternate Base Rate Advance
and (y) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended.
SECTION 2.10. Increased Costs, Etc. (a) If, due to either (i) the
--------------------
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender Party of agreeing to make
or of making, funding or maintaining Eurodollar Rate Advances or of agreeing to
issue or of issuing or maintaining Letters of Credit or of agreeing to make or
of making or maintaining Letter of Credit Advances (excluding for purposes of
this Section 2.10 any such increased costs resulting from (i) Taxes or Other
Taxes (as to which Section 2.12 shall govern) and (ii) changes in the basis of
taxation of overall net income or overall gross income by the United States or
by the foreign jurisdiction or state under the laws of which such Lender Party
is organized or has its Applicable Lending Office or any political subdivision
thereof), then the Borrower shall from time to time, upon demand by such Lender
Party (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender Party additional amounts
sufficient to compensate such Lender Party for such increased cost. A
certificate as to the amount of such increased cost, submitted to the Borrower
by such Lender Party, shall be conclusive and binding for all purposes, absent
manifest error.
(b) If any Lender Party determines that compliance with any law or regulation
or any guideline or request from any central bank or other governmental
authority (whether or not
<PAGE>
having the force of law) affects or would affect the amount of capital required
or expected to be maintained by such Lender Party or any corporation controlling
such Lender Party and that the amount of such capital is increased by or based
upon the existence of such Lender Party's commitment to lend or to issue Letters
of Credit hereunder and other commitments of such type or the issuance or
maintenance of the Letters of Credit (or similar contingent obligations), then,
upon demand by such Lender Party (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to the Administrative Agent for
the account of such Lender Party, from time to time as specified by such Lender
Party, additional amounts sufficient to compensate such Lender Party in the
light of such circumstances, to the extent that such Lender Party reasonably
determines such increase in capital to be allocable to the existence of such
Lender Party's commitment to lend or to issue Letters of Credit hereunder or to
the issuance or maintenance of any Letters of Credit. A certificate as to such
amounts submitted to the Borrower by such Lender Party shall be conclusive and
binding for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances under any Facility,
Lenders notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Lenders of making, funding or maintaining their Eurodollar Rate Advances for
such Interest Period, the Administrative Agent shall forthwith so notify the
Borrower and the Appropriate Lenders, whereupon (i) each such Eurodollar Rate
Advance under any Facility will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Alternate Base Rate Advance
and (ii) the obligation of the Appropriate Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower that such Lenders have determined
that the circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if the introduction
of or any change in or in the interpretation of any law or regulation shall make
it unlawful, or any central bank or other governmental authority shall assert
that it is unlawful, for any Lender or its Eurodollar Lending Office to perform
its obligations hereunder to make Eurodollar Rate Advances or to continue to
fund or maintain Eurodollar Rate Advances hereunder, then, on notice thereof and
demand therefor by such Lender to the Borrower through the Administrative Agent,
(i) each Eurodollar Rate Advance under each Facility under which such Lender has
a Commitment will automatically, upon such demand, Convert into a Alternate Base
Rate Advance and (ii) the obligation of the Appropriate Lenders to make, or to
Convert Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower that such Lender has determined
that the circumstances causing such suspension no longer exist.
SECTION 2.11. Payments and Computations. (a) The Borrower shall make each
-------------------------
payment hereunder and under the Notes, irrespective of any right of counterclaim
or set-off (except as otherwise provided in Section 2.15), not later than 10:00
A.M. (Charlotte, North Carolina time) on the day when due in U.S. dollars to the
Administrative Agent at the Agent's Account in same day funds. The
Administrative Agent will promptly thereafter cause like funds to be distributed
(i) if such payment by the Borrower is in respect of principal, interest,
commitment fees or any other Obligation then payable hereunder and under the
Notes to more
<PAGE>
than one Lender Party, to such Lender Parties for the account of their
respective Applicable Lending Offices ratably in accordance with the amounts of
such respective Obligations then payable to such Lender Parties and (ii) if such
payment by the Borrower is in respect of any Obligation then payable hereunder
to one Lender Party, to such Lender Party for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of an Assignment and Acceptance and recording of
the information contained therein in the Register pursuant to Section 8.07(d),
from and after the effective date of such Assignment and Acceptance, the
Administrative Agent shall make all payments hereunder and under the Notes in
respect of the interest assigned thereby to the Lender Party assignee
thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) If the Administrative Agent receives funds for application to the
Obligations under the Loan Documents under circumstances for which the Loan
Documents do not specify the Advances or the Facility to which, or the manner in
which, such funds are to be applied, the Administrative Agent may, but shall not
be obligated to, elect to distribute such funds to each Lender Party ratably in
accordance with such Lender Party's proportionate share of the principal amount
of all outstanding Advances and the Available Amount of all Letters of Credit
then outstanding, in repayment or prepayment of such of the outstanding Advances
or other Obligations owed to such Lender Party, and for application to such
principal installments, as the Administrative Agent shall direct.
(c) The Borrower hereby authorizes each Lender Party, if and to the extent
payment owed to such Lender Party is not made when due hereunder or, in the case
of a Lender, under the Note held by such Lender, to charge from time to time
against any or all of the Borrower's accounts with such Lender Party any amount
so due.
(d) All computations of interest, fees and Letter of Credit commissions shall
be made by the Administrative Agent on the basis of a year of 360 days, in each
case for the actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest, fees or commissions
are payable. Each determination by the Administrative Agent of an interest
rate, fee or commission hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(e) Whenever any payment hereunder or under the Notes shall be stated to be
due on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment fee, as the
case may be; provided, however, that, if such extension would cause payment of
-------- -------
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(f) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to any Lender Party
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has
<PAGE>
made such payment in full to the Administrative Agent on such date and the
Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each such Lender Party on such due date an amount equal to the
amount then due such Lender Party. If and to the extent the Borrower shall not
have so made such payment in full to the Administrative Agent, each such Lender
Party shall repay to the Administrative Agent forthwith on demand such amount
distributed to such Lender Party together with interest thereon, for each day
from the date such amount is distributed to such Lender Party until the date
such Lender Party repays such amount to the Administrative Agent, at the Federal
Funds Rate.
SECTION 2.12. Taxes. (a) Any and all payments by the Borrower hereunder or
-----
under the Notes shall be made, in accordance with Section 2.11, free and clear
of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender Party and the Administrative
---------
Agent, taxes that are imposed on its overall net income by the United States and
taxes that are imposed on its overall net income (and franchise taxes imposed in
lieu thereof) by the state or foreign jurisdiction under the laws of which such
Lender Party or the Administrative Agent (as the case may be) is organized or
any political subdivision thereof and, in the case of each Lender Party, taxes
that are imposed on its overall net income (and franchise taxes imposed in lieu
thereof) that are imposed on such Lender Party by the state or foreign
jurisdiction of such Lender Party's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities in respect of payments hereunder or under
the Notes being hereinafter referred to as "Taxes"). If the Borrower shall be
-----
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to any Lender Party or the Administrative Agent, (i)
the sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.12) such Lender Party or the Administrative Agent (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future stamp,
documentary, excise, property or similar taxes, charges or levies that arise
from any payment made hereunder or under the Notes or from the execution,
delivery or registration of, performing under, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "Other Taxes").
-----------
(c) The Borrower shall indemnify each Lender Party and the Administrative
Agent for and hold it harmless against the full amount of Taxes and Other Taxes,
and for the full amount of taxes of any kind imposed by any jurisdiction on
amounts payable under this Section 2.12, imposed on or paid by such Lender Party
or the Administrative Agent (as the case may be) and any liability (including
penalties, additions to tax, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 30 days from the
date such Lender Party or the Administrative Agent (as the case may be) makes
written demand therefor.
<PAGE>
(d) Within 30 days after the date of any payment of Taxes, the Borrower shall
furnish to the Administrative Agent, at its address referred to in Section 8.02,
the original or a certified copy of a receipt evidencing such payment. In the
case of any payment hereunder or under the Notes by or on behalf of the Borrower
through an account or branch outside the United States or by or on behalf of the
Borrower by a payor that is not a United States person, if the Borrower
determines that no Taxes are payable in respect thereof, the Borrower shall
furnish, or shall cause such payor to furnish, to the Administrative Agent, at
such address, an opinion of counsel acceptable to the Administrative Agent
stating that such payment is exempt from Taxes. For purposes of this subsection
(d) and subsection (e), the terms "United States" and "United States person"
------------- --------------------
shall have the meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction outside the
United States shall, on or prior to the date of its execution and delivery of
this Agreement in the case of each Initial Lender or Initial Issuing Bank, as
the case may be, and on the date of the Assignment and Acceptance pursuant to
which it becomes a Lender Party in the case of each other Lender Party, and from
time to time thereafter as requested in writing by the Borrower (but only so
long thereafter as such Lender Party remains lawfully able to do so), provide
each of the Administrative Agent and the Borrower with two original Internal
Revenue Service forms 1001 or 4224. If the forms provided by a Lender Party at
the time such Lender Party first becomes a party to this Agreement indicates a
United States interest withholding tax rate in excess of zero, withholding tax
at such rate shall be considered excluded from Taxes unless and until such
Lender Party provides the appropriate form certifying that a lesser rate
applies, whereupon withholding tax at such lesser rate only shall be considered
excluded from Taxes for periods governed by such form; provided, however, that,
-------- -------
if at the date of the Assignment and Acceptance pursuant to which a Lender Party
becomes a party to this Agreement, the Lender Party assignor was entitled to
payments under subsection (a) in respect of United States withholding tax with
respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender Party assignee on such date.
If any form or document referred to in this subsection (e) requires the
disclosure of information, other than information necessary to compute the tax
payable and information required on the date hereof by Internal Revenue Service
form 1001 or 4224, that the Lender Party reasonably considers to be
confidential, the Lender Party shall give notice thereof to the Borrower and
shall not be obligated to include in such form or document such confidential
information.
(f) For any period with respect to which a Lender Party has failed to provide
the Borrower with the appropriate form described in subsection (e) above (other
-----
than if such failure is due to a change in law occurring after the date on which
- ----
a form originally was required to be provided or if such form otherwise is not
required under subsection (e) above), such Lender Party shall not be entitled to
indemnification under subsection (a) or (c) with respect to Taxes imposed by the
United States by reason of such failure; provided, however, that should a Lender
-------- -------
Party become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as such Lender Party shall
reasonably request to assist such Lender Party to recover such Taxes.
<PAGE>
SECTION 2.13. Sharing of Payments, Etc. If any Lender Party shall obtain at
------------------------
any time any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise) (a) on account of Obligations due and
payable to such Lender Party hereunder and under the Notes at such time in
excess of its ratable share (according to the proportion of (i) the amount of
such Obligations due and payable to such Lender Party at such time to (ii) the
aggregate amount of the Obligations due and payable to all Lender Parties
hereunder and under the Notes at such time) of payments on account of the
Obligations due and payable to all Lender Parties hereunder and under the Notes
at such time obtained by all the Lender Parties at such time or (b) on account
of Obligations owing (but not due and payable) to such Lender Party hereunder
and under the Notes at such time in excess of its ratable share (according to
the proportion of (i) the amount of such Obligations owing to such Lender Party
at such time to (ii) the aggregate amount of the Obligations owing (but not due
and payable) to all Lender Parties hereunder and under the Notes at such time)
of payments on account of the Obligations owing (but not due and payable) to all
Lender Parties hereunder and under the Notes at such time obtained by all of the
Lender Parties at such time, such Lender Party shall forthwith purchase from the
other Lender Parties such participations in the Obligations due and payable or
owing to them, as the case may be, as shall be necessary to cause such
purchasing Lender Party to share the excess payment with each of them; provided,
--------
however, that if all or any portion of such excess payment is thereafter
- -------
recovered from such purchasing Lender Party, such purchase from each other
Lender Party shall be rescinded and such other Lender Party shall repay to the
purchasing Lender Party the purchase price to the extent of such Lender Party's
ratable share (according to the proportion of (i) the purchase price paid to
such Lender Party to (ii) the aggregate purchase price paid to all Lender
Parties) of such recovery together with an amount equal to such Lender Party's
ratable share (according to the proportion of (i) the amount of such other
Lender Party's required repayment to (ii) the total amount so recovered from the
purchasing Lender Party) of any interest or other amount paid or payable by the
purchasing Lender Party in respect of the total amount so recovered. The
Borrower agrees that any Lender Party so purchasing a participation from another
Lender Party pursuant to this Section 2.13 may, to the fullest extent permitted
by law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender Party were the direct
creditor of the Borrower in the amount of such participation.
SECTION 2.14. Use of Proceeds. The proceeds of Advances and issuances of
---------------
Letters of Credit shall be available (and the Borrower agrees that it shall use
such proceeds and Letters of Credit) solely to finance the Transaction, pay
transaction fees and expenses and provide working capital for the Borrower and
its Subsidiaries.
SECTION 2.15. Defaulting Lenders. (a) In the event that, at any one time,
------------------
(i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting Lender
shall owe a Defaulted Advance to the Borrower and (iii) the Borrower shall be
required to make any payment hereunder or under any other Loan Document to or
for the account of such Defaulting Lender, then the Borrower may, so long as no
Default shall occur or be continuing at such time and to the fullest extent
permitted by applicable law, set off and otherwise apply the Obligation of the
Borrower to make such payment to or for the account of such Defaulting Lender
against the
<PAGE>
obligation of such Defaulting Lender to make such Defaulted Advance. In the
event that, on any date, the Borrower shall so set off and otherwise apply its
obligation to make any such payment against the obligation of such Defaulting
Lender to make any such Defaulted Advance on or prior to such date, the amount
so set off and otherwise applied by the Borrower shall constitute for all
purposes of this Agreement and the other Loan Documents an Advance by such
Defaulting Lender made on the date under the Facility pursuant to which such
Defaulted Advance was originally required to have been made pursuant to Section
2.01. Such Advance shall be a Alternate Base Rate Advance and shall be
considered, for all purposes of this Agreement, to comprise part of the
Borrowing in connection with which such Defaulted Advance was originally
required to have been made pursuant to Section 2.01, even if the other Advances
comprising such Borrowing shall be Eurodollar Rate Advances on the date such
Advance is deemed to be made pursuant to this subsection (a). The Borrower shall
notify the Administrative Agent at any time the Borrower exercises its right of
set-off pursuant to this subsection (a) and shall set forth in such notice (A)
the name of the Defaulting Lender and the Defaulted Advance required to be made
by such Defaulting Lender and (B) the amount set off and otherwise applied in
respect of such Defaulted Advance pursuant to this subsection (a). Any portion
of such payment otherwise required to be made by the Borrower to or for the
account of such Defaulting Lender which is paid by the Borrower, after giving
effect to the amount set off and otherwise applied by the Borrower pursuant to
this subsection (a), shall be applied by the Administrative Agent as specified
in subsection (b) or (c) of this Section 2.15.
(b) In the event that, at any one time, (i) any Lender Party shall be a
Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount to
the Administrative Agent or any of the other Lender Parties and (iii) the
Borrower shall make any payment hereunder or under any other Loan Document to
the Administrative Agent for the account of such Defaulting Lender, then the
Administrative Agent may, on its behalf or on behalf of such other Lender
Parties and to the fullest extent permitted by applicable law, apply at such
time the amount so paid by the Borrower to or for the account of such Defaulting
Lender to the payment of each such Defaulted Amount to the extent required to
pay such Defaulted Amount. In the event that the Administrative Agent shall so
apply any such amount to the payment of any such Defaulted Amount on any date,
the amount so applied by the Administrative Agent shall constitute for all
purposes of this Agreement and the other Loan Documents payment, to such extent,
of such Defaulted Amount on such date. Any such amount so applied by the
Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Lender Parties, ratably in
accordance with the respective portions of such Defaulted Amounts payable at
such time to the Administrative Agent and such other Lender Parties and, if the
amount of such payment made by the Borrower shall at such time be insufficient
to pay all Defaulted Amounts owing at such time to the Administrative Agent and
the other Lender Parties, in the following order of priority:
(i) first, to the Administrative Agent for any Defaulted Amount then
-----
owing to the Administrative Agent; and
<PAGE>
(ii) second, to any other Lender Parties for any Defaulted Amounts then
------
owing to such other Lender Parties, ratably in accordance with such respective
Defaulted Amounts then owing to such other Lender Parties.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender Party shall be a
Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted Advance
or a Defaulted Amount and (iii) the Borrower, the Administrative Agent or any
other Lender Party shall be required to pay or distribute any amount hereunder
or under any other Loan Document to or for the account of such Defaulting
Lender, then the Borrower or such other Lender Party shall pay such amount to
the Administrative Agent to be held by the Administrative Agent, to the fullest
extent permitted by applicable law, in escrow or the Administrative Agent shall,
to the fullest extent permitted by applicable law, hold in escrow such amount
otherwise held by it. Any funds held by the Administrative Agent in escrow
under this subsection (c) shall be deposited by the Administrative Agent in an
account with NationsBank, in the name and under the control of the
Administrative Agent, but subject to the provisions of this subsection (c). The
terms applicable to such account, including the rate of interest payable with
respect to the credit balance of such account from time to time, shall be
NationsBank's standard terms applicable to escrow accounts maintained with it.
Any interest credited to such account from time to time shall be held by the
Administrative Agent in escrow under, and applied by the Administrative Agent
from time to time in accordance with the provisions of, this subsection (c).
The Administrative Agent shall, to the fullest extent permitted by applicable
law, apply all funds so held in escrow from time to time to the extent necessary
to make any Advances required to be made by such Defaulting Lender and to pay
any amount payable by such Defaulting Lender hereunder and under the other Loan
Documents to the Administrative Agent or any other Lender Party, as and when
such Advances or amounts are required to be made or paid and, if the amount so
held in escrow shall at any time be insufficient to make and pay all such
Advances and amounts required to be made or paid at such time, in the following
order of priority:
(i) first, to the Administrative Agent for any amount then due and
-----
payable by such Defaulting Lender to the Administrative Agent hereunder;
(ii) second, to any other Lender Parties for any amount then due and
------
payable by such Defaulting Lender to such other Lender Parties hereunder,
ratably in accordance with such respective amounts then due and payable to such
other Lender Parties; and
(iii) third, to the Borrower for any Advance then required to be made by
-----
such Defaulting Lender pursuant to a Commitment of such Defaulting Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with
<PAGE>
respect to such Lender Party shall be distributed by the Administrative Agent to
such Lender Party and applied by such Lender Party to the Obligations owing to
such Lender Party at such time under this Agreement and the other Loan Documents
ratably in accordance with the respective amounts of such Obligations
outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under this Section
2.15 are in addition to other rights and remedies that the Borrower may have
against such Defaulting Lender with respect to any Defaulted Advance and that
the Administrative Agent or any Lender Party may have against such Defaulting
Lender with respect to any Defaulted Amount.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Extension of Credit. The
---------------------------------------------------
obligation of each Lender to make an Advance or of the Issuing Bank to issue a
Letter of Credit on the occasion of the Initial Extension of Credit hereunder is
subject to the satisfaction of the following conditions precedent before or
concurrently with the Initial Extension of Credit:
(a) The Lender Parties shall be satisfied with the corporate and legal
structure and capitalization of each Loan Party and each of its Subsidiaries,
including the terms and conditions of the Constitutive Documents and each class
of capital stock or other equity interest of each Loan Party and each such
Subsidiary and of each agreement or instrument relating to such structure or
capitalization.
(b) The Lender Parties shall have received copies of all of the Related
Documents at least three Business Days prior to the Closing Date and shall not,
in their reasonable judgment, have objected to any of the terms or conditions
thereof; all of the Related Documents shall be in full force and effect in the
form so received by the Lender Parties; the Borrower shall have paid or will,
concurrently with the Initial Extension of Credit, pay HIP no more than
$72,600,000 excluding fees and expenses of any working capital adjustments in
connection with the Acquisition and the Service Contract; and the Transaction
shall have been consummated or shall be consummated concurrently with the
Initial Extension of Credit in accordance with the terms of the Purchase
Agreement and the Service Contract (in each case, without any waiver or
amendment of any term or condition in any such Related Document not consented to
by the Lender parties) and in compliance with all applicable Requirements of Law
and the aggregate fees and expenses incurred by the Borrower and its
Subsidiaries in connection with the Transaction shall not have exceeded
$7,000,000.
(c) All of the governmental authorizations, and all of the consents, approvals
and authorizations of, and notices and filings to or with, and other actions by,
any other Person necessary in connection with any aspect of the Transaction, any
of the Loan Documents or the Related Documents or any of the other transactions
contemplated thereby, other than the governmental authorizations, and the
consents, approvals, authorizations, notices, filings and
<PAGE>
other actions described on Schedule 4.01(d) hereto, shall have been obtained
(without the imposition of any conditions that are not reasonably acceptable to
the Lender Parties) and shall remain in full force and effect; and all
applicable waiting periods shall have expired without any action being taken by
any competent authority.
(d) The Lender Parties shall be satisfied that (i) after giving effect to the
Acquisition, the Unused Revolving Credit Commitment available to the Borrower
shall not be less than $3,000,000 and (ii) all Existing Debt, other than the
Debt identified on Schedule 4.01(hh) (the "Surviving Debt"), has been prepaid,
--------------
redeemed or defeased in full or otherwise satisfied and extinguished and that
all such Surviving Debt shall be on terms and conditions satisfactory to the
Lender Parties.
(e) Before giving effect to the Transaction and the other transactions
contemplated by this Agreement, there shall have occurred no Material Adverse
Change in (i) the Borrower, together with its Subsidiaries, taken as a whole,
since April 30, 1997, (ii) HIP since December 31, 1996 (it being understood that
any operating losses of HIP for the period from January 1, 1997 through June 30,
1997 shall not constitute a Material Adverse Change), (iii) the Information
provided to the Lender Parties prior to the Closing Date, or (iv) the financial
markets, which, in the judgment of the Lender Parties, would make it impractical
or inadvisable to proceed with the funding of the Facility.
(f) There shall exist no action, suit, investigation, litigation or proceeding
affecting any Loan Party or any of its Subsidiaries pending or threatened before
any court, governmental agency or arbitrator that (i) could be reasonably likely
to have a Material Adverse Effect with respect to any Loan Party or any Lender
Party other than the matters described on Schedule 3.01(f) (the "Disclosed
---------
Litigation") or (ii) purports to affect the legality, validity or enforceability
- ----------
of the Transaction, this Agreement, any Note, any other Loan Document, any
Related Document or the consummation of the Transaction or the transactions
contemplated hereby.
(g) The Borrower shall have paid all accrued fees and expenses of the
Administrative Agent and the Lender Parties (including the accrued fees and
expenses of counsel to the Administrative Agent and local counsel to the Lender
Parties).
(h) The Borrower shall have executed a side letter signed by NationsBridge and
the Administrative Agent relating to fees, expenses and warrants, and such
letter shall be in full force and effect and the Borrower shall not have
breached any of its obligations thereunder.
(i) The Administrative Agent shall have received on or before the day of the
Initial Extension of Credit the following, each dated such day (unless otherwise
specified), in form and substance satisfactory to the Administrative Agent
(unless otherwise specified) and (except for the Notes) in sufficient copies for
each Lender Party:
(i) The Notes payable to the order of the Lenders.
<PAGE>
(ii) Certified copies of the resolutions of the Board of Directors (or
persons performing similar functions) of the Borrower and each other Loan Party
approving the Transaction, this Agreement, the Notes, each other Loan Document
and each Related Document to which it is or is to be a party, and of all
documents evidencing other necessary corporate (or the equivalent thereof)
action and governmental and other third party approvals and consents, if any,
with respect to the Transaction, this Agreement, the Notes, each other Loan
Document and each Related Document.
(iii) A copy of the Constitutive Documents of the Borrower and each
other Loan Party and each amendment thereto, certified (as of a date reasonably
near the date of the Initial Extension of Credit) by the Secretary of State (or
similar governmental authority) of the jurisdiction of its organization as being
a true and correct copy thereof.
(iv) A copy of a certificate of the Secretary of State (or similar
governmental authority) of the jurisdiction of its organization, dated
reasonably near the date of the Initial Extension of Credit, listing the charter
(or similar Constitutive Document) of the Borrower and each other Loan Party and
each amendment thereto on file in his office and certifying that (A) such
amendments are the only amendments to the Borrower's, or such other Loan Party's
charter (or similar Constitutive Document) on file in his office, (B) the
Borrower and each other Loan Party have paid all franchise taxes (or the
equivalent thereof) to the date of such certificate and (C) the Borrower, and
each other Loan Party are duly organized and in good standing under the laws of
the State of the jurisdiction of its organization.
(v) A copy of a certificate of the Secretary of State (or the equivalent
governmental authority) of each jurisdiction in which any Loan Party is
qualified or licensed as a foreign corporation, partnership, limited liability
company or other Person, dated reasonably near the date of the Initial Extension
of Credit, stating that the Borrower and each other Loan Party are duly
qualified and in good standing as a foreign corporation, partnership, limited
liability company or other Person in such State and have filed all annual
reports required to be filed to the date of such certificate.
(vi) A certificate of the Borrower, and each other Loan Party, signed on
behalf of the Borrower and such other Loan Party by its President or a Vice
President and its Secretary or any Assistant Secretary (or persons performing
similar functions), dated the date of the Initial Extension of Credit (the
statements made in which certificate shall be true on and as of the date of the
Initial Extension of Credit), certifying as to (A) the absence of any amendments
to the charter (or similar Constitutive Document) of the Borrower or such other
Loan Party since the date of the Secretary of State's (or equivalent
authority's) certificate referred to in Section 3.01(k)(iv), (B) a true and
correct copy of the bylaws (or similar Constitutive Document) of the Borrower,
and such other Loan Party as in effect on the date of the Initial Extension of
Credit, (C) the due organization and good standing of the Borrower and such
other Loan Party as a Person organized under the laws of the State of the
jurisdiction of its organization, and the absence of any proceeding for the
dissolution or liquidation of the Borrower or such other Loan Party, (D) the
truth of the representations and warranties contained in the Loan Documents as
though made on and as of the date of the Initial Extension of Credit and (E) the
absence of any
<PAGE>
event occurring and continuing, or resulting from the Initial Extension of
Credit, that constitutes a Default.
(vii) A certificate of the Secretary or an Assistant Secretary (or
persons performing similar functions) of the Borrower, and each other Loan Party
certifying the names and true signatures of the officers of the Borrower and
such other Loan Party authorized to sign this Agreement, the Notes, each other
Loan Document and each Related Document to which they are or are to be parties
and the other documents to be delivered hereunder and thereunder.
(viii) A security agreement in substantially the form of Exhibit D
(together with each other security agreement delivered pursuant to Section
5.01(p), in each case as amended, supplemented or otherwise modified from time
to time in accordance with its terms, the "Security Agreement"), duly executed
------------------
by the Borrower and each other Collateral Grantor, together with:
(A) certificates representing the Pledged Shares referred to
therein accompanied by undated stock powers executed in blank and
instruments evidencing the Pledged Debt referred to therein indorsed in
blank,
(B) proper financing statements, completed in a manner satisfactory
to the Lender Parties and duly executed by the applicable Loan Party on or
before the day of the Initial Extension of Credit under the Uniform
Commercial Code of all jurisdictions that the Administrative Agent may deem
necessary or desirable in order to perfect and protect the first priority
liens and security interests created under the Security Agreement, covering
the Collateral described in the Security Agreement,
(C) completed requests for information, dated on or before the date
of the Initial Extension of Credit, listing all of the effective financing
statements filed in the jurisdictions referred to in clause (B) above that
name the Borrower or any other Loan Party as debtor, together with copies
of such other financing statements,
(D) evidence of the completion of all other recordings and filings
of or with respect to the Security Agreement that the Administrative Agent
may deem necessary or desirable in order to perfect and protect the Liens
created thereby,
(E) evidence of the insurance required by the terms of the Security
Agreement,
(F) copies of the Assigned Agreements referred to in the Security
Agreement, together with a consent to such assignment, in substantially the
form of Exhibit B to the Security Agreement, duly executed by each party to
such Assigned Agreements other than the Borrower,
<PAGE>
(G) evidence that all other action that the Administrative Agent
may deem necessary or desirable in order to perfect and protect the first
priority liens and security interests created under the Security Agreement
has been taken.
(ix) A guaranty in substantially the form of Exhibit E duly executed by
each of the Subsidiary Guarantors (together with each other guaranty of any such
entity delivered pursuant to Section 5.01(p), in each case as amended,
supplemented or otherwise modified from time to time in accordance with its
terms, the "Subsidiary Guaranty").
-------------------
(x) Certified copies of each of the Related Documents, duly executed
by the parties thereto and in form and substance satisfactory to the Lender
Parties, together with all agreements, instruments and other documents delivered
in connection therewith.
(xi) Certificates, in the form attached hereto as Exhibit F, attesting
to the Solvency of each of the Borrower and each Subsidiary Guarantor after
giving effect to the Transaction and the other transactions contemplated hereby,
from its chief financial officer.
(xii) Evidence of insurance naming the Administrative Agent as insured
and loss payee with such responsible and reputable insurance companies or
associations, and in such amounts and covering such risks, as is satisfactory to
the Lender Parties.
(xiii) Certified copies of all Material Contracts of each Loan Party and
its Subsidiaries.
(xiv) A favorable opinion of Fried, Frank, Harris, Shriver & Jacobson,
counsel for the Loan Parties, in substantially the form of Exhibit G hereto and
as to such other matters as any Lender Party through the Administrative Agent
may reasonably request.
(xvi) A favorable opinion of Shearman & Sterling, counsel for the
Administrative Agent, in form and substance satisfactory to the Lender Parties.
(xvii) A certificate of the chief financial officer of the Borrower
demonstrating that, on a pro forma basis after giving effect to the Transaction
and the other transactions contemplated hereby and reflecting estimated purchase
price accounting adjustments, Consolidated EBITDA of the Borrower and its
Subsidiaries for the 12-month period ended July 31, 1997 is at least
$45,000,000.
(j) Resolution of the $40,000,000 HIP of New York note in a manner
satisfactory to NationsBank and NationsBridge.
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance. The
---------------------------------------------------
obligation of each Appropriate Lender to make an Advance (other than a Letter of
Credit Advance made by an Issuing Bank or a Revolving Credit Lender pursuant to
Section 2.03(b)) on the occasion of each Borrowing (including the Initial
Extension of Credit), and the obligation of the Issuing Bank to issue a Letter
of Credit (including the initial issuance) or renew a Letter of Credit, shall
<PAGE>
be subject to the further conditions precedent that on the date of such
Borrowing or issuance or renewal (a) the following statements shall be true (and
each of the giving of the applicable Notice of Borrowing, Notice of Issuance or
Notice of Renewal and the acceptance by the Borrower of the proceeds of such
Borrowing or of such Letter of Credit or the renewal of such Letter of Credit
shall constitute a representation and warranty by the Borrower that both on the
date of such notice and on the date of such Borrowing or issuance or renewal
such statements are true):
(i) the representations and warranties contained in each Loan Document are
correct in all material respects on and as of such date, before and after giving
effect to such Borrowing or issuance or renewal and to the application of the
proceeds therefrom, as though made on and as of such date other than any such
representations or warranties that, by their terms, refer to a specific date
other than the date of such Borrowing or issuance or renewal, in which case as
of such specific date; and
(ii) no event has occurred and is continuing, or would result from such
Borrowing or issuance or renewal or from the application of the proceeds
therefrom, that constitutes a Default;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Appropriate Lender through the Administrative Agent
may reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes of determining
---------------------------------
compliance with the conditions specified in Section 3.01, each Lender Party
shall be deemed to have consented to, approved or accepted or to be satisfied
with each document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Initial Extension of Credit specifying its objection thereto
and if the Initial Extension of Credit consists of a Borrowing, such Lender
Party shall not have made available to the Administrative Agent such Lender
Party's ratable portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The Borrower
----------------------------------------------
represents and warrants as follows:
(a) Each Loan Party (i) is a corporation, a limited liability company or a
partnership duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization, (ii) is duly qualified and in good
standing as a foreign corporation, limited liability company or partnership in
each other jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed except where
the failure to so qualify or be licensed would not be reasonably likely to have
a Material Adverse Effect with respect to any Loan Party or any Lender Party and
(iii) has all requisite power and authority
<PAGE>
(including, without limitation, all governmental licenses, permits and other
approvals) to own or lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted except where the
absence of such power or authority would not be reasonably likely to have a
Material Adverse Effect with respect to any Loan Party or any Lender Party.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of
all Subsidiaries of each Loan Party, showing as of the date hereof (as to each
such Subsidiary) the jurisdiction of its organization, the number of shares of
each class of capital stock or other equity interest authorized, and the number
outstanding, on the date hereof and the percentage of the outstanding shares or
other equity interest of each such class owned (directly or indirectly) by such
Loan Party and the number of shares or other equity interest covered by all
outstanding options, warrants, rights of conversion or purchase and similar
rights at the date hereof. All of the outstanding capital stock or other equity
interest of all of such Subsidiaries has been validly issued, is fully paid and
non-assessable and is owned by such Loan Party or one or more of its
Subsidiaries free and clear of all Liens, except those created under the Loan
Documents or as disclosed in such Schedule. Each such Subsidiary (i) is a
corporation, limited liability company or partnership duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (ii) is duly qualified and in good standing as a foreign
corporation, limited liability company or partnership in each other jurisdiction
in which it owns or leases property or in which the conduct of its business
requires it to so qualify or be licensed except where the failure to so qualify
or be licensed would not be reasonably likely to have a Material Adverse Effect
with respect to any Loan Party or any Lender Party and (iii) has all requisite
power and authority (including, without limitation, all governmental licenses,
permits and other approvals) to own or lease and operate its properties and to
carry on its business as now conducted and as proposed to be conducted except
where the absence of such power of authority would not be reasonably likely to
have a Material Adverse Effect with respect to any Loan Party or any Lender
Party.
(c) The execution, delivery and performance by each Loan Party of this
Agreement, the Notes, each other Loan Document and each Related Document to
which it is or is to be a party, and the consummation of the Transaction and the
other transactions contemplated hereby, are within such Loan Party's corporate
(or equivalent thereof) powers, have been duly authorized by all necessary
action, and do not (i) contravene such Loan Party's Constitutive Documents, (ii)
violate any law (including, without limitation, the Securities Exchange Act of
1934 and the Racketeer Influenced and Corrupt Organizations Chapter of the
Organized Crime Control Act of 1970), rule, regulation (including, without
limitation, Regulation X of the Board of Governors of the Federal Reserve
System), order, writ, judgment, injunction, decree, determination or award,
(iii) conflict with or result in the breach of, or constitute a default under,
any contract, loan agreement, indenture, mortgage, deed of trust, lease or other
instrument binding on or affecting any Loan Party, any of its Subsidiaries or
any of their properties or (iv) except for the Liens created under the Loan
Documents, result in or require the creation or imposition of any Lien upon or
with respect to any of the properties of any Loan Party or any of its
Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any
such law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award or in breach of any such contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument, the violation or
breach
<PAGE>
of which could be reasonably likely to have a Material Adverse Effect with
respect to any Loan Party or any Lender Party.
(d) No authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or any other third
party is required for (i) the due execution, delivery, recordation, filing or
performance by any Loan Party of this Agreement, the Notes, any other Loan
Document or any Related Document to which it is or is to be a party, or for the
consummation of the Transaction or the other transactions contemplated hereby,
(ii) the grant by any Loan Party of the Liens granted by it pursuant to the
Collateral Documents, (iii) the perfection or maintenance of the Liens created
by the Collateral Documents (including the first priority nature thereof) or
(iv) the exercise by the Administrative Agent or any Lender Party of its rights
under the Loan Documents or the remedies in respect of the Collateral pursuant
to the Collateral Documents, except for the authorizations, approvals, actions,
notices and filings listed on Schedule 4.01(d), all of which have been duly
obtained, taken, given or made and are in full force and effect. All applicable
waiting periods in connection with the Transaction and the other transactions
contemplated hereby have expired without any action having been taken by any
competent authority restraining, preventing or imposing materially adverse
conditions upon the Transaction or the rights of the Loan Parties or their
Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien
on, any properties now owned or hereafter acquired by any of them.
(e) This Agreement has been, and each of the Notes, each other Loan Document
and each Related Document when delivered hereunder will have been, duly executed
and delivered by each Loan Party thereto. This Agreement is, and each of the
Notes, each other Loan Document and each Related Document when delivered
hereunder will be, the legal, valid and binding obligation of each Loan Party
thereto, enforceable against such Loan Party in accordance with its terms except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect that
affect creditors' rights generally, general principles of equity (including,
without limitation, standards of materiality, good faith, fair dealing and
reasonableness) whether such principles are considered in a proceeding in equity
or at law, and the application of any fraudulent conveyance, fraudulent
transfer, fraudulent obligation, or preferential transfer law or any law
governing the distribution of assets of any Person.
(f) The Consolidated balance sheets of the Borrower and its Subsidiaries as at
April 30, 1997, and the related Consolidated statements of income and
Consolidated statement of cash flows of the Borrower and its Subsidiaries for
the fiscal year then ended, accompanied by an opinion of Coopers & Lybrand
L.L.P., independent public accountants, and the Consolidated balance sheet of
the Borrower and its Subsidiaries as at July 31, 1997, and the related
Consolidated statement of income and Consolidated statement of cash flows of the
Borrower and its Subsidiaries for the three months then ended, duly certified by
the chief financial officer of the Borrower, copies of which have been furnished
to each Lender Party, fairly present, subject, in the case of said balance sheet
as at July 31, 1997, and said statement of income and cash flows for the three
months then ended, to year-end audit adjustments, the Consolidated financial
condition of the Borrower and its Subsidiaries as at such dates and the
Consolidated results of the
<PAGE>
operations of the Borrower and its Subsidiaries for the periods ended on such
dates, all in accordance with generally accepted accounting principles applied
on a consistent basis, and since April 30, 1997, there has been no Material
Adverse Change with respect to the Borrower and its Subsidiaries, taken as a
whole.
(g) The Consolidated pro forma balance sheets of the Borrower and its
Subsidiaries as at July 31, 1997, and the related Consolidated pro forma
statements of income and cash flows of the Borrower and its Subsidiaries for the
three months then ended, certified by the chief financial officer of the
Borrower, copies of which have been furnished to each Lender Party, fairly
present the Consolidated pro forma financial condition of the Borrower and its
Subsidiaries as at such date and the Consolidated pro forma results of
operations of the Borrower and its Subsidiaries for the period ended on such
date, in each case giving effect to the Transaction and the other transactions
contemplated hereby, all in accordance with GAAP.
(h) The Consolidated forecasted balance sheets, income statements and cash
flows statements of the Borrower and its Subsidiaries delivered to the Lender
Parties pursuant to Section 3.01(k)(xii) or 5.03 were prepared in good faith on
the basis of the assumptions stated therein, which assumptions were fair in the
light of conditions existing at the time of delivery of such forecasts, and
represented, at the time of delivery, the Borrower's best estimate of its future
financial performance.
(i) Neither the Information nor any other information, exhibit or report
furnished by any Loan Party to the Administrative Agent or any Lender Party in
connection with the negotiation of the Loan Documents or pursuant to the terms
of the Loan Documents contained any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements made therein
not misleading.
(j) There is no action, suit, investigation, litigation or proceeding
affecting any Loan Party or any of its Subsidiaries, including any Environmental
Action, pending or, to the best of any Loan Party's knowledge, threatened before
any court, governmental agency or arbitrator that (i) could be reasonably likely
to have a Material Adverse Effect with respect to any Loan Party or any Lender
Party or (ii) purports to affect the legality, validity or enforceability of the
Transaction, this Agreement, any Note, any other Loan Document or any Related
Document or the consummation of the transactions contemplated thereby.
(k) No proceeds of any Advance or drawings under any Letter of Credit will be
used to acquire any equity security of a class that is registered pursuant to
Section 12 of the Securities Exchange Act of 1934.
(l) The Borrower is not engaged in the business of extending credit for the
purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance
or drawings under any Letter of Credit will be used to purchase or carry any
Margin Stock or to extend credit to others for the purpose of purchasing or
carrying any Margin Stock.
<PAGE>
(m) Following application of the proceeds of each Advance or drawing under
each Letter of Credit, not more than 25% of the value of the assets (either of
the Borrower only or of the Borrower and its Subsidiaries on a Consolidated
basis) subject to the provisions of Section 5.02(a) or 5.02(e) or subject to any
restriction contained in any agreement or instrument between the Borrower and
any Lender Party or any Affiliate of any Lender Party relating to Debt and
within the scope of Section 6.01(e) will be Margin Stock.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of
all material Plans, Multiemployer Plans and Welfare Plans.
(o) No ERISA Event has occurred or is reasonably expected to occur with
respect to any Plan that has resulted in or is reasonably expected to result in
a material liability of any Loan Party or any ERISA Affiliate.
(p) As of the last annual actuarial valuation date, the funded current
liability percentage, as defined in Section 302(d)(8) of ERISA, of each Plan
exceeds 90% and there has been no material adverse change in the funding status
of any such Plan since such date.
(q) Neither any Loan Party nor any ERISA Affiliate has incurred or is
reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan.
(r) Neither any Loan Party nor any ERISA Affiliate has been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or has been terminated, within the meaning of Title IV of ERISA,
and no such Multiemployer Plan is reasonably expected to be in reorganization or
to be terminated, within the meaning of Title IV of ERISA.
(s) Except as set forth in the financial statements referred to in this
Section 4.01 and in Section 5.03, the Loan Parties and their respective
Subsidiaries have no material liability with respect to "expected post
retirement benefit obligations" within the meaning of Statement of Financial
Accounting Standards No. 106.
(t) Neither the business nor the properties of any Loan Party or any of its
Subsidiaries are affected by any fire, explosion, accident, strike, lockout or
other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of
the public enemy or other casualty (whether or not covered by insurance) that
could be reasonably likely to have a Material Adverse Effect with respect to any
Loan Party or any Lender Party.
(u) The operations and properties of each Loan Party and each of its
Subsidiaries comply in all material respects with all applicable Environmental
Laws and Environmental Permits, all past non-compliance with such Environmental
Laws and Environmental Permits has been resolved without ongoing obligations or
costs, and no circumstances exist that could be reasonably likely to (i) form
the basis of an Environmental Action against any Loan Party or any of its
Subsidiaries or any of their properties that is likely to have a Material
Adverse Effect with respect to any Loan Party or any Lender Party or (ii) cause
any such property to be subject to any
<PAGE>
restrictions on ownership, occupancy, use or transferability under any
Environmental Law that is likely to have a Material Adverse Effect with respect
to any Loan Party or any Lender Party.
(v) None of the properties currently or formerly owned or operated by any Loan
Party or any of its Subsidiaries is listed or proposed for listing on the NPL or
on the CERCLIS or any analogous foreign, state or local list or is adjacent to
any such property; there are no and never have been any underground or
aboveground storage tanks or any surface impoundments, septic tanks, pits, sumps
or lagoons in which Hazardous Materials are being or have been treated, stored
or disposed on any property currently owned or operated by any Loan Party or any
of its Subsidiaries or, to the best of its knowledge, on any property formerly
owned or operated by any Loan Party or any of its Subsidiaries; there is no
asbestos or asbestos-containing material on any property currently owned or
operated by any Loan Party or any of its Subsidiaries; and Hazardous Materials
have not been released, discharged or disposed of on any property currently or
formerly owned or operated by any Loan Party or any of its Subsidiaries.
(w) Neither any Loan Party nor any of its Subsidiaries is undertaking, and has
not completed, either individually or together with other potentially
responsible parties, any investigation or assessment or remedial or response
action relating to any actual or threatened release, discharge or disposal of
Hazardous Materials at any site, location or operation, either voluntarily or
pursuant to the order of any governmental or regulatory authority or the
requirements of any Environmental Law; and all Hazardous Materials generated,
used, treated, handled or stored at, or transported to or from, any property
currently or formerly owned or operated by any Loan Party or any of its
Subsidiaries have been disposed of in a manner not reasonably expected to result
in material liability to any Loan Party or any of its Subsidiaries.
(x) Neither any Loan Party nor any of its Subsidiaries is a party to any
indenture, loan or credit agreement or any lease or other agreement or
instrument or subject to any charter or corporate restriction that could be
reasonably likely to have a Material Adverse Effect with respect to any Loan
Party or any Lender Party.
(y) The Collateral Documents create a valid and perfected first priority
security interest in the Collateral, securing the payment of the Secured
Obligations (as defined therein), and all filings and other actions necessary or
desirable to perfect and protect such security interest have been duly taken.
The Loan Parties are the legal and beneficial owners of the Collateral free and
clear of any Lien, except for the liens and security interests created or
permitted under the Loan Documents.
(z) Each Loan Party and each of its Subsidiaries and Affiliates has filed, has
caused to be filed or has been included in all tax returns (Federal, state,
local and foreign) required to be filed and has paid all taxes shown thereon to
be due, together with applicable interest and penalties.
(aa) Set forth on Schedule 4.01(aa) hereto is a complete and accurate list, as
of the date hereof, of each taxable year of each Loan Party and each of its
Subsidiaries and Affiliates for which Federal income tax returns have been filed
and for which the expiration of the applicable
<PAGE>
statute of limitations for assessment or collection has not occurred by reason
of extension or otherwise (an "Open Year").
---------
(bb) The aggregate unpaid amount, as of the date hereof, of adjustments to the
Federal income tax liability of each Loan Party and each of its Subsidiaries and
Affiliates proposed by the Internal Revenue Service with respect to Open Years
does not exceed $500,000. No issues have been raised by the Internal Revenue
Service in respect of Open Years that, in the aggregate, could be reasonably
likely to have a Material Adverse Effect with respect to any Loan Party or any
Lender Party.
(cc) The aggregate unpaid amount, as of the date hereof, of adjustments to the
state, local and foreign tax liability of each Loan Party and its Subsidiaries
and Affiliates proposed by all state, local and foreign taxing authorities
(other than amounts arising from adjustments to Federal income tax returns) does
not exceed $250,000. No issues have been raised by such taxing authorities
that, in the aggregate, could be reasonably likely to have a Material Adverse
Effect with respect to any Loan Party or any Lender Party.
(dd) The Acquisition will not be taxable to the Borrower or any of its
Subsidiaries or Affiliates.
(ee) Neither any Loan Party nor any of its Subsidiaries is an "investment
company," or an "affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended. Neither the making of any Advances, nor the
issuance of any Letters of Credit, nor the application of the proceeds or
repayment thereof by the Borrower, nor the consummation of the other
transactions contemplated hereby, will violate any provision of such Act or any
rule, regulation or order of the Securities and Exchange Commission thereunder.
(ff) Each Loan Party is, individually and together with its Subsidiaries,
Solvent.
(gg) Set forth on Schedule 4.01(gg) hereto is a complete and accurate list of
all Existing Debt (other than Surviving Debt), showing as of the date hereof the
principal amount outstanding thereunder.
(hh) Set forth on Schedule 4.01(hh) hereto is a complete and accurate list of
all Surviving Debt, showing as of the date hereof the principal amount
outstanding thereunder, the maturity date thereof and the amortization schedule
therefor.
(ii) Set forth on Schedule 4.01(ii) hereto is a complete and accurate list of
all real property owned by any Loan Party or any of its Subsidiaries, showing as
of the date hereof the street address, county or other relevant jurisdiction,
state, record owner and book and estimated fair value thereof. Each Loan Party
or such Subsidiary has good, marketable and insurable fee simple title to such
real property, free and clear of all Liens, other than Liens created or
permitted by the Loan Documents.
<PAGE>
(jj) Set forth on Schedule 4.01(jj) hereto is a complete and accurate list of
all leases of real property under which any Loan Party or any of its
Subsidiaries is the lessee, showing as of the date hereof the street address,
county or other relevant jurisdiction, state, lessor, lessee, expiration date
and annual rental cost thereof. Each such lease is the legal, valid and binding
obligation of the lessor thereof, enforceable in accordance with its terms
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect that
affect creditors' rights generally, general principles of equity (including,
without limitation, standards of materiality, good faith, fair dealing and
reasonableness) whether such principles are considered in a proceeding in equity
or at law, and the application of any fraudulent conveyance, fraudulent
transfer, fraudulent obligation, or preferential transfer law or any law
governing the distribution of assets of any Person.
(kk) Set forth on Schedule 4.01(kk) hereto is a complete and accurate list of
all Material Contracts of each Loan Party and its Subsidiaries, showing as of
the date hereof the parties, subject matter and term thereof. Each such
Material Contract has been duly authorized, executed and delivered by all
parties thereto, has not been amended or otherwise modified (other than as
specified on Schedule 4.01(kk)), is in full force and effect and is binding upon
and enforceable against all parties thereto in accordance with its terms except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect that
affect creditors' rights generally, general principles of equity (including,
without limitation, standards of materiality, good faith, fair dealing and
reasonableness) whether such principles are considered in a proceeding in equity
or at law, and the application of any fraudulent conveyance, fraudulent
transfer, fraudulent obligation, or preferential transfer law or any law
governing the distribution of assets of any Person; and there exists no material
default under any such Material Contract by any party thereto.
(ll) Set forth on Schedule 4.01(ll) hereto is a complete and accurate list of
all Investments held by any Loan Party or any of its Subsidiaries, showing as of
the date hereof the amount, obligor or issuer and maturity, if any, thereof.
(mm) Set forth on Schedule 4.01(mm) hereto is a complete and accurate list of
all material patents, trademarks, trade names, service marks and copyrights, and
all applications therefor and licenses thereof, of each Loan Party or any of its
Subsidiaries, showing as of the date hereof the jurisdiction in which
registered, the registration number, the date of registration and the expiration
date.
(nn) The Acquisition has been consummated in all material respects pursuant to
the terms of the Purchase Agreement.
ARTICLE V
COVENANTS OF THE BORROWER
<PAGE>
SECTION 5.01. Affirmative Covenants. So long as any Advance shall remain
---------------------
unpaid, any Letter of Credit shall be outstanding or any Lender Party shall have
any Commitment hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries
-------------------------
to comply, in all material respects, with all applicable laws, rules,
regulations and orders, such compliance to include, without limitation,
compliance with ERISA and the Racketeer Influenced and Corrupt Organizations
Chapter of the Organized Crime Control Act of 1970.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
---------------------
Subsidiaries to pay and discharge, before the same shall become delinquent, (i)
all taxes, assessments and governmental charges or levies imposed upon it or
upon its property and (ii) all lawful claims that, if unpaid, might by law
become a Lien upon its property; provided, however, that neither the Borrower
-------- -------
nor any of its Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained, unless
and until any Lien resulting therefrom attaches to its property and becomes
enforceable against its other creditors.
(c) Compliance with Environmental Laws. Comply, and cause each of its
----------------------------------
Subsidiaries and all lessees and other Persons operating or occupying its
properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew and cause each of
its Subsidiaries to obtain and renew all Environmental Permits necessary for its
operations and properties; and conduct, and cause each of its Subsidiaries to
conduct, any investigation, study, sampling and testing, and undertake any
cleanup, removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in accordance with the
requirements of all Environmental Laws; provided, however, that neither the
-------- -------
Borrower nor any of its Subsidiaries shall be required to undertake any such
cleanup, removal, remedial or other action to the extent that its obligation to
do so is being contested in good faith and by proper proceedings and appropriate
reserves are being maintained with respect to such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its Subsidiaries
------------------------
to maintain, insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually carried by
companies engaged in similar businesses and owning similar properties in the
same general areas in which the Borrower or such Subsidiary operates.
(e) Preservation of Corporate Existence, Etc. Preserve and maintain, and
----------------------------------------
cause each of its Subsidiaries to preserve and maintain, its existence, legal
structure, legal name, rights (charter and statutory), permits, licenses,
approvals, privileges and franchises; provided, however, that neither the
-------- -------
Borrower nor any of its Subsidiaries shall be required to preserve any right,
permit, license, approval, privilege or franchise if the Board of Directors of
the Borrower or such Subsidiary shall determine that the preservation thereof is
no longer desirable in the conduct of the business of the Borrower or such
Subsidiary, as the case may be, and that the loss thereof is not disadvantageous
in any material respect to the Borrower, and its Subsidiaries, taken
<PAGE>
as a whole, or the Lender Parties; provided further that nothing in this Section
-------- -------
5.01(e) shall prevent the consummation of any merger or consolidation permitted
pursuant to Section 5.02(d).
(f) Visitation Rights. At any reasonable time and from time to time,
-----------------
permit the Administrative Agent or any of the Lender Parties or any agents or
representatives thereof to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of, the Borrower and
any of its Subsidiaries, and to discuss the affairs, finances and accounts of
the Borrower and any of its Subsidiaries with any of their officers or directors
and with their independent certified public accountants.
(g) Preparation of Environmental Reports. At the reasonable request of the
------------------------------------
Administrative Agent from time to time, provide to the Lender Parties within 60
days after such request, at the expense of the Borrower, an environmental site
assessment report for any of its or its Subsidiaries' properties described in
such request, prepared by an environmental consulting firm acceptable to the
Administrative Agent, indicating the presence or absence of Hazardous Materials
and the estimated cost of any compliance, removal or remedial action in
connection with any Hazardous Materials on such properties; without limiting the
generality of the foregoing, if the Administrative Agent determines at any time
that a material risk exists that any such report will not be provided within the
time referred to above, the Administrative Agent may retain an environmental
consulting firm to prepare such report at the expense of the Borrower, and the
Borrower hereby grants and agrees to cause any Subsidiary that owns any property
described in such request to grant at the time of such request, to the
Administrative Agent, the Lender Parties, such firm and any agents or
representatives thereof an irrevocable non-exclusive license, subject to the
rights of tenants, to enter onto their respective properties to undertake such
an assessment.
(h) Keeping of Books. Keep, and cause each of its Subsidiaries to keep,
----------------
proper books of record and account, in which full and correct entries shall be
made of all financial transactions and the assets and business of the Borrower
and each such Subsidiary in accordance with generally accepted accounting
principles in effect from time to time.
(i) Maintenance of Properties, Etc. Maintain and preserve, and cause each
------------------------------
of its Subsidiaries to maintain and preserve, all of its properties that are
used or useful in the conduct of its business in good working order and
condition, ordinary wear and tear excepted; provided, however, that neither the
-------- -------
Borrower nor any of its Subsidiaries shall be required to maintain and preserve
any such property if the Board of Directors of the Borrower or such Subsidiary
shall determine that the maintenance and preservation thereof is no longer
desirable in the conduct of the business of the Borrower or such Subsidiary, as
the case may be, and that the loss thereof is not disadvantageous in any
material respect to the Borrower and its Subsidiaries, taken as a whole, or the
Lender Parties.
(j) Compliance with Terms of Leaseholds. Make all payments and otherwise
-----------------------------------
perform all obligations in respect of all leases of real property to which the
Borrower or any of its Subsidiaries is a party, keep such leases in full force
and effect and not allow such leases to lapse or be terminated or any rights to
renew such leases to be forfeited or cancelled, notify the
<PAGE>
Administrative Agent of any default by any party with respect to such leases and
cooperate with the Administrative Agent in all respects to cure any such
default, and cause each of its Subsidiaries to do so except, in any case, where
the failure to do so, either individually or in the aggregate, could not be
reasonably likely to have a Material Adverse Effect with respect to any Loan
Party or any Lender Party.
(k) Performance of Related Documents and Subordinated Debt Documents.
----------------------------------------------------------------
Perform and observe all of the terms and provisions of each Related Document and
each Subordinated Debenture Document to be performed or observed by it, maintain
each such Related Document and Subordinated Debenture Document in full force and
effect, enforce such Related Document and Subordinated Debenture Document in
accordance with its terms, take all such action to such end as may be from time
to time requested by the Administrative Agent and, upon request of the
Administrative Agent, make to each other party to each such Related Document and
Subordinated Debenture Document such demands and requests for information and
reports or for action as the Borrower is entitled to make under such Related
Document or Subordinated Debenture Document, as the case may be.
(l) Performance of Material Contracts. Perform and observe all the terms
---------------------------------
and provisions of each Material Contract to be performed or observed by it,
maintain each such Material Contract in full force and effect, enforce each such
Material Contract in accordance with its terms, take all such action to such end
as may be from time to time requested by the Administrative Agent and, upon
request of the Administrative Agent, make to each other party to each such
Material Contract such demands and requests for information and reports or for
action as the Borrower is entitled to make under such Material Contract, and
cause each of its Subsidiaries to do so except, in any case, where the failure
to do so, either individually or in the aggregate, could not be reasonably
likely to have a Material Adverse Effect with respect to any Loan Party or any
Lender Party.
(m) Transactions with Affiliates. Conduct, and cause each of its
----------------------------
Subsidiaries to conduct, all transactions otherwise permitted under the Loan
Documents with any of their Affiliates on terms that are fair and reasonable and
no less favorable to the Borrower or such Subsidiary than it would obtain in a
comparable arm's-length transaction with a Person not an Affiliate.
(n) Cash Concentration Accounts. Maintain and cause each Collateral Grant
---------------------------
or to maintain main cash concentration accounts with NationsBank and, on and
after November 15, 1997, maintain and cause each Collateral Grantor to maintain
Lockbox Accounts into which all proceeds of Collateral are paid with NationsBank
or one or more banks acceptable to the Administrative Agent that have accepted
the assignment of such accounts to the Administrative Agent pursuant to the
terms of the Security Agreement.
(o) Termination of Financing Statements. Upon the request of the
-----------------------------------
Administrative Agent, and at the expense of the Borrower, within 10 days after
such request, furnish to the Administrative Agent proper termination statements
on Form UCC-3 covering such financing statements as the Administrative Agent may
reasonably request.
<PAGE>
(p) Covenant to Give Security. Upon the request of the Administrative
-------------------------
Agent following the occurrence and during the continuance of a Default, and at
the expense of the Borrower, (i) within 10 days after such request, furnish to
the Administrative Agent a description of the real and personal properties of
the Borrower and the Subsidiary Guarantors in detail satisfactory to the
Administrative Agent, (ii) within 15 days after such request, duly execute and
deliver to the Administrative Agent mortgages, pledges, assignments and other
security agreements, as specified by and in form and substance satisfactory to
the Administrative Agent, securing payment of all the Obligations of the
Borrower under the Loan Documents and constituting Liens on all such properties,
(iii) within 30 days after such request, take whatever action (including,
without limitation, the recording of mortgages, the filing of Uniform Commercial
Code financing statements, the giving of notices and the endorsement of notices
on title documents) may be necessary or advisable in the opinion of the
Administrative Agent to vest in the Administrative Agent (or in any
representative of the Administrative Agent designated by it) valid and
subsisting Liens on the properties purported to be subject to the security
agreements delivered pursuant to this Section 5.01(p), enforceable against all
third parties in accordance with their terms, (iv) within 60 days after such
request, deliver to the Administrative Agent a signed copy of a favorable
opinion of counsel for the Borrower, addressed to and acceptable to the
Administrative Agent, as to the matters contained in clauses (i), (ii) and (iii)
above, as to such security agreements being legal, valid and binding obligations
of the Borrower and the Subsidiary Guarantors enforceable in accordance with
their terms (except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect that affect creditors' rights generally, general principles of equity
(including, without limitation, standards of materiality, good faith, fair
dealing and reasonableness) whether such principles are considered in a
proceeding in equity or at law, and the application of any fraudulent
conveyance, fraudulent, transfer, fraudulent obligation or preferential transfer
law or any law governing the distribution of assets of any Person) and as to
such other matters as the Administrative Agent may reasonably request, (v) as
promptly as practicable after such request, deliver to the Administrative Agent
surveys meeting the criteria specified in Section 5.01(r)(iii) and Mortgage
Policies as to each parcel of real property subject to such request and (vi) at
any time and from time to time, promptly execute and deliver any and all further
instruments and documents and take all such other action as the Administrative
Agent may reasonably deem desirable in obtaining the full benefits of, or in
preserving the Liens of, such security agreements.
(q) Conditions Subsequent to Initial Extension of Credit. Deliver to the
----------------------------------------------------
Administrative Agent as soon as possible and in any event within 30 days after
the Initial Extension of Credit (or such later date as may be agreed by the
Borrower and the Administrative Agent):
(i) acknowledgment copies of proper financing statements, duly filed
under the Uniform Commercial Code of all jurisdictions that the Administrative
Agent may deem necessary or desirable in order to perfect and protect the first
priority liens and security interests created under the Collateral Documents,
covering the Collateral described therein;
<PAGE>
(ii) completed requests for information, listing the financing
statements referred to in clause (i) above and all other effective financing
statements filed in the jurisdictions referred to in clause (i) above that name
the Borrower or any other Loan Party as debtor, together with copies of such
financing statements;
(iii) deeds of trust, trust deeds, mortgages, leasehold mortgages and
leasehold deeds of trust in form and substance satisfactory to the
Administrative Agent and covering the properties listed on Schedule 5.01(f)(iii)
(together with each other mortgage delivered pursuant to Section 5.01(q), in
each case as amended, supplemented or otherwise modified from time to time in
accordance with their terms, the "Mortgages"), duly executed by the Borrower and
---------
each other Collateral Grantor, together with:
(A) evidence that counterparts of the Mortgages have been duly
recorded on or before the day of the Initial Extension of Credit in all
filing or recording offices that the Administrative Agent may deem
necessary or desirable in order to create a valid first and subsisting Lien
on the property described therein in favor of the Secured Parties and the
Issuing Bank and that all filing and recording taxes and fees have been
paid,
(B) fully paid American Land Title Association Lender's Extended
Coverage title insurance policies (the "Mortgage Policies") in form and
-----------------
substance, with endorsements and in amounts acceptable to the
Administrative Agent, issued, coinsured and reinsured by title insurers
acceptable to the Administrative Agent, insuring the Mortgages to be valid
first and subsisting Liens on the property described therein, free and
clear of all defects (including, but not limited to, mechanics' and
materialmen's Liens) and encumbrances, excepting only Permitted
Encumbrances, and providing for such other affirmative insurance (including
endorsements for future advances under the Loan Documents and for
mechanics' and materialmen's Liens) and such coinsurance and direct access
reinsurance as the Administrative Agent may deem necessary or desirable,
(C) American Land Title Association form surveys, dated no more
than 30 days before the day of the Initial Extension of Credit, certified
to the Administrative Agent and the issuer of the Mortgage Policies in a
manner satisfactory to the Administrative Agent by a land surveyor duly
registered and licensed in the States in which the property described in
such surveys is located and acceptable to the Administrative Agent, showing
all buildings and other improvements, any off-site improvements, the
location of any easements, parking spaces, rights of way, building set-back
lines and other dimensional regulations and the absence of encroachments,
either by such improvements or on to such property, and other defects,
other than encroachments and other defects acceptable to the Administrative
Agent,
(D) the Assignments of Leases and Rents referred to in the
Mortgages, duly executed by the Borrower and each other Collateral Grantor,
<PAGE>
(E) such consents and agreements of lessors and other third
parties, and such estoppel letters and other confirmations, as the
Administrative Agent may deem necessary or desirable,
(F) evidence of the insurance required by the terms of the
Mortgages, and
(G) evidence that all other action that the Administrative Agent
may deem necessary or desirable in order to create valid first and
subsisting Liens on the property described in the Mortgages has been taken;
(iv) the Lockbox Letters referred to in the Security Agreement, duly
executed by each Lockbox Bank referred to in the Security Agreement; and
(v) evidence reasonably satisfactory to the Administrative Agent that
the Borrower has obtained additional general liability insurance such that the
aggregate amount of general liability insurance equals at least $40,000,000 with
such responsible and reputable insurance companies or associations as is
satisfactory to the Lender Parties.
(r) Further Assurances. Promptly upon the request of the Administrative
------------------
Agent, or any of the Lender Parties through the Administrative Agent, at any
time and from time to time, do, execute, acknowledge, deliver, record, rerecord,
file, refile, register and reregister, and cause of each of its Subsidiaries
promptly to do, execute, acknowledge, deliver, rerecord, record, file, refile,
register and reregister, any and all further acts, conveyances, security
agreements, assignments, floating and fixed debentures, pledge agreements,
estoppel certificates, financing statements and continuations thereof,
termination statements, notices of assignment, transfers, mortgages, deeds of
trust, certificates, assurances and other instruments as the Administration
Agent, or any of the Lender Parties through the Administrative Agent, may
reasonably require from time to time in order to (A) carry out more effectively
the purposes of this Agreement, the Notes or any of the other Loan Documents,
(B) subject any of the property, assets, rights or interests of the Borrower or
any of its domestic Subsidiaries included or intended to be included in the
Collateral to the Liens created or now or hereafter intended to be created under
any of the Collateral Documents, (C) perfect and maintain the validity,
effectiveness and priority of any of the Collateral Documents or any of the
Liens created or intended to be created thereunder and (D) assure, convey,
grant, assign, transfer, preserve, protect and confirm more effectively unto the
Administrative Agent and the Secured Parties the rights granted or now or
hereafter intended to be granted to the Administrative Agent and the Secured
Parties under any of the Loan Documents or under any of the other instruments
executed in connection with any of the Loan Documents to which the Borrower or
any of its domestic Subsidiaries is or is to be a party.
(s) Material Subsidiary. Promptly upon a Subsidiary becoming a Material
-------------------
Subsidiary (whether through a change in law, the receipt of requisite regulatory
approval or an increase in such Subsidiary's total assets or gross revenues),
such Subsidiary shall become an additional grantor pursuant to the terms of the
Security Agreement and shall become a Subsidiary Guarantor pursuant to the terms
of the Subsidiary Guaranty.
<PAGE>
SECTION 5.02. Negative Covenants. So long as any Advance shall remain
------------------
unpaid, any Letter of Credit shall be outstanding or any Lender Party shall have
any Commitment hereunder, the Borrower will not, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit any of
----------
its Subsidiaries to create, incur, assume or suffer to exist, any Lien on or
with respect to any of its properties of any character (including, without
limitation, accounts) whether now owned or hereafter acquired, or sign or file
or suffer to exist, or permit any of its Subsidiaries to sign or file or suffer
to exist, under the Uniform Commercial Code of any jurisdiction, a financing
statement that names the Borrower or any of its Subsidiaries as debtor, or sign
or suffer to exist, or permit any of its Subsidiaries to sign or suffer to
exist, any security agreement authorizing any secured party thereunder to file
such financing statement, or assign, or permit any of its Subsidiaries to
assign, any accounts or other right to receive income, excluding, however, from
--------- -------
the operation of the foregoing restrictions the following:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the date hereof and described on Schedule
5.02(a) hereto;
(iv) purchase money Liens upon or in real property or equipment
acquired or held by the Borrower or any of its Subsidiaries (other than D.C.
Chartered Health Plan, Inc.) in the ordinary course of business to secure the
purchase price of such property or equipment or to secure Debt incurred solely
for the purpose of financing the acquisition of any such property or equipment
to be subject to such Liens, or Liens existing on any such property or equipment
at the time of acquisition (other than any such Liens created in contemplation
of such acquisition that do not secure the purchase price), or extensions,
renewals or replacements of any of the foregoing for the same or a lesser
amount; provided, however, that no such Lien shall extend to or cover any
-------- -------
property other than the property or equipment being acquired, and no such
extension, renewal or replacement shall extend to or cover any property not
theretofore subject to the Lien being extended, renewed or replaced; and
provided further that the aggregate principal amount of the Debt secured by
- -------- -------
Liens permitted by this clause (iv) shall not exceed the amount permitted under
Section 5.02(b)(iii)(B) at any time outstanding and that any such Debt shall not
otherwise be prohibited by the terms of the Loan Documents;
(v) Liens arising in connection with Capitalized Leases permitted
under Section 5.02(b)(iii)(C); provided that no such Lien shall extend to or
--------
cover any Collateral or assets other than the assets subject to such Capitalized
Leases;
(vi) other Liens affecting property of the Borrower and its
Subsidiaries (other than D.C. Chartered Health Plan, Inc.) with an aggregate
fair value not to exceed $500,000, provided that no such Lien shall extend to or
cover any Collateral;
<PAGE>
(vii) the replacement, extension or renewal of any Lien permitted by
clause (iii) above upon or in the same property theretofore subject thereto or
the replacement, extension or renewal (without increase in the amount or change
in any direct or contingent obligor) of the Debt secured thereby;
(viii) Liens in connection with attachments or judgments (including
judgment or appeal bonds), provided that the judgments secured shall, within 60
--------
days after the entry thereof, have been discharged or execution thereof stayed
pending appeal, or shall have been discharged within 60 days after the
expiration of such stay; or shall be covered (subject to a customary deductible)
by insurance maintained with responsible insurance companies;
(ix) leases or subleases granted to others not interfering in any
material respect with the business of the Borrower or any of its Consolidated
Subsidiaries; and
(x) any interest of a title of a lessor under, and Liens arising from
UCC financing statements (or equivalent filings, registrations or agreements in
foreign jurisdictions) relating to, leases permitted by this Agreement.
(b) Debt. Create, incur, assume or suffer to exist, or permit any of its
----
Subsidiaries to create, incur, assume or suffer to exist, any Debt other than:
(i) in the case of the Borrower, the Subordinated Debentures;
(ii) in the case of any of the Subsidiary Guarantors, Debt owed to
the Borrower or to another Subsidiary Guarantor, provided that (x) such Debt is
--------
subordinated to any Debt of such Subsidiary Guarantor under the Loan Documents
on terms and conditions acceptable to the Required Lenders and (y) such Debt is
evidenced by a promissory note and such promissory note is pledged in favor of
the Secured Parties pursuant to the terms of the Security Agreement; and
(iii) in the case of the Borrower and any of its Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt of the Borrower and its Subsidiaries (other than D.C.
Chartered Health Plan, Inc.) secured by Liens permitted by Section
5.02(a)(iv) not to exceed in the aggregate $500,000 at any time
outstanding,
(C) (i) Capitalized Leases entered into by the Borrower and its
Subsidiaries (other than D.C. Chartered Health Plan, Inc.) not to exceed in
the aggregate $5,000,000 at any time outstanding, and (ii) in the case of
Capitalized Leases to which any such Subsidiary of the Borrower is a party,
Debt of the Borrower of the type described in clause (j) of the definition
of "Debt" guaranteeing the Obligations of such Subsidiary under such
----
Capitalized Leases,
<PAGE>
(D) the Surviving Debt, and
(E) endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business.
(c) Lease Obligations. Create, incur, assume or suffer to exist, or permit
-----------------
any of its Subsidiaries to create, incur, assume or suffer to exist, any
obligations as lessee (i) for the rental or hire of real or personal property in
connection with any sale and leaseback transaction, or (ii) for the rental or
hire of other real or personal property of any kind under leases or agreements
to lease including Capitalized Leases having an original term of one year or
more that would cause the direct and contingent liabilities of the Borrower and
its Subsidiaries, on a Consolidated basis, in respect of all such obligations to
exceed $16,500,000 payable in any period of 12 consecutive months.
(d) Mergers, Etc. Merge into or consolidate with any Person or permit any
------------
Person to merge into it, or permit any of its Subsidiaries to do so, except that
(i) any Subsidiary of the Borrower may merge into or consolidate with the
Borrower, (ii) any Subsidiary Guarantor may merge into or consolidate with any
other Subsidiary Guarantor and (iii) any foreign Subsidiary may merge into or
consolidate with any other foreign Subsidiary; provided, however, that in each
-------- -------
case, immediately after giving effect thereto, no event shall occur and be
continuing that constitutes a Default.
(e) Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of,
---------------------
or permit any of its Subsidiaries to sell, lease, transfer or otherwise dispose
of, any assets, or grant any option or other right to purchase, lease or
otherwise acquire any assets other than Inventory to be sold in the ordinary
course of its business, except:
(i) sales of Inventory in the ordinary course of its business,
(ii) in a transaction authorized by subsection (d) of this Section,
(iii) sales of assets for cash and for fair value in an aggregate
amount not to exceed $250,000 in any Fiscal Year, provided that in the case of
--------
sales of assets pursuant to clause (iii) above, the Borrower shall, on the date
of receipt by the Borrower or any of its Subsidiaries of the Net Cash Proceeds
from such sale, prepay the Advances pursuant to, and in the amount and order of
priority set forth in, Section 2.06(b)(ii), as specified therein.
(f) Investments in Other Persons. Make or hold, or permit any of its
----------------------------
Subsidiaries to make or hold, any Investment in any Person other than:
(i) (A) Investments by the Borrower and its Subsidiaries in their
Subsidiaries outstanding on the date hereof, (B) additional Investments by the
Borrower and the Subsidiary Guarantors in wholly-owned domestic Subsidiaries in
an aggregate amount invested from the
<PAGE>
date hereof not to exceed $500,000, provided that, with respect to Investments
--------
in any newly acquired or created wholly-owned Subsidiary, such Subsidiary (x)
shall become an additional grantor pursuant to the terms of the Security
Agreement and shall become a Subsidiary Guarantor pursuant to the terms of the
Subsidiary Guaranty, in each case if such Subsidiary is a Material Subsidiary
and (y) shall engage in a business similar to that engaged in by the Borrower
and its Subsidiaries on the date hereof and (C) additional Investments by
foreign Subsidiaries of the Borrower in wholly-owned Subsidiaries in an
aggregate amount invested from the date hereof not to exceed $250,000;
(ii) loans and advances to employees in the ordinary course of the
business of the Borrower and its Subsidiaries as presently conducted in an
aggregate principal amount not to exceed $250,000 at any time outstanding;
(iii) (A) Investments by the Borrower and its Subsidiaries in Cash
Equivalents of amounts on deposit in the Cash Collateral Account, (B)
Investments by D.C. Chartered Health Plan, Inc. and Virginia Chartered Health
Plan, Inc. in Cash Equivalents of amounts on deposit in deposit accounts that
are required to be kept on deposit by such Person by its respective governmental
regulatory authority and (C) Investments by the Borrower and its Subsidiaries
(other than the Investments described in clause (A)) in an aggregate principal
amount not to exceed $1,000,000 at any time outstanding;
(iv) Investments consisting of intercompany Debt permitted under
Section 5.02(b)(ii);
(v) Investments existing on the date hereof and described on Schedule
5.02(f) hereto; and
(vi) other Investments in an aggregate amount invested not to exceed
$500,000; provided that with respect to Investments made under this clause
--------
(vii), (1) any newly acquired or created Subsidiary of the Borrower or any of
its Subsidiaries shall be a wholly owned Subsidiary thereof; (2) immediately
before and after giving effect thereto, no Default shall have occurred and be
continuing or would result therefrom; (3) any newly acquired or created domestic
Subsidiary of the Borrower or any of its Subsidiaries shall become an additional
grantor pursuant to the terms of the Security Agreement and shall become a
Subsidiary Guarantor pursuant to the terms of the Subsidiary Guaranty, in each
case if such Subsidiary is a Material Subsidiary and (4) any business acquired
or invested in pursuant to this clause (vii) shall be in the same line of
business as the business of the Borrower or any of its Subsidiaries.
(g) Dividends, Etc. Declare or pay any dividends, purchase, redeem,
--------------
retire, defease or otherwise acquire for value any of its capital stock or any
warrants, rights or options to acquire such capital stock, now or hereafter
outstanding, return any capital to its stockholders as such, make any
distribution of assets, capital stock, warrants, rights, options, obligations or
securities to its stockholders as such or issue or sell any capital stock or any
warrants, rights or options to acquire such capital stock, or permit any of its
Subsidiaries to do any of the foregoing or permit any of its Subsidiaries to
purchase, redeem, retire, defease or otherwise acquire for value any
<PAGE>
capital stock of the Borrower or any warrants, rights or options to acquire such
capital stock or to issue or sell any capital stock or any warrants, rights or
options to acquire such capital stock, except that, so long as no Default shall
have occurred and be continuing at the time of any action described in clauses
(i), (ii)and (iii) below or would result therefrom, (i) the Borrower may (A)
declare and pay dividends and distributions payable only in common stock of the
Borrower and (B) issue the warrants to NationsBank and NationsBridge as
contemplated by the side letter referred to in Section 3.01(i), (ii) any
Subsidiary of the Borrower may (A) declare and pay cash dividends to the
Borrower and (B) declare and pay cash dividends to any other wholly-owned
Subsidiary of the Borrower of which it is a Subsidiary and (iii) the Borrower
may issue (A) capital stock in respect of the exercise of stock options issued
pursuant to existing stock option plans of the Borrower, (B) options to acquire
capital stock of the Borrower pursuant to existing stock option plans of the
Borrower and (C) capital stock or any warrants, rights or options to acquire
such capital stock in the ordinary course of business in order to enter into
joint venture arrangements with other third party Persons with the consent of
the Required Lenders (which consent shall not be unreasonably withheld).
Notwithstanding any other provision of this Section 5.02(g), it shall not
constitute a breach of this Agreement for the Borrower to repurchase shares of
its common stock from BCBSNJ as required by the Health Center Purchase
Agreement, dated as of December 16, 1996, as heretofore amended, among the
Borrower, BCBSNJ and certain other parties thereto.
(h) Change in Nature of Business. Make, or permit any of its Material
----------------------------
Subsidiaries to make, any material change in the nature of its business as
carried on at the date hereof.
(i) Constitutive Document Amendments. Amend, or permit any of its
--------------------------------
Subsidiaries to amend, its Constitutive Documents if such amendment would have a
Material Adverse Effect with respect to any Loan Party or Lender Party.
(j) Accounting Changes. Make or permit, or permit any of its Subsidiaries
------------------
to make or permit, any change in (i) accounting policies or reporting practices,
except as required or permitted by generally accepted accounting principles or
(ii) Fiscal Year.
(k) Prepayments, Etc. of Debt. Prepay, redeem, purchase, defease or other
-------------------------
wise satisfy prior to the scheduled maturity thereof in any manner, or make any
payment in violation of any subordination terms of, any Debt, other than (i) the
prepayment of the Advances in accordance with the terms of this Agreement and
(ii) regularly scheduled or required repayments or redemptions of Surviving
Debt, or amend, modify or change in any manner any term or condition of any
Surviving Debt or the Subordinated Debentures, or permit any of its Subsidiaries
to do any of the foregoing other than to prepay any Debt payable to the
Borrower.
(l) Amendment, Etc. of Related Documents and Subordinated Debenture
------------------------------------------------------------------
Documents.
- ---------
Cancel or terminate any Related Document or any Subordinated Debenture Document
or consent to or accept any cancellation or termination thereof, amend, modify
or change in any manner any term or condition of any Related Document or any
Subordinated Debenture Document or give any consent, waiver or approval
thereunder, waive any default under or any breach of any term or condition of
any Related Document or any Subordinated Debenture Document, agree in any
<PAGE>
manner to any other amendment, modification or change of any term or condition
of any Related Document or any Subordinated Debenture Document or take any other
action in connection with any Related Document or any Subordinated Debenture
Document that would materially impair the value of the interest or rights of the
Borrower thereunder or that would materially impair the rights or interests of
the Administrative Agent or any Lender Party, or permit any of its Subsidiaries
to do any of the foregoing.
(m) Amendment, Etc. of Material Contracts. Cancel or terminate any
-------------------------------------
Material Contract or consent to or accept any cancellation or termination
thereof, amend or otherwise modify any Material Contract or give any consent,
waiver or approval thereunder, waive any default under or breach of any Material
Contract, agree in any manner to any other amendment, modification or change of
any term or condition of any Material Contract or take any other action in
connection with any Material Contract that would materially impair the value of
the interest or rights of the Borrower thereunder or that would materially
impair the interest or rights of the Administrative Agent or any Lender Party,
or permit any of its Subsidiaries to do any of the foregoing.
(n) Negative Pledge. Enter into or suffer to exist, or permit any of its
---------------
Subsidiaries to enter into or suffer to exist, any agreement prohibiting or
conditioning the creation or assumption of any Lien upon any of its property or
assets other than (i) in favor of the Secured Parties or (ii) in connection with
any Surviving Debt.
(o) Partnerships, Etc.. Become a general partner in any general or limited
------------------
partnership or joint venture, or permit any of its Subsidiaries to do so, other
than any Subsidiary the sole assets of which consist of its interest in such
partnership or joint venture.
(p) Speculative Transactions. Engage, or permit any of its Subsidiaries to
------------------------
engage, in any transaction involving commodity options or futures contracts or
any similar speculative transactions (including, without limitation, take-or-pay
contracts).
(q) Capital Expenditures. Make, or permit any of its Subsidiaries to make,
--------------------
any Capital Expenditures that would cause the aggregate of all such Capital
Expenditures made by the Borrower and its Subsidiaries in any Fiscal Year to
exceed (i) $10,000,000 for the 1998 Fiscal Year and (ii) $8,000,000 for each
Fiscal Year thereafter.
SECTION 5.03. Reporting Requirements. So long as any Advance shall remain
----------------------
unpaid, any Letter of Credit shall be outstanding or any Lender Party shall have
any Commitment hereunder, the Borrower will furnish to the Lender Parties:
(a) Default Notice. As soon as possible and in any event within two days
--------------
after the occurrence of each Default or any event, development or occurrence
that is reasonably likely to have a Material Adverse Effect with respect to any
Loan Party or any Lender Party continuing on the date of such statement, a
statement of the chief financial officer of the Borrower setting forth details
of such Default and the action that the Borrower has taken and proposes to take
with respect thereto.
<PAGE>
(b) Monthly Financials. As soon as available and in any event within 30
------------------
days after the end of each month, (i) a Consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such month and Consolidated and
consolidating statements of income and a Consolidated statement of cash flows of
the Borrower and its Subsidiaries for the period commencing at the end of the
previous month and ending with the end of such month and Consolidated and
consolidating statements of income and a Consolidated statement of cash flows of
the Borrower and its Subsidiaries for the period commencing at the end of the
previous Fiscal Year and ending with the end of such month, setting forth in
each case in comparative form the corresponding figures for the corresponding
month of the preceding Fiscal Year, all in reasonable detail and duly certified
by the chief financial officer of the Borrower, (ii) an enrollment status report
for such month for HIP programs and the District of Columbia chartered programs,
(iii) a physician/hospital recontracting report for PHE for such month, (iv) a
utilization rate report for PHE for such month and (v) a report detailing the
financial performance of PHE's health centers and PHE's network for such month.
(c) Quarterly Financials. As soon as available and in any event within 45
--------------------
days after the end of each of the first three quarters of each Fiscal Year,
Consolidated and consolidating balance sheets of the Borrower and its
Subsidiaries as of the end of such quarter and Consolidated and consolidating
statements of income and a Consolidated statement of cash flows of the Borrower
and its Subsidiaries for the period commencing at the end of the previous fiscal
quarter and ending with the end of such fiscal quarter and Consolidated and
consolidating statements of income and a Consolidated statement of cash flows of
the Borrower and its Subsidiaries for the period commencing at the end of the
previous Fiscal Year and ending with the end of such quarter, setting forth in
each case in comparative form the corresponding figures for the corresponding
period of the preceding Fiscal Year, all in reasonable detail and duly certified
(subject to year-end audit adjustments) by the chief financial officer of the
Borrower as having been prepared in accordance with GAAP, together with (i) a
certificate of said officer stating that no Default has occurred and is
continuing or, if a Default has occurred and is continuing, a statement as to
the nature thereof and the action that the Borrower has taken and proposes to
take with respect thereto and (ii) a schedule in form satisfactory to the
Administrative Agent of the computations used by the Borrower in determining
compliance with the covenants contained in Sections 5.04(a) through (f),
provided that in the event of any change in GAAP used in the preparation of such
- --------
financial statements, the Borrower shall also provide, if necessary for the
determination of compliance with Section 5.04, a statement of reconciliation
conforming such financial statements to GAAP.
(d) Annual Financials. As soon as available and in any event within 90
-----------------
days after the end of each Fiscal Year, a copy of the annual audit report for
such year for the Borrower and its Subsidiaries, including therein Consolidated
and consolidating balance sheets of the Borrower and its Subsidiaries as of the
end of such Fiscal Year and Consolidated and consolidating statements of income
and a Consolidated statement of cash flows of the Borrower and its Subsidiaries
for such Fiscal Year, in each case accompanied by an opinion acceptable to the
Required Lenders of Coopers & Lybrand L.L.P. or other independent public
accountants of recognized standing acceptable to the Required Lenders, together
with (i) a certificate of such
<PAGE>
accounting firm to the Lender Parties stating that in the course of the regular
audit of the business of the Borrower and its Subsidiaries, which audit was
conducted by such accounting firm in accordance with generally accepted auditing
standards, such accounting firm has obtained no knowledge that a Default has
occurred and is continuing, or if, in the opinion of such accounting firm, a
Default has occurred and is continuing, a statement as to the nature thereof,
(ii) a schedule in form satisfactory to the Administrative Agent of the
computations used by such accountants in determining, as of the end of such
Fiscal Year, compliance with the covenants contained in Sections 5.04(a) through
(f), provided that in the event of any change in GAAP used in the preparation of
--------
such financial statements, the Borrower shall also provide, if necessary for the
determination of compliance with Section 5.04, a statement of reconciliation
conforming such financial statements to GAAP and (iii) a certificate of the
chief financial officer of the Borrower stating that no Default has occurred and
is continuing or, if a default has occurred and is continuing, a statement as to
the nature thereof and the action that the Borrower has taken and proposes to
take with respect thereto.
(e) Annual Forecasts. As soon as available and in any event no later than
----------------
15 days before the end of each Fiscal Year, forecasts prepared by management of
the Borrower, in form satisfactory to the Administrative Agent, of balance
sheets, income statements and cash flow statements on a monthly basis for each
Fiscal Year until the Termination Date.
(f) ERISA Events and ERISA Reports. Promptly and in any event within 10
------------------------------
days after any Loan Party or any ERISA Affiliate knows or has reason to know
that any ERISA Event has occurred, a statement of the chief financial officer of
the Borrower describing such ERISA Event and the action, if any, that such Loan
Party or such ERISA Affiliate has taken and proposes to take with respect
thereto and on the date any records, documents or other information must be
furnished to the PBGC with respect to any Plan pursuant to Section 4010 of
ERISA, a copy of such records, documents and information.
(g) Plan Terminations. Promptly and in any event within two Business Days
-----------------
after receipt thereof by any Loan Party or any ERISA Affiliate, copies of each
notice from the PBGC stating its intention to terminate any Plan or to have a
trustee appointed to administer any Plan.
(h) Multiemployer Plan Notices. Promptly and in any event within five
--------------------------
Business Days after receipt thereof by any Loan Party or any ERISA Affiliate
from the sponsor of a Multiemployer Plan, copies of each notice concerning (i)
the imposition of Withdrawal Liability by any such Multiemployer Plan, (ii) the
reorganization or termination, within the meaning of Title IV of ERISA, of any
such Multiemployer Plan or (iii) the amount of liability incurred, or that may
be incurred, by such Loan Party or any ERISA Affiliate in connection with any
event described in clause (i) or (ii).
(i) Litigation. Promptly after the commencement thereof, notice of all
----------
actions, suits, investigations, litigation and proceedings before any court or
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, affecting any Loan Party or any of its Subsidiaries of the
type described in Section 4.01(j), and promptly after the occurrence thereof,
notice of any adverse change in the status or the financial effect on any Loan
<PAGE>
Party or any of its Subsidiaries of the Disclosed Litigation from that described
on Schedule 3.01(f).
(j) Securities Reports. Promptly after the sending or filing thereof,
------------------
copies of all proxy statements, financial statements and reports that any Loan
Party or any of its Subsidiaries sends to its stockholders, and copies of all
regular, periodic and special reports, and all registration statements, that any
Loan Party or any of its Subsidiaries files with the Securities and Exchange
Commission or any governmental authority that may be substituted therefor, or
with any national securities exchange.
(k) Creditor Reports. Promptly after the furnishing thereof, copies of any
----------------
statement or report furnished to any other holder of the securities of any Loan
Party or of any of its Subsidiaries pursuant to the terms of any indenture, loan
or credit or similar agreement and not otherwise required to be furnished to the
Lender Parties pursuant to any other clause of this Section 5.03.
(l) Agreement Notices. Promptly upon receipt thereof, copies of all
-----------------
notices, requests and other documents received by any Loan Party or any of its
Subsidiaries under or pursuant to any Related Document or Material Contract or
indenture, loan or credit or similar agreement regarding or related to any
breach or default by any party thereto or any other event that could materially
impair the value of the interests or the rights of any Loan Party or otherwise
have a Material Adverse Effect with respect to any Loan Party or any Lender
Party and copies of any amendment, modification or waiver of any provision of
any Related Agreement or Material Contract or indenture, loan or credit or
similar agreement and, from time to time upon request by the Administrative
Agent, such information and reports regarding the Related Documents and the
Material Contracts as the Administrative Agent may reasonably request.
(m) Tax Certificates. Promptly, and in any event within five Business Days
----------------
after the due date (with extensions) for filing the final Federal income tax
return in respect of each taxable year, a certificate (a "Tax Certificate"),
---------------
signed by the President or the chief financial officer of the Borrower, stating
that the common parent of the affiliated group (within the meaning of Section
1504(a)(1) of the Internal Revenue Code) of which the Borrower is a member has
paid to the Internal Revenue Service or other taxing authority, or to the
Borrower, the full amount that such affiliated group is required to pay in
respect of Federal income tax for such year and that the Borrower and its
Subsidiaries have received any amounts payable to them, and have not paid
amounts in respect of taxes (Federal, state, local or foreign) in excess of the
amount they are required to pay, under the Tax Agreements in respect of such
taxable year.
(n) Environmental Conditions. Promptly after the assertion or occurrence
------------------------
thereof, notice of any Environmental Action against or of any noncompliance by
any Loan Party or any of its Subsidiaries with any Environmental Law or
Environmental Permit that (i) could reasonably be expected to have a Material
Adverse Effect with respect to the Borrower and its Subsidiaries, taken as a
whole, or any Lender Party or (ii) cause any property described in the Mortgages
to be subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law.
<PAGE>
(o) Real Property. As soon as available and in any event within 30 days
-------------
after the end of each Fiscal Year, a report supplementing Schedules 4.01(ii) and
4.01(jj) hereto, including an identification of all material real and leased
property disposed of by the Borrower or any of its Subsidiaries during such
Fiscal Year, a list and description (including the street address, county or
other relevant jurisdiction, state, record owner, book value thereof, and in the
case of leases of property, lessor, lessee, expiration date and annual rental
cost thereof) of all material real property acquired or leased during such
Fiscal Year and a description of such other changes in the information included
in such Schedules as may be necessary for such Schedules to be accurate and
complete in all material respects.
(p) Insurance. As soon as available and in any event within 30 days after
---------
the end of each Fiscal Year, a report summarizing the insurance coverage
(specifying type, amount and carrier) in effect for the Borrower and its
Subsidiaries and containing such additional information as any Lender Party
(through the Administrative Agent) may reasonably specify.
(q) Other Information. Such other information respecting the business,
-----------------
condition (financial or otherwise), operations, performance, properties or
prospects of any Loan Party or any of its Subsidiaries as any Lender Party
(through the Administrative Agent) may from time to time reasonably request.
SECTION 5.04. Financial Covenants. So long as any Advance shall remain
-------------------
unpaid, any Letter of Credit shall be outstanding or any Lender Party shall have
any Commitment hereunder, the Borrower will:
(a) Minimum EBITDA. Maintain at the end of each fiscal quarter of the
--------------
Borrower Consolidated EBITDA of the Borrower and its Subsidiaries of not less
than the amount set forth below for such fiscal quarter set forth below:
<TABLE>
<CAPTION>
Minimum
Quarter Ending On EBITDA
----------------- ------
<S> <C>
October 31, 1997 $ 4,500,000
January 31, 1998 $ 9,500,000
April 30, 1998 $13,000,000
and thereafter
</TABLE>
(b) Fixed Charge Coverage Ratio. Maintain at the end of each fiscal
---------------------------
quarter of the Borrower a ratio of Consolidated EBITDA for the most recently
completed four fiscal quarters of the Borrower and its Subsidiary less the
----
aggregate amount of cash Capital Expenditures made by the Borrower and its
Subsidiaries during such four fiscal quarter period to the sum of (i) interest
payable on, and amortization of debt discount in respect of, all Debt plus (ii)
----
principal amounts of all Funded Debt payable, in each case, by the Borrower and
its Subsidiaries during such four fiscal quarter period of not less than 1.25 to
1; provided, however, that for the fiscal quarter of the Borrower ending on
-------- -------
October 31, 1997 and January 31, 1997, each component of the fixed charge
coverage ratio shall be the actual amount of such component for the period since
May 1,
<PAGE>
1997 multiplied by a fraction the numerator of which is four and the denominator
of which is the number of fiscal quarters that have elapsed since May 1, 1997.
(c) Senior Leverage Ratio. Maintain at the end of each fiscal quarter of
---------------------
the Borrower a Senior Leverage Ratio of not more than the ratio set forth below
for such fiscal quarter:
<TABLE>
<CAPTION>
QUARTER ENDING ON RATIO
----------------- -----
<S> <C>
October 31, 1997 4.1 : 1.00
January 31, 1998 2.8 : 1.00
April 30, 1998 2.1 : 1.00
July 31, 1998 1.5 : 1.00
October 31, 1998 1.3 : 1.00
and thereafter
</TABLE>
(d) Leverage Ratio. Maintain at the end of each fiscal quarter of the
--------------
Borrower a Leverage Ratio of not more than the ratio set forth below for such
fiscal quarter:
<TABLE>
<CAPTION>
QUARTER ENDING ON RATIO
----------------- -----
<S> <C>
October 31, 1997 7.8 : 1.00
January 31, 1998 5.5 : 1.00
April 30, 1998 4.2 : 1.00
July 31, 1998 3.2 : 1.00
October 31, 1998 3.0 : 1.00
and thereafter
</TABLE>
(e) Current Ratio. Maintain at the end of each fiscal quarter of the
-------------
Borrower a ratio of Consolidated Current Assets to Consolidated Current
Liabilities, in each case of the Borrower and its Subsidiaries of not less than
1.25:1.00.
(f) Minimum Net Worth. Maintain at all times an excess of
-----------------
Consolidated total assets over Consolidated total liabilities, in each case of
the Borrower and its Subsidiaries of not less than $29,500,000 plus 75% of
----
Consolidated net income of the Borrower and its Subsidiaries for the period
after April 30, 1997 to and including each date of determination computed on a
cumulative basis for said entire period plus 100% of all proceeds from the sale
----
or issuance by the Borrower or any of its Subsidiaries of capital stock or other
ownership or profit interest, any
<PAGE>
securities convertible into or exchangeable for capital stock or other ownership
or profit interest or any warrants, rights, options or other securities to
acquire capital stock or other ownership or profit interest.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
-----------------
("Events of Default") shall occur and be continuing:
-----------------
(a) (i) the Borrower shall fail to pay any principal of any Advance
when the same shall become due and payable or (ii) the Borrower shall fail to
pay any interest on any Advance, or any Loan Party shall fail to make any other
payment under any Loan Document, in each case under this clause (ii) within 3
Business Day(s) after the same becomes due and payable; or
(b) any representation or warranty made by any Loan Party (or any of its
officers) under or in connection with any Loan Document shall prove to have been
incorrect in any material respect when made; or
(c) the Borrower shall fail to perform or observe any term, covenant or
agreement contained in Section 2.14, 5.01(e), (f), (g), (n), (o), (p), (q) or
(r), 5.02, 5.03 or 5.04; or
(d) any Loan Party shall fail to perform any other term, covenant or
agreement contained in any Loan Document on its part to be performed or observed
if such failure shall remain unremedied for 10 days after the earlier of the
date on which (A) a Responsible Officer of the Borrower becomes aware of such
failure or (B) written notice thereof shall have been given to the Borrower by
the Administrative Agent or any Lender Party; or
(e) any Loan Party or any of such Loan Party's Subsidiaries shall fail to
pay any principal of, premium or interest on or any other amount payable in
respect of any Debt that is outstanding in a principal or notional amount of at
least $250,000 either individually or in the aggregate (but excluding Debt
outstanding hereunder) of such Loan Party or such Subsidiary (as the case may
be), when the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt; or any other event shall occur or condition
shall exist under any agreement or instrument relating to any such Debt and
shall continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such Debt or
otherwise to cause, or to permit the holder thereof to cause, such Debt to
mature; or any such Debt shall be declared to be due and payable or required to
be prepaid or redeemed (other than by a regularly scheduled required prepayment
or redemption), purchased or defeased, or an offer to prepay, redeem, purchase
or defease such Debt shall be required to be made, in each case prior to the
stated maturity thereof; or
<PAGE>
(f) any Loan Party or any of such Loan Party's Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by or against any
Loan Party or any of such Loan Party's Subsidiaries seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, or other similar official for it or for any substantial part
of its property and, in the case of any such proceeding instituted against it
(but not instituted by it) that is being diligently contested by it in good
faith, either such proceeding shall remain undismissed or unstayed for a period
of 30 days or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, it or any
substantial part of its property) shall occur; or any Loan Party or any of such
Loan Party's Subsidiaries shall take any corporate (or the equivalent thereof)
action to authorize any of the actions set forth above in this subsection (f);
or
(g) any judgment or order for the payment of money in excess of $250,000
shall be rendered against any Loan Party or any of such Loan Party's
Subsidiaries and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(h) any non-monetary judgment or order shall be rendered against any
Loan Party or any of such Loan Party's Subsidiaries that could be reasonably
likely to have a Material Adverse Effect with respect to any Loan Party or any
Lender Party, and there shall be any period of 10 consecutive days during which
a stay of enforcement of such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect; or
(i) any provision of any Loan Document after delivery thereof pursuant
to Section 3.01 or 5.01(p) shall for any reason cease to be valid and binding on
or enforceable against any Loan Party party to it, or any such Loan Party shall
so state in writing; or
(j) any ERISA Event shall have occurred with respect to a Plan and the
sum (determined as of the date of occurrence of such ERISA Event) of the
Insufficiency of such Plan and the Insufficiency of any and all other Plans with
respect to which an ERISA Event shall have occurred and then exist (or the
liability of the Loan Parties and the ERISA Affiliates related to such ERISA
Event) exceeds $250,000; or
(k) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to
such Multiemployer Plan in an amount that, when aggregated with all other
amounts required to be paid to Multiemployer Plans by the Loan Parties and the
ERISA Affiliates as Withdrawal Liability (determined as of the date of such
notification), exceeds $250,000 or requires payments exceeding $50,000 per
annum; or
<PAGE>
(l) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
and as a result of such reorganization or termination the aggregate annual
contributions of the Loan Parties and the ERISA Affiliates to all Multiemployer
Plans that are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the plan
years of such Multiemployer Plans immediately preceding the plan year in which
such reorganization or termination occurs by an amount exceeding $50,000; or
(m) (i) any Person or two or more Persons acting in concert other than
the Founders shall have acquired beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of Voting Stock of the Borrower
(or other Securities convertible into such Voting Stock) representing 15% or
more of the combined voting power of all Voting Stock of the Borrower; or (ii)
any Person or two or more Persons acting in concert other than the Founders
shall have acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation, will result in its or their
acquisition of control over Voting Stock of the Borrower (or other securities
convertible into such securities) representing 15% or more of the combined
voting power of all Voting Stock of the Borrower; then, and in any such event,
the Administrative Agent (i) shall at the request, or may with the consent, of
the Required Lenders, by notice to the Borrower, declare the obligation of each
Appropriate Lender to make Advances (other than Letter of Credit Advances by an
Issuing Bank or a Revolving Credit Lender pursuant to Section 2.03(c)) and of
the Issuing Bank to issue Letters of Credit to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the Notes,
all interest thereon and all other amounts payable under this Agreement and the
other Loan Documents to be forthwith due and payable, whereupon the Notes, all
such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrower; provided, however, that in
-------- -------
the event of an actual or deemed entry of an order for relief with respect to
the Borrower under the Federal Bankruptcy Code, (x) the obligation of each
Lender to make Advances (other than Letter of Credit Advances by the Issuing
Bank or a Revolving Credit Lender pursuant to Section 2.03(c)) and of the
Issuing Bank to issue Letters of Credit shall automatically be terminated and
(y) the Notes, all such interest and all such amounts shall automatically become
and be due and payable, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default.
--------------------------------------------------------
If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, or shall at the request of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, pay to the Administrative Agent on behalf of the
Lender Parties in same day funds at the Administrative Agent's office designated
in such demand, for deposit in
<PAGE>
the L/C Cash Collateral Account, an amount equal to the aggregate Available
Amount of all Letters of Credit then outstanding. If at any time the
Administrative Agent determines that any funds held in the L/C Cash Collateral
Account are subject to any right or claim of any Person other than the
Administrative Agent and the Lender Parties or that the total amount of such
funds is less than the aggregate Available Amount of all Letters of Credit, the
Borrower will, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited and held in the L/C
Cash Collateral Account, an amount equal to the excess of (a) such aggregate
Available Amount over (b) the total amount of funds, if any, then held in the
L/C Cash Collateral Account that the Administrative Agent determines to be free
and clear of any such right and claim.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Lender Party (in its
------------------------
capacities as a Lender, an Issuing Bank (if applicable)) hereby appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement and the other
Loan Documents as are delegated to the Administrative Agent by the terms hereof
and thereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by the Loan
Documents (including, without limitation, enforcement or collection of the
Notes), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be
binding upon all Lender Parties and all holders of Notes; provided, however,
-------- -------
that the Administrative Agent shall not be required to take any action that
exposes the Administrative Agent to personal liability or that is contrary to
this Agreement or applicable law. The Administrative Agent agrees to give to
each Lender Party prompt notice of each notice given to it by the Borrower
pursuant to the terms of this Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither the
------------------------------------
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with the Loan Documents, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (a) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts an Assignment
and Acceptance entered into by the Lender that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07;
(b) may consult with legal counsel (including counsel for any Loan Party),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (c) makes no
warranty or representation to any Lender Party and shall not be responsible to
any Lender Party for any statements, warranties or representations (whether
written or oral) made in or in connection with the Loan Documents; (d) shall not
have
<PAGE>
any duty to ascertain or to inquire as to the performance or observance of any
of the terms, covenants or conditions of any Loan Document on the part of any
Loan Party or to inspect the property (including the books and records) of any
Loan Party; (e) shall not be responsible to any Lender Party for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, any Loan Document or any
other instrument or document furnished pursuant thereto; and (f) shall incur no
liability under or in respect of any Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telegram,
telecopy or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 7.03. NationsBank and Affiliates. With respect to its
--------------------------
Commitments, the Advances made by it and the Notes issued to it, NationsBank
shall have the same rights and powers under the Loan Documents as any other
Lender Party and may exercise the same as though it were not the Administrative
Agent; and the term "Lender Party" or "Lenders Parties" shall, unless otherwise
expressly indicated, include NationsBank in its individual capacity.
NationsBank and its affiliates may accept deposits from, lend money to, act as
trustee under indentures of, accept investment banking engagements from and
generally engage in any kind of business with, any Loan Party, any of its
Subsidiaries and any Person who may do business with or own securities of any
Loan Party or any such Subsidiary, all as if NationsBank were not the
Administrative Agent and without any duty to account therefor to the Lender
Parties.
SECTION 7.04. Lender Party Credit Decision. Each Lender Party
----------------------------
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender Party and based on the financial
statements referred to in Section 4.01 and such other documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender Party also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender Party and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. (a) Each Lender Party severally
---------------
agrees to indemnify the Administrative Agent (to the extent not promptly
reimbursed by the Borrower) from and against such Lender Party's ratable share
(determined as provided below) of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against the Administrative Agent in any way relating to or arising out
of the Loan Documents or any action taken or omitted by the Administrative Agent
under the Loan Documents; provided, however, that no Lender Party shall be
-------- -------
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Administrative Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender Party agrees to reimburse the
Administrative Agent promptly upon demand for its ratable share of any costs and
expenses (including, without limitation, fees and expenses of counsel) payable
by the Borrower under Section 8.04, to the extent that the Administrative Agent
is not promptly reimbursed for such costs and expenses by the Borrower.
<PAGE>
For purposes of this Section 7.05(a), the Lender Parties' respective ratable
shares of any amount shall be determined, at any time, according to the sum of
(a) the aggregate principal amount of the Advances outstanding at such time and
owing to the respective Lender Parties, (b) their respective Pro Rata Shares of
the aggregate Available Amount of all Letters of Credit outstanding at such
time, (c) the aggregate unused portions of their respective Term Commitments at
such time and (d) their respective Unused Revolving Credit Commitments at such
time; provided that the aggregate principal amount of Letter of Credit Advances
--------
owing to the Issuing Bank shall be considered to be owed to the Revolving Credit
Lenders ratably in accordance with their respective Revolving Credit
Commitments. In the event that any Defaulted Advance shall be owing by any
Defaulting Lender at any time, such Lender Party's Commitment with respect to
the Facility under which such Defaulted Advance was required to have been made
shall be considered to be unused for purposes of this Section 7.05(a) to the
extent of the amount of such Defaulted Advance. The failure of any Lender Party
to reimburse the Administrative Agent promptly upon demand for its ratable share
of any amount required to be paid by the Lender Party to the Administrative
Agent as provided herein shall not relieve any other Lender Party of its
obligation hereunder to reimburse the Administrative Agent for its ratable share
of such amount, but no Lender Party shall be responsible for the failure of any
other Lender Party to reimburse the Administrative Agent for such other Lender
Party's ratable share of such amount. Without prejudice to the survival of any
other agreement of any Lender Party hereunder, the agreement and obligations of
each Lender Party contained in this Section 7.05(a) shall survive the payment in
full of principal, interest and all other amounts payable hereunder and under
the other Loan Documents.
(b) Each Lender Party severally agrees to indemnify the Issuing Bank
(to the extent not promptly reimbursed by the Borrower) from and against such
Lender Party's ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Issuing Bank in any way
relating to or arising out of the Loan Documents or any action taken or omitted
by the Issuing Bank under the Loan Documents; provided, however, that no Lender
-------- -------
Party shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Issuing Bank's gross negligence or willful misconduct.
Without limitation of the foregoing, each Lender Party agrees to reimburse the
Issuing Bank promptly upon demand for its ratable share of any costs and
expenses (including, without limitation, fees and expenses of counsel) payable
by the Borrower under Section 8.04, to the extent that the Issuing Bank is not
promptly reimbursed for such costs and expenses by the Borrower. For purposes
of this Section 7.05(b), the Lender Parties' respective ratable shares of any
amount shall be determined, at any time, according to the sum of (a) the
aggregate principal amount of the Advances outstanding at such time and owing to
the respective Lender Parties, (b) their respective Pro Rata Shares of the
aggregate Available Amount of all Letters of Credit outstanding at such time,
(c) the aggregate unused portions of their respective Term Commitments at such
time plus (d) their respective Unused Revolving Credit Commitments at such time;
----
provided, that the aggregate principal amount of Letter of Credit Advances owing
- --------
to the Issuing Bank shall be considered to be owed to the Revolving Credit
Lenders ratably in accordance with their respective Revolving Credit
Commitments. In the event that any
<PAGE>
Defaulted Advance shall be owing by any Defaulting Lender at any time, such
Lender Party's Commitment with respect to the Facility under which such
Defaulted Advance was required to have been made shall be considered to be
unused for purposes of this Section 7.05(b) to the extent of the amount of such
Defaulted Advance. The failure of any Lender Party to reimburse the Issuing Bank
promptly upon demand for its ratable share of any amount required to be paid by
the Lender Parties to the Issuing Bank as provided herein shall not relieve any
other Lender Party of its obligation hereunder to reimburse the Issuing Bank for
its ratable share of such amount, but no Lender Party shall be responsible for
the failure of any other Lender Party to reimburse the Issuing Bank for such
other Lender Party's ratable share of such amount. Without prejudice to the
survival of any other agreement of any Lender Party hereunder, the agreement and
obligations of each Lender Party contained in this Section 7.05(b) shall survive
the payment in full of principal, interest and all other amounts payable
hereunder and under the other Loan Documents.
SECTION 7.06. Successor Administrative Agents. The Administrative
-------------------------------
Agent may resign as to any or all of the Facilities at any time by giving
written notice thereof to the Lender Parties and the Borrower and may be removed
as to all of the Facilities at any time with or without cause by the Required
Lenders. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint a successor Administrative Agent as to such of the
Facilities as to which the Administrative Agent has resigned or been removed.
If no successor Administrative Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Administrative Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Administrative Agent, then the
retiring Administrative Agent may, on behalf of the Lender Parties, appoint a
successor Administrative Agent, which shall be a commercial bank organized under
the laws of the United States or of any State thereof and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent as to all of the Facilities and upon the execution and filing or recording
of such financing statements, or amendments thereto, and such amendments or
supplements to the Mortgages, and such other instruments or notices, as may be
necessary or desirable, or as the Required Lenders may request, in order to
continue the perfection of the Liens granted or purported to be granted by the
Collateral Documents, such successor Administrative Agent shall succeed to and
become vested with all the rights, powers, discretion, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations under the Loan Documents. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent as to less than all of the Facilities and upon the
execution and filing or recording of such financing statements, or amendments
thereto, and such amendments or supplements to the Mortgages, and such other
instruments or notices, as may be necessary or desirable, or as the Required
Lenders may request, in order to continue the perfection of the Liens granted or
purported to be granted by the Collateral Documents, such successor
Administrative Agent shall succeed to and become vested with all the rights,
powers, discretion, privileges and duties of the retiring Administrative Agent
as to such Facilities, other than with respect to funds transfers and other
similar aspects of the administration of Borrowings under such Facilities,
issuances of Letters of Credit (notwithstanding any resignation as
Administrative Agent with respect to the Letter of Credit
<PAGE>
Facility) and payments by the Borrower in respect of such Facilities, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement as to such Facilities, other than as aforesaid.
After any retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent as to all of the Facilities, the provisions of this Article
VII shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Administrative Agent as to any Facilities under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision
---------------
of this Agreement or the Notes or any other Loan Document, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed (or, in the case of the Collateral
Documents, consented to) by the Required Lenders (except as provided by clause
(a) below) and, in the case of any amendment of, or a waiver in respect of, a
Loan Document, each Loan Party party to such Loan Document, and then such waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that (a) any amendment, waiver or
-------- -------
consent of any provision of Section 5.03 shall be in writing and signed by
NationsBank and NationsBridge, (b) no amendment, waiver or consent shall, unless
in writing and signed by all of the Lenders (other than any Lender Party that
is, at such time, a Defaulting Lender), do any of the following at any time: (i)
waive any of the conditions specified in Section 3.01 or, in the case of the
Initial Extension of Credit, Section 3.02, (ii) change the number of Lenders or
the percentage of (x) the Commitments, (y) the aggregate unpaid principal amount
of the Advances or (z) the aggregate Available Amount of outstanding Letters of
Credit that, in each case, shall be required for the Lenders or any of them to
take any action hereunder, (iii) reduce or limit the obligations of the
Subsidiary Guarantors under Section 1 of the Subsidiary Guaranty or otherwise
limit the Subsidiary Guarantors' liability with respect to the Obligations owing
to the Administrative Agent and the Lender Parties, (iv) release any material
portion of the Collateral in any transaction or series of related transactions
or permit the creation, incurrence, assumption or existence of any Lien on any
material portion of the Collateral in any transaction or series of related
transactions to secure any Obligations other than Obligations owing to the
Secured Parties under the Loan Documents and other than Debt owing to any other
Person, provided that, in the case of any Lien on any material portion of the
--------
Collateral to secure Debt owing to any other Person, (A) the Borrower shall, on
the date such Debt shall be incurred or issued, prepay the Advances pursuant to,
and in the order of priority set forth in, Section 2.06(b)(ii) in an aggregate
principal amount equal to the amount of such Net Cash Proceeds to the extent
required to do so under Section 2.06(b)(ii), (B) such Lien shall be subordinated
to the Liens created under the Loan Documents on terms acceptable to the
Required Lenders and (C) the Required Lenders shall otherwise permit the
creation, incurrence, assumption or existence of such Lien and, to the extent
not otherwise permitted under Section 5.02(b), of such Debt, (v) amend this
Section 8.01, or (vi) limit the liability of any Loan Party under any of the
Loan Documents and (c) no amendment, waiver or consent shall, unless in writing
and signed by the Required Lenders and
<PAGE>
each Lender that has a Commitment under the Term Facility or Revolving Credit
Facility if affected by such amendment, waiver or consent, (i) increase the
Commitments of such Lender or subject such Lender to any additional obligations,
(ii) reduce the principal of, or interest on, the Notes held by such Lender or
any fees or other amounts payable hereunder to such Lender, (iii) postpone any
date fixed for any payment of principal of, or interest on, the Notes held by
such Lender or any fees or other amounts payable hereunder to such Lender or
(iv) change the order of application of any prepayment set forth in Section 2.06
in any manner that materially affects such Lender; provided further that no
-------- -------
amendment, waiver or consent shall, unless in writing and signed by the Issuing
Bank, in addition to the Lenders required above to take such action, affect the
rights or obligations of the Issuing Bank under this Agreement; and provided
--------
further that no amendment, waiver or consent shall, unless in writing and signed
- -------
by the Administrative Agent in addition to the Lenders required above to take
such action, affect the rights or duties of the Administrative Agent under this
Agreement.
SECTION 8.02. Notices, Etc. All notices and other communications
------------
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and mailed, telegraphed, telecopied, telexed or delivered,
if to the Borrower, at its address at 11440 Commerce Park Drive, Reston, VA
20191, Attention: Anthony M. Picini; if to any Initial Lender or the Initial
Issuing Bank, at its Domestic Lending Office specified opposite its name on
Schedule I hereto; if to any other Lender Party, at its Domestic Lending Office
specified in the Assignment and Acceptance pursuant to which it became a Lender
Party; and if to the Administrative Agent, at its address at 100 North Tryon
Street, Charlotte, North Carolina 28255, Attention: Kevin Wagley, with a copy to
NationsBank, 100 North Tryon Street, Charlotte, North Carolina 28255, Attention:
Lynne Wertz; or, as to the Borrower or the Administrative Agent, at such other
address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when mailed,
telegraphed, telecopied or telexed, be effective when deposited in the mails,
delivered to the telegraph company, transmitted by telecopier or confirmed by
telex answerback, respectively, except that notices and communications to the
Administrative Agent pursuant to Article II, III or VII shall not be effective
until received by the Administrative Agent. Delivery by telecopier of an
executed counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as delivery of a manually executed counterpart
thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
-------------------
Lender Party or the Administrative Agent to exercise, and no delay in
exercising, any right hereunder or under any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay on
------------------
demand (i) all costs and expenses of the Administrative Agent in connection with
the preparation, execution, delivery, administration, modification and amendment
of the Loan Documents (including, without limitation, (A) all due diligence,
collateral review, syndication, transportation, computer,
<PAGE>
duplication, appraisal, audit, insurance, consultant, search, filing and
recording fees and expenses and (B) the reasonable fees and expenses of counsel
for the Administrative Agent with respect thereto, with respect to advising the
Administrative Agent as to its rights and responsibilities, or the perfection,
protection or preservation of rights or interests, under the Loan Documents,
with respect to negotiations with any Loan Party or with other creditors of any
Loan Party or any of its Subsidiaries arising out of any Default or any events
or circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy, insolvency
or other similar proceeding involving creditors' rights generally and any
proceeding ancillary thereto) and (ii) all costs and expenses of the
Administrative Agent and the Lender Parties in connection with the enforcement
of the Loan Documents, whether in any action, suit or litigation, any
bankruptcy, insolvency or other similar proceeding affecting creditors' rights
generally (including, without limitation, the reasonable fees and expenses of
counsel for the Administrative Agent and each Lender Party with respect
thereto).
(b) The Borrower agrees to indemnify and hold harmless the
Administrative Agent, each Lender Party and each of their Affiliates and their
officers, directors, employees, agents and advisors (each, an "Indemnified
-----------
Party") from and against (and will reimburse each Indemnified Party as the same
- -----
are incurred) any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees, disbursements and other charges
of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any investigation,
litigation or proceeding or preparation of a defense in connection therewith)
(A) (i) the Transaction or (ii) the Facilities or any other financing or any
actual or proposed use of the proceeds of the Advances or the Letters of Credit,
the Loan Documents or (B) the actual or alleged presence of Hazardous Materials
on any property of any Loan Party or any of its Subsidiaries or any
Environmental Action relating in any way to any Loan Party or any of its
Subsidiaries, except to the extent such claim, damage, loss, liability or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct. In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section 8.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by any Loan Party, its directors, shareholders or
creditors or an Indemnified Party or any Indemnified Party is otherwise a party
thereto and whether or not the Transaction and other transactions contemplated
hereby are consummated. The Borrower also agrees not to assert any claim
against the Administrative Agent, any Lender Party or any of their Affiliates,
or any of their respective officers, directors, employees, attorneys and agents,
on any theory of liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to the Facilities, the actual or
proposed use of the proceeds of the Advances or the Letters of Credit, the Loan
Documents or any of the transactions contemplated thereby.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by the Borrower to or for the account of a Lender Party
other than on the last day of the Interest Period for such Advance, as a result
of a payment or Conversion pursuant to Section 2.09(b)(i) or 2.10(d),
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, the Borrower shall, upon demand by such Lender Party (with a copy
of such
<PAGE>
demand to the Administrative Agent), pay to the Administrative Agent for the
account of such Lender Party any amounts required to compensate such Lender
Party for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment, including, without limitation, any loss (including
loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Lender
Party to fund or maintain such Advance.
(d) If any Loan Party fails to pay when due any costs, expenses or other
amounts payable by it under any Loan Document, including, without limitation,
fees and expenses of counsel and indemnities, such amount may be paid on behalf
of such Loan Party by the Administrative Agent or any Lender Party, in its sole
discretion.
(e) Without prejudice to the survival of any other agreement of any Loan
Party hereunder or under any other Loan Document, the agreements and obligations
of the Borrower contained in Sections 2.10 and 2.12 and this Section 8.04 shall
survive the payment in full of principal, interest and all other amounts payable
hereunder and under any of the other Loan Documents.
SECTION 8.05. Right of Set-off. Upon (a) the occurrence and during
----------------
the continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender Party and each of its respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender Party or such
Affiliate to or for the credit or the account of the Borrower against any and
all of the Obligations of the Borrower now or hereafter existing under this
Agreement and the Note or Notes (if any) held by such Lender Party, irrespective
of whether such Lender Party shall have made any demand under this Agreement or
such Note or Notes and although such obligations may be unmatured. Each Lender
Party agrees promptly to notify the Borrower after any such set-off and
application; provided, however, that the failure to give such notice shall not
-------- -------
affect the validity of such set-off and application. The rights of each Lender
Party and its respective Affiliates under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
that such Lender Party and its respective Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective
--------------
when it shall have been executed by the Borrower and the Administrative Agent
and when the Administrative Agent shall have been notified by each Initial
Lender and the Initial Issuing Bank that such Initial Lender and the Initial
Issuing Bank have executed it and thereafter shall be binding upon and inure to
the benefit of the Borrower, the Administrative Agent and each Lender Party and
their respective successors and assigns, except that the Borrower shall not have
the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lender Parties.
SECTION 8.07. Assignments and Participations. (a) Each Lender may
------------------------------
assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement
<PAGE>
(including, without limitation, all or a portion of its Commitment or
Commitments, the Advances owing to it and the Note or Notes held by it);
provided, however, that (i) each such assignment shall be of a uniform, and
- -------- -------
not a varying, percentage of all rights and obligations under and in respect of
one or more Facilities, (ii) except in the case of an assignment to a Person
that, immediately prior to such assignment, was a Lender or an assignment of all
of a Lender's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000, (iii)
each such assignment shall be to an Eligible Assignee, and (iv) the parties to
each such assignment shall execute and deliver to the Administrative Agent, for
its acceptance and recording in the Register, an Assignment and Acceptance,
together with any Note or Notes subject to such assignment and a processing and
recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in such Assignment and Acceptance, (x) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the
case may be, hereunder and (y) the Lender or Issuing Bank assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's or Issuing Bank's rights and obligations under this Agreement, such
Lender or Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the
Lender Party assignor thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other than
as provided in such Assignment and Acceptance, such assigning Lender Party makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, this Agreement or any other Loan Document or any
other instrument or document furnished pursuant hereto or thereto; (ii) such
assigning Lender Party makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or any
other Loan Party or the performance or observance by any Loan Party of any of
its obligations under any Loan Document or any other instrument or document
furnished pursuant thereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.01 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Administrative Agent, such assigning Lender Party or
any other Lender Party and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its
<PAGE>
behalf and to exercise such powers and discretion under the Loan Documents as
are delegated to the Administrative Agent by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed by
it as a Lender or Issuing Bank, as the case may be.
(d) The Administrative Agent shall maintain at its address referred to
in Section 8.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lender Parties and the Commitment under each Facility of, and principal
amount of the Advances owing under each Facility to, each Lender Party from time
to time (the "Register"). The entries in the Register shall be conclusive and
--------
binding for all purposes, absent manifest error, and the Borrower, the
Administrative Agent and the Lender Parties may treat each Person whose name is
recorded in the Register as a Lender Party hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or
any Lender Party at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Note or Notes subject
to such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower. In the case of any assignment by a Lender, within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the surrendered
Note or Notes a new Note to the order of such Eligible Assignee in an amount
equal to the Commitment assumed by it under a Facility pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a Commitment
hereunder under such Facility, a new Note to the order of the assigning Lender
in an amount equal to the Commitment retained by it hereunder. Such new Note or
Notes shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of Exhibit A-1 or A-2 hereto, as the case may be.
(f) The Issuing Bank may assign to an Eligible Assignee all of its
rights and obligations under the undrawn portion of its Letter of Credit
Commitment at any time; provided, however, that (i) each such assignment shall
-------- -------
be to an Eligible Assignee and (ii) the parties to such assignment shall execute
and deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with a processing and
recordation fee of $3,500.
(g) Each Lender Party may sell participations to one or more Persons
(other than any Loan Party or any of its Affiliates) in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes (if any) held by it); provided, however, that (i) such Lender
-------- -------
Party's obligations under this Agreement (including, without limitation, its
Commitments) shall
<PAGE>
remain unchanged, (ii) such Lender Party shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) such Lender
Party shall remain the holder of any such Note for all purposes of this
Agreement, (iv) the Borrower, the Administrative Agent and the other Lender
Parties shall continue to deal solely and directly with such Lender Party in
connection with such Lender Party's rights and obligations under this Agreement
and (v) no participant under any such participation shall have any right to
approve any amendment or waiver of any provision of any Loan Document, or any
consent to any departure by any Loan Party therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
the Notes or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation, or release
all or substantially all of the Collateral.
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender
Party by or on behalf of the Borrower; provided, however, that, prior to any
-------- -------
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this Agreement, any
Lender Party may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and the Note or Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
SECTION 8.08. Execution in Counterparts. This Agreement may be executed
-------------------------
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 8.09. No Liability of the Issuing Bank. The Borrower assumes
--------------------------------
all risks of the acts or omissions of any beneficiary or transferee of any
Letter of Credit with respect to its use of such Letter of Credit. Neither the
Issuing Bank nor any of its officers or directors shall be liable or responsible
for: (a) the use that may be made of any Letter of Credit or any acts or
omissions of any beneficiary or transferee in connection therewith; (b) the
validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by the Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, except that the
------
Borrower shall have a claim against the Issuing Bank, and
<PAGE>
the Issuing Bank shall be liable to the Borrower, to the extent of any direct,
but not consequential, damages suffered by the Borrower that the Borrower proves
were caused by (i) the Issuing Bank's willful misconduct or gross negligence in
determining whether documents presented under any Letter of Credit comply with
the terms of the Letter of Credit or (ii) the Issuing Bank's willful failure to
make lawful payment under a Letter of Credit after the presentation to it of a
draft and certificates strictly complying with the terms and conditions of the
Letter of Credit. In furtherance and not in limitation of the foregoing, the
Issuing Bank may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary.
SECTION 8.10. Confidentiality. Neither the Administrative Agent nor
---------------
any Lender Party shall disclose any Confidential Information to any Person
without the consent of the Borrower, other than (a) to the Administrative
Agent's or such Lender Party's Affiliates and their officers, directors,
employees, agents and advisors and to actual or prospective Eligible Assignees
and participants, and then only on a confidential basis, (b) as required by any
law, rule or regulation or judicial process and (c) as requested or required by
any state, federal or foreign authority or examiner regulating banks or banking.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties hereto
-----------------
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by law, in such federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement
shall affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or any of the other Loan Documents in the
courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any of the other Loan
Documents to which it is a party in any New York State or federal court. Each
of the parties hereto hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.
SECTION 8.12. Governing Law. This Agreement and the Notes shall be
-------------
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.13. Waiver of Jury Trial. Each of the Borrower, the
--------------------
Administrative Agent and the Lender Parties irrevocably waives all right to
trial by jury in any action, proceeding or
<PAGE>
counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to any of the loan Documents, the Advances or the actions of the
Administrative Agent or any Lender Party in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
PHP HEALTHCARE CORPORATION
By /s/ Anthony M. Picini
------------------------------------
Title: Executive Vice President and
Chief Financial Officer
NATIONSBANK, N.A.,
as Administrative Agent
By /s/ Michael D. Monte
------------------------------------
Title: Senior Vice President
INITIAL LENDERS
NATIONSBANK, N.A.
By /s/ Michael D. Monte
------------------------------------
Title: Senior Vice President
NATIONSBRIDGE, L.L.C.
By /s/ Lynne E. Wertz
------------------------------------
Title: Director, High Yield Finance
<PAGE>
Exhibit 10.3
SECURITY AGREEMENT
SECURITY AGREEMENT dated as of October 31, 1997 made by PHP HEALTHCARE
CORPORATION, a Delaware corporation (the "Borrower"), each of the other Persons
--------
listed on the signature pages hereof under the caption "Grantors" and the
Additional Grantors (as defined in Section 25(c)) (the Borrower, the other
Persons so listed and the Additional Grantors being, collectively, the
"Grantors") to NationsBank, N.A. ("NationsBank"), as administrative agent (the
-------- -----------
"Administrative Agent") for the Secured Parties (as defined in the Credit
- ---------------------
Agreement referred to below).
PRELIMINARY STATEMENTS.
(1) The Borrower has entered into a Credit Agreement dated as of October
31, 1997 (said Agreement, as it may hereafter be amended or otherwise modified
from time to time, being the "Credit Agreement"; the terms defined therein and
----------------
not otherwise defined herein being used herein as therein defined) with the
banks, financial institutions and other institutional lenders party thereto (the
"Lenders"), NationsBank, as initial issuing bank and the Administrative Agent.
-------
(2) Each Grantor is the owner of the shares (the "Pledged Shares") of stock
--------------
set forth opposite such Grantor's name in Part I of Schedule I hereto and issued
by the corporations named therein and of the indebtedness (the "Pledged Debt")
------------
set forth opposite such Grantor's name in Part II of said Schedule I and issued
by the obligors named therein.
(3) The Borrower has opened a non-interest bearing cash collateral account
(the "Cash Collateral Account") with NationsBank at its office at 100 North
-----------------------
Tryon Street, Charlotte, North Carolina 28255 Account No. 375-052-7254, in the
name of the Borrower but under the sole control and dominion of the
Administrative Agent and subject to the terms of this Agreement.
(4) The Borrower has opened a non-interest bearing cash collateral account
(the "L/C Cash Collateral Account") with NationsBank at its office at 100 North
Tryon Street, Charlotte, North Carolina 28255 Account No. 375-089-7418, in the
name of the Borrower but under the sole control and dominion of the
Administrative Agent and subject to the terms of this Agreement.
(5) It is a condition precedent to the making of Advances by the Lenders
and to the issuance of Letters of Credit by the Issuing Bank under the Credit
Agreement from time to time, that the Grantors shall have granted the assignment
and security interest and made the pledge and assignment contemplated by this
Agreement.
NOW THEREFORE, in consideration of the premises and in order to induce the
Lender Parties to make Advances under the Credit Agreement and the Issuing Bank
to issue Letters of
<PAGE>
Credit under the Credit Agreement from time to time, each of the Grantors hereby
agrees with the Administrative Agent for its benefit and the ratable benefit of
the Secured Parties as follows:
Section 1. Grant of Security. Each of the Grantors hereby assigns and
-----------------
pledges to the Administrative Agent for its benefit and the ratable benefit of
the Secured Parties, and hereby grants to the Administrative Agent for its
benefit and the ratable benefit of the Secured Parties a security interest in,
the following (collectively, the "Collateral"):
----------
(a) all of such Grantor's right, title and interest, whether now owned or
hereafter acquired, in and to all equipment in all of its forms, wherever
located, now or hereafter existing, all fixtures and all parts thereof and all
accessions thereto (any and all such equipment, fixtures, parts and accessions
being the "Equipment");
---------
(b) all of such Grantor's right, title and interest, whether now owned or
hereafter acquired, in and to all inventory in all of its forms, wherever
located, now or hereafter existing (including, but not limited to, (i) all raw
materials and work in process therefor, finished goods thereof and materials
used or consumed in the manufacture or production thereof, (ii) goods in which
such Grantor has an interest in mass or a joint or other interest or right of
any kind (including, without limitation, goods in which such Grantor has an
interest or right as consignee) and (iii) goods that are returned to or
repossessed by such Grantor), and all accessions thereto and products thereof
and documents therefor (any and all such inventory, accessions, products and
documents being the "Inventory");
---------
(c) all of such Grantor's right, title and interest, whether now owned or
hereafter acquired, in and to all accounts, contract rights, chattel paper,
instruments, deposit accounts, general intangibles and other obligations of any
kind, now or hereafter existing, whether or not arising out of or in connection
with the sale or lease of goods or the rendering of services, and all rights now
or hereafter existing in and to all security agreements, leases and other
contracts securing or otherwise relating to any such accounts, contract rights,
chattel paper, instruments, deposit accounts, general intangibles or obligations
(any and all such accounts, contract rights, chattel paper, instruments, deposit
accounts, general intangibles and obligations, to the extent not referred to in
clause (d), (e) or (f) below, being the "Receivables", and any and all such
-----------
leases, security agreements and other contracts being the "Related Contracts");
-----------------
(d) all of the following (the "Security Collateral"):
-------------------
(i) the Pledged Shares and the certificates representing the Pledged
Shares, and all dividends, cash, instruments and other property from time to
time received, receivable or otherwise distributed in respect of or in exchange
for any or all of the Pledged Shares;
(ii) the Pledged Debt and the instruments evidencing the Pledged Debt,
and all interest, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of the Pledged Debt;
<PAGE>
(iii) all additional shares of stock of any issuer of the Pledged
Shares from time to time acquired by such Grantor in any manner, and the
certificates representing such additional shares, and all dividends, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
shares;
(iv) all additional indebtedness from time to time owed to such
Grantor by any obligor of the Pledged Debt and the instruments evidencing such
indebtedness, and all interest, cash, instruments and other property from time
to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such indebtedness; and
(v) all of such Grantor's right, title and interest in and to the
membership interests in any Person and all dividends, cash, instruments and
other property from time to time received, receivable or otherwise distributed
in respect of or in exchange for any or all of such membership interests.
(e) all of such Grantor's right, title and interest in and to each of the
agreements listed on Schedule II, and each Hedge Agreement to which such Grantor
is now or may hereafter become a party, in each case as such agreements may be
amended or otherwise modified from time to time (collectively, the "Assigned
--------
Agreements"), including, without limitation, (i) all rights of such Grantor to
- ----------
receive moneys due and to become due under or pursuant to the Assigned
Agreements, (ii) all rights of such Grantor to receive proceeds of any
insurance, indemnity, warranty or guaranty with respect to the Assigned
Agreements, (iii) claims of such Grantor for damages arising out of or for
breach of or default under the Assigned Agreements and (iv) the right of such
Grantor to terminate the Assigned Agreements, to perform thereunder and to
compel performance and otherwise exercise all remedies thereunder (all such
Collateral being the "Agreement Collateral");
--------------------
(f) all of the following (collectively, the "Account Collateral"):
------------------
(i) the Cash Collateral Account, all funds held therein and all
certificates and instruments, if any, from time to time representing or
evidencing the Cash Collateral Account;
(ii) the L/C Cash Collateral Account, all funds held therein and all
certificates and instruments, if any, from time to time representing or
evidencing the L/C Cash Collateral Account;
(iii) all Lockbox Accounts (as hereinafter defined), all funds held
therein and all certificates and instruments, if any, from time to time
representing or evidencing the Lockbox Accounts;
(iv) all other deposit accounts of such Grantor, all funds held
therein and all certificates and instruments, if any, from time to time
representing or evidencing such deposit accounts;
<PAGE>
(v) all Collateral Investments (as hereinafter defined) from time
to time and all certificates and instruments, if any, from time to time
representing or evidencing the Collateral Investments;
(vi) all notes, certificates of deposit, deposit accounts, checks
and other instruments from time to time hereafter delivered to or otherwise
possessed by the Administrative Agent for or on behalf of such Grantor in
substitution for or in addition to any or all of the then existing Account
Collateral; and
(vii) all interest, dividends, cash, instruments and other property
from time to time received, receivable or otherwise distributed in respect of or
in exchange for any or all of the then existing Account Collateral; and
(g) all proceeds of any and all of the foregoing Collateral (including,
without limitation, proceeds that constitute property of the types described in
clauses (a) - (f) of this Section 1) and, to the extent not otherwise included,
all (i) payments under insurance (whether or not the Administrative Agent is the
loss payee thereof), or any indemnity, warranty or guaranty, payable by reason
of loss or damage to or otherwise with respect to any of the foregoing
Collateral and (ii) cash.
Section 2. Security for Obligations. This Agreement secures the payment
------------------------
of all Obligations of each Grantor now or hereafter existing under the Loan
Documents, whether for principal, interest, fees, expenses or otherwise (all
such Obligations being the "Secured Obligations"). Without limiting the
-------------------
generality of the foregoing, this Agreement secures the payment of all amounts
that constitute part of the Secured Obligations and would be owed by each
Grantor to the Administrative Agent or the Secured Parties under the Loan
Documents but for the fact that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving
such Grantor.
Section 3. Grantors Remain Liable. Anything herein to the contrary
----------------------
notwithstanding, (a) each Grantor shall remain liable under the contracts and
agreements included in the Collateral to the extent set forth therein to perform
all of its duties and obligations thereunder to the same extent as if this
Agreement had not been executed, (b) the exercise by the Administrative Agent of
any of the rights hereunder shall not release any Grantor from any of its duties
or obligations under the contracts and agreements included in the Collateral and
(c) neither the Administrative Agent nor any Secured Party shall have any
obligation or liability under the contracts and agreements included in the
Collateral by reason of this Agreement, nor shall the Administrative Agent or
any Secured Party be obligated to perform any of the obligations or duties of
any Grantor thereunder or to take any action to collect or enforce any claim for
payment assigned hereunder.
Section 4. Delivery of Security Collateral and Account Collateral. All
------------------------------------------------------
certificates or instruments representing or evidencing Security Collateral or
Account Collateral shall be
<PAGE>
delivered to and held by or on behalf of the Administrative Agent pursuant
hereto and shall be in suitable form for transfer by delivery, or shall be
accompanied by duly executed instruments of transfer or assignment in blank, all
in form and substance reasonably satisfactory to the Administrative Agent. The
Administrative Agent shall have the right, at any time after the occurrence and
during the continuance of an Event of Default, in its discretion and without
notice to any Grantor, to transfer to or to register in the name of the
Administrative Agent or any of its nominees any or all of the Security
Collateral and Account Collateral, subject only to the revocable rights
specified in Section 14(a). In addition, the Administrative Agent shall have the
right at any time to exchange certificates or instruments representing or
evidencing Security Collateral or Account Collateral for certificates or
instruments of smaller or larger denominations.
Section 5. Maintaining the Cash Collateral Account and the L/C Cash
--------------------------------------------------------
Collateral Account. So long as any Advance shall remain unpaid, any Letter of
- ------------------
Credit shall be outstanding or any Secured Party shall have any Commitment under
the Credit Agreement:
(a) The Borrower will maintain the Cash Collateral Account and the L/C Cash
Collateral Account with NationsBank.
(b) It shall be a term and condition of each of the Cash Collateral Account
and the L/C Cash Collateral Account, notwithstanding any term or condition to
the contrary in any other agreement relating to the Cash Collateral Account or
the L/C Cash Collateral Account, as the case may be, and except as otherwise
provided by the provisions of Section 8 and Section 21, that no amount
(including interest on Collateral Investments) shall be paid or released to or
for the account of, or withdrawn by or for the account of, any Grantor or any
other Person from the Cash Collateral Account or the L/C Cash Collateral
Account, as the case may be.
The Cash Collateral Account and the L/C Cash Collateral Account shall be subject
to such applicable laws, and such applicable regulations of the Board of
Governors of the Federal Reserve System and of any other appropriate banking or
governmental authority, as may now or hereafter be in effect.
Section 6. Maintaining the Lockbox Accounts. So long as any Advance shall
--------------------------------
remain unpaid, any Letter of Credit shall be outstanding or any Secured Party
shall have any Commitment under the Credit Agreement:
(a) Each Grantor shall maintain lockboxes and blocked deposit accounts
("Lockbox Accounts") only with banks ("Lockbox Banks") that have entered (or
- ------------------ -------------
will enter prior to December 5, 1997) into letter agreements in substantially
the form of Exhibit A with such Grantor and the Administrative Agent ("Lockbox
-------
Letters").
- -------
(b) Each Grantor shall immediately instruct each Person obligated at any
time to make any payment to such Grantor for any reason (an "Obligor") to make
-------
such payment to a Lockbox Account or to the Cash Collateral Account and shall
pay to the Administrative Agent for deposit in the Cash Collateral Account, at
the end of each Business Day, all proceeds of
<PAGE>
Collateral and all other cash of such Grantor in excess of $500,000 in the
aggregate; provided, however, that D.C. Chartered Health Plan, Inc. may keep on
-------- -------
deposit in a deposit account any amount that is required to be kept on deposit
by it by its governmental regulatory authority.
(c) Each Grantor shall instruct each Lockbox Bank maintained by such
Grantor to transfer to the Cash Collateral Account, at the end of each Business
Day, in same day funds, an amount equal to the credit balance of the Lockbox
Account in such Lockbox Bank.
(d) Upon any termination of any Lockbox Letter or other agreement with
respect to the maintenance of a Lockbox Account by any Grantor or any Lockbox
Bank, such Grantor shall immediately notify all Obligors that were making
payments to such Lockbox Account to make all future payments to another Lockbox
Account or to the Cash Collateral Account. Each Grantor agrees to terminate any
or all Lockbox Accounts and Lockbox Letters upon request by the Administrative
Agent.
Section 7. Investing of Amounts in the Cash Collateral Account and the L/C
---------------------------------------------------------------
Cash Collateral Account. If requested by the Borrower, the Administrative Agent
- -----------------------
will, subject to the provisions of Section 8 and Section 21, from time to time
(a) invest amounts on deposit in the Cash Collateral Account and the L/C Cash
Collateral Account in such Cash Equivalents in the name of the Administrative
Agent as the Borrower may select and the Administrative Agent may approve and
(b) invest interest paid on the Cash Equivalents referred to in clause (a)
above, and reinvest other proceeds of any such Cash Equivalents that may mature
or be sold, in each case in such Cash Equivalents in the name of the
Administrative Agent as the Borrower may select and the Administrative Agent may
approve (the Cash Equivalents referred to in clauses (a) and (b) above being
collectively "Collateral Investments"). Interest and proceeds that are not
----------------------
invested or reinvested in Collateral Investments as provided above shall be
deposited and held in the Cash Collateral Account or the L/C Cash Collateral
Account, as the case may be.
Section 8. Release of Amounts. So long as no Default shall have occurred
------------------
and be continuing, the Administrative Agent will pay and release to the Borrower
or at its order and at the request of the Borrower, the amount, if any, by which
the credit balance of the Cash Collateral Account exceeds the aggregate unpaid
principal amount of the Revolving Credit Advances.
Section 9. Representations and Warranties. Each Grantor represents and
------------------------------
warrants as follows:
(a) All of such Grantor's Equipment and Inventory are located at one or
more of the places specified in Schedule III hereto. The chief place of
business and chief executive office of such Grantor and the office where such
Grantor keeps its records concerning the Receivables, and the original copies of
each Assigned Agreement and all originals of all chattel paper that evidence
Receivables, are located at the address specified below the name of such Grantor
on the signature pages hereof (or in the case of any Additional Grantor at the
address listed below the
<PAGE>
name of such Additional Grantor on the signature page of the Security Agreement
Supplement (as defined in Section 25(c)) executed and delivered by such
Additional Grantor). Original copies of each Assigned Agreement and all
originals of all chattel paper that evidence Receivables have been delivered to
the Administrative Agent. None of the Receivables or Agreement Collateral is
evidenced by a promissory note or other instrument unless the same has been
delivered to the Administrative Agent.
(b) Such Grantor is the legal and beneficial owner of the Collateral
pledged by such Grantor hereunder free and clear of any Lien, except for the
security interest created by this Agreement and Permitted Liens. No effective
financing statement or other instrument similar in effect covering all or any
part of the Collateral is on file in any recording office, except such as may
have been filed in favor of the Administrative Agent relating to this Agreement
or as permitted by the Credit Agreement. Each Grantor has no trade names other
than the trade names listed on Schedule IV.
(c) Such Grantor has possession and control of the Equipment and Inventory
pledged by such Grantor hereunder.
(d) The Pledged Shares pledged by such Grantor hereunder have been duly
authorized and validly issued and are fully paid and non-assessable. The
Pledged Debt pledged by such Grantor hereunder has been duly authorized,
authenticated or issued and delivered, is the legal, valid and binding
obligation of the issuers thereof and is not in default.
(e) Except as disclosed in the Credit Agreement, the Pledged Shares pledged
by such Grantor hereunder constitute the percentage of the issued and
outstanding shares of stock of the issuers thereof indicated on Schedule I. The
Pledged Debt pledged by such Grantor hereunder is outstanding in the principal
amount indicated on Schedule I.
(f) The Assigned Agreements to which such Grantor is a party, true and
complete copies of which have been furnished to each Secured Party, have been
(to the best knowledge of such Grantor, in the case of any parties other than
such Grantor) duly authorized, executed and delivered by all parties thereto,
have not been amended or otherwise modified, are in full force and effect and
are binding upon and enforceable against all parties thereto in accordance with
their terms except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect that affect creditors' rights generally, general principles of equity
(including, without limitation, standards of materiality, good faith, fair
dealing and reasonableness) whether such principles are considered in a
proceeding in equity or at law, and the application of any fraudulent
conveyance, fraudulent transfer, fraudulent obligation, or preferential transfer
or any law governing the distribution of assets of any Person. To the best
knowledge of such Grantor, there exists no default under any Assigned Agreement
to which such Grantor is a party by any party thereto. Each party to the
Assigned Agreements to which such Grantor is a party (other than such Grantor)
has executed and delivered to such Grantor a consent, in substantially the form
of Exhibit B, to the assignment of the Agreement Collateral to the
Administrative Agent pursuant to this Agreement.
<PAGE>
(g) Such Grantor has no Lockbox Accounts or other deposit accounts other
than the Lockbox Accounts listed below such Grantor's name on Schedule V and the
permitted unblocked accounts listed below such Grantor's name on Schedule VI.
Such Grantor has instructed all existing Obligors to make all payments to either
a Lockbox Account or the Cash Collateral Account.
(h) This Agreement, the pledge of the Security Collateral by such Grantor
pursuant hereto and the pledge and assignment of the Account Collateral by such
Grantor pursuant hereto create a valid first priority security interest in the
Collateral of such Grantor (subject only to Permitted Liens and Liens permitted
by Section 5.02(a)(iii), (vii), (viii) or (ix)), securing the payment of the
Secured Obligations, and, upon the filing of the financing statements referred
to in Section 3.01(m) of the Credit Agreement, all filings and other actions
necessary or desirable to perfect and protect such security interest have been
duly taken.
(i) No consent of any other Person (except consents already obtained) and
no authorization, approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or other third party is required
either (i) for the grant by such Grantor of the assignment and security interest
granted hereby, for the pledge by such Grantor of the Security Collateral
pursuant hereto or for the execution, delivery or performance of this Agreement
by such Grantor, (ii) for the perfection or maintenance of the pledge,
assignment and security interest created hereby (including the first priority
nature of such pledge, assignment or security interest (except as set forth in
Section 9(h) above), except for the filing of financing and continuation
statements under the Uniform Commercial Code, which financing statements have
been duly filed, or (iii) for the exercise by the Administrative Agent of its
voting or other rights provided for in this Agreement or the remedies in respect
of the Collateral pursuant to this Agreement, except (i) as may be required in
connection with the disposition of any portion of the Security Collateral by
laws affecting the offering and sale of securities generally, (ii) the approval
of the Commissioner of Insurance and Securities as to the Pledged Shares issued
by D.C. Chartered Health Plan, Inc. and (iii) the approval of the Bureau of
Insurance as to the Pledged Shares issued by Virginia Chartered Health Plan,
Inc..
(j) The Inventory has been produced by such Grantor in compliance with all
requirements of the Fair Labor Standards Act.
Section 10. Further Assurances. (a) Each Grantor agrees that from time
------------------
to time, at its own expense, such Grantor will promptly execute and deliver all
further instruments and documents, and take all further action, that may be
necessary or desirable, or that the Administrative Agent may reasonably request,
in order to perfect and protect any pledge, assignment or security interest
granted or purported to be granted hereby or to enable the Administrative Agent
to exercise and enforce its rights and remedies hereunder with respect to any
Collateral. Without limiting the generality of the foregoing, each Grantor
will: (i) mark conspicuously each document included in the Inventory pledged by
such Grantor hereunder, each chattel paper included in the Receivables pledged
by such Grantor hereunder, each Related
<PAGE>
Contract pledged by such Grantor hereunder, each Assigned Agreement to which
such Grantor is a party and, at the request of the Administrative Agent, each of
its records pertaining to the Collateral with a legend, in form and substance
satisfactory to the Administrative Agent, indicating that such document, chattel
paper, Related Contract, Assigned Agreement or Collateral is subject to the
security interest granted hereby; (ii) if any Collateral shall be evidenced by a
promissory note or other instrument or chattel paper, deliver and pledge to the
Administrative Agent hereunder such note or instrument or chattel paper duly
indorsed and accompanied by duly executed instruments of transfer or assignment,
all in form and substance reasonably satisfactory to the Administrative Agent;
and (iii) execute and file such financing or continuation statements, or
amendments thereto, and such other instruments or notices, as may be necessary
or desirable, or as the Administrative Agent may reasonably request, in order to
perfect and preserve the pledge, assignment and security interest granted or
purported to be granted hereby.
(b) Each Grantor hereby authorizes the Administrative Agent to file one or
more financing or continuation statements, and amendments thereto, relating to
all or any part of the Collateral pledged by such Grantor hereunder without the
signature of such Grantor where permitted by law. A photocopy or other
reproduction of this Agreement or any financing statement covering the
Collateral or any part thereof shall be sufficient as a financing statement
where permitted by law.
(c) Each Grantor will furnish to the Administrative Agent from time to time
statements and schedules further identifying and describing the Collateral
pledged by such Grantor hereunder and such other reports in connection with the
Collateral pledged by such Grantor hereunder as the Administrative Agent may
reasonably request, all in reasonable detail.
Section 11. As to Equipment and Inventory. (a) Each Grantor shall keep
-----------------------------
the Equipment and Inventory (other than Inventory sold in the ordinary course of
business) pledged by such Grantor hereunder at the places therefor specified in
Section 9(a) or, upon 30 days' prior written notice to the Administrative Agent,
at such other places in a jurisdiction where all action required by Section 10
shall have been taken with respect to such Equipment and Inventory.
(b) Each Grantor shall cause the Equipment pledged by such Grantor
hereunder to be maintained and preserved in the same condition, repair and
working order as exists on the date hereof or, with respect to Equipment
acquired after the date hereof, as when new, ordinary wear and tear excepted,
and in accordance with any manufacturer's manual, and shall forthwith, or in the
case of any material loss or damage to any of such Equipment as quickly as
practicable after the occurrence thereof, make or cause to be made all repairs,
replacements and other improvements in connection therewith that are necessary
or desirable to such end. Each Grantor shall promptly furnish to the
Administrative Agent a statement respecting any material loss or damage to any
of the Equipment pledged by such Grantor hereunder.
(c) Each Grantor shall pay promptly when due all property and other taxes,
assessments and governmental charges or levies imposed upon, and all claims
(including claims for labor, materials and supplies) against, the Equipment and
Inventory pledged by such Grantor
<PAGE>
hereunder, except as permitted by the provisions of the Credit Agreement. In
producing the Inventory pledged by such Grantor hereunder, each Grantor shall
comply with all requirements of the Fair Labor Standards Act.
Section 12. Insurance. (a) Each Grantor shall, at its own expense,
---------
maintain insurance with respect to the Equipment and Inventory pledged by such
Grantor hereunder in such amounts, against such risks, in such form and with
such insurers, as shall be reasonably satisfactory to the Administrative Agent
from time to time. Each such policy shall provide for all losses to be paid on
behalf of the Administrative Agent and such Grantor as their interests may
appear, and each policy for property damage insurance shall provide for all
losses (except for losses of less than $250,000 per occurrence) to be paid
directly to the Administrative Agent. Each such policy shall in addition (i)
name such Grantor and the Administrative Agents as insured parties thereunder
(without any representation or warranty by or obligation upon the Administrative
Agent) as their interests may appear, (ii) contain the agreement by the insurer
that any loss thereunder shall be payable to the Administrative Agent
notwithstanding any action, inaction or breach of representation or warranty by
such Grantor, (iii) provide that there shall be no recourse against the
Administrative Agent for payment of premiums or other amounts with respect
thereto and (iv) provide that at least 10 days' prior written notice of
cancellation or of lapse shall be given to the Administrative Agent by the
issuer. Each Grantor shall, if so requested by the Administrative Agent,
deliver to the Administrative Agent original or duplicate policies of such
insurance and, as often as the Administrative Agent may reasonably request, a
report of a reputable insurance broker with respect to such insurance. Further,
each Grantor shall, at the request of the Administrative Agent, duly exercise
and deliver instruments of assignment of such insurance policies to comply with
the requirements of Section 10 and cause the insurers to acknowledge notice of
such assignment.
(b) Reimbursement under any liability insurance maintained by any Grantor
pursuant to this Section 12 may be paid directly to the Person who shall have
incurred liability covered by such insurance. In case of any loss involving
damage to Equipment or Inventory when subsection (c) of this Section 12 is not
applicable, the Grantor that owns such Equipment or Inventory shall make or
cause to be made the necessary repairs to or replacements of such Equipment or
Inventory, and any proceeds of insurance maintained by such Grantor pursuant to
this Section 12 shall be paid to such Grantor as reimbursement for the costs of
such repairs or replacements.
(c) Upon the occurrence and during the continuance of any Default or the
actual or constructive total loss (in excess of $250,000 per occurrence) of any
Equipment or Inventory, all insurance payments in respect of such Equipment or
Inventory shall be paid to and applied by the Administrative Agent as specified
in Section 21(b).
Section 13. Place of Perfection; Records; Collection of Receivables. (a)
-------------------------------------------------------
Each Grantor shall keep its chief place of business and chief executive office
and the office where it keeps its records concerning the Collateral, and the
original copies of the Assigned Agreements to which
<PAGE>
such Grantor is a party and all originals of all chattel paper that evidence
Receivables pledged by such Grantor hereunder, at the location therefor
specified in Section 9(a) or, upon 30 days' prior written notice to the
Administrative Agent, at such other locations in a jurisdiction where all
actions required by Section 10 shall have been taken with respect to the
Collateral. Each Grantor will hold and preserve such records, Assigned
Agreements and chattel paper and will permit representatives of the
Administrative Agent at any time during normal business hours to inspect and
make abstracts from such records and chattel paper.
(b) Except as otherwise provided in this subsection (b), each Grantor shall
continue to collect, at its own expense, all amounts due or to become due such
Grantor under the Receivables. In connection with such collections, each
Grantor may take (and, at the Administrative Agent's direction, shall take) such
action as such Grantor or the Administrative Agent may deem necessary or
advisable to enforce collection of the Receivables pledged by such Grantor
hereunder; provided, however, that the Administrative Agent shall have the right
-------- -------
at any time, upon the occurrence and during the continuance of an Event of
Default and upon written notice to such Grantor of its intention to do so, to
notify the Obligors under any Receivables of the assignment of such Receivables
to the Administrative Agent and to direct such Obligors to make payment of all
amounts due or to become due to such Grantor thereunder directly to the
Administrative Agent and, upon such notification and at the expense of such
Grantor, to enforce collection of any such Receivables, and to adjust, settle or
compromise the amount or payment thereof, in the same manner and to the same
extent as such Grantor might have done. After receipt by any Grantor of the
notice from the Administrative Agent referred to in the proviso to the preceding
-------
sentence, (i) all amounts and proceeds (including instruments) received by such
Grantor in respect of such Receivables shall be received in trust for the
benefit of the Administrative Agent hereunder, shall be segregated from other
funds of such Grantor and shall be forthwith paid over to the Administrative
Agent in the same form as so received (with any necessary indorsement) to be
deposited in the Cash Collateral Account and either (A) released to such Grantor
on the terms set forth in Section 8 so long as no Default shall have occurred
and be continuing or (B) if any Event of Default shall have occurred and be
continuing, applied as provided by Section 21(b) and (ii) such Grantor shall not
adjust, settle or compromise the amount or payment of any such Receivable
pledged by such Grantor hereunder, release wholly or partly any Obligor thereof,
or allow any credit or discount thereon.
Section 14. Voting Rights; Dividends; Etc. (a) So long as no Event of
-----------------------------
Default shall have occurred and be continuing:
(i) Each Grantor shall be entitled to exercise any and all voting
and other consensual rights pertaining to the Security Collateral pledged by
such Grantor hereunder or any part thereof for any purpose not inconsistent with
the terms of this Agreement or the other Loan Documents; provided, however, that
-------- -------
each Grantor shall not exercise or refrain from exercising any such right if, in
the Administrative Agent's judgment, such action would have a material adverse
effect on the value of the Security Collateral or any part thereof.
<PAGE>
(ii) Each Grantor shall be entitled to receive and retain any and all
dividends and interest paid in respect of the Security Collateral pledged by
such Grantor hereunder; provided, however, that any and all
-------- -------
(A) dividends and interest paid or payable other than in cash in
respect of, and instruments and other property received, receivable or
otherwise distributed in respect of, or in exchange for, any Security
Collateral,
(B) dividends and other distributions paid or payable in cash in
respect of any Security Collateral in connection with a partial or total
liquidation or dissolution or in connection with a reduction of capital,
capital surplus or paid-in-surplus and
(C) cash paid, payable or otherwise distributed in respect of
principal of, or in redemption of, or in exchange for, any Security
Collateral
shall be, and shall be forthwith delivered to the Administrative Agent to hold
as, Security Collateral and shall, if received by such Grantor, be received in
trust for the benefit of the Administrative Agent, be segregated from the other
property or funds of such Grantor and be forthwith delivered to the
Administrative Agent as Security Collateral in the same form as so received
(with any necessary indorsement).
(iii) The Administrative Agent shall execute and deliver (or cause to
be executed and delivered) to each Grantor all such proxies and other
instruments as such Grantor may reasonably request for the purpose of enabling
such Grantor to exercise the voting and other rights that it is entitled to
exercise pursuant to paragraph (i) above and to receive the dividends or
interest payments that it is authorized to receive and retain pursuant to
paragraph (ii) above.
(b) Upon the occurrence and during the continuance of an Event of Default:
(i) All rights of each Grantor (x) to exercise or refrain from
exercising the voting and other consensual rights that it would otherwise be
entitled to exercise pursuant to Section 14(a)(i) shall, upon notice to the
Borrower by the Administrative Agent, cease and (y) to receive the dividends and
interest payments that it would otherwise be authorized to receive and retain
pursuant to Section 14(a)(ii) shall automatically cease, and all such rights
shall thereupon become vested in the Administrative Agent, which shall thereupon
have the sole right to exercise or refrain from exercising such voting and other
consensual rights and to receive and hold as Security Collateral such dividends
and interest payments.
(ii) All dividends and interest payments that are received by any
Grantor contrary to the provisions of paragraph (i) of this Section 14(b) shall
be received in trust for the benefit of the Administrative Agent, shall be
segregated from other funds of such Grantor and shall be forthwith paid over to
the Administrative Agent as Security Collateral in the same form as so received
(with any necessary indorsement).
<PAGE>
Section 15. As to the Assigned Agreements. (a) Each Grantor shall at its
-----------------------------
expense:
(i) perform and observe all the terms and provisions of the
Assigned Agreements to which such Grantor is a party to be performed or observed
by it, use reasonable efforts to maintain such Assigned Agreements in full force
and effect, use reasonable efforts to enforce such Assigned Agreements in
accordance with their terms and take all such action to such end as may be from
time to time reasonably requested by the Administrative Agent; and
(ii) furnish to the Administrative Agent promptly upon receipt
thereof copies of all notices, requests and other documents received by such
Grantor under or pursuant to the Assigned Agreements to which such Grantor is a
party, and from time to time (A) furnish to the Administrative Agent such
information and reports regarding the Collateral pledged by such Grantor
hereunder as the Administrative Agent may reasonably request and (B) upon
request of the Administrative Agent make to each other party to any such
Assigned Agreement such demands and requests for information and reports or for
action as such Grantor is entitled to make thereunder.
(b) Each Grantor agrees that it shall not:
(i) cancel or terminate any Assigned Agreement to which such
Grantor is a party or consent to or accept any cancellation or termination
thereof;
(ii) amend or otherwise modify any Assigned Agreement to which such
Grantor is a party or give any consent, waiver or approval thereunder;
(iii) waive any default under or breach of any Assigned Agreement to
which such Grantor is a party;
(iv) consent to or permit or accept any prepayment of amounts to
become due under or in connection with any Assigned Agreement to which such
Grantor is a party, except as expressly provided therein; or
(v) take any other action in connection with any Assigned
Agreement to which such Grantor is a party that would materially impair the
value of the interest or rights of such Grantor thereunder or that would
materially impair the interest or rights of the Administrative Agent.
Section 16. Payments Under the Assigned Agreements and the Material
-------------------------------------------------------
Contracts. (a) Each Grantor agrees, and has effectively so instructed (or
- ---------
will, within five Business Days following the Closing Date, effectively so
instruct) each other party to each Assigned Agreement and each Material Contract
to which such Grantor is a party, that all payments due or to become due under
or in connection with such Assigned Agreement shall be made directly to the Cash
Collateral Account or to a Lockbox Account.
<PAGE>
(b) Except as set forth in Section 21, all moneys received or collected
pursuant to subsection (a) above shall be applied as set forth in Section 8.
Section 17. Transfers and Other Liens; Additional Shares. (a) Each
--------------------------------------------
Grantor agrees that it shall not, other than in accordance with the terms of the
Credit Agreement, (i) sell, assign (by operation of law or otherwise) or
otherwise dispose of, or grant any option with respect to, any of the
Collateral, except sales of Inventory pledged by such Grantor hereunder in the
ordinary course of business, or (ii) create or suffer to exist any Lien upon or
with respect to any of the Collateral except for the pledge, assignment and
security interest created by this Agreement.
(b) Each Grantor agrees that it shall (i) cause each issuer of the Pledged
Shares pledged by such Grantor hereunder not to issue any stock or other
securities in addition to or in substitution for the Pledged Shares issued by
such issuer, except to such Grantor, and (ii) pledge hereunder, immediately upon
its acquisition (directly or indirectly) thereof, any and all additional shares
of stock or other securities owned by such Grantor of each issuer of the Pledged
Shares.
Section 18. Administrative Agent Appointed Attorney-in-Fact. Each Grantor
-----------------------------------------------
hereby irrevocably appoints the Administrative Agent such Grantor's attorney-in-
fact, with full authority in the place and stead of such Grantor and in the name
of such Grantor or otherwise, from time to time in the Administrative Agent's
discretion upon the occurrence and during the continuance of an Event of
Default, to take any action and to execute any instrument that the
Administrative Agent may deem necessary or advisable to accomplish the purposes
of this Agreement, including, without limitation:
(a) to obtain and adjust insurance required to be paid to the
Administrative Agent pursuant to Section 12,
(b) to ask for, demand, collect, sue for, recover, compromise, receive and
give acquittance and receipts for moneys due and to become due under or in
respect of any of the Collateral,
(c) to receive, indorse and collect any drafts or other instruments,
documents and chattel paper, in connection with clause (a) or (b) above, and
(d) to file any claims or take any action or institute any proceedings that
the Administrative Agent may deem necessary or desirable for the collection of
any of the Collateral or otherwise to enforce compliance with the terms and
conditions of any Assigned Agreement or the rights of the Administrative Agent
with respect to any of the Collateral.
Section 19. Administrative Agent May Perform. If any Grantor fails to
--------------------------------
perform any agreement contained herein, the Administrative Agent may itself
perform, or cause performance of, such agreement, and the expenses of the
Administrative Agent incurred in connection therewith shall be payable by such
Grantor under Section 23(b).
<PAGE>
Section 20. The Administrative Agent's Duties. The powers conferred on
---------------------------------
the Administrative Agent hereunder are solely to protect its interest in the
Collateral and shall not impose any duty upon it to exercise any such powers.
Except for the safe custody of any Collateral in its possession and the
accounting for moneys actually received by it hereunder, the Administrative
Agent shall have no duty as to any Collateral, as to ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relative to any Security Collateral, whether or not the
Administrative Agent or any Secured Party has or is deemed to have knowledge of
such matters, or as to the taking of any necessary steps to preserve rights
against any parties or any other rights pertaining to any Collateral. The
Administrative Agent shall be deemed to have exercised reasonable care in the
custody and preservation of any Collateral in its possession if such Collateral
is accorded treatment substantially equal to that which NationsBank accords its
own property.
Section 21. Remedies. If any Event of Default shall have occurred and be
--------
continuing:
(a) The Administrative Agent may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to it, all the rights and remedies of a secured party upon default under the
Uniform Commercial Code in effect in the State of New York at such time (the
"New York Uniform Commercial Code") (whether or not the New York Uniform
- ---------------------------------
Commercial Code applies to the affected Collateral) and also may (i) require any
or all of the Grantors to, and each Grantor hereby agrees that it will at its
expense and upon request of the Administrative Agent forthwith, assemble all or
part of the Collateral pledged by such Grantor hereunder as directed by the
Administrative Agent and make it available to the Administrative Agent at a
place to be designated by the Administrative Agent that is reasonably convenient
to both parties and (ii) without notice except as specified below, sell the
Collateral pledged by such Grantor hereunder or any part thereof in one or more
parcels at public or private sale, at any of the Administrative Agent's offices
or elsewhere, for cash, on credit or for future delivery, and upon such other
terms as the Administrative Agent may deem commercially reasonable. Each
Grantor agrees that, to the extent notice of sale shall be required by law, at
least ten days' notice to such Grantor of the time and place of any public sale
or the time after which any private sale is to be made shall constitute
reasonable notification. The Administrative Agent shall not be obligated to
make any sale of Collateral regardless of notice of sale having been given. The
Administrative Agent may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.
(b) All cash proceeds received by the Administrative Agent in respect of
any sale of, collection from, or other realization upon all or any part of the
Collateral may, in the discretion of the Administrative Agent, be held by the
Administrative Agent as collateral for, and/or then or at any time thereafter
applied (after payment of any amounts payable to the Administrative Agent
pursuant to Section 23) in whole or in part by the Administrative Agent for the
ratable benefit of the Secured Parties against, all or any part of the Secured
Obligations in such order as the Administrative Agent shall elect. Any surplus
of such cash or cash proceeds held by the Administrative Agent and remaining
after payment in full of all the Secured Obligations shall be
<PAGE>
paid over to the applicable Grantor or to whomsoever may be lawfully entitled to
receive such surplus.
(c) The Administrative Agent may exercise any and all rights and remedies
of any Grantor under or in connection with the Assigned Agreements or otherwise
in respect of the Collateral, including, without limitation, any and all rights
of any Grantor to demand or otherwise require payment of any amount under, or
performance of any provision of, any Assigned Agreement.
(d) All payments received by any Grantor under or in connection with any
Assigned Agreement or otherwise in respect of the Collateral shall be received
in trust for the benefit of the Administrative Agent, shall be segregated from
other funds of such Grantor and shall be forthwith paid over to the
Administrative Agent in the same form as so received (with any necessary
indorsement).
(e) The Administrative Agent may, without notice to any Grantor except as
required by law and at any time or from time to time, charge, set-off and
otherwise apply all or any part of the Secured Obligations against the Cash
Collateral Account or the L/C Cash Collateral Account or any part thereof.
Section 22. Registration Rights. If the Administrative Agent shall
-------------------
determine to exercise its right to sell all or any of the Security Collateral
pursuant to Section 21, each Grantor agrees that, upon request of the
Administrative Agent, such Grantor will, at its own expense:
(a) execute and deliver, and cause each issuer of the Security Collateral
pledged by such Grantor hereunder contemplated to be sold and the directors and
officers thereof to execute and deliver, all such instruments and documents, and
do or cause to be done all such other acts and things, as may be necessary or,
in the opinion of the Administrative Agent, advisable to register such Security
Collateral under the provisions of the Securities Act of 1933, as from time to
time amended (the "Securities Act"), to cause the registration statement
--------------
relating thereto to become effective and to remain effective for such period as
prospectuses are required by law to be furnished and to make all amendments and
supplements thereto and to the related prospectus that, in the opinion of the
Administrative Agent, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto;
(b) use its reasonable efforts to qualify the Security Collateral pledged
by such Grantor hereunder under the state securities or "Blue Sky" laws and to
obtain all necessary governmental approvals for the sale of such Security
Collateral, as requested by the Administrative Agent;
<PAGE>
(c) cause each such issuer of the Security Collateral pledged by such
Grantor hereunder to make available to its security holders, as soon as
practicable, an earnings statement that will satisfy the provisions of Section
11(a) of the Securities Act;
(d) provide the Administrative Agent with such other information and
projections as may be necessary or, in the opinion of the Administrative Agent,
advisable to enable the Administrative Agent to effect the sale of the Security
Collateral pledged by such Grantor hereunder; and
(e) do or cause to be done all such other acts and things as may be
necessary to make such sale of the Security Collateral pledged by such Grantor
hereunder or any part thereof valid and binding and in compliance with
applicable law.
The Administrative Agent is authorized, in connection with any sale of the
Security Collateral pursuant to Section 21, to deliver or otherwise disclose to
any prospective purchaser of the Security Collateral (i) any registration
statement or prospectus, and all supplements and amendments thereto, prepared
pursuant to clause (a) above, (ii) any information and projections provided to
it pursuant to clause (d) above and (iii) any other information in its
possession relating to the Security Collateral.
Section 23. Indemnity and Expenses. (a) Each Grantor agrees to indemnify
----------------------
the Administrative Agent from and against any and all claims, losses and
liabilities growing out of or resulting from this Agreement (including, without
limitation, enforcement of this Agreement), except claims, losses or liabilities
resulting from the Administrative Agent's gross negligence or willful misconduct
as determined by a final judgment of a court of competent jurisdiction.
(b) The Borrower will upon demand pay to the Administrative Agent the
amount of any and all reasonable expenses, including the reasonable fees and
expenses of its counsel and of any experts and agents, that the Administrative
Agent may incur in connection with (i) the administration of this Agreement,
(ii) the custody, preservation, use or operation of, or the sale of, collection
from or other realization upon, any of the Collateral, (iii) the exercise or
enforcement of any of the rights of the Administrative Agent or the Secured
Parties hereunder or (iv) the failure by any Grantor to perform or observe any
of the provisions hereof.
Section 24. Security Interest Absolute. The obligations of each Grantor
--------------------------
under this Agreement are independent of the Secured Obligations, and a separate
action or actions may be brought and prosecuted against any Grantor to enforce
this Agreement, irrespective of whether any action is brought against the
Borrower or any other Loan Party or whether the Borrower is joined in any such
action or actions. All rights of the Administrative Agent and the pledge,
assignment and security interest hereunder, and all obligations of the each
Grantor hereunder, shall be absolute and unconditional, irrespective of:
(a) any lack of validity or enforceability of any Loan Document or any
other agreement or instrument relating thereto;
<PAGE>
(b) any change in the time, manner or place of payment of, or in any other
term of, all or any of the Secured Obligations or any other amendment or waiver
of or any consent to any departure from any Loan Document, including, without
limitation, any increase in the Secured Obligations resulting from the extension
of additional credit to the Borrower, any other Loan Party, or any of their
subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any other
collateral, or any taking, release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Secured Obligations;
(d) any manner of application of collateral, or proceeds thereof, to all or
any of the Secured Obligations, or any manner of sale or other disposition of
any collateral for all or any of the Secured Obligations or any other assets of
any Grantor or any of their subsidiaries;
(e) any change, restructuring or termination of the corporate structure or
existence of any Grantor or any of their subsidiaries; or
(f) any other circumstance that might otherwise constitute a defense
available to, or a discharge of, any Grantor or a third party grantor of a
security interest.
Section 25. Amendments; Waivers; Etc. (a) No amendment or waiver of any
------------------------
provision of this Agreement, and no consent to any departure by any Grantor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by each Grantor and the Administrative Agent, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
(b) No failure on the part of the Administrative Agent to exercise, and no
delay in exercising any right hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right.
(c) Upon the execution and delivery by any Person of a supplement to this
Agreement, in each case in substantially the form of Exhibit C hereto (each a
"Security Agreement Supplement"), (i) such Person shall be referred to as an
- ------------------------------
"Additional Grantor" and shall be and become a Grantor, and each reference in
this Agreement to an "Additional Grantor" or a "Grantor" shall also mean and be
a reference to such Additional Grantor and each reference in any other Loan
Document to a "Grantor" or a "Loan Party" shall also mean and be a reference to
such Additional Grantor, and (ii) the schedule supplements attached to each
Security Agreement Supplement shall be incorporated into and become a part of
and supplement the Schedules to this Agreement, as appropriate, and the
Administrative Agent may attach such supplements to such Schedules, and each
reference to such Schedules shall mean and be a reference to such Schedules, as
supplemented pursuant hereto.
<PAGE>
Section 26. Addresses for Notices. All notices and other communications
---------------------
provided for hereunder shall be in writing (including telecopier, telegraphic,
telex or cable communication) and mailed, telegraphed, telecopied, telexed,
cabled or delivered if to any Grantor, addressed to it at the address set forth
below its name on the signature pages hereof, if to any Additional Grantor,
addressed to it at the address set forth below its name on the signature pages
to the Security Agreement Supplement executed and delivered by such Additional
Grantor, if to the Administrative Agent, addressed to it at its address set
forth in Section 8.02 of the Credit Agreement or, as to any party, at such other
address as shall be designated by such party in a written notice to the Grantors
and the Administrative Agent. All such notices and other communications shall,
when mailed, telecopied, telegraphed, telexed or cabled, respectively, be
effective three days after being deposited in the mails or, if sent by overnight
courier, on the day following the day of delivery to the overnight courier, or
when telecopied, delivered to the telegraph company, confirmed by telex
answerback or delivered to the cable company, respectively, addressed as
aforesaid.
Section 27. Continuing Security Interest; Assignments under the Credit
----------------------------------------------------------
Agreement. This Agreement shall create a continuing security interest in the
- ---------
Collateral and shall (a) remain in full force and effect until the later of the
payment in full in cash of the Secured Obligations and the Termination Date, (b)
be binding upon each Grantor, its successors and assigns and (c) inure, together
with the rights and remedies of the Administrative Agent hereunder, to the
benefit of the Administrative Agent, the Secured Parties and their respective
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (c), any Secured Party may assign or otherwise transfer all or
any portion of its rights and obligations under the Credit Agreement (including,
without limitation, all or any portion of its Commitment, the Advances owing to
it and the Note or Notes held by it to any other Person), and such other Person
shall thereupon become vested with all the benefits in respect thereof granted
to such Lender herein or otherwise, in each case as provided in Section 8.07 of
the Credit Agreement.
Section 28. Release and Termination. (a) Upon any sale, lease, transfer
-----------------------
or other disposition of any item of Collateral in accordance with the terms of
the Loan Documents (other than sales of Inventory in the ordinary course of
business), the Administrative Agent will, at the expense of the Grantor pledging
such item of Collateral hereunder, execute and deliver to such Grantor such
documents as such Grantor shall reasonably request to evidence the release of
such item of Collateral from the assignment and security interest granted
hereby; provided, however, that (i) at the time of such request and such release
-------- -------
no Default shall have occurred and be continuing, (ii) such Grantor shall have
delivered to the Administrative Agent, at least ten days prior to the date of
the proposed release, a written request for release describing the item of
Collateral and the terms of the sale, lease, transfer or other disposition in
reasonable detail, including the price thereof and any expenses in connection
therewith, together with a form of release for execution by the Administrative
Agent and a certification by such Grantor to the effect that the transaction is
in compliance with the Loan Documents and as to such other matters as the
Administrative Agent may request, and (iii) the proceeds of any such sale,
lease, transfer or other disposition required to be applied in accordance with
Section 2.06 of the Credit Agreement shall be paid to, or in accordance with the
instructions of, the Administrative Agent at the closing.
<PAGE>
(b) Upon the later of the payment in full in cash of the Secured
Obligations and the Termination Date, the pledge, assignment and security
interest granted hereby shall terminate and all rights to the Collateral shall
revert to the appropriate Grantor. Upon any such termination, the
Administrative Agent will, at such Grantor's expense, execute and deliver to
such Grantor such documents as such Grantor shall reasonably request to evidence
such termination.
Section 29. The Mortgages. In the event that any of the Collateral
-------------
hereunder is also subject to a valid and enforceable Lien under the terms of any
Mortgage and the terms of such Mortgage are inconsistent with the terms of this
Agreement, then with respect to such Collateral, the terms of such Mortgage
shall be controlling in the case of fixtures and leases, letting and licenses
of, and contracts and agreements relating to the lease of real property, and the
terms of this Agreement shall be controlling in the case of all other
Collateral.
Section 30. Governing Law; Terms. This Agreement shall be governed by and
--------------------
construed in accordance with the laws of the State of New York, except to the
extent that the validity or perfection of the security interest hereunder, or
remedies hereunder, in respect of any particular Collateral are governed by the
laws of a jurisdiction other than the State of New York. Unless otherwise
defined herein or in the Credit Agreement, terms used in Article 9 of the New
York Uniform Commercial Code are used herein as therein defined.
<PAGE>
IN WITNESS WHEREOF, each Grantor has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
GRANTORS
--------
PHP HEALTHCARE CORPORATION
By /s/ Anthony M. Picini
----------------------------------
Title:
Address:
HEALTH COST CONSULTANTS, INC.
By /s/ Anthony M. Picini
----------------------------------
Title:
Address:
PHP/CHE, INC.
By /s/ Anthony M. Picini
----------------------------------
Title:
Address:
PHP/IHS, INC.
By /s/ Anthony M. Picini
----------------------------------
Title:
Address:
<PAGE>
PHP LOUISIANA, INC.
By /s/ Anthony M. Picini
----------------------------------
Title:
Address:
PHP NJ MSO, INC.
By /s/ Anthony M. Picini
----------------------------------
Title:
Address:
PINNACLE HEALTH ENTERPRISES, L.L.C.
By PHP HEALTHCARE CORPORATION
as Member
By /s/ Anthony M. Picini
---------------------------------
Title:
Address:
By PHP NJ MSO, Inc.
as Member
By /s/ Anthony M. Picini
----------------------------------
Title:
Address:
<PAGE>
Exhibit 10.4
SUBSIDIARY GUARANTY
SUBSIDIARY GUARANTY dated as of October 31, 1997 made by each of the
Persons listed on the signature pages hereof under the caption "Subsidiary
Guarantors" and the Additional Guarantors (as defined in Section 8(b)) (such
Persons so listed and the Additional Guarantors being, collectively, the
"Guarantors"), in favor of the Secured Parties (as defined in the Credit
- -----------
Agreement referred to below).
PRELIMINARY STATEMENT.
PHP Healthcare Corporation, a Delaware corporation (the "Borrower"), has
--------
entered into a Credit Agreement dated as of October 31, 1997 (said Agreement, as
it may hereafter be amended or otherwise modified from time to time, being the
"Credit Agreement"; the terms defined therein and not otherwise defined herein
- -----------------
being used herein as therein defined) with the banks, financial institutions and
other institutional lenders party thereto (the "Lenders"), NationsBank, N.A.
-------
("NationsBank"), as initial issuing bank, and NationsBank, as the Administrative
- -------------
Agent for the Lender Parties. It is a condition precedent to the making of
Advances by the Lenders under the Credit Agreement and to the issuance of
Letters of Credit by the Issuing Bank under the Credit Agreement from time to
time that the Guarantors (as wholly-owned domestic Subsidiaries of the Borrower)
shall have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to induce the
Lender Parties to make Advances and the Issuing Bank to issue Letters of Credit
under the Credit Agreement from time to time, each Guarantor hereby agrees as
follows:
Section 1. Guaranty; Limitation of Liability. (a) Each Guarantor,
---------------------------------
jointly and severally, hereby unconditionally and irrevocably guarantees the
punctual payment when due, whether at stated maturity, by acceleration or
otherwise, of all Obligations of the Borrower now or hereafter existing under
the Loan Documents, whether for principal, interest, fees, expenses or otherwise
(such Obligations being the "Guaranteed Obligations"), and agrees to pay any and
----------------------
all reasonable expenses (including reasonable counsel fees and expenses)
incurred by the Administrative Agent or any other Secured Party in enforcing any
rights under this Guaranty. Without limiting the generality of the foregoing,
each Guarantor's liability shall extend to all amounts that constitute part of
the Guaranteed Obligations and would be owed by the Borrower to the
Administrative Agent or any other Secured Party under the Loan Documents but for
the fact that they are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving the Borrower.
(b) Each Guarantor, and by its acceptance of this Guaranty, the
Administrative Agent and each other Secured Party, hereby confirms that it is
the intention of all such parties that this Guaranty not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or
state law to the extent applicable to this Guaranty. To effectuate the
foregoing intention, the Administrative Agent, the other Secured Parties and the
Guarantors hereby irrevocably agree that
<PAGE>
the Obligations of each Guarantor under this Guaranty shall be limited to the
maximum amount as will, after giving effect to such maximum amount and all other
contingent and fixed liabilities of such Guarantor that are relevant under such
laws, and after giving effect to any collections from, rights to receive
contribution from or payments made by or on behalf of any other Guarantor in
respect of the Obligations of such other Guarantor under this Guaranty, result
in the Obligations of such Guarantor under this Guaranty not constituting a
fraudulent transfer or conveyance. For purposes hereof, "Bankruptcy Law" means
--------------
Title 11, U.S. Code, or any similar Federal or state law for the relief of
debtors.
Section 2. Guaranty Absolute. Each Guarantor guarantees that the
-----------------
Guaranteed Obligations will be paid strictly in accordance with the terms of the
Loan Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Administrative Agent or any other Secured Party with respect thereto. The
Obligations of each Guarantor under this Guaranty are independent of the
Guaranteed Obligations or any other Obligations of any other Loan Party under
the Loan Documents, and a separate action or actions may be brought and
prosecuted against such Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against the Borrower or any other Loan Party or
whether the Borrower or any other Loan Party is joined in any such action or
actions. The liability of each Guarantor under this Guaranty shall be
irrevocable, absolute and unconditional irrespective of, and each Guarantor
hereby irrevocably waives any defenses it may now or hereafter have in any way
relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan Document or any
agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any other
term of, all or any of the Guaranteed Obligations or any other Obligations of
any other Loan Party under the Loan Documents, or any other amendment or waiver
of or any consent to departure from any Loan Document, including, without
limitation, any increase in the Guaranteed Obligations resulting from the
extension of additional credit to the Borrower or any of its Subsidiaries or
otherwise;
(c) any taking, exchange, release or non-perfection of any Collateral, or
any taking, release or amendment or waiver of or consent to departure from any
other guaranty, for all or any of the Guaranteed Obligations;
(d) any manner of application of Collateral, or proceeds thereof, to all or
any of the Guaranteed Obligations, or any manner of sale or other disposition of
any Collateral for all or any of the Guaranteed Obligations or any other
Obligations of any other Loan Party under the Loan Documents or any other assets
of the Borrower or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate structure or
existence of the Borrower or any of its Subsidiaries;
<PAGE>
(f) any failure of any Secured Party to disclose to the Borrower or such
Guarantor any information relating to the financial condition, operations,
properties or prospects of any other Loan Party now or in the future known to
any Secured Party (such Guarantor waiving any duty on the part of the Secured
Parties to disclose such information);
(g) the failure of any other Person to execute this Guaranty or any other
guaranty or agreement or the release or reduction of liability of any of the
other Guarantors or any other guarantor or surety with respect to the Guaranteed
Obligations; or
(h) any other circumstance (including, without limitation, any statute of
limitations) or any existence of or reliance on any representation by the
Administrative Agent or any other Secured Party that might otherwise constitute
a defense available to, or a discharge of, the Borrower, such Guarantor or any
other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by any Secured Party or any other Person upon the
insolvency, bankruptcy or reorganization of the Borrower or any other Loan Party
or otherwise, all as though such payment had not been made.
Section 3. Waivers and Acknowledgments. (a) Each Guarantor hereby waives
---------------------------
promptness, diligence, notice of acceptance and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that the
Administrative Agent or any other Secured Party protect, secure, perfect or
insure any Lien or any property subject thereto or exhaust any right or take any
action against the Borrower or any other Person or any Collateral.
(b) Each Guarantor hereby waives any right to revoke this Guaranty, and
acknowledges that this Guaranty is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the future.
(c) Each Guarantor acknowledges that the Administrative Agent may, upon the
terms and conditions set forth in any Mortgage, without notice to or demand upon
such Guarantor and without affecting the liability of such Guarantor under this
Guaranty, foreclose under any Mortgage by nonjudicial sale, and such Guarantor
hereby waives any defense to the recovery by the Administrative Agent and the
other Secured Parties against such Guarantor of any deficiency after such
nonjudicial sale and any defense or benefits that may be afforded by applicable
law.
(d) Each Guarantor acknowledges that it will receive substantial direct and
indirect benefits from the financing arrangements contemplated by the Loan
Documents and that the waivers set forth in this Section 3 are knowingly made in
contemplation of such benefits.
(e) Each Guarantor hereby waives (i) any defense arising by reason of any
claim or defense based upon an election of remedies by the Administrative Agent
or the other Secured Parties which in any manner impairs, reduces, releases or
otherwise adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of such
<PAGE>
Guarantor or any other rights of such Guarantor to proceed against any of the
other Loan Parties, any other guarantor or any other Person or any Collateral
and (ii) any defense based on any right of setoff or counterclaim against or in
respect of the Obligations of such Guarantor under this Guaranty.
Section 4. Subrogation. Each Guarantor will not exercise any rights that
-----------
it may now or hereafter acquire against the Borrower or any other insider
guarantor that arise from the existence, payment, performance or enforcement of
such Guarantor's Obligations under this Guaranty or any other Loan Document,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any
claim or remedy of the Administrative Agent or any other Secured Party against
the Borrower or any other insider guarantor or any Collateral, whether or not
such claim, remedy or right arises in equity or under contract, statute or
common law, including, without limitation, the right to take or receive from the
Borrower or any other insider guarantor, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim, remedy or right, unless and until all of the Obligations
and all other amounts payable under this Guaranty shall have been paid in full
in cash and the Commitments shall have expired or terminated. If any amount
shall be paid to any Guarantor in violation of the preceding sentence at any
time prior to the later of (i) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Guaranty and (ii) the
Termination Date, such amount shall be held in trust for the benefit of the
Administrative Agent and the other Secured Parties and shall forthwith be paid
to the Administrative Agent to be credited and applied to the Guaranteed
Obligations and all other amounts payable under this Guaranty, whether matured
or unmatured, in accordance with the terms of the Loan Documents, or to be held
as Collateral for any Guaranteed Obligations or other amounts payable under this
Guaranty thereafter arising. If (i) any Guarantor shall make payment to the
Administrative Agent or any other Secured Party of all or any part of the
Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other
amounts payable under this Guaranty shall be paid in full in cash and (iii) the
Termination Date shall have occurred, the Administrative Agent and the other
Secured Parties will, at such Guarantor's request and expense, execute and
deliver to such Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation to
such Guarantor of an interest in the Guaranteed Obligations resulting from such
payment by such Guarantor.
Section 5. Payments Free and Clear of Taxes, Etc. (a) Any and all
--------------------------------------
payments made by any Guarantor hereunder shall be made, in accordance with
Section 2.12 of the Credit Agreement, free and clear of and without deduction
for any and all present or future Taxes. If any Guarantor shall be required by
law to deduct any Taxes from or in respect of any sum payable hereunder to the
Administrative Agent or any other Secured Party, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent or such other Secured Party (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Guarantor shall make such deductions and (iii)
such Guarantor shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
<PAGE>
(b) In addition, each Guarantor agrees to pay any present or future Other
Taxes.
(c) Each Guarantor will indemnify the Administrative Agent and each other
Secured Party for the full amount of Taxes or Other Taxes, and for the full
amount of taxes imposed by any jurisdiction on amounts payable under this
Section, imposed on or paid by the Administrative Agent or such other Secured
Party (as the case may be) and any liability (including penalties, additions to
tax, interest and expenses) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date the Administrative
Agent or such other Secured Party (as the case may be) makes written demand
therefor.
(d) Within 30 days after the date of any payment of Taxes by or on behalf
of any Guarantor, such Guarantor will furnish to the Administrative Agent, at
its address referred to in Section 8.02 of the Credit Agreement, the original
receipt of payment thereof or a certified copy of such receipt. In the case of
any payment hereunder by or on behalf of any Guarantor through an account or
branch outside the United States or on behalf of any Guarantor by a payor that
is not a United States person, if such Guarantor determines that no Taxes are
payable in respect thereof, such Guarantor shall furnish, or shall cause such
payor to furnish, to the Administrative Agent, at such address, an opinion of
counsel acceptable to the Administrative Agent stating that such payment is
exempt from Taxes. For purposes of this subsection (d) and subsection (e), the
terms "United States" and "United States person" shall have the meanings
------------- --------------------
specified in Section 7701 of the Internal Revenue Code.
(e) Each Secured Party organized under the laws of a jurisdiction outside
the United States shall, on or prior to the date of its execution and delivery
of the Credit Agreement, in the case of each Initial Lender or the Initial
Issuing Bank, as the case may be, and on the date of the Assignment and
Acceptance or other agreement pursuant to which it became a Secured Party, in
the case of each other Secured Party, and from time to time thereafter as
requested in writing by any Guarantor or the Administrative Agent (but only so
long thereafter as such Secured Party remains lawfully able to do so), provide
the Administrative Agent and such Guarantor with Internal Revenue Service form
1001 or 4224, as appropriate, or any successor or other form prescribed by the
Internal Revenue Service, certifying that such Secured Party is exempt from or
is entitled to a reduced rate of United States withholding tax on payments under
the Credit Agreement or the Notes. If the forms provided by a Secured Party at
the time such Secured Party first becomes a party to the Credit Agreement
indicates a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from Taxes unless and
until such Secured Party provides the appropriate form certifying that a lesser
rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such form; provided,
--------
however, that, if at the date of the Assignment and Acceptance pursuant to which
- -------
a Secured Party assignee becomes a party to the Credit Agreement, the Secured
Party assignor was entitled to payments under subsection (a) in respect of
United States withholding tax with respect to interest paid at such date, then,
to such extent, the term Taxes shall include (in addition to withholding taxes
that may be imposed in the future or other amounts otherwise includable in
Taxes) United States withholding tax, if any, applicable with respect to the
Secured Party assignee on such date. If any form or document
<PAGE>
referred to in this subsection (e) and requested by any Guarantor pursuant to
this subsection (e) requires the disclosure of information, other than
information necessary to compute the tax payable and information required by
Internal Revenue Service form 1001 or 4224 or other similar form, that the
Secured Party reasonably considers to be confidential, the Secured Party shall
give notice thereof to such Guarantor and shall not be obligated to include in
such form or document such confidential information.
(f) For any period with respect to which a Secured Party has failed to
provide any Guarantor with the appropriate form described in subsection (e)
(other than if such failure is due to a change in law occurring after the date
- ------ ----
on which a form originally was required to be provided or if such form otherwise
is not required under subsection (e)), such Secured Party shall not be entitled
to indemnification under subsection (a) or (c) with respect to Taxes imposed by
the United States; provided, however, that should a Secured Party become subject
-------- -------
to Taxes because of its failure to deliver a form required hereunder, each
Guarantor shall take such steps as such Secured Party shall reasonably request
to assist such Secured Party to recover such Taxes.
(g) Any Secured Party claiming any additional amounts payable pursuant to
this Section 5 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Eurodollar Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Secured Party, be
otherwise disadvantageous to such Secured Party.
(h) Without prejudice to the survival of any other agreement of any
Guarantor hereunder or under any other Loan Document, the agreements and
obligations of each Guarantor contained in this Section 5 shall survive the
payment in full of the Guaranteed Obligations and all other amounts payable
under this Guaranty.
Section 6. Representations and Warranties. Each Guarantor hereby
------------------------------
represents and warrants as follows:
(a) There are no conditions precedent to the effectiveness of this Guaranty
that have not been satisfied or waived.
(b) Such Guarantor has, independently and without reliance upon the
Administrative Agent or any other Secured Party and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Guaranty, and such Guarantor has established
adequate means of obtaining from any other Loan Parties on a continuing basis
information pertaining to, and is now and on a continuing basis will be
completely familiar with, the financial condition, operations, properties and
prospects of such other Loan Parties.
Section 7. Confirmation of Certain Provisions of the Loan Documents. Each
--------------------------------------------------------
Guarantor hereby confirms to the Administrative Agent and the other Secured
Parties that each of the
<PAGE>
representations and warranties set forth in the Loan Documents that is made on
behalf of such Guarantor by the Borrower is true and correct in all material
respects. Each Guarantor covenants and agrees that, so long as any part of the
Guaranteed Obligations shall remain unpaid, any Letter of Credit shall be
outstanding or any Lender Party shall have any Commitment, such Guarantor will,
unless the Required Lenders shall otherwise consent in writing, perform or
observe all of the terms, covenants and agreements that the Loan Documents state
such Guarantor shall perform or observe.
Section 8. Amendments, Etc. (a) No amendment or waiver of any provision
----------------
of this Guaranty and no consent to any departure by any Guarantor therefrom
shall in any event be effective unless the same shall be in writing and signed
by the Administrative Agent and the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment, waiver or consent
-------- -------
shall, unless in writing and signed by all of the Secured Parties (other than
any Lender Party that is, at such time, a Defaulting Lender), (a) limit the
liability of any Guarantor hereunder, (b) postpone any date fixed for payment
hereunder or (c) change the number of Secured Parties required to take any
action hereunder.
(b) Upon the execution and delivery by any Person of a supplemental
guaranty in substantially the form of Exhibit A hereto (each, a "Guaranty
--------
Supplement"), such Person shall be referred to as an "Additional Guarantor" and
- ---------- --------------------
shall be and become a Guarantor hereunder and each reference in this Guaranty to
a "Guarantor" shall also mean and be a reference to such Additional Guarantor
and each reference in any other Loan Document to a "Subsidiary Guarantor" shall
also mean and be a reference to such Additional Guarantor.
Section 9. Notices, Etc. All notices and other communications provided
-------------
for hereunder shall be in writing (including telegraphic, telecopy or telex
communication) and mailed, telegraphed, telecopied, telexed or delivered to it,
if to a Guarantor, addressed to it at the address listed for such Guarantor on
the signature pages hereof (or in the applicable Guaranty Supplement), if to the
Administrative Agent or any Lender Party, at its address specified in the Credit
Agreement, or as to any party at such other address as shall be designated by
such party in a written notice to each other party. All such notices and other
communications shall, when mailed, telegraphed, telecopied or telexed, be
effective when deposited in the mails, delivered to the telegraph company,
transmitted by telecopier or confirmed by telex answerback, respectively.
Section 10. No Waiver; Remedies. No failure on the part of the
-------------------
Administrative Agent or any other Secured Party to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
Section 11. Right of Set-off. Upon (a) the occurrence and during the
----------------
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 of the Credit Agreement to
authorize the Administrative Agent to declare the Notes due and payable pursuant
to the provisions of said Section 6.01, each Lender Party and each of its
<PAGE>
respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender Party or such Affiliate to
or for the credit or the account of any Guarantor against any and all of the
Obligations of such Guarantor now or hereafter existing under this Guaranty,
irrespective of whether such Lender Party shall have made any demand under this
Guaranty and although such Obligations may be unmatured. Each Lender Party
agrees promptly to notify the applicable Guarantor after any such set-off and
application; provided, however, that the failure to give such notice shall not
-------- -------
affect the validity of such set-off and application. The rights of each Lender
Party and its respective Affiliates under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
that such Lender Party and its respective Affiliates may have.
Section 12. Indemnification. (a) Without limitation on any other
---------------
Obligations of any Guarantor or remedies of the Secured Parties under this
Guaranty, each Guarantor hereby agrees, to the fullest extent permitted by law,
to indemnify and hold harmless the Administrative Agent and each of the other
Secured Parties from and against (and will reimburse each Secured Party as the
same are incurred) any and all claims, losses, liabilities, damages and expenses
(including, without limitation, reasonable fees, disbursements and other charges
of counsel) that may be incurred or asserted or awarded against the
Administrative Agent or such Secured Party as a result of any failure of any
Guaranteed Obligations to be the legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their terms.
(b) Each Guarantor hereby also severally agrees that neither the
Administrative Agent nor any of the other Secured Parties shall have any
liability (whether direct or indirect, in contract, tort or otherwise) to any of
the Guarantors or any of their respective Affiliates or any of their respective
officers, directors, employees, attorneys and agents, and each Guarantor hereby
severally agrees not to assert any claim against the Administrative Agent or any
of the other Secured Parties on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to the
Facilities, the actual or proposed use of the proceeds of the Advances or the
Letters of Credit, the Loan Documents or any of the transactions contemplated
thereby.
(c) Without prejudice to the survival of any of the other agreements of any
of the Guarantors under this Guaranty or any of the other Loan Documents, the
agreements and obligations of each of the Guarantors contained in Section 1(a)
(with respect to enforcement expenses), the last sentence of Section 2(a),
Section 5 and this Section 12 shall survive the payment in full of the
Guaranteed Obligations and all of the other amounts payable under this Guaranty.
Section 13. Continuing Guaranty; Assignments under the Credit Agreement.
-----------------------------------------------------------
This Guaranty is a continuing guaranty and shall (a) remain in full force and
effect until the later of (i) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Guaranty and (ii) the
Termination Date, (b) be binding upon each Guarantor and its successors and
assigns and (c) inure to the benefit of and be enforceable by the Administrative
<PAGE>
Agent and the other Secured Parties and their successors, transferees and
assigns. Without limiting the generality of the foregoing clause (c), any
Secured Party may assign or otherwise transfer all or any portion of its rights
and obligations under the Credit Agreement (including, without limitation, all
or any portion of its Commitment, the Advances owing to it and the Note or Notes
held by it) to any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to such Secured Party
herein or otherwise, in each case as and to the extent provided in Section 8.07
of the Credit Agreement.
Section 14. Execution in Counterparts. This Guaranty may be executed in
-------------------------
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Guaranty by
telecopier shall be effective as delivery of a manually executed counterpart of
this Guaranty.
Section 15. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. (a)
-------------------------------------------------------
This Guaranty shall be governed by, and construed in accordance with, the laws
of the State of New York.
(b) Each Guarantor hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Guaranty or any of the other Loan Documents to which
it is or is to be a party, or for recognition or enforcement of any judgment,
and each Guarantor hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding may be heard and determined in any
such State of New York court or, to the extent permitted by law, in such federal
court. Each Guarantor agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Guaranty shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Guaranty or any of the other Loan
Documents to which it is or is to be a party in the courts of any jurisdiction.
(c) Each Guarantor irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection that it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Guaranty or any of the other Loan Documents to which
it is or is to be a party in any State of New York or federal court. Each
Guarantor hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE (ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE ADVANCES
OR THE ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY OTHER SECURED PARTY IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
<PAGE>
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly
executed and delivered under seal by its officer thereunto duly authorized as of
the date first above written.
SUBSIDIARY GUARANTORS
---------------------
D.C. CHARTERED HEALTH PLAN, INC.
By /s/ Anthony M. Picini
----------------------------
Title:
Address:
HEALTH COST CONSULTANTS, INC.
By /s/ Anthony M. Picini
----------------------------
Title:
Address:
PHP/CHE, INC.
By /s/ Anthony M. Picini
----------------------------
Title:
Address:
PHP/IHS, INC.
By /s/ Anthony M. Picini
----------------------------
Title:
Address:
<PAGE>
PHP LOUISIANA, INC.
By /s/ Anthony M. Picini
----------------------------
Title:
Address:
PHP NJ MSO, INC.
By /s/ Anthony M. Picini
----------------------------
Title:
Address:
PINNACLE HEALTH ENTERPRISES, L.L.C.
By PHP HEALTHCARE CORPORATION
as Member
By /s/ Anthony M. Picini
----------------------------
Title:
Address:
By PHP NJ MSO, Inc.
as Member
By /s/ Anthony M. Picini
----------------------------
Title:
Address:
