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EXHIBIT 4.11
CONFORMED COPY
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$1,200,000,000 CREDIT AGREEMENT
among
COLUMBIA/HCA HEALTHCARE CORPORATION,
THE SEVERAL BANKS AND OTHER FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTIES HERETO,
CHASE SECURITIES INC.,
as Lead Arranger and Sole Book Manager,
BANK OF AMERICA, N.A.,
as Documentation Agent and Co-Arranger,
THE BANK OF NOVA SCOTIA and
DEUTSCHE BANK AG NEW YORK AND/OR CAYMAN ISLANDS BRANCHES,
as Syndication Agents and Co-Arrangers,
THE BANK OF NEW YORK and
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
as Co-Arrangers,
CITICORP USA, INC. and
FLEET NATIONAL BANK,
as Co-Agents,
CREDIT SUISSE FIRST BOSTON,
SUNTRUST BANK and
WACHOVIA BANK, N.A.,
as Lead Managers,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of March 13, 2000
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS.........................................................1
1.1 Defined Terms........................................................1
1.2 Other Definitional Provisions.......................................11
SECTION 2. AMOUNT AND TERMS OF LOANS..........................................12
2.1 Loans and Notes.....................................................12
2.2 Fees................................................................13
2.3 Termination or Reduction of Commitments.............................13
2.4 Optional Prepayments................................................13
2.5 Conversion Options; Minimum Amount of Loans.........................13
2.6 Interest Rate and Payment Dates for Loans...........................14
2.7 Computation of Interest and Fees....................................14
2.8 Inability to Determine Interest Rate................................15
2.9 Pro Rata Borrowings and Payments....................................16
2.10 Illegality..........................................................16
2.11 Requirements of Law.................................................16
2.12 Capital Adequacy....................................................18
2.13 Taxes...............................................................18
2.14 Indemnity...........................................................19
2.15 Application of Proceeds of Loans....................................19
2.16 Notice of Certain Circumstances; Assignment of Commitments
Under Certain Circumstances.......................................20
SECTION 3. REPRESENTATIONS AND WARRANTIES.....................................20
3.1 Corporate Organization and Existence................................20
3.2 Subsidiaries........................................................21
3.3 Financial Information...............................................21
3.4 Changes in Condition................................................22
3.5 Assets..............................................................22
3.6 Litigation..........................................................22
3.7 Tax Returns.........................................................22
3.8 Contracts, etc. ....................................................22
3.9 No Legal Obstacle to Agreement......................................23
3.10 Defaults............................................................23
3.11 Burdensome Obligations..............................................23
3.12 Pension Plans.......................................................23
3.13 Disclosure..........................................................24
3.14 Environmental and Public and Employee Health and
Safety Matters....................................................24
3.15 Federal Regulations.................................................24
3.16 Investment Company Act; Other Regulations...........................24
3.17 Year 2000 Representation............................................25
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SECTION 4. CONDITIONS.........................................................25
4.1 Loan Documents......................................................25
4.2 Legal Opinions......................................................25
4.3 Company Officers' Certificate.......................................25
4.4 Legality, etc. .....................................................26
4.5 General.............................................................26
4.6 Fees................................................................26
SECTION 5. GENERAL COVENANTS..................................................26
5.1 Taxes, Indebtedness, etc. ..........................................26
5.2 Maintenance of Properties; Compliance with Law......................27
5.3 Transactions with Affiliates........................................27
5.4 Insurance...........................................................27
5.5 Financial Statements................................................28
5.6 Ratio of Consolidated Total Debt to Consolidated Total
Capitalization....................................................30
5.7 Interest Coverage Ratio.............................................30
5.8 Distributions.......................................................30
5.9 Merger or Consolidation.............................................30
5.10 Sales of Assets.....................................................31
5.11 Compliance with ERISA...............................................31
5.12 Negative Pledge.....................................................32
5.13 Sale-and-Lease-back Transactions....................................33
SECTION 6. DEFAULTS...........................................................33
6.1 Events of Default...................................................33
6.2 Annulment of Defaults...............................................35
6.3 Waivers.............................................................35
6.4 Course of Dealing...................................................36
SECTION 7. THE AGENT..........................................................36
7.1 Appointment.........................................................36
7.2 Delegation of Duties................................................36
7.3 Exculpatory Provisions..............................................36
7.4 Reliance by Agent...................................................37
7.5 Notice of Default...................................................37
7.6 Non-Reliance on Agent and Other Banks...............................37
7.7 Indemnification.....................................................38
7.8 Agent in Its Individual Capacity....................................38
7.9 Successor Agent.....................................................38
SECTION 8. MISCELLANEOUS......................................................39
8.1 Amendments and Waivers..............................................39
8.2 Notices.............................................................39
8.3 No Waiver; Cumulative Remedies......................................40
8.4 Survival of Representations and Warranties..........................40
8.5 Payment of Expenses and Taxes; Indemnity............................40
8.6 Successors and Assigns; Participations; Purchasing Banks............41
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8.7 Adjustments; Set-off................................................44
8.8 Counterparts........................................................45
8.9 GOVERNING LAW.......................................................45
8.10 WAIVERS OF JURY TRIAL...............................................45
8.11 Submission To Jurisdiction; Waivers.................................45
SCHEDULES
Schedule I - Commitment Amounts and Percentages;
Lending Offices; Addresses for Notice
Schedule II - Subsidiaries of the Company
Schedule III - Indebtedness
Schedule IV - Applicable Margins
Schedule V - Significant Litigation
EXHIBITS
Exhibit A - Form of Note
Exhibit B - Commitment Transfer Supplement
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CONFORMED COPY
CREDIT AGREEMENT, dated as of March 13, 2000 (this "Agreement"), among
COLUMBIA/HCA HEALTHCARE CORPORATION, a Delaware corporation (the "Company"), the
several banks and other financial institutions from time to time parties hereto
(the "Banks"), CHASE SECURITIES INC., as Lead Arranger and Sole Book Manager,
BANK OF AMERICA, N.A., as Documentation Agent and Co-Arranger, THE BANK OF NOVA
SCOTIA, as Syndication Agent and Co-Arranger, DEUTSCHE BANK AG NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES, as Syndication Agent and Co-Arranger, THE BANK OF NEW
YORK, as Co-Arranger, THE INDUSTRIAL BANK OF JAPAN, LIMITED, as Co-Arranger,
CITICORP USA, INC., as Co-Agent, FLEET NATIONAL BANK, as Co-Agent, CREDIT SUISSE
FIRST BOSTON, as Lead Manager, SUNTRUST BANK, as Lead Manager, WACHOVIA BANK,
N.A., as Lead Manager and THE CHASE MANHATTAN BANK, a New York banking
corporation, as agent for the Banks hereunder (in such capacity, the "Agent").
In consideration of the promises and mutual agreements herein
contained and for other good and valuable consideration, the parties hereto
hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
have the following meanings:
"Affiliate": (a) any director or officer of any corporation or
partner or joint venturer or Person holding a similar position in
another Person or members of their families, whether or not living under
the same roof, or any Person owning beneficially more than 5% of the
outstanding common stock or other evidences of beneficial interest of
the Person in question, (b) any Person of which any one or more of the
Persons described in clause (a) above is an officer, director or
beneficial owner of more than 5% of the shares or other beneficial
interest and (c) any Person controlled by, controlling or under common
control with the Person in question.
"Alternate Base Rate": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Base CD Rate in effect
on such day plus 1% and (c) the Federal Funds Effective Rate in effect
on such day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean
the rate of interest per annum publicly announced from time to time by
the Agent as its prime rate in effect at its principal office in New
York City (each change in the Prime Rate to be effective on the date
such change is publicly announced); "Base CD Rate" shall mean the sum of
(a) the product of (i) the Three-Month Secondary CD Rate and (ii) a
fraction, the numerator of which is one and the denominator of which is
one minus the C/D Reserve Percentage and (b) the C/D Assessment Rate;
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary
market rate for three-month certificates of deposit reported as being in
effect on such day (or, if such day shall not be a Business Day, the
next preceding Business Day) by the Board of Governors of the Federal
Reserve System (the "Board") through the public information telephone
line of the Federal Reserve Bank of New York (which rate will, under the
current practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day), or,
if such rate
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shall not be so reported on such day or such next preceding Business
Day, the average of the secondary market quotations for three-month
certificates of deposit of major money center banks in New York City
received at approximately 10:00 A.M., New York City time, on such day
(or, if such day shall not be a Business Day, on the next preceding
Business Day) by the Agent from three New York City negotiable
certificate of deposit dealers of recognized standing selected by it;
"C/D Reserve Percentage" shall mean, for any day, that percentage
(expressed as a decimal) which is in effect on such day, as prescribed
by the Board (or any successor), for determining the maximum reserve
requirement for a member bank of the Federal Reserve System in New York
City with deposits exceeding one billion Dollars in respect of new
non-personal three-month certificates of deposit in the secondary
market in Dollars in New York City and in an amount of $100,000 or
more; "C/D Assessment Rate" shall mean, for any day, the net annual
assessment rate (rounded upward to the nearest 1/100 of 1%) determined
by Chase to be payable on such day to the Federal Deposit Insurance
Corporation or any successor (the "FDIC") for FDIC's insuring time
deposits made in Dollars at offices of Chase in the United States; and
"Federal Funds Effective Rate" shall mean, for any day, 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 on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for
the day of such transactions received by the Agent from three federal
funds brokers of recognized standing selected by it. If for any reason
the Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the
Base CD Rate or the Federal Funds Effective Rate, or both, for any
reason, including the inability or failure of the Agent to obtain
sufficient quotations in accordance with the terms thereof, the
Alternate Base Rate shall be determined without regard to clause (b) or
(c), or both, of the first sentence of this definition, as appropriate,
until the circumstances giving rise to such inability no longer exist.
Any change in the Alternate Base Rate due to a change in the Prime
Rate, the Three-Month Secondary CD Rate or the Federal Funds Effective
Rate shall be effective on the effective day of such change in the
Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate, respectively.
"Alternate Base Rate Loans": Loans hereunder at such time as they
are made and/or being maintained at a rate of interest based upon the
Alternate Base Rate.
"Applicable Margin": for each Type of Loan during a Level I
Period or Level II Period, the rate per annum set forth under the
relevant column heading in Schedule IV. Increases or decreases in the
Applicable Margin shall become effective on the first day of the Level I
Period or Level II Period, as the case may be, to which such Applicable
Margin relates.
"Approved Fund": with respect to any Bank that is a fund that
invests in commercial loans, any other fund that invests in commercial loans and
is managed or advised by the same investment advisor as such Bank or by an
Affiliate of such investment advisor.
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"Attributable Debt": means (i) as to any capitalized lease
obligations, the Indebtedness carried on the balance sheet in respect
thereof in accordance with GAAP and (ii) as to any operating leases, the
total net amount of rent required to be paid under such leases during
the remaining term thereof.
"Auditor": any independent certified public accountant of
nationally recognized standing and reputation selected by the Company.
"Available Commitments": at a particular time, an amount equal to
the difference between (a) the amount of the Commitments at such time
and (b) the aggregate unpaid principal amount at such time of all
Loans.
"Bank Obligations": as defined in subsection 6.1.
"Benefitted Bank": as defined in subsection 8.7.
"Borrowing Date": any Business Day specified in a notice pursuant
to subsection 2.1(c) as a date on which the Company requests the Banks
to make Loans hereunder.
"Business Day": a day other than a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required
by law to close.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants, rights or options
to purchase any of the foregoing.
"Change in Control": of any corporation, (a) any Person or
"group" (as defined in Section 13(d)(3) of the Securities Exchange Act
of 1934, as amended), other than the Company, that shall acquire more
than 50% of the Voting Stock of such corporation or (b) any Person or
group (as defined in preceding clause (a)), other than the Company, that
shall acquire more than 20% of the Voting Stock of such corporation and,
at any time following an acquisition described in this clause (b), the
Continuing Directors shall not constitute a majority of the board of
directors of such corporation.
"Chase": The Chase Manhattan Bank, a New York banking
corporation.
"Closing Date": the date on which all of the conditions precedent
for the Closing Date set forth in Section 4 are satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment": as to any Bank, its obligation to make Loans to the
Company pursuant to subsection 2.1(a) in an aggregate amount not to
exceed the amount set forth
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opposite such Bank's name in Schedule I, as such amount may be reduced
from time to time as provided herein.
"Commitment Percentage": as to any Bank, the percentage of the
aggregate Commitments constituted by such Bank's Commitment.
"Commitment Transfer Supplement": a Commitment Transfer
Supplement, substantially in the form of Exhibit B.
"Consolidated Assets": the consolidated assets of the Company and
its Subsidiaries, determined in accordance with GAAP.
"Consolidated Earnings Before Interest and Taxes": for any period
for which the amount thereof is to be determined, Consolidated Net
Income for such period plus all amounts deducted in computing such
Consolidated Net Income in respect of interest expense on Indebtedness
and income taxes.
"Consolidated Interest Expense": for any period for which the
amount thereof is to be determined, all amounts deducted in computing
Consolidated Net Income for such period in respect of interest expense
on Indebtedness determined in accordance with GAAP.
"Consolidated Net Income": for any period, the consolidated net
income, if any, after taxes, of the Company and its Subsidiaries for
such period determined in accordance with GAAP; provided, however, that
Consolidated Net Income shall not include any gain or loss attributable
to extraordinary items, any sale of assets not in the ordinary course of
business or any taxes or tax savings as a result thereof.
"Consolidated Net Tangible Assets": means the total amount of
assets (less applicable reserves and other properly deductible items)
after deducting therefrom (i) all current liabilities as disclosed on
the consolidated balance sheet of the Company (excluding any thereof
which are by their terms extendable or renewable at the option of the
obligor thereon to a time more than 12 months after the time as of which
the amount thereof is being computed and excluding any deferred income
taxes that are included in current liabilities), and (ii) all goodwill,
trade names, trademarks, patents, unamortized debt discount and expense
and other like intangible assets, all as set forth on the most recent
consolidated balance sheet of the Company and computed in accordance
with GAAP.
"Consolidated Net Worth": as of the date of determination, all
items which in conformity with GAAP would be included under
shareholders' equity on a consolidated balance sheet of the Company and
its Subsidiaries at such date.
"Consolidated Total Capitalization": for any period for which the
amount thereof is to be determined, the sum of Consolidated Net Worth
at such date and Consolidated Total Debt at such date.
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"Consolidated Total Debt": the aggregate of all Indebtedness
(including the current portion thereof) of the Company and its
Subsidiaries on a consolidated basis.
"Continuing Director": any member of the Board of Directors of
the Company who is a member of such Board on the date of this
Agreement, and any Person who is a member of such Board and whose
nomination as a director was approved by a majority of the Continuing
Directors then on such Board.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of
its property is bound.
"Control Group Person": any Person which is a member of the
controlled group or is under common control with the Company within the
meaning of Section 414(b) or 414(c) of the Code or Section 4001(b)(1)
of ERISA.
"Default": any of the events specified in subsection 6.1, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Distribution": (a) the declaration or payment of any dividend on
or in respect of any shares of any class of capital stock of the Company
other than dividends payable solely in shares of common stock of the
Company; (b) the purchase, redemption or other acquisition of any shares
of any class of capital stock of the Company directly or indirectly
through a Subsidiary or otherwise; and (c) any other distribution on or
in respect of any shares of any class of capital stock of the Company.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Domestic Lending Office": the office of each Bank designated as
such in Schedule I.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal
and emergency reserves under any regulations of the Board of Governors
of the Federal Reserve System or other Governmental Authority having
jurisdiction with respect thereto), dealing with reserve requirements
prescribed for Eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of such Board) maintained by
a member bank of such System.
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"Eurodollar Lending Office": the office of each Bank designated
as such in Schedule I.
"Eurodollar Loans": Loans hereunder at such time as they are made
and/or are being maintained at a rate of interest based upon the
Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum equal to the
average (rounded upwards to the nearest whole multiple of one sixteenth
of one percent) of the respective rates notified to the Agent by the
Reference Banks as the rate at which each of their Eurodollar Lending
Offices is offered Dollar deposits two Business Days prior to the
beginning of such Interest Period in the interbank Eurodollar market
where the Eurodollar and foreign currency and exchange operations of
such Eurodollar Lending Office are then being conducted at or about
10:00 A.M., New York City time, for delivery on the first day of such
Interest Period for the number of days comprised therein and in an
amount comparable to the amount of the Eurodollar Loan of such Reference
Bank to be outstanding during such Interest Period.
"Eurodollar Tranche": the collective reference to Eurodollar
Loans having the same Interest Period (whether or not originally made
on the same day).
"Event of Default": any of the events specified in subsection
6.1, provided that any requirement for the giving of notice, the lapse
of time, or both, or any other condition, event or act has been
satisfied.
"Financing Lease": any lease of property, real or personal, if
the then present value of the minimum rental commitment thereunder
should, in accordance with GAAP, be capitalized on a balance sheet of
the lessee.
"GAAP": (a) with respect to determining compliance by the Company
with the provisions of subsections 5.6, 5.7 and 5.10, generally accepted
accounting principles in the United States of America consistent with
those utilized in preparing the audited financial statements referred to
in subsection 3.3 and (b) with respect to the financial statements
referred to in subsection 3.3 or the furnishing of financial statements
pursuant to subsection 5.5 and otherwise, generally accepted accounting
principles in the United States of America from time to time in effect.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Granting Bank": as defined in subsection 8.6(h)
"Guarantee Obligation": any arrangement whereby credit is
extended to one party on the basis of any promise of another, whether
that promise is expressed in terms of an
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obligation to pay the Indebtedness of another, or to purchase an
obligation owed by that other, to purchase assets or to provide funds
in the form of lease or other types of payments under circumstances
that would enable that other to discharge one or more of its
obligations, whether or not such arrangement is listed in the balance
sheet of the obligor or referred to in a footnote thereto, but shall
not include endorsements of items for collection in the ordinary course
of business.
"Indebtedness": of a Person, at a particular date, the sum
(without duplication) at such date of (a) all indebtedness of such
Person for borrowed money or for the deferred purchase price of property
or services or which is evidenced by a note, bond, debenture or similar
instrument, (b) all obligations of such Person under Financing Leases,
(c) all obligations of such Person in respect of letters of credit,
acceptances, or similar obligations issued or created for the account of
such Person in excess of $1,000,000, (d) all liabilities secured by any
Lien on any property owned by the Company or any Subsidiary even though
such Person has not assumed or otherwise become liable for the payment
thereof and (e) all Guarantee Obligations relating to any of the
foregoing in excess of $1,000,000.
"Insolvency" or "Insolvent": at any particular time, a
Multiemployer Plan which is insolvent within the meaning of Section
4245 of ERISA.
"Interest Payment Date": (a) as to any Alternate Base Rate Loan,
the last day of each March, June, September and December, commencing on
the first of such days to occur after Alternate Base Rate Loans are made
or Eurodollar Loans are converted to Alternate Base Rate Loans, (b) as
to any Eurodollar Loan in respect of which the Company has selected an
Interest Period of one, two or three months, the last day of such
Interest Period and (c) as to any Eurodollar Loan in respect of which
the Company has selected a longer Interest Period than the periods
described in clause (b), the last day of each March, June, September and
December falling within such Interest Period and the last day of such
Interest Period.
"Interest Period": with respect to any Eurodollar Loans:
(i) initially, the period commencing on the borrowing
or conversion date, as the case may be, with respect to such
Eurodollar Loans and ending one, two, three or six months
thereafter (or, with the consent of all the Banks, nine or twelve
months thereafter), as selected by the Company in its notice of
borrowing as provided in subsection 2.2 or its notice of
conversion as provided in subsection 2.5, as the case may be; and
(ii) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such
Eurodollar Loans and ending one, two, three or six months
thereafter (or, with the consent of all the Banks, nine or
twelve months thereafter), as selected by the Company by
irrevocable notice to the Agent not less than three Business
Days prior to the last day of the then current Interest Period
with respect to such Eurodollar Loans;
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provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period pertaining to a Eurodollar
Loan would otherwise end on a day which is not a Business Day,
such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day;
(2) if the Company shall fail to give notice as provided
above, the Company shall be deemed to have selected an Alternate
Base Rate Loan to replace the affected Eurodollar Loan;
(3) any Interest Period pertaining to a Eurodollar Loan
that begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month;
(4) any Interest Period pertaining to a Eurodollar Loan
that would otherwise end after the Maturity Date shall end on the
Maturity Date; and
(5) the Company shall select Interest Periods so as not
to require a payment or prepayment of any Eurodollar Loan during
an Interest Period for such Loan.
"Level I Period": any period during which the lower of the
publicly announced ratings by S&P and ▇▇▇▇▇'▇ of the then current senior
unsecured, non-credit enhanced, long-term Indebtedness of the Company
that has been publicly issued are BB or better or Ba2 or better,
respectively.
"Level II Period": any period during which either of the publicly
announced ratings by S&P or Moody's of the then current senior
unsecured, non-credit enhanced, long-term Indebtedness of the Company
that has been publicly issued are equal to or below BB- or unrated or
equal to or below Ba3 or unrated, as the case may be.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement or preferential arrangement of any
kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement, any financing lease
having substantially the same economic effect as any of the foregoing).
"LifePoint": LifePoint Hospitals, Inc., a Delaware corporation.
"Loans": as defined in subsection 2.1(a).
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"Loan Documents": this Agreement and the Notes.
"March 1999 Term Loan Agreement": the $1,000,000,000 Agreement,
dated as of March 30, 1999, among the Company, the several banks and
other financial institutions from time to time parties thereto, the
co-agents, documentation agents, and co-syndication agents named therein
and The Chase Manhattan Bank as Administrative Agent therein, as the
same has been and may be amended, supplemented or otherwise modified or
replaced or extended from time to time.
"Maturity Date": September 13, 2001.
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc., or any successor
thereto.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Notes": as defined in subsection 2.1(b).
"Participants": as defined in subsection 8.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Company or a Control Group
Person is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Principal Property": means each acute care hospital providing
general medical and surgical services (including real property but
excluding equipment, personal property and hospitals which primarily
provide specialty medical services, such as psychiatric and obstetrical
and gynecological services) at least 50% of which is owned by the
Company and its Subsidiaries on a consolidated basis and located in the
United States of America.
"Purchasing Banks": as defined in subsection 8.6(c).
"Reference Banks": Chase and Citicorp USA, INC.
"Register": as defined in subsection 8.6(d).
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"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System.
"Regulation X": Regulation X of the Board of Governors of the
Federal Reserve System.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
such term as used in Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .13,.14,.16,.18,.19 or .20 of
PBGC Reg. ss. 2615.
"Required Banks": (i) during the period immediately preceding the
Closing Date, Banks whose Commitment Percentages aggregate at least 51%
and (ii) after the Commitments have expired or been terminated, Banks
whose outstanding Loans represent in the aggregate 51% of the aggregate
unpaid principal amount of all outstanding Loans.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and ByLaws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or determination
of an arbitrator or a court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.
"Responsible Officer": the chief executive officer, the
president, any executive or senior vice president or vice president of
the Company, the chief financial officer, treasurer or controller of
the Company.
"S&P": Standard & Poor's Ratings Service, or any successor
thereto.
"Sale-and-Leaseback Transaction": means any arrangement entered
into by the Company or any Significant Subsidiary with any person (other
than the Company or a Significant Subsidiary), or to which any such
person is a party, providing for the leasing to the Company or any
Significant Subsidiary for a period of more than three years of any
Principal Property which has been or is to be held or transferred by the
Company or such Significant Subsidiary to such Person or to any other
Person (other than the Company or a Significant Subsidiary), to which
funds have been or are to be advanced by such Person on the security of
the leased property.
"Significant Subsidiary": means, at any particular time, any
Subsidiary of the Company having total assets of $15,000,000 or more at
that time.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
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"SPC": as defined in subsection 8.6(h).
"Spin-Cos": LifePoint and Triad.
"Spin-Offs": the tax-free spin-off distributions of the common
stock of the Spin-Cos to the shareholders of the Borrower.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned directly or indirectly through one or more intermediaries,
by such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Company.
"Taxes": as defined in subsection 2.13.
"Transfer Effective Date": as defined in each Commitment Transfer
Supplement.
"Transferee": as defined in subsection 8.6(f).
"Triad": Triad Hospitals, Inc., a Delaware corporation.
"Type": as to any Loan, its nature as an Alternate Base Rate Loan
or Eurodollar Loan.
"Voting Stock": of any corporation, shares of capital stock or
other securities of such corporation entitled to vote generally in the
election of directors of such corporation.
"Working Day": any Business Day on which dealings in foreign
currencies and exchange between banks may be carried on in London,
England.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the Notes or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Company and its Subsidiaries not defined in
subsection 1.1 and accounting terms partly defined in subsection 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision
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of this Agreement, and Section, subsection, Schedule and Exhibit references are
to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF LOANS
2.1 Loans and Notes. (a) Subject to the terms and conditions
hereof, each Bank severally agrees to make loans ("Loans") to the Company on the
Closing Date in an aggregate principal amount not to exceed the Commitment of
such Bank. The Loans may be (i) Eurodollar Loans, (ii) Alternate Base Rate Loans
or (iii) a combination thereof, as determined by the Company and notified to the
Agent in accordance with subsection 2.1(c).
(b) Upon the request by any Bank, the Loan made by such Bank
shall, if requested by any Bank, be evidenced by a promissory note of the
Company, substantially in the form of Exhibit A with appropriate insertions as
to payee, date and principal amount (a "Note"), payable to the order of such
Bank and evidencing the obligation of the Company to pay a principal amount
equal to the amount of the initial Commitment of such Bank. Each Bank is hereby
authorized to record the date, Type and amount of each Loan made or converted by
such Bank, and the date and amount of each payment or prepayment of principal
thereof, and, in the case of Eurodollar Loans, the Interest Period with respect
thereto, on the schedule annexed to and constituting a part of such Note, and
any such recordation shall constitute prima facie evidence of the accuracy of
the information so recorded; provided, however, that the failure of such Bank to
make any such recordation shall not affect the obligations of the Company
hereunder or under any Note. Each such Note shall (x) be dated the Closing Date,
(y) be stated to mature on the Maturity Date, and (z) bear interest on the
unpaid principal amount thereof from time to time outstanding at the applicable
interest rate per annum determined as provided in subsection 2.6.
(c) The Company may borrow under the Commitments on the Closing
Date; provided that the Company shall give the Agent irrevocable notice (which
notice must be received by the Agent (i) prior to 11:30 A.M., New York City
time, three Business Days prior to the Closing Date, in the case of Eurodollar
Loans, and (ii) prior to 10:00 A.M., New York City time, one Business Day prior
to the Closing Date, in the case of Alternate Base Rate Loans), specifying (A)
the amount to be borrowed, (B) whether the borrowing is to be of Eurodollar
Loans, Alternate Base Rate Loans, or a combination thereof, and (C) if the
borrowing is to be entirely or partly of Eurodollar Loans, the length of the
Interest Period therefor. Upon receipt of such notice from the Company, the
Agent shall promptly notify each Bank thereof. Each Bank will make the amount of
its pro rata share of each borrowing available to the Agent for the account of
the Company at the office of the Agent set forth in subsection 8.2 prior to
12:00 P.M., New York City time, on the
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Closing Date in funds immediately available to the Agent. The proceeds of all
such Loans will then be made available to the Company by the Agent at such
office of the Agent by crediting the account of the Company on the books of such
office with the aggregate of the amounts made available to the Agent by the
Banks.
2.2 Fees. The Company agrees to pay to the Agent the other fees
in the amounts, and on the date, agreed to by the Company and the Agent in the
fee letter, dated February 2, 2000, between the Agent and the Company.
2.3 Termination or Reduction of Commitments. The Company shall
have the right, upon not less than five Business Days' notice to the Agent, to
terminate the Commitments or, from time to time, to reduce ratably the amount of
the Commitments. Any such reduction shall be in an amount of $10,000,000 or a
whole multiple of $1,000,000 in excess thereof, and shall reduce permanently the
amount of the Commitments then in effect.
2.4 Optional Prepayments. The Company may at any time and from
time to time, subject to subsection 2.14 in the case of Eurodollar Loans, prepay
the Loans, in whole or in part, without premium or penalty, upon at least three
Business Days' irrevocable notice to the Agent, specifying the date and amount
of prepayment and whether the prepayment is of Eurodollar Loans or Alternate
Base Rate Loans or a combination thereof, and if of a combination thereof, the
amount of prepayment allocable to each. Upon receipt of such notice the Agent
shall promptly notify each Bank thereof. If such notice is given, the payment
amount specified in such notice shall be due and payable on the date specified
therein, together with accrued interest to such date on the amount prepaid.
Partial prepayments shall be in an aggregate principal amount of $10,000,000 or
a whole multiple of $1,000,000 in excess thereof, and may only be made if, after
giving effect thereto, subsection 2.5(c) shall not have been contravened.
Amounts prepaid may not be reborrowed.
2.5 Conversion Options; Minimum Amount of Loans. (a) The Company
may elect from time to time to convert Eurodollar Loans to Alternate Base Rate
Loans by giving the Agent at least two Business Days' prior irrevocable notice
of such election (given before 10:00 A.M., New York City time, on the date on
which such notice is required), provided that any such conversion of Eurodollar
Loans shall, subject to the fourth following sentence, only be made on the last
day of an Interest Period with respect thereto. The Company may elect from time
to time to convert Alternate Base Rate Loans to Eurodollar Loans by giving the
Agent at least three Business Days' prior irrevocable notice of such election
(given before 11:30 A.M., New York City time, on the date on which such notice
is required). Upon receipt of such notice, the Agent shall promptly notify each
Bank thereof. Promptly following the date on which such conversion is being made
each Bank shall take such action as is necessary to transfer its portion of such
Loans to its Domestic Lending Office or its Eurodollar Lending Office, as the
case may be. All or any part of outstanding Eurodollar Loans and Alternate Base
Rate Loans may be converted as provided herein, provided that, unless the
Required Banks otherwise agree, (i) no Loan may be converted into a Eurodollar
Loan when any Event of Default has occurred and is continuing, (ii) partial
conversions shall be in an aggregate principal amount of $1,000,000 or a whole
multiple thereof, and (iii) any such conversion may only be made if, after
giving effect thereto, subsection 2.5(c) shall not have been contravened.
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(b) Any Eurodollar Loans may be continued as such upon the
expiration of an Interest Period with respect thereto by compliance by the
Company with the notice provisions contained in subsection 2.5(a); provided
that, unless the Required Banks otherwise agree, no Eurodollar Loan may be
continued as such when any Event of Default has occurred and is continuing, but
shall be automatically converted to an Alternate Base Rate Loan on the last day
of the then current Interest Period with respect thereto. The Agent shall notify
the Banks promptly that such automatic conversion contemplated by this
subsection 2.5(b) will occur.
(c) All borrowings, conversions, payments, prepayments and
selection of Interest Periods hereunder shall be in such amounts and be made
pursuant to such elections so that, after giving effect thereto, the aggregate
principal amount of the Loans comprising any Eurodollar Tranche shall not be
less than $10,000,000. At no time shall there be more than 10 Eurodollar
Tranches.
2.6 Interest Rate and Payment Dates for Loans. (a) The Eurodollar
Loans comprising each Eurodollar Tranche shall bear interest for each day during
each Interest Period with respect thereto on the unpaid principal amount thereof
at a rate per annum equal to the Eurodollar Rate plus the Applicable Margin.
(b) Alternate Base Rate Loans shall bear interest for each day
from and including the date thereof on the unpaid principal amount thereof at a
rate per annum equal to the Alternate Base Rate plus the Applicable Margin.
(c) If all or a portion of the principal amount of any Loans
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), each Eurodollar Loan shall, unless the Required Banks otherwise
agree, be converted to an Alternate Base Rate Loan at the end of the last
Interest Period with respect thereto. Any such overdue principal amount shall
bear interest at a rate per annum which is 2% above the rate which would
otherwise be applicable pursuant to subsection 2.6(a) or (b), and any overdue
interest or other amount payable hereunder shall bear interest at a rate per
annum which is 2% above the Alternate Base Rate, in each case from the date of
such non-payment until paid in full (after as well as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date.
(e) The Company shall pay the entire principal amount of the
Loans on the Maturity Date.
2.7 Computation of Interest and Fees. (a) Interest in respect of
Alternate Base Rate Loans shall be calculated on the basis of a (i) 365-day (or
366-day, as the case may be) year for the actual days elapsed when such
Alternate Base Rate Loans are based on the Prime Rate, and (ii) a 360-day year
for the actual days elapsed when based on the Base CD Rate or the Federal Funds
Effective Rate. Interest in respect of Eurodollar Loans shall be calculated on
the basis of a 360-day year for the actual days elapsed. The Agent shall as soon
as practicable notify the Company and the Banks of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan
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resulting from a change in the Alternate Base Rate or the Applicable Margin or
the Eurocurrency Reserve Requirements shall become effective as of the opening
of business on the day on which such change in the Alternate Base Rate is
announced, such Applicable Margin changes as provided herein or such change in
or the Eurocurrency Reserve Requirements shall become effective, as the case may
be. The Agent shall as soon as practicable notify the Company and the Banks of
the effective date and the amount of each such change.
(b) Each determination of an interest rate by the Agent pursuant
to any provision of this Agreement shall be conclusive and binding on the
Company and the Banks in the absence of manifest error. The Agent shall, at the
request of the Company, deliver to the Company a statement showing the
quotations used by the Agent in determining any interest rate pursuant to
subsection 2.6(a) or (c).
(c) If any Reference Bank's Commitment shall terminate (otherwise
than on termination of all the commitments), or its Loan shall be assigned for
any reason whatsoever, such Reference Bank shall thereupon cease to be a
Reference Bank, and if, as a result of the foregoing, there shall only be one
Reference Bank remaining, then the Agent (after consultation with the Company)
shall, by notice to the Company and the Banks, designate another Bank as a
Reference Bank so that there shall at all times be at least two Reference Banks.
(d) Each Reference Bank shall use its best efforts to furnish
quotations of rates to the Agent as contemplated hereby. If any of the Reference
Banks shall be unable or otherwise fails to supply such rates to the Agent upon
its request, the rate of interest shall be determined on the basis of the
quotations of the remaining Reference Banks or Reference Bank.
2.8 Inability to Determine Interest Rate. In the event that:
(i) the Agent shall have determined (which determination shall
be conclusive and binding upon the Company) that, by reason of
circumstances affecting the interbank Eurodollar market generally,
adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for any requested Interest Period;
(ii) only one of the Reference Banks is able to obtain bids
for its Dollar deposits for such Interest Period in the manner
contemplated by the term "Eurodollar Rate"; or
(iii) the Agent shall have received notice prior to the first
day of such Interest Period from Banks constituting the Required Banks
that the interest rate determined pursuant to subsection 2.7(a) for such
Interest Period does not accurately reflect the cost to such Banks (as
conclusively certified by such Banks) of making or maintaining their
affected Loans during such Interest Period;
with respect to (A) proposed Loans that the Company has requested be made as
Eurodollar Loans, (B) Eurodollar Loans that will result from the requested
conversion of Alternate Base Rate Loans into Eurodollar Loans or (C) the
continuation of Eurodollar Loans beyond the expiration of the then
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current Interest Period with respect thereto, the Agent shall forthwith give
facsimile or telephonic notice of such determination to the Company and the
Banks at least one day prior to, as the case may be, the requested Borrowing
Date for such Eurodollar Loans, the conversion date of such Loans or the last
day of such Interest Period. If such notice is given (x) any requested
Eurodollar Loans shall be made as Alternate Base Rate Loans, (y) any Alternate
Base Rate Loans that were to have been converted to Eurodollar Loans shall be
continued as Alternate Base Rate Loans and (z) any outstanding Eurodollar Loans
shall be converted, on the last day of the then current Interest Period with
respect thereto, to Alternate Base Rate Loans. Until such notice has been
withdrawn by the Agent, no further Eurodollar Loans shall be made, nor shall the
Company have the right to convert Alternate Base Rate Loans to Eurodollar Loans.
2.9 Pro Rata Borrowings and Payments. (a) Borrowing by the
Company of Loans shall be made ratably from the Banks in accordance with their
Commitment Percentages.
(b) All payments (including prepayments) to be made by the
Company on account of principal, interest and fees shall be made without
set-off, counterclaim or deduction of any kind and shall be made to the Agent,
for the account of the Banks, at the Agent's office set forth in subsection 8.2,
in lawful money of the United States of America and in immediately available
funds. The Agent shall distribute such payments to the Banks promptly upon
receipt in like funds as received. If any payment hereunder (other than payments
on the Eurodollar Loans) becomes due and payable on a day other than a Business
Day, such payment shall be extended to the next succeeding Business Day, and,
with respect to payments of principal, interest thereon shall be payable at the
then applicable rate during such extension. If any payment on a Eurodollar Loan
becomes due and payable on a day other than a Business Day, the maturity thereof
shall be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month in which
event such payment shall be made on the immediately preceding Business Day.
2.10 Illegality. Notwithstanding any other provisions herein, if
after the date hereof the adoption of or any change in any Requirement of Law or
in the interpretation or application thereof shall make it unlawful for any Bank
to make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the
Bank shall, within 30 Business Days after it becomes aware of such fact, notify
the Company, through the Agent, of such fact, (b) the commitment of such Bank
hereunder to make Eurodollar Loans or convert Alternate Base Rate Loans to
Eurodollar Loans shall forthwith be cancelled and (c) such Bank's Loans then
outstanding as Eurodollar Loans, if any, shall be converted automatically to
Alternate Base Rate Loans on the respective last days of the then current
Interest Periods for such Loans or within such earlier period as required by
law. Each Bank shall take such action as may be reasonably available to it
without legal or financial disadvantage (including changing its Eurodollar
Lending Office) to prevent the adoption of or any change in any such Requirement
of Law from becoming applicable to it.
2.11 Requirements of Law. (a) If after the date hereof the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof or compliance by
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any Bank with any request or directive (whether or not having the force of law)
after the date hereof from any central bank or other Governmental Authority:
(i) shall subject any Bank to any tax of any kind whatsoever
with respect to this Agreement, any Note or any Eurodollar Loans made by
it, or change the basis of taxation of payments to such Bank of
principal, facility fee, interest or any other amount payable hereunder
in respect of Loans (except for changes in the rate of tax on the
overall net income of such Bank);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, or deposits or other liabilities in or for the account of,
advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Bank which are not otherwise
included in the determination of the Eurodollar Rate hereunder; or
(iii) shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank, by
any amount which such Bank deems to be material, of making, renewing or
maintaining advances or extensions of credit or to reduce any amount receivable
hereunder, in each case, in respect of its Eurodollar Loans, then, in any such
case, the Company shall promptly pay such Bank, upon its demand, any additional
amounts necessary to compensate such Bank for such additional cost or reduced
amount receivable. If a Bank becomes entitled to claim any additional amounts
pursuant to this subsection 2.11(a), it shall, within 30 Business Days after it
becomes aware of such fact, notify the Company, through the Agent, of the event
by reason of which it has become so entitled. A certificate as to any additional
amounts payable pursuant to the foregoing sentence submitted by such Bank,
through the Agent, to the Company shall be conclusive in the absence of manifest
error. Each Bank shall take such action as may be reasonably available to it
without legal or financial disadvantage (including changing its Eurodollar
Lending Office) to prevent any such Requirement of Law or change from becoming
applicable to it. This covenant shall survive the termination of this Agreement
and payment of the outstanding Indebtedness hereunder or pursuant to the Notes.
(b) In the event that after the date hereof a Bank is required to
maintain reserves of the type contemplated by the definition of "Eurocurrency
Reserve Requirements", such Bank may require the Company to pay, promptly after
receiving notice of the amount due, additional interest on the related
Eurodollar Loan of such Bank at a rate per annum determined by such Bank up to
but not exceeding the excess of (i) (A) the applicable Eurodollar Rate divided
by (B) one minus the Eurocurrency Reserve Requirements over (ii) the applicable
Eurodollar Rate. Any Bank wishing to require payment of any such additional
interest on account of any of its Eurodollar Loans shall notify the Company no
more than 30 Business Days after each date on which interest is payable on such
Eurodollar Loan of the amount then due it under this subsection 2.11(b), in
which case such additional interest on such Eurodollar Loan shall be payable to
such Bank at the place indicated in such notice. Each such notification shall be
accompanied by such information as the Company may reasonably request.
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2.12 Capital Adequacy. If any Bank shall have determined that
after the date hereof the adoption of or any change in any Requirement of Law
regarding capital adequacy or in the interpretation or application thereof or
compliance by such Bank or any corporation controlling such Bank with any
request or directive after the date hereof regarding capital adequacy (whether
or not having the force of law) from any central bank or Governmental Authority,
does or shall have the effect of reducing the rate of return on such Bank's or
such corporation's capital as a consequence of its obligations hereunder to a
level below that which such Bank or such corporation could have achieved but for
such adoption, change or compliance (taking into consideration such Bank's or
such corporation's policies with respect to capital adequacy) by an amount which
is reasonably deemed by such Bank to be material, then from time to time,
promptly after submission by such Bank, through the Agent, to the Company of a
written request therefor (such request shall include details reasonably
sufficient to establish the basis for such additional amounts payable and shall
be submitted to the Company within 30 Business Days after it becomes aware of
such fact), the Company shall promptly pay to such Bank such additional amount
or amounts as will compensate such Bank for such reduction. The agreements in
this subsection 2.12 shall survive the termination of this Agreement and payment
of the Loans and the Notes and all other amounts payable hereunder.
2.13 Taxes. (a) All payments made by the Company under this
Agreement shall be made free and clear of, and without reduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority excluding, in the case of the Agent and each Bank, net income and
franchise taxes imposed on the Agent or such Bank by the jurisdiction under the
laws of which the Agent or such Bank is organized or any political subdivision
or taxing authority thereof or therein, or by any jurisdiction in which such
Bank's Domestic Lending Office or Eurodollar Lending Office, as the case may be,
is located or any political subdivision or taxing authority thereof or therein
(all such non-excluded taxes, levies, imposts, deductions, charges or
withholdings being hereinafter called "Taxes"). If any Taxes are required to be
withheld from any amounts payable to the Agent or any Bank hereunder or under
the Notes, the amounts so payable to the Agent or such Bank shall be increased
to the extent necessary to yield to the Agent or such Bank (after payment of all
Taxes) interest or any such other amounts payable hereunder at the rates or in
the amounts specified in this Agreement and the Notes. Whenever any Taxes are
payable by the Company, as promptly as possible thereafter, the Company shall
send to the Agent for its own account or for the account of such Bank, as the
case may be, a certified copy of an original official receipt received by the
Company showing payment thereof. If the Company fails to pay any Taxes when due
to the appropriate taxing authority or fails to remit to the Agent the required
receipts or other required documentary evidence, the Company shall indemnify the
Agent and the Banks for any incremental taxes, interest or penalties that may
become payable by the Agent or any Bank as a result of any such failure.
(b) Each Bank that is not incorporated under the laws of the
United States of America or a state thereof agrees that it will deliver to the
Company and the Agent (i) two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224 or successor applicable form, as the case may
be, certifying in each case that such Bank is entitled to receive
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payments under this Agreement and the Notes payable to it, without deduction or
withholding of any United States federal income taxes, or (ii) an Internal
Revenue Service Form W-8 or W-9 or successor applicable form, as the case may
be, to establish an exemption from United States backup withholding tax. Each
Bank which delivers to the Company and the Agent a Form 1001 or 4224, or Form
W-8 or W-9 pursuant to the next preceding sentence further undertakes to deliver
to the Company and the Agent two further copies of the said letter and Form 1001
or 4224 and Form W-8 or W-9, or successor applicable forms, or other manner of
certification, as the case may be, on or before the date that any such letter or
form expires or becomes obsolete or after the occurrence of any event requiring
a change in the most recent letter and form previously delivered by it to the
Company, and such extensions or renewals thereof as may reasonably be requested
by the Company, certifying in the case of a Form 1001 or 4224 that such Bank is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes, unless in any such cases
an event (including without limitation any change in treaty, law or regulation)
has occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Bank from duly completing and delivering any such letter or form with respect to
it and such Bank advises the Company that it is not capable of receiving
payments without any deduction or withholding of United States federal income
tax, and in the case of a Form W-8 or W-9, establishing an exemption from United
States backup withholding tax.
(c) The agreements in subsection 2.14 shall survive the
termination of this Agreement and the payment of the Notes and all other amounts
payable hereunder.
2.14 Indemnity. The Company agrees to indemnify each Bank and to
hold each Bank harmless from any loss or expense (other than any loss of
anticipated margin or profit) which such Bank may sustain or incur as a
consequence of (a) default by the Company in payment when due of the principal
amount of or interest on any Eurodollar Loans of such Bank, (b) default by the
Company in making a borrowing or conversion after the Company has given a notice
of borrowing in accordance with subsection 2.1(c) or a notice of continuation or
conversion pursuant to subsection 2.5(a), (c) default by the Company in making
any prepayment after the Company has given a notice in accordance with
subsection 2.4 or (d) the making of a prepayment of a Eurodollar Loan on a day
which is not the last day of an Interest Period with respect thereto, including,
without limitation, in each case, any such loss or expense arising from the
reemployment of funds obtained by it to maintain its Eurodollar Loans hereunder
or from fees payable to terminate the deposits from which such funds were
obtained. Any Bank claiming any amount under this subsection 2.14 shall provide
calculations, in reasonable detail, of the amount of its loss or expense. This
covenant shall survive termination of this Agreement and payment of the
outstanding Indebtedness hereunder or pursuant to the Notes.
2.15 Application of Proceeds of Loans. Subject to the provisions
of the following sentence, the Company may use the proceeds of the Loans for any
lawful corporate purpose, including for refinancing the outstanding loans under
the March 1999 Agreement on or immediately following the Closing Date and the
repurchase of shares of common stock of the Company. The Company will not,
directly or indirectly, apply any part of the proceeds of any such Loan for the
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purpose of "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U, or to refund any
indebtedness incurred for such purpose, except in a manner which is not in
violation of Regulations U and X.
2.16 Notice of Certain Circumstances; Assignment of Commitments
Under Certain Circumstances. (a) Any Bank claiming any additional amounts
payable pursuant to subsections 2.11, 2.12 or 2.13 or exercising its rights
under subsection 2.10, shall, in accordance with the respective provisions
thereof, provide notice to the Company and the Agent. Such notice to the Company
and the Agent shall include details reasonably sufficient to establish the basis
for such additional amounts payable or the rights to be exercised by the Bank.
(b) Any Bank claiming any additional amounts payable pursuant to
subsections 2.11, 2.12 or 2.13 or exercising its rights under subsection 2.10,
shall use reasonable efforts (consistent with legal and regulatory restrictions)
to file any certificate or document requested by the Company or to change the
jurisdiction of its applicable lending office if the making of such filing or
change would avoid the need for or reduce the amount of any such additional
amounts which may thereafter accrue or avoid the circumstances giving rise to
such exercise and would not, in the sole determination of such Bank, be
otherwise disadvantageous to such Bank.
(c) In the event that the Company shall be required to make any
additional payments to any Bank pursuant to subsections 2.11, 2.12 or 2.13 or
any Bank shall exercise its rights under subsection 2.10, the Company shall have
the right at its own expense, upon notice to such Bank and the Agent, to require
such Bank to transfer and to assign without recourse (in accordance with and
subject to the terms of subsection 8.6) all its interest, rights and obligations
under this Agreement to another financial institution (including any Bank)
acceptable to the Agent (which approval shall not be unreasonably withheld)
which shall assume such obligations; provided that (i) no such assignment shall
conflict with any Requirement of Law and (ii) such assuming financial
institution shall pay to such Bank in immediately available funds on the date of
such assignment the outstanding principal amount of such Bank's Loans hereunder
together with accrued interest thereon and all other amounts accrued for its
account or owed to it hereunder, including, but not limited to additional
amounts payable under subsections 2.2, 2.10, 2.11, 2.12, 2.13 and 2.14.
SECTION 3. REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants that:
3.1 Corporate Organization and Existence. Each of the Company and
each Subsidiary is a corporation, partnership or other entity duly organized and
validly existing and in good standing under the laws of the jurisdiction in
which it is organized (except, in the case of Subsidiaries, where the failure to
be in good standing would not be material to the Company and its Subsidiaries on
a consolidated basis) and has all necessary power to carry on the business now
conducted by it. The Company has all necessary corporate power and has taken all
corporate action required to make all the provisions of this Agreement and the
Notes and all
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other agreements and instruments executed in connection herewith and therewith,
the valid and enforceable obligations they purport to be. Each of the Company
and each Subsidiary is duly qualified and in good standing in all jurisdictions
other than that of its organization in which the physical properties owned,
leased or operated by it are located (except, in the case of Subsidiaries, where
the failure to be in good standing would not be material to the Company and its
Subsidiaries on a consolidated basis), and is duly authorized, qualified and
licensed under all laws, regulations, ordinances or orders of Governmental
Authorities, or otherwise, to carry on its business in the places and in the
manner presently conducted (except where such failure would not be material to
the Company and its Subsidiaries on a consolidated basis).
3.2 Subsidiaries. As of the date hereof, the Company has only the
Subsidiaries set forth in Schedule II. The capital stock and securities owned by
the Company and its Subsidiaries in each of the Company's Subsidiaries are owned
free and clear of any mortgage, pledge, lien, encumbrance, charge or restriction
on the transfer thereof other than restrictions on transfer imposed by
applicable securities laws and restrictions, liens and encumbrances outstanding
on the date hereof and listed in said Schedule II.
3.3 Financial Information. The Company has furnished to the Agent
and made available to each Bank copies of the following (the "SEC Reports"):
(a) the Annual Report of the Company for the fiscal year ended
December 31, 1998, containing the consolidated balance sheet of the
Company and its Subsidiaries as at said date and the related
consolidated statements of operations, stockholders' equity and cash
flows for the fiscal year then ended, accompanied by the report of Ernst
& Young LLP;
(b) the Annual Report of the Company on Form 10-K for the fiscal
year ended December 31, 1998;
(c) Quarterly Reports of the Company on Form 10-Q for the fiscal
quarters ended March 31, 1999, June 30, 1999 and September 30, 1999; and
(d) Current Reports on Form 8-K filed with the Securities and
Exchange Commission dated April 22, 1999, May 19, 1999, July 29, 1999,
September 13, 1999, October 27, 1999 and February 16, 2000 respectively,
and Schedule V attached hereto.
Such financial statements (including any notes thereto) have been prepared in
accordance with GAAP and fairly present the financial condition of the
corporations covered thereby at the dates thereof and the results of their
operations for the periods covered thereby, subject to normal year-end
adjustments in the case of interim statements. As of the date hereof and except
as disclosed in the above-referenced reports, neither the Company nor any of its
Subsidiaries has any known contingent liabilities of any significant amount
which are not referred to in said financial statements or in the notes thereto
which could reasonably be expected to have a
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material adverse effect on the business or assets or on the condition, financial
or otherwise, of the Company and its Subsidiaries, on a consolidated basis.
3.4 Changes in Condition. Since December 31, 1998 there has been
no material adverse change in the business or assets or in the condition,
financial or otherwise, of the Company and its Subsidiaries, on a consolidated
basis.
3.5 Assets. The Company and each Subsidiary have good and
marketable title to all material assets carried on their books and reflected in
the most recent balance sheet referred to in subsection 3.3 or furnished
pursuant to subsection 5.5, except for assets held on Financing Leases or
purchased subject to security devices providing for retention of title in the
vendor, and except for assets disposed of as permitted by this Agreement.
3.6 Litigation. Except as disclosed in the Company's SEC Reports,
and except as set forth on Schedule V hereto, there is no litigation, at law or
in equity, or any proceeding before any federal, state, provincial or municipal
board or other governmental or administrative agency pending or to the knowledge
of the Company threatened which, after giving effect to any applicable
insurance, may involve any material risk of a material adverse effect on the
business or assets or on the condition, financial or otherwise, of the Company
and its Subsidiaries on a consolidated basis or which seeks to enjoin the
consummation of any of the transactions contemplated by this Agreement or any
other Loan Document and involves any material risk that any such injunction will
be issued, and no judgment, decree, or order of any federal, state, provincial
or municipal court, board or other governmental or administrative agency has
been issued against the Company or any Subsidiary which has, or may involve, a
material risk of a material adverse effect on the business or assets or on the
condition, financial or otherwise, of the Company and its Subsidiaries on a
consolidated basis. With respect to the matters disclosed in the Company's SEC
Reports, and the matters set forth on Schedule V hereto, since the date of such
disclosures there has been no development which is material and adverse to the
business or assets or to the condition, financial or otherwise, of the Company
and its Subsidiaries on a consolidated basis.
3.7 Tax Returns. The Company and each of its Subsidiaries have
filed all tax returns which are required to be filed and have paid, or made
adequate provision for the payment of, all taxes which have or may become due
pursuant to said returns or to assessments received. The Company knows of no
material additional assessments since said date for which adequate reserves
appearing in the said balance sheet have not been established.
3.8 Contracts, etc. Attached hereto as Schedule III is a
statement of outstanding Indebtedness of the Company and its Subsidiaries for
borrowed money as of the date set forth therein and a complete and correct list
of all agreements, contracts, indentures, instruments, documents and amendments
thereto to which the Company or any Subsidiary is a party or by which it is
bound pursuant to which any such Indebtedness of the Company and its
Subsidiaries in excess of $25,000,000 is outstanding on the date hereof. Said
Schedule III also includes a complete and correct list of all such Indebtedness
of the Company and its Subsidiaries
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outstanding on the date indicated in respect of Guarantee Obligations in excess
of $1,000,000 and letters of credit in excess of $1,000,000, and there have been
no increases in such Indebtedness since said date other than as permitted by
this Agreement.
3.9 No Legal Obstacle to Agreement. Neither the execution and
delivery of this Agreement or of any Notes, nor the making by the Company of any
borrowings hereunder, nor the consummation of any transaction herein or therein
referred to or contemplated hereby or thereby nor the fulfillment of the terms
hereof or thereof or of any agreement or instrument referred to in this
Agreement, has constituted or resulted in or will constitute or result in a
breach of the provisions of any contract to which the Company or any of its
Subsidiaries is a party or by which it is bound or of the charter or by-laws of
the Company, or the violation of any law, judgment, decree or governmental
order, rule or regulation applicable to the Company or any of its Subsidiaries,
or result in the creation under any agreement or instrument of any security
interest, lien, charge or encumbrance upon any of the assets of the Company or
any of its Subsidiaries. Other than those which have already been obtained, no
approval, authorization or other action by any governmental authority or any
other Person is required to be obtained by the Company or any of its
Subsidiaries in connection with the execution, delivery and performance of this
Agreement or the transactions contemplated hereby, or the making of any
borrowing by the Company hereunder.
3.10 Defaults. Neither the Company nor any Subsidiary is in
default under any provision of its charter or by-laws or, so as to affect
adversely in any material manner the business or assets or the condition,
financial or otherwise, of the Company and its Subsidiaries on a consolidated
basis, under any provision of any agreement, lease or other instrument to which
it is a party or by which it is bound or of any Requirement of Law.
3.11 Burdensome Obligations. Neither the Company nor any
Subsidiary is a party to or bound by any agreement, deed, lease or other
instrument, or subject to any charter, by-law or other corporate restriction
which, in the opinion of the management thereof, is so unusual or burdensome as
to in the foreseeable future have a material adverse effect on the business or
assets or condition, financial or otherwise, of the Company and its Subsidiaries
on a consolidated basis. The Company does not presently anticipate that future
expenditures of the Company and its Subsidiaries needed to meet the provisions
of any federal or state statutes, orders, rules or regulations will be so
burdensome as to have a material adverse effect on the business or assets or
condition, financial or otherwise, of the Company and its Subsidiaries on a
consolidated basis.
3.12 Pension Plans. Each Plan maintained by the Company, any
Subsidiary or any Control Group Person or to which any of them makes or will
make contributions is in material compliance with the applicable provisions of
ERISA and the Code. The Company and its Subsidiaries have met all of the funding
standards applicable to all Plans, and there exists no event or condition which
would permit the institution of proceedings to terminate any Plan that is not a
Multiemployer Plan. The current value of the vested liabilities under each Plan
that is
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subject to Title IV of ERISA and that is not a Multiemployer Plan does
not exceed the current value of such Plan's assets.
3.13 Disclosure. Neither this Agreement nor any agreement,
document, certificate or statement furnished to the Banks by the Company in
connection herewith contains any untrue statement of material fact or omits to
state a material fact necessary in order to make the statements contained herein
or therein not misleading.
3.14 Environmental and Public and Employee Health and Safety
Matters. The Company and each Subsidiary has complied with all applicable
Federal, state, and other laws, rules and regulations relating to environmental
pollution or to environmental regulation or control or to public or employee
health or safety, except to the extent that the failure to so comply would not
be reasonably likely to result in a material adverse effect on the business or
assets or on the condition, financial or otherwise, of the Company and its
Subsidiaries on a consolidated basis. The Company's and the Subsidiaries'
facilities do not contain, and have not previously contained, any hazardous
wastes, hazardous substances, hazardous materials, toxic substances or toxic
pollutants regulated under the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response Compensation and Liability Act, the
Hazardous Materials Transportation Act, the Toxic Substance Control Act, the
Clean Air Act, the Clean Water Act or any other applicable law relating to
environmental pollution or public or employee health and safety, in violation of
any such law, or any rules or regulations promulgated pursuant thereto, except
for violations that would not be reasonably likely to result in a material
adverse effect on the business or assets or on the condition, financial or
otherwise, of the Company and its Subsidiaries on a consolidated basis. The
Company is aware of no events, conditions or circumstances involving
environmental pollution or contamination or public or employee health or safety,
in each case applicable to it or its Subsidiaries, that would be reasonably
likely to result in a material adverse effect on the business or assets or on
the condition, financial or otherwise, of the Company and its Subsidiaries on a
consolidated basis.
3.15 Federal Regulations. No part of the proceeds of any Loans
will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U as now and
from time to time hereafter in effect (except in a manner which is not in
violation of Regulation U or X) or for any purpose which violates the provisions
of the Regulations of the Board of Governors of the Federal Reserve System. If
requested by any Bank or the Agent, the Company will furnish to the Agent and
each Bank a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in said Regulation U.
3.16 Investment Company Act; Other Regulations. The Company is
not an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
The Company is not subject to regulation under any Federal or State statute or
regulation which limits its ability to incur Indebtedness.
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3.17 Year 2000 Representation. The Year 2000 date change has not
resulted in a material disruption of the Borrower's and its Subsidiaries' use of
their computer hardware, software, databases, systems and other equipment
containing embedded microchips, or to the Borrower's or its Subsidiaries'
operations or business systems, or to the best of the Borrower's and its
Subsidiaries' knowledge, to the operations or business systems of the Borrower's
major vendors, customers, suppliers and counterparties. Borrower has no reason
to believe that liabilities and expenditures related to the Year 2000
date-change (including, without limitation, costs caused by reprogramming
errors, the failure of others' systems or equipment, and the potential
liability, if any, of the Borrower or its Subsidiaries for Year 2000 related
costs incurred or disruption experienced by others) will result in a Default.
SECTION 4. CONDITIONS
The obligations of each Bank to make the Loans contemplated by
subsection 2.1 shall be subject to the compliance by the Company with its
agreements herein contained and to the satisfaction on or before the Closing
Date and each Borrowing Date of such of the following further conditions as are
applicable on the Closing Date or such Borrowing Date, as the case may be:
4.1 Loan Documents. The Agent shall have received (i) this
Agreement, executed and delivered by a duly authorized officer of the Company,
with a counterpart for each Bank, and (ii) for the account of each Bank, if
requested by such Bank, a Note conforming to the requirements hereof and
executed by a duly authorized officer of the Company.
4.2 Legal Opinions. On the Closing Date and on any Borrowing Date
as the Agent shall request, each Bank shall have received from any general,
associate, or assistant general counsel or Vice President-Legal to the Company,
such opinions as the Agent shall have reasonably requested with respect to the
transactions contemplated by this Agreement.
4.3 Company Officers' Certificate. The representations and
warranties contained in Section 3 (as qualified by the disclosures in (i) the
Company's Annual Report on Form 10-K for its fiscal year ended December 31,
1998, (ii) the Company's Quarterly Reports on Form 10-Q for its fiscal quarters
ended March 31, 1999, June 30, 1999 and September 30, 1999, (iii) the Company's
Reports on Form 8-K dated April 22, 1999, May 19, 1999, July 29, 1999, September
13, 1999 and October 27, 1999, in the case of each of the items referred to in
clauses (i), (ii) and (iii), as filed with the Securities and Exchange
Commission and previously distributed to the Agent and made available to each
Bank and (v) Schedule V attached hereto) shall be true and correct in all
material respects on the Closing Date and on and as of each Borrowing Date with
the same force and effect as though made on and as of such date; no Default
shall have occurred (except a Default which shall have been waived in writing or
which shall have been cured) and no Default shall exist after giving effect to
the Loan to be made; between December 31, 1998 and such Borrowing Date, neither
the business nor assets, nor the condition, financial or otherwise, of the
Company and its Subsidiaries on a consolidated basis shall have been adversely
affected in any material manner as a result of any fire, flood, explosion,
accident, drought, strike,
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lockout, riot, sabotage, confiscation, condemnation, or any purchase of any
property by Governmental Authority, activities of armed forces, acts of God or
the public enemy, new or amended legislation, regulatory order, judicial
decision or any other event or development whether or not related to those
enumerated above (all subject to the disclosures referred to above); and the
Agent shall have received a certificate containing a representation to these
effects dated such Borrowing Date and signed by a Responsible Officer.
4.4 Legality, etc. The making of the Loan to be made by such Bank
on each Borrowing Date shall not subject such Bank to any penalty or special
tax, shall not be prohibited by any Requirement of Law applicable to such Bank
or the Company, and all necessary consents, approvals and authorizations of any
Governmental Authority or any Person to or of any such Loan shall have been
obtained and shall be in full force and effect.
4.5 General. All instruments and legal and corporate proceedings
in connection with the Loans contemplated by this Agreement shall be
satisfactory in form and substance to the Agent, and the Agent shall have
received copies of all documents, and favorable legal opinions and records of
corporate proceedings, which the Agent may have reasonably requested in
connection with the Loans and other transactions contemplated by this Agreement.
4.6 Fees. The Agent shall have received the fees to be received
on the Closing Date referred to in subsection 2.2.
SECTION 5. GENERAL COVENANTS
On and after the date hereof, until all of the Loans and all
other amounts payable pursuant hereto shall have been paid in full and so long
as the Commitments shall remain in effect, the Company covenants that the
Company will comply, and will cause each of its Subsidiaries to comply, with
such of the provisions of this Section 5 and such other provisions of this
Agreement as are applicable to the Person in question.
5.1 Taxes, Indebtedness, etc. (a) Each of the Company and its
Subsidiaries will duly pay and discharge, or cause to be paid and discharged,
before the same shall become in arrears, all taxes, assessments, levies and
other governmental charges imposed upon such corporation and its properties,
sales and activities, or any part thereof, or upon the income or profits
therefrom; provided, however, that any such tax, assessment, charge or levy need
not be paid if the validity or amount thereof shall currently be contested in
good faith by appropriate proceedings and if the Company or the Subsidiary in
question shall have set aside on its books appropriate reserves with respect
thereto.
(b) Each of the Company and its Subsidiaries will promptly pay
when due, or in conformance with customary trade terms, all other Indebtedness
and liabilities incident to its operations; provided, however, that any such
Indebtedness or liability need not be paid if the
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validity or amount thereof shall currently be contested in good faith and if the
Company or the Subsidiary in question shall have set aside on its books
appropriate reserves with respect thereto. The Subsidiaries will not create,
incur, assume or suffer to exist any Indebtedness, except: (i) Indebtedness
outstanding on the date hereof and listed on Schedule III; (ii) Indebtedness
that is owing to the Company or any other Subsidiary; (iii) Indebtedness
incurred pursuant to an accounts receivable program; and (iv) additional
Indebtedness at any time outstanding in an aggregate principal amount not to
exceed 10% of Consolidated Assets.
5.2 Maintenance of Properties; Compliance with Law. Each of the
Company and its Subsidiaries (a) will keep its material properties in good
repair, working order and condition and will from time to time make all
necessary and proper repairs, renewals, replacements, additions and improvements
thereto and will comply at all times with the provisions of all material leases
and other material agreements to which it is a party so as to prevent any loss
or forfeiture thereof or thereunder unless compliance therewith is being
currently contested in good faith by appropriate proceedings and (b) in the case
of the Company or any Subsidiary of the Company while such Person remains a
Subsidiary, will do all things necessary to preserve, renew and keep in full
force and effect and in good standing its corporate existence and franchises
necessary to continue such businesses. The Company and its Subsidiaries will
comply in all material respects with all valid and applicable Requirements of
Law (including any such laws, rules, regulations or governmental orders relating
to the protection of environmental or public or employee health or safety) of
the United States, of the States thereof and their counties, municipalities and
other subdivisions and of any other jurisdiction, applicable to the Company and
its Subsidiaries, except where compliance therewith shall be contested in good
faith by appropriate proceedings, the Company or the Subsidiary in question
shall have set aside on its books appropriate reserves in conformity with GAAP
with respect thereto, and the failure to comply therewith could not reasonably
be expected to, in the aggregate, have a material adverse effect on the business
or assets or on the condition, financial or otherwise, of the Company and its
Subsidiaries on a consolidated basis.
5.3 Transactions with Affiliates. Neither the Company nor any of
its Subsidiaries will enter into any transactions, including, without
limitation, the purchase, sale or exchange of property or the rendering of any
service, with any of their Affiliates (other than the Company and its
Subsidiaries) unless such transaction is otherwise permitted under this
Agreement, is in the ordinary course of the Company's or such Subsidiary's
business and is upon fair and reasonable terms no less favorable to the Company
or such Subsidiary, as the case may be, than it would obtain in an arm's-length
transaction.
5.4 Insurance. The Company will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained, with financially sound and
reputable insurers including any Subsidiary which is engaged in the business of
providing insurance protection, insurance (including, without limitation,
professional liability insurance against claims for malpractice) with respect to
its properties and business and the properties and business of its Subsidiaries
against loss or damage of the kinds customarily insured against of such types
and such amounts as are customarily carried under similar circumstances by other
corporations. Such insurance
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may be subject to co-insurance, deductibility or similar clauses which, in
effect, result in self-insurance of certain losses, and the Company may
self-insure against such loss or damage, provided that adequate insurance
reserves are maintained in connection with such self-insurance.
5.5 Financial Statements. The Company will and will cause each of
its Subsidiaries to maintain a standard modern system of accounting in which
full, true and correct entries will be made of all dealings or transactions in
relation to its business and affairs in accordance with GAAP consistently
applied, and will furnish the following to each Bank (in duplicate if so
requested):
(a) Annual Statements. As soon as available, and in any event
within 120 days after the end of each fiscal year, the consolidated
balance sheet as at the end of each fiscal year and consolidated
statements of operations and cash flows and of stockholders' equity for
such fiscal year of the Company and its Subsidiaries, together with
comparative consolidated figures for the next preceding fiscal year,
accompanied by reports or certificates of an Auditor, to the effect that
such balance sheet and statements were prepared in accordance with GAAP
consistently applied and fairly present the financial position of the
Company and its Subsidiaries as at the end of such fiscal year and the
results of their operations and cash flows for the year then ended and
the statement of such Auditor and of a Responsible Officer of the
Company that such Auditor and Responsible Officer have caused the
provisions of this Agreement to be reviewed and that nothing has come to
their attention to lead them to believe that any Default exists
hereunder or, if such is not the case, specifying such Default or
possible Default and the nature thereof. In addition, such financial
statements shall be accompanied by a certificate of a Responsible
Officer of the Company containing computations showing compliance with
subsections 5.6 through 5.8, 5.10 and 5.12.
(b) Quarterly Statements. As soon as available, and in any event
within 60 days after the close of each of the first three fiscal
quarters of the Company and its Subsidiaries in each year, condensed
consolidated balance sheets as at the end of such fiscal quarter and
condensed consolidated statements of operations and cash flows and of
stockholders' equity for the portion of the fiscal year then ended, of
the Company and its Subsidiaries, together with computations showing
compliance with subsections 5.6 through 5.8, 5.10 and 5.12, accompanied
by a certificate of a Responsible Officer of the Company that such
statements and computations have been properly prepared in accordance
with GAAP for interim financial information, consistently applied, and
fairly present the financial position of the Company and its
Subsidiaries as at the end of such fiscal quarter and the results of
their operations and cash flows for such quarter and for the portion of
the fiscal year then ended, subject to normal audit and year-end
adjustments, and to the further effect that he has caused the provisions
of this Agreement and all other agreements to which the Company or any
of its Subsidiaries is a party and which relate to Indebtedness to be
reviewed, and has no knowledge that any Default has occurred under this
Agreement or under any such other agreement, or, if said Responsible
Officer has such knowledge, specifying such Default and the nature
thereof.
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(c) Notice of Material Litigation; Defaults. The Company will
promptly notify each Bank in writing, by delivery of the Company's
Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and Current
Reports on Form 8-K filed with the Securities and Exchange Commission or
otherwise, as to any litigation or administrative proceeding to which it
or any of its Subsidiaries may hereafter be a party which, after giving
effect to any applicable insurance, may involve any material risk of any
material judgment or liability or which may otherwise result in any
material adverse change in the business or assets or in the condition,
financial or otherwise, of the Company and its Subsidiaries on a
consolidated basis. Promptly upon acquiring knowledge thereof, the
Company will notify each Bank of the existence of any Default,
including, without limitation, any default in the payment of any
Indebtedness for money borrowed of the Company or any Subsidiary or
under the terms of any agreement relating to such Indebtedness,
specifying the nature of such Default and what action the Company has
taken or is taking or proposes to take with respect thereto. Promptly
upon acquiring knowledge thereof, the Company will notify each Bank of a
change in the publicly announced ratings by S&P and ▇▇▇▇▇'▇ of the then
current senior unsecured, non-credit enhanced, long-term Indebtedness of
the Company.
(d) ERISA Reports. The Company will furnish the Agent with copies
of any request for waiver of the funding standards or extension of the
amortization periods required by Sections 303 and 304 of ERISA or
Section 412 of the Code promptly after any such request is submitted by
the Company to the Department of Labor or the Internal Revenue Service,
as the case may be. Promptly after a Reportable Event occurs, or the
Company or any of its Subsidiaries receives notice that the PBGC or any
Control Group Person has instituted or intends to institute proceedings
to terminate any pension or other Plan that is a "defined benefit plan"
as defined in ERISA, or prior to the Plan administrator's terminating
such Plan pursuant to Section 4041 of ERISA, the Company will notify the
Agent and will furnish to the Agent a copy of any notice of such
Reportable Event which is required to be filed with the PBGC, or any
notice delivered by the PBGC evidencing its institution of such
proceedings or its intent to institute such proceedings, or any notice
to the PBGC that a Plan is to be terminated, as the case may be. The
Company will promptly notify each Bank upon learning of the occurrence
of any of the following events with respect to any Plan which is a
Multiemployer Plan: a partial or complete withdrawal from any Plan which
may result in the incurrence by the Company or any of is Subsidiaries of
withdrawal liability in excess of $1,000,000 under Subtitle E of Title
IV of ERISA, or of the termination, insolvency or reorganization status
of any Plan under such Subtitle E which may result in liability to the
Company or any of its Subsidiaries in excess of $1,000,000. In the event
of such a withdrawal, upon the request of the Agent or any Bank, the
Company will promptly provide information with respect to the scope and
extent of such liability, to the best of the Company's knowledge.
(e) Reports to Stockholders, etc. Promptly after the sending,
making available or filing of the same, copies of all reports and
financial statements which the Company shall
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send or make available to its stockholders including, without
limitation, all reports on Form 8-K, 10-Q or 10-K or any similar form
hereafter in use which the Company shall file with the Securities and
Exchange Commission.
(f) Other Information. From time to time upon request of the
Agent or any Bank, the Company will furnish information regarding the
business affairs and condition, financial or otherwise, of the Company
and its Subsidiaries. The Company agrees that any authorized officers
and representatives of any Bank shall have the right during reasonable
business hours to examine the books and records of the Company and its
Subsidiaries, and to make notes and abstracts therefrom, to make an
independent examination of its books and records for the purpose of
verifying the accuracy of the reports delivered by the Company and its
Subsidiaries pursuant to this Agreement or otherwise, and ascertaining
compliance with this Agreement.
(g) Confidentiality of Information. Each Bank acknowledges that
some of the information furnished to such Bank pursuant to this
subsection 5.5 may be received by such Bank prior to the time it shall
have been made public, and each Bank agrees that it will keep all
information so furnished confidential and shall make no use of such
information until it shall have become public, except (i) in connection
with matters involving operations under or enforcement of this Agreement
or the Notes, (ii) in accordance with each Bank's obligations under law
or pursuant to subpoenas or other process to make information available
to governmental agencies and examiners or to others, (iii) to each
Bank's corporate Affiliates and Transferees and prospective Transferees
so long as such Persons agree to be bound by this subsection 5.5(g) or
(iv) with the prior consent of the Company.
5.6 Ratio of Consolidated Total Debt to Consolidated Total
Capitalization. The Company and its Subsidiaries will not at any time have
outstanding Consolidated Total Debt in an amount in excess of 65% of
Consolidated Total Capitalization.
5.7 Interest Coverage Ratio. On the last day of each fiscal
quarter of the Company, the Consolidated Earnings Before Interest and Taxes of
the Company and its Subsidiaries for the four consecutive fiscal quarters of the
Company then ending will be an amount which equals or exceeds 200% of the
Consolidated Interest Expense of the Company and its Subsidiaries for the same
four consecutive fiscal quarters.
5.8 Distributions. The Company will not make any Distribution
except that, so long as no Event of Default exists or would exist after giving
effect thereto, the Company may make a Distribution.
5.9 Merger or Consolidation. The Company will not become a
constituent corporation in any merger or consolidation unless the Company shall
be the surviving or resulting corporation and immediately before and after
giving effect to such merger or consolidation there shall exist no Default;
provided that the Company may merge into another
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Subsidiary owned by the Company for the purposes of causing the Company to be
incorporated in a different jurisdiction in the United States or causing the
Company to change its name.
5.10 Sales of Assets. The Company and its Subsidiaries may from
time to time sell or otherwise dispose of all or any part of their respective
assets; provided, however, that in any fiscal year, the Company and its
Subsidiaries will not (a) sell or dispose of (including, without limitation, any
disposition resulting from any merger or consolidation involving a Subsidiary of
the Company, and any Sale-and-Leaseback Transaction), outside of the ordinary
course of business, to Persons other than the Company and its Subsidiaries,
assets constituting in the aggregate more than 12% of Consolidated Assets of the
Company and its Subsidiaries as at the end of the immediately preceding fiscal
year (calculated after giving pro forma effect thereto to the Spin-Offs)
(excluding the Spin-Offs) and (b) exchange with any Persons other than the
Company and its Subsidiaries any asset or group of assets for another asset or
group of assets unless (i) such asset or group of assets are exchanged for an
asset or group of assets of a substantially similar type or nature, (ii) on a
pro forma basis both before and after giving effect to such exchange, no Default
or Event of Default shall have occurred and be continuing, (iii) the aggregate
fair market value (as determined in good faith by the Board of Directors of the
Company) of the asset or group of assets being transferred by the Company or
such Subsidiary and the asset or group of assets being acquired by the Company
or such Subsidiary are substantially equal and (iv) the aggregate of (x) all
assets of the Company and its Subsidiaries sold pursuant to subsection 5.10(a)
(including, without limitation, any disposition resulting from any merger or
consolidation involving a Subsidiary of the Company, and any Sale-and- Leaseback
Transaction) (excluding the Spin-Offs) and (y) the aggregate fair market value
(as determined in good faith by the Board of Directors of the Company) of all
assets of the Company and its Subsidiaries exchanged pursuant to this subsection
5.10(b) does not exceed 20% of Consolidated Assets of the Company and its
Subsidiaries as at the end of the immediately preceding fiscal year (calculated
after giving pro forma effect thereto to the Spin-Offs).
5.11 Compliance with ERISA. Each of the Company and its
Subsidiaries will meet, and will cause all Control Group Persons to meet, all
minimum funding requirements applicable to any Plan imposed by ERISA or the Code
(without giving effect to any waivers of such requirements or extensions of the
related amortization periods which may be granted), and will at all times
comply, and will cause all Control Group Persons to comply, in all material
respects with the provisions of ERISA and the Code which are applicable to the
Plans. At no time shall the aggregate actual and contingent liabilities of the
Company under Sections 4062, 4063, 4064 and other provisions of ERISA with
respect to all Plans (and all other pension plans to which the Company, any
Subsidiary, or any Control Group Person made contributions prior to such time)
exceed $7,500,000. Neither the Company nor its Subsidiaries will permit any
event or condition to exist which could permit any Plan which is not a
Multiemployer Plan to be terminated under circumstances which would cause the
lien provided for in Section 4068 of ERISA to attach to the assets of the
Company or any of its Subsidiaries.
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5.12 Negative Pledge. The Company will not and will ensure that
no Subsidiary will create or have outstanding any lien or security interest on
or over any Principal Property in respect of any Indebtedness and the Company
will not create or have outstanding any lien or security interest on or over the
capital stock of any of its Subsidiaries that own a Principal Property and will
ensure that no Subsidiary will create or have outstanding any lien or security
interest on or over the capital stock of any of its respective Subsidiaries that
own a Principal Property except in either case for:
(a) any security for the purchase price or cost of construction
of real property acquired by the Company or any of its Subsidiaries (or
additions, substantial repairs, alterations or substantial improvements
thereto) or equipment, provided that such Indebtedness and such security
are incurred within 18 months of the acquisition or completion of
construction (or alteration or repair) and full operation;
(b) any security existing on property or on capital stock, as the
case may be, at the time of acquisition of such property or capital
stock, as the case maybe, by the Company or a Subsidiary or on the
property or capital stock, as the case may be, of a corporation at the
time of the acquisition of such corporation by the Company or a
Subsidiary (including acquisitions through merger or consolidation);
(c) any security created in favor of the Company or a Subsidiary;
(d) any security created by operation of law in favor of
government agencies of the United States of America or any State
thereof;
(e) any security created in connection with the borrowing of
funds if within 120 days such funds are used to repay Indebtedness in at
least the same principal amount as secured by other security of
Principal Property or capital stock of a Subsidiary that owns a
Principal Property, as the case may be, with an independent appraised
fair market value at least equal to the appraised fair market value of
the Principal Property or capital stock of a Subsidiary that owns a
Principal Property, as the case may be, secured by the new security; and
(f) any extension, renewal or replacement of any security
referred to in the foregoing clauses (a) through (e) provided that the
amount thereby secured is not increased and such security is not
extended to other property of the Company or its Subsidiaries;
unless any Loans made and/or to be made to and all other sums payable by the
Company under this Agreement shall be secured equally and ratably with (or prior
to) such Indebtedness so long as such Indebtedness shall be so secured.
Notwithstanding the foregoing, the Company and any one or more Subsidiaries may,
without securing the Loans made and/or to be made to and all other sums payable
by the Company under this Agreement, create, issue or assume Indebtedness which
would otherwise be subject to the foregoing restrictions in an aggregate
principal amount
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which, together with all other such Indebtedness of the Company and its
Subsidiaries (not including Indebtedness permitted to be secured pursuant to the
foregoing clauses (a) through (f) and the aggregate Attributable Debt),
including Indebtedness in respect of Sale-and-Lease-back Transactions (other
than those permitted by subsection 5.13(b)), does not exceed 10% of Consolidated
Net Tangible Assets of the Company and its Subsidiaries (calculated after giving
pro forma effect thereto as if the Spin-Offs occurred on the first day of the
testing period thereof).
5.13 Sale-and-Lease-back Transactions. Neither the Company nor
any Significant Subsidiary will enter into any Sale-and-Lease-back Transaction
with respect to any Principal Property with any Person (other than the Company
or a Subsidiary) unless either (a) the Company or such Significant Subsidiary
would be entitled, pursuant to the provisions described in subsection 5.12(a)
through (f) to incur Indebtedness secured by a security on the property to be
leased without equally and ratably securing the Loans made and/or to be made to
and all other sums payable by the Company under this Agreement, or (b) the
Company during or immediately after the expiration of 120 days after the
effective date of such transaction applies to the voluntary retirement of its
Indebtedness and/or the acquisition or construction of Principal Property an
amount equal to the greater of the net proceeds of the sale of the property
leased in such transaction or the fair value in the opinion of the chief
financial officer of the Company of the leased property at the time such
transaction was entered into.
SECTION 6. DEFAULTS
6.1 Events of Default. Upon the occurrence of any of the
following events:
(a) any default shall be made by the Company in any payment in
respect of: (i) interest payable hereunder as the same shall become due
and such default shall continue for a period of five days; or (ii)
principal of any of the Indebtedness hereunder or evidenced by the Notes
as the same shall become due, whether at maturity, by prepayment, by
acceleration or otherwise; or
(b) any default shall be made by either the Company or any
Subsidiary of the Company in the performance or observance of any of the
provisions of subsections 5.6 through 5.10, 5.12 and 5.13; or
(c) any default shall be made in the due performance or
observance of any other covenant, agreement or provision to be performed
or observed by either the Company or any Subsidiary under this
Agreement, and such default shall not be rectified or cured to the
satisfaction of the Required Banks within a period expiring 30 days
after written notice thereof by the Agent to the Company; or
(d) any representation or warranty of or with respect to the
Company or any Subsidiary of the Company to the Banks in connection with
this Agreement shall have
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been untrue in any material respect on or as of the date made and the
facts or circumstances to which such representation or warranty relates
shall not have been subsequently corrected to make such representation
or warranty no longer incorrect; or
(e) any default shall be made in the payment of any item of
Indebtedness of the Company or any Subsidiary or under the terms of any
agreement relating to such Indebtedness and such default shall continue
without having been duly cured, waived or consented to, beyond the
period of grace, if any, therein specified; provided, however, that such
default shall not constitute an Event of Default unless (i) the
outstanding principal amount of such item of Indebtedness exceeds
$10,000,000, or (ii) the aggregate outstanding principal amount of such
item of Indebtedness and all other items of Indebtedness of the Company
and its Subsidiaries as to which such defaults exist and have continued
without being duly cured, waived or consented to beyond the respective
periods of grace, if any, therein specified exceeds $25,000,000, or
(iii) such default shall have continued without being rectified or
cured to the satisfaction of the Required Banks for a period of 30 days
after written notice thereof by the Agent to the Company; or
(f) either the Company or any Significant Subsidiary shall be
involved in financial difficulties as evidenced:
(i) by its commencement of a voluntary case under Title
11 of the United States Code as from time to time in effect, or
by its authorizing, by appropriate proceedings of its board of
directors or other governing body, the commencement of such a
voluntary case;
(ii) by the filing against it of a petition commencing
an involuntary case under said Title 11 which shall not have been
dismissed within 60 days after the date on which said petition is
filed or by its filing an answer or other pleading within said
60-day period admitting or failing to deny the material
allegations of such a petition or seeking, consenting or
acquiescing in the relief therein provided;
(iii) by the entry of an order for relief in any
involuntary case commenced under said Title 11;
(iv) by its seeking relief as a debtor under any
applicable law, other than said Title 11, of any jurisdiction
relating to the liquidation or reorganization of debtors or to
the modification or alteration of the rights of creditors, or by
its consenting to or acquiescing in such relief;
(v) by the entry of an order by a court of competent
jurisdiction (i) finding it to be bankrupt or insolvent, (ii)
ordering or approving its liquidation, reorganization or any
modification or alteration of the rights of its creditors, or
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(iii) assuming custody of, or appointing a receiver or other
custodian for, all or a substantial part of its property;
(vi) by its making an assignment for the benefit of, or
entering into a composition with, its creditors, or appointing or
consenting to the appointment of a receiver or other custodian
for all or a substantial part of its property; or
(g) a Change in Control of the Company shall occur;
then and in each and every such case, (x) the Agent may, with the consent of the
Required Banks, or shall, at the direction of the Required Banks, proceed to
protect and enforce the rights of the Banks by suit in equity, action at law
and/or other appropriate proceeding either for specific performance of any
covenant or condition contained in this Agreement or any Note or in any
instrument delivered to each Bank pursuant to this Agreement, or in aid of the
exercise of any power granted in this Agreement or any Note or any such
instrument or assignment, and (y) the Agent may, with the consent of the
Required Banks, or shall, at the direction of the Required Banks, by notice in
writing to the Company terminate the obligations of the Banks to make the Loans
hereunder, and thereupon such obligations shall terminate forthwith and (z)
(unless there shall have occurred an Event of Default under subsection 6.1(f),
in which case the obligations of the Banks to make the Loans hereunder shall
automatically terminate and the unpaid balance of the Indebtedness hereunder and
accrued interest thereon and all other amounts payable hereunder (the "Bank
Obligations") shall automatically become due and payable) the Agent may, with
the consent of the Required Banks, or shall, at the direction of the Required
Banks, by notice in writing to the Company declare all or any part of the unpaid
balance of the Bank Obligations then outstanding to be forthwith due and
payable, and thereupon such unpaid balance or part thereof shall become so due
and payable without presentment, protest or further demand or notice of any
kind, all of which are hereby expressly waived, the obligations of the Banks to
make further Loans hereunder shall terminate forthwith, and the Agent may, with
the consent of the Required Banks, or shall, at the direction of the Required
Banks, proceed to enforce payment of such balance or part thereof in such manner
as the Agent may elect, and each Bank may offset and apply toward the payment of
such balance or part thereof, and to the curing of any such Event of Default,
any Indebtedness from such Bank to the Company, including any Indebtedness
represented by deposits in any general or special account maintained with such
Bank, whether or not such Bank is fully secured.
6.2 Annulment of Defaults. An Event of Default shall not be
deemed to be in existence for any purpose of this Agreement if the Agent, with
the consent of or at the direction of the Required Banks, subject to subsection
8.1, shall have waived such event in writing or stated in writing that the same
has been cured to its reasonable satisfaction, but no such waiver shall extend
to or affect any subsequent Event of Default or impair any rights of the Agent
or the Banks upon the occurrence thereof.
6.3 Waivers. The Company hereby waives to the extent permitted by
applicable law (a) all presentments, demands for performance, notices of
nonperformance (except to the
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extent required by the provisions hereof), protests, notices of protest and
notices of dishonor in connection with any of the Indebtedness hereunder or
evidenced by the Notes, (b) any requirement of diligence or promptness on the
part of any Bank in the enforcement of its rights under the provisions of this
Agreement or any Note, and (c) any and all notices of every kind and description
which may be required to be given by any statute or rule of law and any defense
of any kind which the Company may now or hereafter have with respect to its
liability under this Agreement or any Note.
6.4 Course of Dealing. No course of dealing between the Company
and any Bank shall operate as a waiver of any of the Banks' rights under this
Agreement or any Note. No delay or omission on the part of any Bank in
exercising any right under this Agreement or any Note or with respect to any of
the Bank Obligations shall operate as a waiver of such right or any other right
hereunder. A waiver on any one occasion shall not be construed as a bar to or
waiver of any right or remedy on any future occasion. No waiver or consent shall
be binding upon any Bank unless it is in writing and signed by the Agent or such
of the Banks as may be required by the provisions of this Agreement. The making
of a Loan hereunder during the existence of a Default shall not constitute a
waiver thereof.
SECTION 7. THE AGENT
7.1 Appointment. Each Bank hereby irrevocably designates and
appoints Chase as the Agent of such Bank under this Agreement, and each such
Bank irrevocably authorizes Chase, as the Agent for such Bank, to take such
action on its behalf under the provisions of this Agreement and to exercise such
powers and perform such duties as are expressly delegated to the Agent, by the
terms of this Agreement, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Agent shall not have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with any Bank,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against the
Agent.
7.2 Delegation of Duties. The Agent may execute any of its duties
under this Agreement by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
The Agent shall not be responsible for the negligence or misconduct of any
agents or attorneys-in-fact selected by it with reasonable care.
7.3 Exculpatory Provisions. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(a) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement (except for its or such
Person's own gross negligence or willful misconduct), or (b) responsible in any
manner to any of the Banks for any recitals, statements, representations or
warranties made by the Company or any officer thereof contained in this
Agreement or in any certificate, report, statement or other document referred to
or provided for in, or received by the Agent under or in
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connection with, this Agreement or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or the Notes or for
any failure of the Company to perform its obligations hereunder. The Agent shall
not be under any obligation to any Bank to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement, or to inspect the properties, books or records of the
Company.
7.4 Reliance by Agent. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any Note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Company), independent accountants and other
experts selected by the Agent. The Agent may deem and treat the payee of any
Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Agent. The Agent shall be fully justified in failing or refusing to take any
action under this Agreement unless it shall first receive such advice or
concurrence of the Required Banks as it deems appropriate or it shall first be
indemnified to its satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Agent shall in all cases be fully protected in acting, or
in refraining from acting, under this Agreement and the Notes in accordance with
a request of the Required Banks, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Banks and all
future holders of the Notes.
7.5 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received notice from a Bank or the Company
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the Agent
receives such a notice, the Agent shall promptly give notice thereof to the
Banks. The Agent shall take such action with respect to such Default or Event of
Default as shall be reasonably directed by the Required Banks; provided that,
unless and until the Agent shall have received such directions, the Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Banks.
7.6 Non-Reliance on Agent and Other Banks. Each Bank expressly
acknowledges that neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representations
or warranties to it and that no act by the Agent hereinafter taken, including
any review of the affairs of the Company, shall be deemed to constitute any
representation or warranty by the Agent to any Bank. Each Bank represents to the
Agent that it has, independently and without reliance upon the Agent or any
other Bank, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Company and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Bank also represents that it will, independently and
without reliance upon the Agent or any other Bank, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other
condition and
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creditworthiness of the Company. Except for notices, reports and other documents
expressly required to be furnished to the Banks by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide any Bank with any
credit or other information concerning the business, operations, property,
financial and other condition or creditworthiness of the Company which may come
into the possession of the Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
7.7 Indemnification. The Banks agree to indemnify the Agent in
its capacity as such (to the extent not reimbursed by the Company and without
limiting the obligation of the Company to do so), ratably according to the
respective amounts of their then existing Loans hereunder, from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time (including without limitation at any time following the payment
of the Indebtedness hereunder or pursuant to the Notes) be imposed on, incurred
by or asserted against the Agent in any way relating to or arising out of this
Agreement, or any documents contemplated by or referred to herein or the
transactions contemplated hereby or any action taken or omitted by the Agent
under or in connection with any of the foregoing; provided that no Bank shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from the Agent's gross negligence or willful misconduct. The
agreements in this subsection shall survive the payment of the Notes and all
other amounts payable hereunder.
7.8 Agent in Its Individual Capacity. The Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Company as though the Agent was not the Agent
hereunder. With respect to its Loans made or renewed by it and any Note issued
to it, the Agent shall have the same rights and powers under this Agreement as
any Bank and may exercise the same as though it were not the Agent, and the
terms "Bank" and "Banks" shall include the Agent in its individual capacity.
7.9 Successor Agent. The Agent may resign as Agent, as the case
may be, upon 10 days' notice to the Banks. If the Agent shall resign as Agent,
under this Agreement, then the Required Banks shall appoint from among the Banks
a successor agent for the Banks which successor agent shall be approved by the
Company, whereupon such successor agent shall succeed to the rights, powers and
duties of the Agent, and the term "Agent" shall mean such successor agent
effective upon its appointment, and the former Agent's rights, powers and duties
as Agent shall be terminated, without any other or further act or deed on the
part of such former Agent or any of the parties to this Agreement or any holders
of the Notes. After any retiring Agent's resignation hereunder as Agent, the
provisions of this subsection 7.9 shall inure to its
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benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement.
SECTION 8. MISCELLANEOUS
8.1 Amendments and Waivers. Neither this Agreement, any Note, nor
any terms hereof or thereof may be amended, supplemented or modified except in
accordance with the provisions of this subsection. With the written consent of
the Required Banks, the Agent and the Company may, from time to time, enter into
written amendments, supplements or modifications hereto for the purpose of
adding any provisions to this Agreement or the Notes or changing in any manner
the rights of the Banks or of the Company hereunder or thereunder or waiving, on
such terms and conditions as the Agent may specify in such instrument, any of
the requirements of this Agreement or the Notes or any Default or Event of
Default and its consequences; provided, however, that no such waiver and no such
amendment, supplement or modification shall (a) extend the maturity (whether as
stated, by acceleration or otherwise) of any Indebtedness hereunder, or reduce
the rate or extend the time of payment of interest thereon, or reduce any fee
payable to the Banks hereunder, or reduce the principal amount thereof, or
change the amount of any Bank's Commitment or amend, modify or waive any
provision of this subsection 8.1 or reduce the percentage specified in the
definition of Required Banks, or consent to the assignment or transfer by the
Company of any of its rights and obligations under this Agreement, in each case
without the written consent of each Bank directly affected thereby, or (b)
amend, modify or waive any provision of Section 7 without the written consent of
the then Agent. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Banks and shall be binding upon
the Company, the Banks, the Agent and all future holders of the Notes. In the
case of any waiver, the Company, the Banks and the Agent shall be restored to
their former position and rights hereunder and under the outstanding Notes, and
any Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
8.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
sent, confirmation of receipt received, addressed as follows in the case of the
Company and the Agent and as set forth in Schedule I in the case of the other
parties hereto, or to such other address as may be hereafter notified by the
respective parties hereto and any future holders of the Notes:
The Company: Columbia/HCA Healthcare Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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The Agent: The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇ ▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Chase Agent Bank Services
1 Chase Manhattan Plaza - 8th Floor
New York, New York 10081
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the Agent or the Banks
pursuant to Section 2 shall not be effective until received.
8.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Agent or any Bank, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies, powers
and privileges provided by law.
8.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the Notes.
8.5 Payment of Expenses and Taxes; Indemnity. (a) The Company
agrees (i) to pay or reimburse the Agent for all its reasonable out-of-pocket
costs and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the Notes and any other documents prepared in connection herewith, and the
consummation of the transactions contemplated hereby and thereby, including,
without limitation, the reasonable fees and disbursements of counsel to the
Agent, (ii) to pay or reimburse each Bank and the Agent for all their reasonable
costs and expenses incurred in connection with the enforcement or preservation
of any rights under this Agreement, the Notes and any such other documents,
including, without limitation, reasonable fees and disbursements of counsel to
the Agent and to each of the Banks and (iii) to pay, indemnify, and hold each
Bank and the Agent harmless from, any and all recording and filing fees and any
and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation of any
of the transactions contemplated by,
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or any amendment, supplement or modification of, or any waiver or consent under
or in respect of, this Agreement, the Notes and any such other documents.
(b) The Company will indemnify each of the Agent and the Banks
and the directors, officers and employees thereof and each Person, if any, who
controls each one of the Agent and the Banks (any of the foregoing, an
"Indemnified Person") and hold each Indemnified Person harmless from and against
any and all claims, damages, liabilities and expenses (including without
limitation all fees and disbursements of counsel with whom an Indemnified Person
may consult in connection therewith and all expenses of litigation or
preparation therefor) which an Indemnified Person may incur or which may be
asserted against it in connection with any litigation or investigation involving
this Agreement, the use of any proceeds of any Loans under this Agreement by the
Company or any Subsidiary, any officer, director or employee thereof other than
litigation commenced by the Company against any of the Agent or the Banks which
(i) seeks enforcement of any of the Company's rights hereunder and (ii) is
determined adversely to any of the Agent or the Banks.
(c) The agreements in this subsection 8.5 shall survive repayment
of the Notes and all other amounts payable hereunder.
8.6 Successors and Assigns; Participations; Purchasing Banks. (a)
This Agreement shall be binding upon and inure to the benefit of the Company,
the Banks, the Agent, all future holders of the Notes and their respective
successors and assigns, except that the Company may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of each Bank.
(b) Any Bank may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to one
or more banks or other entities ("Participants") participating interests in any
Loans owing to such Bank, any Notes held by such Bank, any Commitments of such
Bank or any other interests of such Bank hereunder. In the event of any such
sale by a Bank of a participating interest to a Participant, such Bank's
obligations under this Agreement to the other parties under this Agreement shall
remain unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Notes for all purposes
under this Agreement, and the Company and the Agent shall continue to deal
solely and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement. The Company agrees that if amounts outstanding
under this Agreement and the Notes are due or unpaid, or shall have been
declared or shall have become due and payable upon the occurrence of an Event of
Default, each Participant shall be deemed to have the right of offset in respect
of its participating interest in amounts owing under this Agreement and any
Notes to the same extent as if the amount of its participating interest were
owing directly to it as a Bank under this Agreement or any Notes, provided that
such right of offset shall be subject to the obligation of such Participant to
share with the Banks, and the Banks agree to share with such Participant, as
provided in subsection 8.7. The Company also agrees that each Participant shall
be entitled to the benefits of subsections 2.10, 2.11, 2.12 and 2.14 with
respect to its participation in the Commitments and
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the Eurodollar Loans outstanding from time to time; provided that no Participant
shall be entitled to receive any greater amount pursuant to such subsections
than the transferor Bank would have been entitled to receive in respect of the
amount of the participation transferred by such transferor Bank to such
Participant had no such transfer occurred. No Participant shall be entitled to
consent to any amendment, supplement, modification or waiver of or to this
Agreement or any Note, unless the same is subject to clause (a) of the proviso
to subsection 8.1.
(c) Any Bank may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to any
Bank, any affiliate of any Bank or any Approved Fund, and, with the consent of
the Company and the Agent (which in each case shall not be unreasonably withheld
or delayed) to one or more additional banks or financial institutions
("Purchasing Banks") all or any part of its rights and obligations under this
Agreement and the Notes pursuant to a Commitment Transfer Supplement, if any,
executed by such Purchasing Bank, such transferor Bank and the Agent (and, in
the case of a Purchasing Bank that is not then a Bank or an affiliate thereof,
by the Company); provided, however, that (i) the Commitments purchased by such
Purchasing Bank that is not then a Bank, an affiliate of any Bank or any
Approved Fund shall be equal to or greater than $5,000,000 and (ii) the
transferor Bank which has transferred part of its Loans and Commitments to any
such Purchasing Bank shall retain a minimum Commitment, after giving effect to
such sale, equal to or greater than $5,000,000 or such lesser amount as may be
agreed to by the Company and the Agent. For purposes of the proviso contained in
the preceding sentence, the amount described therein shall be aggregated in
respect of each Bank and its related Approved Funds, if any. Upon (i) such
execution of such Commitment Transfer Supplement, (ii) delivery of an executed
copy thereof to the Company and (iii) payment by such Purchasing Bank, such
Purchasing Bank shall for all purposes be a Bank party to this Agreement and
shall have all the rights and obligations of a Bank under this Agreement, to the
same extent as if it were an original party hereto with the Commitment
Percentage of the Commitments set forth in such Commitment Transfer Supplement.
Such Commitment Transfer Supplement shall be deemed to amend this Agreement to
the extent, and only to the extent, necessary to reflect the addition of such
Purchasing Bank and the resulting adjustment of Commitment Percentages arising
from the purchase by such Purchasing Bank of all or a portion of the rights and
obligations of such transferor Bank under this Agreement and the Notes. Upon the
consummation of any transfer to a Purchasing Bank, pursuant to this subsection
8.6(c), the transferor Bank, the Agent and the Company shall make appropriate
arrangements so that, if required, replacement Notes are issued to such
transferor Bank and new Notes or, as appropriate, replacement Notes, are issued
to such Purchasing Bank, in each case in principal amounts reflecting their
Commitment Percentages or, as appropriate, their outstanding Loans as adjusted
pursuant to such Commitment Transfer Supplement.
(d) The Agent shall maintain at its address referred to in
subsection 8.2 a copy of each Commitment Transfer Supplement delivered to it and
a register (the "Register") for the recordation of the names and addresses of
the Banks and the Commitment of, and principal amount of the Loans owing to,
each Bank from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Company, the Agent and the Banks may
treat each Person whose name is recorded in the Register as the owner of the
Loan recorded
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therein for all purposes of this Agreement. The Register shall be available for
inspection by the Company or any Bank at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of a Commitment Transfer Supplement executed
by a transferor Bank and a Purchasing Bank (and, in the case of a Purchasing
Bank that is not then a Bank or an affiliate thereof, by the Company and the
Agent) together with payment to the Agent of a registration and processing fee
of $3,500, the Agent shall (i) promptly accept such Commitment Transfer
Supplement (ii) on the Transfer Effective Date determined pursuant thereto
record the information contained therein in the Register and give notice of such
acceptance and recordation to the Banks and the Company.
(f) Subject to subsection 5.5(g), the Company authorizes each
Bank to disclose to any Participant or Purchasing Bank (each, a "Transferee")
and any prospective Transferee any and all financial information in such Bank's
possession concerning the Company which has been delivered to such Bank by the
Company pursuant to this Agreement or which has been delivered to such Bank by
the Company in connection with such Bank's credit evaluation of the Company
prior to entering into this Agreement.
(g) If, pursuant to this subsection 8.6, any interest in this
Agreement or any Note is transferred to any Transferee which is organized under
the laws of any jurisdiction other than the United States or any State thereof,
the transferor Bank shall cause such Transferee, concurrently with the
effectiveness of such transfer, (i) to represent to the transferor Bank (for the
benefit of the transferor Bank, the Agent and the Company) that under applicable
law and treaties no taxes will be required to be withheld by the Agent, the
Company or the transferor Bank with respect to any payments to be made to such
Transferee in respect of the Loans, (ii) to furnish to the transferor Bank (and,
in the case of any Purchasing Bank registered in the Register, the Agent and the
Company) either U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue
Service Form 1001 (wherein such Transferee claims entitlement to complete
exemption from U.S. federal withholding tax on all interest payments hereunder)
and (iii) to agree (for the benefit of the transferor Bank, to provide the
transferor Bank (and, in the case of any Purchasing Bank registered in the
Register, the Agent and the Company) a new form 4224 or Form 1001 upon the
obsolescence of any previously delivered form and comparable statements in
accordance with applicable U.S. laws and regulations and amendments duly
executed and completed by such Transferee, and to comply from time to time with
all applicable U.S. laws and regulations with regard to such withholding tax
exemption.
(h) Notwithstanding anything to the contrary contained herein,
any Bank (a "Granting Bank") may grant to a special purpose funding vehicle that
is an Affiliate of such Bank (an "SPC"), identified as such in writing from time
to time by the Granting Bank to the Administrative Agent and the Borrower, the
option to provide to the Borrower all or any part of any Loan that such Granting
Bank would otherwise be obligated to make to the Borrower pursuant to this
Agreement; provided that (i) nothing herein shall constitute a commitment by any
SPC to make any Loan and (ii) if an SPC elects not to exercise such option or
otherwise
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fails to provide all or any part of such Loan, the Granting Bank shall be
obligated to make such Loan pursuant to the terms of this Agreement. The making
of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Bank
to the same extent and as if, such Loan were made by such Granting Bank. The
liability for any indemnity of similar payment obligations under this Agreement
shall at all times remain with the Granting Bank. In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPC, it will not institute against, or join any other
Person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United
States or any State thereof. In addition, notwithstanding anything to the
contrary contained in this Section 8.6, any SPC may (i) with notice to, but
without the prior written consent of, the Borrower and the Administrative Agent
and without paying any processing fee thereof, assign all or a portion of its
interests in any Loans to its Granting Bank or to any other financial
institutions (consented to by the Borrower and the Administrative Agent)
providing liquidity and/or credit support to or for the account of such SPC to
support the funding or maintenance of Loans and (ii) disclose on a confidential
basis any non-public information relating to its Loans to any rating agency,
commercial paper dealer of provider of any surety, guarantee or credit or
liquidity enhancement to such SPC.
(i) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection 8.6 concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including any pledge or
assignment by a Bank of any Loan or Note to any Federal Reserve Bank in
accordance with applicable law.
8.7 Adjustments; Set-off. If any Bank (a "Benefitted Bank") shall
at any time receive any payment of all or part of its Loans, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by offset, pursuant to events or proceedings of the nature
referred to in subsection 6.1(f), or otherwise) in a greater proportion than any
such payment to and collateral received by any other Bank, if any, in respect of
such other Bank's Loans, or interest thereon, such Benefitted Bank shall
purchase for cash from the other Banks such portion of each such other Bank's
Loans, or shall provide such other Banks with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefitted Bank to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Banks; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
Benefitted Bank, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest. The
Company agrees that each Bank so purchasing a portion of another Bank's Loan may
exercise all rights of a payment (including, without limitation, rights of
offset) with respect to such portion as fully as if such Bank were the direct
holder of such portion.
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8.8 Counterparts. This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Company and the Agent.
8.9 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
8.10 WAIVERS OF JURY TRIAL. THE COMPANY, THE AGENT AND THE BANKS
EACH HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, THE NOTES OR ANY OTHER DOCUMENT
AND FOR ANY COUNTERCLAIM THEREIN.
8.11 Submission To Jurisdiction; Waivers. The Company hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any legal action
or proceeding relating to this Agreement, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive
general jurisdiction of the Courts of the State of New York, the
courts of the United States of America for the Southern District of New
York, and appellate courts from any thereof; and
(ii) consents that any such action or proceeding may be
brought in such courts, and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
COLUMBIA/HCA HEALTHCARE CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior VP - Finance & Treasurer
THE CHASE MANHATTAN BANK, as Agent and as a
Bank
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇
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Name: ▇▇▇▇ ▇▇▇ ▇▇▇
Title: Vice President