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$1,000,000,000 CREDIT AGREEMENT
AMONG
COLUMBIA HEALTHCARE CORPORATION,
THE SEVERAL BANKS AND OTHER FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTIES HERETO,
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION,
THE BANK OF NOVA SCOTIA,
THE CHASE MANHATTAN BANK N.A.,
CITIBANK, N.A.,
DEUTSCHE BANK AG,
THE FIRST NATIONAL BANK OF CHICAGO,
THE INDUSTRIAL BANK OF JAPAN, LIMITED, NEW YORK BRANCH,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
NATIONSBANK OF NORTH CAROLINA, N.A.,
PNC BANK, KENTUCKY, INC.,
TORONTO DOMINION (TEXAS), INC. AND
WACHOVIA BANK OF GEORGIA, N.A.,
AS CO-AGENTS
AND
CHEMICAL BANK,
AS AGENT AND AS CAF LOAN AGENT
DATED AS OF FEBRUARY 10, 1994
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms. . . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions. . . . . . . . . . . . 17
SECTION 2. AMOUNT AND TERMS OF LOANS. . . . . . . . . . . . . 17
2.1 Revolving Credit Loans and Revolving Credit Notes. . 17
2.2 CAF Loans and CAF Loan Notes . . . . . . . . . . . . 18
2.3 Facility Fee . . . . . . . . . . . . . . . . . . . . 23
2.4 Termination, Reduction or Extension of
Commitments . . . . . . . . . . . . . . . . . . . . 23
2.5 Optional Prepayments . . . . . . . . . . . . . . . . 26
2.6 Conversion Options; Minimum Amount of Loans. . . . . 26
2.7 Interest Rate and Payment Dates for Revolving
Credit Loans. . . . . . . . . . . . . . . . . . . . 27
2.8 Computation of Interest and Fees . . . . . . . . . . 27
2.9 Inability to Determine Interest Rate . . . . . . . . 28
2.10 Pro Rata Borrowings and Payments . . . . . . . . . . 29
2.11 Illegality . . . . . . . . . . . . . . . . . . . . . 31
2.12 Requirements of Law. . . . . . . . . . . . . . . . . 31
2.13 Capital Adequacy . . . . . . . . . . . . . . . . . . 32
2.14 Taxes. . . . . . . . . . . . . . . . . . . . . . . . 33
2.15 Indemnity. . . . . . . . . . . . . . . . . . . . . . 34
2.16 Application of Proceeds of Loans . . . . . . . . . . 35
2.17 Notice of Certain Circumstances; Assignment of
Commitments Under Certain Circumstances . . . . . . 35
SECTION 3. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . 36
3.1 Corporate Organization and Existence . . . . . . . . 36
3.2 Subsidiaries . . . . . . . . . . . . . . . . . . . . 36
3.3 Financial Information. . . . . . . . . . . . . . . . 36
3.4 Changes in Condition . . . . . . . . . . . . . . . . 37
3.5 Assets . . . . . . . . . . . . . . . . . . . . . . . 38
3.6 Litigation . . . . . . . . . . . . . . . . . . . . . 38
3.7 Tax Returns. . . . . . . . . . . . . . . . . . . . . 39
3.8 Contracts, etc. . . . . . . . . . . . . . . . . . . 39
3.9 No Legal Obstacle to Agreement . . . . . . . . . . . 39
3.10 Defaults . . . . . . . . . . . . . . . . . . . . . . 40
3.11 Burdensome Obligations . . . . . . . . . . . . . . . 40
3.12 Pension Plans. . . . . . . . . . . . . . . . . . . . 40
3.13 Disclosure . . . . . . . . . . . . . . . . . . . . . 41
3.14 Environmental and Public and Employee Health and
Safety Matters. . . . . . . . . . . . . . . . . . . 41
3.15 Federal Regulations. . . . . . . . . . . . . . . . . 41
3.16 Investment Company Act; Other Regulations. . . . . . 42
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SECTION 4. CONDITIONS . . . . . . . . . . . . . . . . . . . . 42
4.1 Loan Documents . . . . . . . . . . . . . . . . . . . 42
4.2 Legal Opinions . . . . . . . . . . . . . . . . . . . 42
4.3 Company Officers' Certificate. . . . . . . . . . . . 42
4.4 Termination of Prior Agreements. . . . . . . . . . . 43
4.5 Legality, etc. . . . . . . . . . . . . . . . . . . . 43
4.6 General. . . . . . . . . . . . . . . . . . . . . . . 43
4.7 Fees . . . . . . . . . . . . . . . . . . . . . . . . 43
4.8 Consummation of The Merger . . . . . . . . . . . . . 43
SECTION 5. GENERAL COVENANTS. . . . . . . . . . . . . . . . . 43
5.1 Taxes, Indebtedness, etc. . . . . . . . . . . . . . 44
5.2 Maintenance of Properties; Compliance with Law . . . 44
5.3 Transactions with Affiliates . . . . . . . . . . . . 45
5.4 Insurance. . . . . . . . . . . . . . . . . . . . . . 45
5.5 Financial Statements . . . . . . . . . . . . . . . . 45
5.6 Ratio of Total Debt to Tangible Net Worth. . . . . . 48
5.7 Interest Coverage Ratio. . . . . . . . . . . . . . . 48
5.8 Distributions. . . . . . . . . . . . . . . . . . . . 48
5.9 Merger or Consolidation. . . . . . . . . . . . . . . 48
5.10 Sales of Assets. . . . . . . . . . . . . . . . . . . 49
5.11 Compliance with ERISA. . . . . . . . . . . . . . . . 49
5.12 Negative Pledge. . . . . . . . . . . . . . . . . . 50
5.13 Sale-and-Lease-back Transactions . . . . . . . . . . 51
SECTION 6. DEFAULTS . . . . . . . . . . . . . . . . . . . . . 51
6.1 Events of Default. . . . . . . . . . . . . . . . . . 51
6.2 Annulment of Defaults. . . . . . . . . . . . . . . . 54
6.3 Waivers. . . . . . . . . . . . . . . . . . . . . . . 54
6.4 Course of Dealing. . . . . . . . . . . . . . . . . . 54
SECTION 7. THE AGENT. . . . . . . . . . . . . . . . . . . . . 54
7.1 Appointment. . . . . . . . . . . . . . . . . . . . . 54
7.2 Delegation of Duties . . . . . . . . . . . . . . . . 55
7.3 Exculpatory Provisions . . . . . . . . . . . . . . . 55
7.4 Reliance by Agent. . . . . . . . . . . . . . . . . . 55
7.5 Notice of Default. . . . . . . . . . . . . . . . . . 56
7.6 Non-Reliance on Agent and Other Banks. . . . . . . . 56
7.7 Indemnification. . . . . . . . . . . . . . . . . . . 57
7.8 Agent and CAF Loan Agent in Its Individual
Capacity. . . . . . . . . . . . . . . . . . . . . . 57
7.9 Successor Agent. . . . . . . . . . . . . . . . . . . 57
SECTION 8. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . 58
8.1 Amendments and Waivers . . . . . . . . . . . . . . . 58
8.2 Notices. . . . . . . . . . . . . . . . . . . . . . . 58
8.3 No Waiver; Cumulative Remedies . . . . . . . . . . . 59
8.4 Survival of Representations and Warranties . . . . . 59
8.5 Payment of Expenses and Taxes; Indemnity . . . . . . 60
8.6 Successors and Assigns; Participations;
Purchasing Banks. . . . . . . . . . . . . . . . . . 60
8.7 Adjustments; Set-off . . . . . . . . . . . . . . . . 64
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8.8 Counterparts . . . . . . . . . . . . . . . . . . . . 65
8.9 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . 65
8.10 WAIVERS OF JURY TRIAL. . . . . . . . . . . . . . . . 65
8.11 Submission To Jurisdiction; Waivers. . . . . . . . . 65
SCHEDULES
SCHEDULE I Commitment Amounts and Percentages; Lending
Offices; Addresses for Notice
SCHEDULE II Subsidiaries of the Company
SCHEDULE III Indebtedness
SCHEDULE IV Liens
SCHEDULE V Applicable Margins
EXHIBITS
EXHIBIT A Form of Revolving Credit Note
EXHIBIT B Form of Grid CAF Loan Note
EXHIBIT C Form of Individual CAF Loan Note
EXHIBIT D Form of CAF Loan Request
EXHIBIT E Form of CAF Loan Offer
EXHIBIT F Form of CAF Loan Confirmation
EXHIBIT G Form of Commitment Transfer Supplement
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CREDIT AGREEMENT, dated as of February 10, 1994, among
COLUMBIA HEALTHCARE CORPORATION, a Delaware corporation and the
successor by merger to Columbia Hospital Corporation (the
"COMPANY"), the several banks and other financial institutions
from time to time parties to this Agreement (the "BANKS"), BANK
OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION, THE BANK OF NOVA
SCOTIA, THE CHASE MANHATTAN BANK, N.A., CITIBANK, N.A., DEUTSCHE
BANK AG, THE FIRST NATIONAL BANK OF CHICAGO, THE INDUSTRIAL BANK
OF JAPAN, LIMITED, NEW YORK BRANCH, MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, NATIONSBANK OF NORTH CAROLINA, N.A., PNC BANK,
KENTUCKY, INC., TORONTO DOMINION (TEXAS), INC. AND WACHOVIA BANK
OF GEORGIA, N.A., as Co-Agents and CHEMICAL BANK, a New York
banking corporation, as agent for the Banks hereunder (in such
capacity, the "AGENT") and as CAF Loan agent (in such capacity,
the "CAF LOAN AGENT").
W I T N E S S E T H :
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WHEREAS, pursuant to a Joint Proxy Statement and
Prospectus on Form S-4, dated October 22, 1993 (as amended, the
"Proxy"), the Company and HCA-Hospital Corporation of America, a
Delaware corporation ("HCA"), have solicited the approval of
their respective stockholders to adopt an Agreement and Plan of
Merger dated as of October 2, 1993 (the "MERGER AGREEMENT")
between the Company and HCA;
WHEREAS, pursuant to subsections 1.1 and 4.1 of the
Merger Agreement HCA will be merged (the "MERGER") with and into
a wholly-owned subsidiary of the Company (with such wholly-owned
subsidiary of the Company as the surviving entity), and each
stockholder of HCA will receive 1.05 shares of the Company's
voting common stock in exchange for each of its shares of HCA's
Class A common stock and 1.05 shares of the Company's nonvoting
common stock in exchange for each of its shares of HCA's Class B
common stock; and
WHEREAS, it is a condition precedent to the obligation
of the Banks to make their respective Loans (as hereinafter
defined) to the Company hereunder that the transactions
contemplated in connection with the Merger, including without
limitation, the transactions contemplated by the Proxy and
subsections 1.1 and 4.1 of the Merger Agreement, are consummated;
NOW, THEREFORE, in consideration of the promises and
mutual agreements herein contained and for other good and
valuable consideration, the undersigned hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, the
following terms have the following meanings:
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"ADDITIONAL BANK": as defined in subsection 2.4(d).
"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.
"AGREEMENT": this Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"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 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
3
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 1/100th of
1%) determined by Chemical Bank to be payable on such day to
the Federal Deposit Insurance Corporation or any successor
("FDIC") for FDIC's insuring time deposits made in Dollars
at offices of Chemical Bank 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": Revolving Credit 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 LIBOR AUCTION ADVANCE RATE": in respect of
any CAF Loan requested pursuant to a LIBOR Auction Advance
Request, the London interbank offered rate for deposits in
Dollars for the period commencing on the date of such CAF
Loan and ending on the maturity date thereof which appears
on Telerate Page 3750 as of 11:00 A.M., London time, two
Working Days prior to the beginning of such period.
"APPLICABLE MARGIN": for each Type of Revolving Credit
Loan during a Level I Period, Level II Period, Level III
Period, Level IV Period or Level V Period, the rate per
annum set forth under the relevant column heading in
Schedule V. Increases or decreases in the Applicable Margin
4
shall become effective on the first day of the Level I
Period, Level II Period, Level III Period, Level IV Period
or Level V Period, as the case may be, to which such
Applicable Margin relates.
"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) or 2.2(b) as a date on
which the Company requests the Banks to make Revolving
Credit Loans or CAF Loans, as the case may be, 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.
"CAF LOAN": each CAF Loan made pursuant to subsection
2.2; the aggregate amount advanced by a CAF Loan Bank
pursuant to subsection 2.2 on each CAF Loan Date shall
constitute one or more CAF Loans, as specified by such CAF
Loan Bank pursuant to subsection 2.2(b)(vi).
"CAF LOAN ASSIGNEE": as defined in subsection 8.6(c).
"CAF LOAN ASSIGNMENT": any assignment by a CAF Loan
Bank to a CAF Loan Assignee of a CAF Loan and related
Individual CAF Loan Note; any such CAF Loan Assignment to be
registered in the Register must set forth, in respect of the
CAF Loan Assignee thereunder, the full name of such CAF Loan
Assignee, its address for notices, its lending office
address (in each case with telephone and facsimile
transmission numbers) and payment instructions for all
payments to such CAF Loan Assignee, and must contain an
agreement by such CAF Loan Assignee to comply with the
provisions of subsection 8.6(c) and subsection 8.6(h) to the
same extent as any Bank.
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"CAF LOAN BANKS": Banks from time to time designated
as CAF Loan Banks by the Company by written notice to the
CAF Loan Agent (which notice the CAF Loan Agent shall
transmit to each such CAF Loan Bank).
"CAF LOAN CONFIRMATION": each confirmation by the
Company of its acceptance of one or more CAF Loan Offers,
which CAF Loan Confirmation shall be substantially in the
form of Exhibit F and shall be delivered to the CAF Loan
Agent in writing or by facsimile transmission.
"CAF LOAN DATE": each date on which a CAF Loan is made
pursuant to subsection 2.2.
"CAF LOAN NOTE": a Grid CAF Loan Note or an Individual
CAF Loan Note.
"CAF LOAN OFFER": each offer by a CAF Loan Bank to
make one or more CAF Loans pursuant to a CAF Loan Request,
which CAF Loan Offer shall contain the information specified
in Exhibit E and shall be delivered to the CAF Loan Agent by
telephone, immediately confirmed by facsimile transmission.
"CAF LOAN REQUEST": each request by the Company for
CAF Loan Banks to submit bids to make CAF Loans, which shall
contain the information in respect of such requested CAF
Loans specified in Exhibit D and shall be delivered to the
CAF Loan Agent in writing or by facsimile transmission, or
by telephone, immediately confirmed by facsimile
transmission.
"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.
"CHEMICAL BANK": Chemical 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 shall have been fulfilled, but in no event shall
the Closing Date occur later than February 28, 1994.
"CODE": the Internal Revenue Code of 1986, as amended
from time to time.
6
"COMMITMENT": as to any Bank, its obligation to make
Revolving Credit Loans to the Company pursuant to subsection
2.1(a) in an aggregate amount not to exceed at any one time
outstanding the amount set forth 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 PERIOD": the period from and including the
Closing Date to but not including the Termination Date or
such earlier date on which the Commitments shall terminate
as provided herein.
"COMMITMENT TRANSFER SUPPLEMENT": a Commitment
Transfer Supplement, substantially in the form of Exhibit G.
"CONFIDENTIAL INFORMATION MEMORANDUM": the
Confidential Information Memorandum dated November 1993
relating to this Agreement.
"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, all determined in accordance with GAAP.
"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
7
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 TANGIBLE NET WORTH": Consolidated Assets
of the Company and its Subsidiaries less the following:
(a) the amount, if any, at which any treasury
stock appears on the assets side of the balance sheet;
(b) an amount equal to goodwill;
(c) any writeup in book value of assets resulting
from any revaluation made after December 31, 1992 in
the case of the Company and its Subsidiaries (excluding
Galen and its Subsidiaries) and HCA and its
Subsidiaries and August 31, 1993 in the case of Galen
and its Subsidiaries;
(d) an amount equal to all amounts which appear
or should appear as a credit on the balance sheet of
the Company in respect of any class or series of
preferred stock of the Company; and
(e) all liabilities which in accordance with GAAP
should be reflected as liabilities on such consolidated
balance sheet, but in any event including all
Indebtedness.
"CONSOLIDATED TOTAL DEBT": the aggregate of all
Indebtedness (including the current portion thereof) of the
Company and its Subsidiaries on a consolidated basis.
"CONTINUING BANK": as defined in subsection 2.4(c).
"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.
8
"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.
"$300,000,000 CREDIT AGREEMENT": the $300,000,000
Credit Agreement, dated as of November 1, 1993, among the
Company, the several banks and other financial institutions
from time to time parties thereto and Chemical Bank, as
agent and as CAF Loan agent.
"$500,000,000 CREDIT AGREEMENT": the $500,000,000
Credit Agreement, dated as of September 1, 1993, among the
Company, the several banks and other financial institutions
from time to time parties thereto, Banque Paribas, The Chase
Manhattan Bank N.A., Citibank, N.A., Deutsche Bank AG, The
First National Bank of Chicago, The Industrial Bank of
Japan, Limited, New York Branch, Morgan Guaranty Trust
Company of New York, Nationsbank of North Carolina, N.A.,
PNC Bank, Kentucky, Inc. and Toronto Dominion (Texas), Inc.,
as Co-Agents and Chemical Bank, as agent and as CAF Loan
agent.
"$800,000,000 CREDIT AGREEMENT": the $800,000,000
Credit Agreement, dated as of September 1, 1993, among the
Company, the several banks and other financial institutions
from time to time parties thereto, Banque Paribas, The Chase
Manhattan Bank N.A., Citibank, N.A., Deutsche Bank AG, The
First National Bank of Chicago, The Industrial Bank of
Japan, Limited, New York Branch, Morgan Guaranty Trust
Company of New York, Nationsbank of North Carolina, N.A.,
PNC Bank, Kentucky, Inc. and Toronto Dominion (Texas), Inc.,
as Co-Agents and Chemical Bank, as agent and as CAF Loan
agent.
"$1,642,000,000 CREDIT AGREEMENT": the $1,642,000,000
Amended and Restated Credit Agreement, dated as of
September 2, 1993, among HCA, Hospital Corporation of
America, the several banks and other financial institutions
from time to time parties thereto and Morgan Guaranty Trust
Company of New York, as agent.
"DEFAULT": any of the events specified in subsection
6.1, whether or not any requirement for the giving of
notice, the lapse of time, or both, or any other condition,
has been satisfied.
"DISTRIBUTION": (a) the declaration or payment of any
dividend on or in respect of any shares of any class of
capital stock of the Company other than dividends payable
solely in shares of common stock of the Company; (b) the
purchase, redemption or other acquisition of any shares of
any class of capital stock of the Company directly or
indirectly through a Subsidiary or otherwise; and (c) any
9
other distribution on or in respect of any shares of any
class of capital stock of the Company.
"DOLLARS" and "$": dollars in lawful currency of the
United States of America.
"DOMESTIC LENDING OFFICE": initially, the office of
each Bank designated as such in Schedule I; thereafter, such
other office of such Bank, if any, located within the United
States which shall be making or maintaining Alternate Base
Rate Loans.
"EFFECTIVE DATE": as defined in subsection 2.4(b).
"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.
"EURODOLLAR LENDING OFFICE": initially, the office of
each Bank designated as such in Schedule I; thereafter, such
other office of such Bank, if any, which shall be making or
maintaining Eurodollar Loans.
"EURODOLLAR LOANS": Revolving Credit 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
10
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.
"FIXED RATE AUCTION ADVANCE REQUEST": any CAF Loan
Request requesting the CAF Loan Banks to offer to make CAF
Loans at a fixed rate (as opposed to a rate composed of the
Applicable LIBOR Auction Advance Rate plus or minus a
margin).
"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.
"GALEN": Galen Health Care, Inc., a Delaware
Corporation and a successor by spin-off to Humana Inc.
"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.
"GRID CAF LOAN NOTE": as defined in subsection 2.2(f).
"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
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
11
the obligor or referred to in a footnote thereto, but shall
not include endorsements of items for collection in the
ordinary course of business.
"HCA": as defined in the Recitals hereto.
"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.
"INDIVIDUAL CAF LOAN NOTE": as defined in subsection
2.2(g).
"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 2.1(c) or its notice of
conversion as provided in subsection 2.6(a), as the
case may be; and
12
(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;
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
Termination Date shall end on the Termination 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 higher
of the publicly announced ratings by S&P and Moody's of the
then current senior unsecured, non-credit enhanced, long-
term Indebtedness of the Company that has been publicly
issued are A or better or A2 or better, respectively;
PROVIDED that (i) any period during which the lower 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
satisfies the Level III Period or Level IV Period
requirements shall be deemed to be a Level II Period or
13
Level III Period, respectively, and (ii) any period during
which the Level V Period requirements are satisfied shall be
deemed to be a Level V Period.
"LEVEL II PERIOD": any period during which the higher
of the publicly announced ratings by S&P and Moody's of the
then current senior unsecured, non-credit enhanced, long-
term Indebtedness of the Company that has been publicly
issued are A- or A3, respectively; PROVIDED that (i) any
period during which the lower 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 satisfies the
Level IV Period requirements shall be deemed to be a Level
III Period and (ii) any period during which the Level V
Period requirements are satisfied shall be deemed to be a
Level V Period.
"LEVEL III PERIOD": any period during which the higher
of the publicly announced ratings by S&P and Moody's of the
then current senior unsecured, non-credit enhanced, long-
term Indebtedness of the Company that has been publicly
issued are BBB+ or Baa1, respectively; PROVIDED that any
period during which the Level V Period requirements are
satisfied shall be deemed to be a Level V Period.
"LEVEL IV PERIOD": any period during which the higher
of the publicly announced ratings by S&P and Moody's of the
then current senior unsecured, non-credit enhanced, long-
term Indebtedness of the Company that has been publicly
issued is either BBB or Baa2, respectively, or BBB- or Baa3,
respectively; PROVIDED that any period during which the
Level V Period requirements are satisfied shall be deemed to
be a Level V Period.
"LEVEL V 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 is
below BBB- or unrated or below Baa3 or unrated, as the case
may be.
"LIBOR AUCTION ADVANCE REQUEST": any CAF Loan Request
requesting the CAF Loan Banks to offer to make CAF Loans at
an interest rate equal to the Applicable LIBOR Auction
Advance Rate plus or minus a margin.
"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
14
financing lease having substantially the same economic
effect as any of the foregoing).
"LOAN": any loan made by any Bank pursuant to this
Agreement.
"LOAN DOCUMENTS": this Agreement and the Notes.
"MERGER": as defined in the Recitals hereto.
"MERGER AGREEMENT": as defined in the Recitals hereto.
"MOODY'S": Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN": a Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"NOTE": any Revolving Credit Note or CAF Loan Note.
"PARTICIPANTS": as defined in subsection 8.6(b).
"PAYMENT SHARING NOTICE": a written notice from the
Company, or any Bank, informing the Agent that an Event of
Default has occurred and is continuing and directing the
Agent to allocate payments thereafter received from the
Company in accordance with subsection 2.10(c).
"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.
"PROXY": as defined in the Recitals hereto.
"PURCHASING BANKS": as defined in subsection 8.6(d).
15
"REFERENCE BANKS": Chemical Bank, Citibank, N.A., and
Morgan Guaranty Trust Company of New York.
"REGISTER": as defined in subsection 8.6(e).
"REGULATION U": Regulation U 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. SECTION 2615.
"REQUESTED TERMINATION DATE": as defined in subsection
2.4(b).
"REQUIRED BANKS": (i) during the Commitment Period,
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 all outstanding Loans.
"REQUIREMENT OF LAW": as to any Person, the
Certificate of Incorporation and By-Laws 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.
"REVOLVING CREDIT LOANS": as defined in subsection
2.1(a).
"REVOLVING CREDIT NOTES": as defined in subsection
2.1(b).
"S&P": Standard & Poor's Corporation.
"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
16
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
$5,000,000 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.
"SUBSIDIARY": as to any Person, a corporation or
partnership 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 or partnership are at the time owned, or the
management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, 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 2.14.
"TERMINATING BANK": as defined in subsection 2.4(c).
"TERMINATION DATE": the date one day before the fourth
anniversary of the Closing Date (or, if such date is not a
Business Day, the next succeeding Business Day), or such
other Business Day to which the Termination Date may be
changed pursuant to subsection 2.4).
"TRANSFER EFFECTIVE DATE": as defined in each
Commitment Transfer Supplement.
"TRANSFEREE": as defined in subsection 8.6(g).
"TYPE": as to any Revolving Credit 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.
17
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
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 REVOLVING CREDIT LOANS AND REVOLVING CREDIT NOTES.
(a) Subject to the terms and conditions hereof, each Bank
severally agrees to make loans ("REVOLVING CREDIT LOANS") to the
Company from time to time during the Commitment Period in an
aggregate principal amount at any one time outstanding not to
exceed the Commitment of such Bank, PROVIDED that the aggregate
amount of the Loans outstanding shall not at any time exceed the
aggregate amount of the Commitments. During the Commitment
Period the Company may use the Commitments by borrowing,
prepaying the Revolving Credit Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions
hereof. The Revolving Credit 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). Eurodollar Loans shall be made and
maintained by each Bank at its Eurodollar Lending Office, and
Alternate Base Rate Loans shall be made and maintained by each
Bank at its Domestic Lending Office.
(b) The Revolving Credit Loans made by each Bank shall
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 "REVOLVING CREDIT 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 or, if a lesser amount, the
aggregate unpaid principal amount of all Revolving Credit Loans
made by such Bank. Each Bank is hereby authorized to record the
18
date, Type and amount of each Revolving Credit 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 its Revolving
Credit Note, and any such recordation shall constitute PRIMA
FACIE evidence of the accuracy of the information so recorded;
PROVIDED, HOWEVER, that the failure to make any such recordation
shall not affect the obligations of the Company hereunder or
under any Revolving Credit Note. Each Revolving Credit Note
shall (x) be dated the Closing Date, (y) be stated to mature on
the Termination 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 2.7.
(c) The Company may borrow under the Commitments
during the Commitment Period on any Business Day; 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 requested Borrowing
Date, in the case of Eurodollar Loans, and (ii) prior to 10:00
A.M., New York City time, on the requested Borrowing Date, in the
case of Alternate Base Rate Loans), specifying (A) the amount to
be borrowed, (B) the requested Borrowing Date, (C) whether the
borrowing is to be of Eurodollar Loans, Alternate Base Rate
Loans, or a combination thereof, and (D) if the borrowing is to
be entirely or partly of Eurodollar Loans, the length of the
Interest Period therefor. Each borrowing pursuant to the
Commitments shall be in an aggregate principal amount equal to
the lesser of (i) $10,000,000 or a whole multiple of $1,000,000
in excess thereof and (ii) the then Available Commitments. 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
Borrowing Date requested by the Company in funds immediately
available to the Agent. The proceeds of all such Revolving
Credit 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 CAF LOANS AND CAF LOAN NOTES. (a) The Company
may borrow CAF Loans from time to time on any Business Day (in
the case of CAF Loans made pursuant to a Fixed Rate Auction
Advance Request) or any Working Day (in the case of CAF Loans
made pursuant to a LIBOR Auction Advance Request) during the
period from the Closing Date until the date occurring 14 days
prior to the Termination Date in the manner set forth in this
subsection 2.2 and in amounts such that the aggregate amount of
Loans outstanding at any time shall not exceed the aggregate
amount of the Commitments at such time.
19
(b) (i) The Company shall request CAF Loans by
delivering a CAF Loan Request to the CAF Loan Agent, not later
than 12:00 Noon (New York City time) four Working Days prior to
the proposed Borrowing Date (in the case of a LIBOR Auction
Advance Request), and not later than 10:00 A.M. (New York City
time) one Business Day prior to the proposed Borrowing Date (in
the case of a Fixed Rate Auction Advance Request). Each CAF Loan
Request may solicit bids for CAF Loans in an aggregate principal
amount of $10,000,000 or an integral multiple thereof and for not
more than three alternative maturity dates for such CAF Loans.
The maturity date for each CAF Loan shall be not less than 7 days
nor more than 360 days after the Borrowing Date therefor (and in
any event not after the Termination Date). The CAF Loan Agent
shall promptly notify each CAF Loan Bank by facsimile
transmission of the contents of each CAF Loan Request received by
it.
(ii) In the case of a LIBOR Auction Advance Request,
upon receipt of notice from the CAF Loan Agent of the contents of
such CAF Loan Request, any CAF Loan Bank that elects, in its sole
discretion, to do so, shall irrevocably offer to make one or more
CAF Loans at the Applicable LIBOR Auction Advance Rate plus or
minus a margin for each such CAF Loan determined by such CAF Loan
Bank in its sole discretion. Any such irrevocable offer shall be
made by delivering a CAF Loan Offer to the CAF Loan Agent, before
9:30 A.M., New York City time, three Working Days before the
proposed Borrowing Date, setting forth the maximum amount of CAF
Loans for each maturity date, and the aggregate maximum amount
for all maturity dates, which such Bank would be willing to make
(which amounts may, subject to subsection 2.2(a), exceed such CAF
Loan Bank's Commitment) and the margin above the Applicable LIBOR
Auction Advance Rate at which such CAF Loan Bank is willing to
make each such CAF Loan; the CAF Loan Agent shall advise the
Company before 10:00 A.M., New York City time, three Working Days
before the proposed Borrowing Date of the contents of each such
CAF Loan Offer received by it. If the CAF Loan Agent in its
capacity as a CAF Loan Bank shall, in its sole discretion, elect
to make any such offer, it shall advise the Company of the
contents of its CAF Loan Offer before 9:00 A.M., New York City
time, three Working Days before the proposed Borrowing Date.
(iii) In the case of a Fixed Rate Auction Advance
Request, upon receipt of notice from the Agent of the contents of
such CAF Loan Request, any CAF Loan Bank that elects, in its sole
discretion, to do so, shall irrevocably offer to make one or more
CAF Loans at a rate or rates of interest for each such CAF Loan
determined by such CAF Loan Bank in its sole discretion. Any
such irrevocable offer shall be made by delivering a CAF Loan
Offer to the CAF Loan Agent, before 9:30 A.M., New York City
time, on the proposed Borrowing Date, setting forth the maximum
amount of CAF Loans for each maturity date, and the aggregate
maximum amount for all maturity dates, which such CAF Loan Bank
would be willing to make (which amounts may, subject to
subsection 2.2(a), exceed such CAF Loan Bank's Commitment) and
20
the rate or rates of interest at which such CAF Loan Bank is
willing to make each such CAF Loan; the CAF Loan Agent shall
advise the Company before 10:15 A.M., New York City time, on the
proposed Borrowing Date of the contents of each such CAF Loan
Offer received by it. If the CAF Loan Agent or any affiliate
thereof in its capacity as a CAF Loan Bank shall, in its sole
discretion, elect to make any such offer, it shall advise the
Company of the contents of its CAF Loan Offer before 9:15 A.M.,
New York City time, on the proposed Borrowing Date.
(iv) The Company shall before 11:00 A.M., New York City
time, three Working Days before the proposed Borrowing Date (in
the case of CAF Loans requested by a LIBOR Auction Advance
Request) and before 10:30 A.M., New York City time, on the
proposed Borrowing Date (in the case of CAF Loans requested by a
Fixed Rate Auction Advance Request) either, in its absolute
discretion:
(A) cancel such CAF Loan Request by giving the CAF
Loan Agent telephone notice to that effect, or
(B) accept one or more of the offers made by any CAF
Loan Bank or CAF Loan Banks pursuant to clause (ii) or
clause (iii) above, as the case may be, by giving telephone
notice to the CAF Loan Agent (immediately confirmed by
delivery to the CAF Loan Agent of a CAF Loan Confirmation)
of the amount of CAF Loans for each relevant maturity date
to be made by each CAF Loan Bank (which amount for each such
maturity date shall be equal to or less than the maximum
amount for such maturity date specified in the CAF Loan
Offer of such CAF Loan Bank, and for all maturity dates
included in such CAF Loan Offer shall be equal to or less
than the aggregate maximum amount specified in such CAF Loan
Offer for all such maturity dates) and reject any remaining
offers made by CAF Loan Banks pursuant to clause (ii) or
clause (iii) above, as the case may be; PROVIDED, HOWEVER,
that (x) the Company may not accept offers for CAF Loans for
any maturity date in an aggregate principal amount in excess
of the maximum principal amount requested in the related CAF
Loan Request, (y) if the Company accepts any of such offers,
it must accept offers strictly based upon pricing for such
relevant maturity date and no other criteria whatsoever and
(z) if two or more CAF Loan Banks submit offers for any
maturity date at identical pricing and the Company accepts
any of such offers but does not wish to borrow the total
amount offered by such CAF Loan Banks with such identical
pricing, the Company shall accept offers from all of such
CAF Loan Banks in amounts allocated among them PRO RATA
according to the amounts offered by such CAF Loan Banks (or
as nearly PRO RATA as shall be practicable after giving
effect to the requirement that CAF Loans made by a CAF Loan
Bank on a Borrowing Date for each relevant maturity date
shall be in a principal amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof PROVIDED that if
21
the number of CAF Loan Banks that submit offers for any
maturity date at identical pricing is such that, after the
Company accepts such offers PRO RATA in accordance with the
foregoing, the CAF Loans to be made by such CAF Loan Banks
would be less than $5,000,000 principal amount, the number
of such CAF Loan Banks shall be reduced by the CAF Loan
Agent by lot until the CAF Loans to be made by such
remaining CAF Loan Banks would be in a principal amount of
$5,000,000 or an integral multiple of $1,000,000 in excess
thereof).
(v) If the Company notifies the CAF Loan Agent that a
CAF Loan Request is cancelled pursuant to clause (iv)(A) above,
the CAF Loan Agent shall give prompt, but in no event more than
one hour later, telephone notice thereof to the CAF Loan Banks,
and the CAF Loans requested thereby shall not be made.
(vi) If the Company accepts pursuant to clause (iv)(B)
above one or more of the offers made by any CAF Loan Bank or CAF
Loan Banks, the CAF Loan Agent shall promptly, but in no event
more than one hour later, notify each CAF Loan Bank which has
made such an offer of the aggregate amount of such CAF Loans to
be made on such Borrowing Date for each maturity date and of the
acceptance or rejection of any offers to make such CAF Loans made
by such CAF Loan Bank. Each CAF Loan Bank which is to make a CAF
Loan shall, before 12:00 Noon, New York City time, on the
Borrowing Date specified in the CAF Loan Request applicable
thereto, make available to the Agent at its office set forth in
subsection 8.2 the amount of CAF Loans to be made by such CAF
Loan Bank, in immediately available funds. The Agent will make
such funds available to the Company as soon as practicable on
such date at the Agent's aforesaid address. As soon as
practicable after each Borrowing Date, the Agent shall notify
each Bank of the aggregate amount of CAF Loans advanced on such
Borrowing Date and the respective maturity dates thereof.
(c) Within the limits and on the conditions set forth
in this subsection 2.2, the Company may from time to time borrow
under this subsection 2.2, repay pursuant to paragraph (d) below,
and reborrow under this subsection 2.2.
(d) The Company shall repay to the Agent for the
account of each CAF Loan Bank which has made a CAF Loan (or the
CAF Loan Assignee in respect thereof, as the case may be) on the
maturity date of each CAF Loan (such maturity date being that
specified by the Company for repayment of such CAF Loan in the
related CAF Loan Request) the then unpaid principal amount of
such CAF Loan. The Company shall not have the right to prepay
any principal amount of any CAF Loan.
(e) The Company shall pay interest on the unpaid
principal amount of each CAF Loan from the Borrowing Date to the
stated maturity date thereof, at the rate of interest determined
pursuant to paragraph (b) above (calculated on the basis of a
22
360-day year for actual days elapsed), payable on the interest
payment date or dates specified by the Company for such CAF Loan
in the related CAF Loan Request as provided in the CAF Loan Note
evidencing such CAF Loan. If all or a portion of the principal
amount of any CAF Loan or any interest or other amount payable
hereunder in respect thereof shall not be paid when due (whether
at the stated maturity, by acceleration or otherwise), such
overdue amount shall, without limiting any rights of any Bank
under this Agreement, bear interest from the date on which such
payment was due at a rate per annum which is 2% above the rate
which would otherwise be applicable pursuant to the CAF Loan Note
evidencing such CAF Loan until the scheduled maturity date with
respect thereto as set forth in the CAF Loan Note evidencing such
CAF Loan, and for each day thereafter at rate per annum which is
2% above the Alternate Base Rate until paid in full (as well
after as before judgment).
(f) The CAF Loans made by each CAF Loan Bank shall be
evidenced initially by a promissory note of the Company,
substantially in the form of Exhibit B with appropriate
insertions (a "GRID CAF LOAN NOTE"), payable to the order of such
CAF Loan Bank and representing the obligation of the Company to
pay the unpaid principal amount of all CAF Loans made by such CAF
Loan Bank, with interest on the unpaid principal amount from time
to time outstanding of each CAF Loan evidenced thereby as
prescribed in subsection 2.2(e). Each CAF Loan Bank is hereby
authorized to record the date and amount of each CAF Loan made by
such Bank, the maturity date thereof, the date and amount of each
payment of principal thereof and the interest rate with respect
thereto on the schedule annexed to and constituting part of its
Grid CAF Loan Note, and any such recordation shall constitute
PRIMA FACIE evidence of the accuracy of the information so
recorded; PROVIDED, HOWEVER, that the failure to make any such
recordation shall not affect the obligations of the Company
hereunder or under any Grid CAF Loan Note. Each Grid CAF Loan
Note shall be dated the Closing Date and each CAF Loan evidenced
thereby shall bear interest for the period from and including the
Borrowing Date thereof on the unpaid principal amount thereof
from time to time outstanding at the applicable rate per annum
determined as provided in, and such interest shall be payable as
specified in, subsection 2.2(e).
(g) Amounts advanced by a CAF Loan Bank pursuant to
this subsection 2.2 on a Borrowing Date which have the same
maturity date and interest rate shall be deemed to constitute one
CAF Loan so long as such amounts remain evidenced by the Grid CAF
Loan Note of such CAF Loan Bank; any such CAF Loan Bank that
wishes such amounts to constitute more than one CAF Loan and to
have each such CAF Loan evidenced by a separate promissory note
payable to such CAF Loan Bank, substantially in the form of
Exhibit C with appropriate insertions as to Borrowing Date,
principal amount and interest rate (an "INDIVIDUAL CAF LOAN
NOTE"), shall notify the CAF Loan Agent and the Company by
facsimile transmission of the respective principal amounts of the
23
CAF Loans (which principal amounts shall not be less than
$10,000,000 for any of such CAF Loans) to be evidenced by each
such Individual CAF Loan Note. Not later than three Business
Days after receipt of such notice, the Company shall deliver to
such CAF Loan Bank an Individual CAF Loan Note payable to the
order of such CAF Loan Bank in the principal amount of each such
CAF Loan and otherwise conforming to the requirements of this
Agreement. Upon receipt of such Individual CAF Loan Note, such
CAF Loan Bank shall endorse on the schedule attached to its Grid
CAF Loan Note the transfer of such CAF Loan from Grid CAF Loan
Note to such Individual CAF Loan Note.
2.3 FACILITY FEE. (a) The Company agrees to pay to
the Agent for the account of each Bank a facility fee in respect
of the period from and including the first day of the Commitment
Period to the Termination Date, computed at the rate per annum
set forth in the table below on the average daily amount of the
Commitment of such Bank during each portion of the period for
which payment is made that is a separate Level I Period, Level II
Period, Level III Period, Level IV Period or Level V Period,
payable quarterly on the last day of each March, June, September
and December and on any earlier date on which the Commitments
shall terminate as provided herein and the Revolving Credit Loans
shall have been repaid in full, commencing on the first of such
dates to occur after the date hereof:
TYPE OF PERIOD FACILITY FEE
Level I Period .1250%
Level II Period .1500%
Level III Period .2000%
Level IV Period .2500%
Level V Period .3750%
(b) The Company agrees to pay to the Agent the other
fees in the amounts, and on the dates, agreed to by the Company
and the Agent in the fee letter, dated October 20, 1993, between
the Agent and the Company. Each Bank acknowledges that the Agent
is being paid certain other fees for its own account in
connection with the financing contemplated by this Agreement in
addition to the fees described in this Agreement.
2.4 TERMINATION, REDUCTION OR EXTENSION OF
COMMITMENTS. (a) 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, PROVIDED that no such termination or
reduction shall be permitted if, after giving effect thereto and
to any prepayments of the Loans made on the effective date
thereof, the then outstanding principal amount of the Loans would
exceed the amount of the Commitments then in effect. Any such
reduction shall be in an amount of $10,000,000 or a whole
24
multiple of $1,000,000 in excess thereof, and shall reduce
permanently the amount of the Commitments then in effect.
(b) The Company may request, in a notice given as
herein provided to the Agent and each of the Banks not less than
90 days and not more than 120 days prior to the second
anniversary of the Closing Date, that the Termination Date be
extended, which notice shall specify that the requested extension
is to be effective (the "EFFECTIVE DATE") on the second
anniversary of the Closing Date, and that the new Termination
Date to be in effect following such extension (the "REQUESTED
TERMINATION DATE") is to be the sixth anniversary of the Closing
Date. Each Bank shall, not later than 30 days following such
notice, notify the Company and the Agent of its election to
extend or not to extend the Termination Date with respect to its
Commitment. The Company may, not later than 15 days following
such notice from the Banks, revoke its request to extend the
Termination Date. If the Required Banks elect to extend the
Termination Date with respect to their Commitments and the
Company has not revoked its request to extend the Termination
Date, then, subject to the provisions of this subsection 2.4, the
Termination Date shall be extended for two years.
Notwithstanding any provision of this Agreement to the contrary,
any notice by any Bank of its willingness to extend the
Termination Date with respect to its Commitment shall be
revocable by such Bank in its sole and absolute discretion at any
time prior to the date which is 15 days following such notice
from the Banks. Any Bank which shall not notify the Company and
the Agent of its election to extend the Termination Date within
30 days following such notice shall be deemed to have elected not
to extend the Termination Date with respect to its Commitment.
(c) Provided that the Required Banks shall have
elected to extend their Commitments as provided in this
subsection 2.4, if any Bank shall timely notify the Company and
the Agent pursuant to subsection 2.4(b) of its election not to
extend its Commitment or its revocation of any extension, or
shall be deemed to have elected not to extend its Commitments,
(any such Bank being called a "TERMINATING BANK"), then the
remaining Banks (the "CONTINUING BANKS") or any of them shall
have the right (but not the obligation), upon notice to the
Company and the Agent not later than 30 Business Days preceding
the Effective Date to increase their Commitments, by an amount up
to in the aggregate the Commitments of any Terminating Banks.
Each increase in the Commitment of a Continuing Bank shall be
evidenced by a written instrument executed by such Continuing
Bank, the Company and the Agent, and shall take effect on the
Effective Date. Notwithstanding any provision of this Agreement
to the contrary, any notice by any Continuing Bank of its
willingness to increase its Commitment as provided in this
subsection 2.4(c) shall be revocable by such Bank in its sole and
absolute discretion at any time prior to the Effective Date.
25
(d) In the event the aggregate Commitments of any
Terminating Banks shall exceed the aggregate amount by which the
Continuing Banks have agreed to increase their Commitments
pursuant to subsection 2.4(c), the Company may, with the approval
of the Agent (which will not be unreasonably withheld), designate
one or more other banking institutions willing to extend
Commitments until the Requested Termination Date in an aggregate
amount not greater than such excess. Any such banking
institution (an "ADDITIONAL BANK") shall, on or prior to the
Effective Date, execute and deliver to the Company and the Agent
a Commitment Transfer Supplement, satisfactory to the Company and
the Agent, setting forth the amount of such Additional Bank's
Commitment and containing its agreement to become, and to perform
all the obligations of, a Bank hereunder, and the Commitment of
such Additional Bank shall become effective on the Effective
Date. Notwithstanding any provision of this Agreement to the
contrary, any notice by any Additional Bank of its willingness to
become a Bank hereunder shall be revocable by such Additional
Bank in its sole and absolute discretion at any time prior to the
Effective Date.
(e) The Company shall deliver to each Continuing Bank
and each Additional Bank, on the Effective Date, in exchange for
the Notes held by such Bank, new Notes, maturing on the Requested
Termination Date, in the principal amount of such Bank's
Commitment after giving effect to the adjustments made pursuant
to this subsection 2.4.
(f) If the Required Banks shall have elected to extend
their Commitments as provided in this subsection 2.4 and the
Company has not revoked its request to extend the Termination
Date as provided in this subsection 2.4, then (i) the Commitments
of the Continuing Banks and any Additional Banks shall continue
until the Requested Termination Date specified in the notice from
the Company, and as to such Banks the term "Termination Date", as
used herein shall mean such Requested Termination Date; (ii) the
Commitments of any Terminating Bank shall continue until the
Effective Date, and shall then terminate (as to any Terminating
Bank, the term "Termination Date", as used herein, shall mean the
Effective Date) and any such Terminating Bank shall receive
payment in full of the outstanding principal amount, together
with accrued interest to such date and any other amounts owed by
the Company to such Terminating Bank pursuant to any Loan
Document, of the Loans of such Terminating Bank; and (iii) from
and after the Effective Date, the term "Banks" shall be deemed to
include the Additional Banks and (except with respect to
subsections 2.15 and 8.5 to the extent the rights under such
subsections arise after the Termination Date in respect of
Terminating Banks) to exclude the Terminating Banks.
2.5 OPTIONAL PREPAYMENTS. The Company may on the last
day of the relevant Interest Period if the Revolving Credit Loans
to be prepaid are in whole or in part Eurodollar Loans, or at any
time and from time to time if the Revolving Credit Loans to be
26
prepaid are Alternate Base Rate Loans, prepay the Revolving
Credit 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
$5,000,000, or a whole multiple thereof, and may only be made if,
after giving effect thereto, subsection 2.6(c) shall not have
been contravened.
2.6 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 Revolving Credit 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
Revolving Credit 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
$5,000,000 or a whole multiple thereof, and (iii) any such
conversion may only be made if, after giving effect thereto,
subsection 2.6(c) shall not have been contravened.
(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 2.6(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
27
automatic conversion contemplated by this subsection 2.6(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.
2.7 INTEREST RATE AND PAYMENT DATES FOR REVOLVING
CREDIT 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
Revolving Credit 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 2.7(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.
2.8 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 Revolving Credit Loan
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
28
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 2.7(a) or (c).
(c) If any Reference Bank's Commitment shall terminate
(otherwise than on termination of all the Commitments), or its
Revolving Credit Loans 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 and the Banks) 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.
(e) Facility fees shall be computed on the basis of a
365-day year for the actual days elapsed.
2.9 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
29
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 Revolving Credit 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 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.
2.10 PRO RATA BORROWINGS AND PAYMENTS. (a) Each
borrowing by the Company of Revolving Credit Loans shall be made
ratably from the Banks in accordance with their Commitment
Percentages.
(b) Whenever any payment received by the Agent under
this Agreement or any Note is insufficient to pay in full all
amounts then due and payable to the Agent and the Banks under
this Agreement and the Notes, and the Agent has not received a
Payment Sharing Notice (or if the Agent has received a Payment
Sharing Notice but the Event of Default specified in such Payment
Sharing Notice has been cured or waived), such payment shall be
distributed and applied by the Agent and the Banks in the
following order: FIRST, to the payment of fees and expenses due
and payable to the Agent under and in connection with this
Agreement; SECOND, to the payment of all expenses due and payable
under subsection 8.5(a), ratably among the Banks in accordance
with the aggregate amount of such payments owed to each such
Bank; THIRD, to the payment of fees due and payable under
subsection 2.3, ratably among the Banks in accordance with their
Commitment Percentages; FOURTH, to the payment of interest then
due and payable under the Notes, ratably among the Banks in
accordance with the aggregate amount of interest owed to each
such Bank; and FIFTH, to the payment of the principal amount of
the Notes which is then due and payable, ratably among the Banks
in accordance with the aggregate principal amount owed to each
such Bank.
30
(c) After the Agent has received a Payment Sharing
Notice which remains in effect, all payments received by the
Agent under this Agreement or any Note shall be distributed and
applied by the Agent and the Banks in the following order:
FIRST, to the payment of all amounts described in clauses FIRST
through THIRD of the foregoing paragraph (b), in the order set
forth therein; and SECOND, to the payment of the interest accrued
on and the principal amount of all of the Notes, regardless of
whether any such amount is then due and payable, ratably among
the Banks in accordance with the aggregate accrued interest plus
the aggregate principal amount owed to such Bank.
(d) All payments (including prepayments) to be made by
the Company on account of principal, interest and fees shall be
made without set-off or counterclaim 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.
(e) Unless the Agent shall have been notified in
writing by any Bank prior to a Borrowing Date that such Bank will
not make the amount which would constitute its Commitment
Percentage of the borrowing of Revolving Credit Loans on such
date available to the Agent, the Agent may assume that such Bank
has made such amount available to the Agent on such Borrowing
Date, and the Agent may, in reliance upon such assumption, make
available to the Company a corresponding amount. If such amount
is made available to the Agent on a date after such Borrowing
Date, such Bank shall pay to the Agent on demand an amount equal
to the product of (i) the daily average Federal Funds Effective
Rate during such period as quoted by the Agent, times (ii) the
amount of such Bank's Commitment Percentage of such borrowing,
times (iii) a fraction the numerator of which is the number of
days that elapse from and including such Borrowing Date to the
date on which such Bank's Commitment Percentage of such borrowing
shall have become immediately available to the Agent and the
denominator of which is 360. A certificate of the Agent
submitted to any Bank with respect to any amounts owing under
this subsection 2.10(e) shall be conclusive, absent manifest
error. If such Bank's Commitment Percentage of such borrowing is
not in fact made available to the Agent by such Bank within three
31
Business Days of such Borrowing Date, the Agent shall be entitled
to recover such amount with interest thereon at the rate per
annum applicable to Alternate Base Rate Loans hereunder, on
demand, from the Company.
2.11 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 Revolving Credit 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 Revolving
Credit 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.
2.12 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 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 Revolving
Credit 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 Revolving Credit 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
32
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 2.12(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 Revolving Credit 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 2.12(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.
2.13 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
33
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 2.13 shall survive the termination
of this Agreement and payment of the Loans and the Notes and all
other amounts payable hereunder.
2.14 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 payments under
this Agreement and the Notes payable to it, without deduction or
withholding of any United States federal income taxes, and (ii)
an Internal Revenue Service Form W-8 or W-9 or successor
applicable form, as the case may be, to establish an exemption
34
from United States backup withholding tax. Each Bank which
delivers to the Company and the Agent a Form 1001 or 4224 and
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
Sates 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.
2.15 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
2.6, (c) default by the Company in making any prepayment after
the Company has given a notice in accordance with subsection 2.5
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
2.15 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
Notes.
35
2.16 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. The
Company will not, directly or indirectly, apply any part of the
proceeds of any such Loan for the 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.
2.17 NOTICE OF CERTAIN CIRCUMSTANCES; ASSIGNMENT OF
COMMITMENTS UNDER CERTAIN CIRCUMSTANCES. (a) Any Bank claiming
any additional amounts payable pursuant to subsections 2.12, 2.13
or 2.14 or exercising its rights under subsection 2.11, 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 2.12, 2.13 or 2.14 or exercising its
rights under subsection 2.11, 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
2.12, 2.13 or 2.14 or any Bank shall exercise its rights under
subsection 2.11, 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 Notes 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 2.3, 2.11, 2.12,
2.13, 2.14 and 2.15.
SECTION 3. REPRESENTATIONS AND WARRANTIES
36
The Company hereby represents and warrants that:
3.1 CORPORATE ORGANIZATION AND EXISTENCE. Each of the
Company and each Subsidiary is a corporation duly organized and
validly existing and in good standing under the laws of the
jurisdiction in which it is incorporated and has all necessary
corporate 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 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 as a
foreign corporation in all jurisdictions other than that of its
incorporation in which the physical properties owned, leased or
operated by it are located, 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.
3.2 SUBSIDIARIES. As of the date hereof, the Company
has only the Subsidiaries set forth in Schedule II, all of the
outstanding capital stock of each of which is duly authorized,
validly issued, fully paid and nonassessable and owned as set
forth in said Schedule II. Schedule II indicates all
Subsidiaries of the Company which are not wholly-owned
Subsidiaries and the percentage ownership of the Company and its
Subsidiaries in each such Subsidiary. 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 each Bank copies of the following:
(a) the Annual Report of the Company for the fiscal
year ended December 31, 1992, containing the consolidated
balance sheet of the Company and its Subsidiaries as at said
date and the related consolidated statements of income,
common stockholders' equity and changes in financial
position for the fiscal year then ended, accompanied by the
opinion of Arthur Andersen & Co.;
(b) the Annual Report of the Company on Form 10-K for
the fiscal year ended December 31, 1992;
(c) quarterly financial statements of the Company,
including balance sheets, for the fiscal periods ended March
31, 1993, June 30, 1993 and September 30, 1993;
37
(d) the current report of the Company on Form 8-K,
dated September 29, 1993;
(e) the Annual Report of Galen for the fiscal year
ended August 31, 1993, containing the consolidated balance
sheet of Galen and its Subsidiaries as at said date and the
related consolidated statements of income, common
stockholders' equity and changes in financial position for
the fiscal year then ended, accompanied by the opinion of
Coopers & Lybrand;
(f) the Annual Report of Galen on Form 10-K for the
fiscal year ended August 31, 1992;
(g) quarterly financial statements of Galen, including
balance sheets, for the fiscal periods ended November 30,
1992, February 28, 1993 and May 31, 1993;
(h) the Annual Report of HCA on Form 10-K for the
fiscal year ended December 31, 1992, containing the
consolidated balance sheet of HCA and its Subsidiaries as at
said date and the related consolidated statements of income,
common stockholders' equity and changes in financial
position for the fiscal year then ended, accompanied by the
opinion of Ernst & Young;
(i) quarterly financial statements of HCA, including
balance sheets, for the fiscal periods ended March 31, 1993,
June 30, 1993 and September 30, 1993; and
(j) the Proxy.
Such financial statements (including any notes thereto) have been
prepared in accordance with GAAP and fairly present the financial
conditions of the corporations covered thereby at the date
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, 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 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, 1992
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, or of HCA
and its Subsidiaries, on a consolidated basis. Since August 31,
1993 there has been no material adverse change in the business or
assets or in the condition, financial or otherwise, of Galen and
its Subsidiaries, on a consolidated basis.
38
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 (i) in the
Company's Annual Report on Form 10-K for its fiscal year ended
December 31, 1992 and its Quarterly Reports on Form 10-Q for its
fiscal quarters ended March 31, 1993, June 30, 1993 and September
30, 1993, (ii) in Galen's Annual Report on Form 10-K for its
fiscal year ended August 31, 1992 and its Quarterly Reports on
Form 10-Q for its fiscal quarters ended November 30, 1992,
February 28, 1993 and May 31, 1993 and (iii) in HCA's Annual
Report on Form 10-K for its fiscal year ended December 31, 1992
and its Quarterly Reports on Form 10-Q for its fiscal quarters
ended March 31, 1993, June 30, 1993 and September 30, 1993, in
each case as filed with the Securities and Exchange Commission
and previously distributed to the Banks, 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. The Company does not
believe that the final resolution of the matters disclosed in its
Annual Report on Form 10-K for its fiscal year ended December 31,
1992 and its Quarterly Reports on Form 10-Q for its fiscal
quarters ended March 31, 1993, June 30, 1993 and September 30,
1993, in Galen's Annual Report on Form 10-K for its fiscal year
ended August 31, 1992 and its Quarterly Reports on Form 10-Q for
its fiscal quarters ended November 30, 1992, February 28, 1993
and May 31, 1993 or in HCA's Annual Report on Form 10-K for its
fiscal year ended December 31, 1992 and HCA's Quarterly Reports
on Form 10-Q for its fiscal quarters ended March 31, 1993, June
30, 1993 and September 30, 1993, in each case as filed with the
Securities and Exchange Commission and previously distributed to
the Banks, will 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.
39
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. All federal tax returns of
(i) the Company and its Subsidiaries (other than Smith
Laboratories, Inc., Sutter Corporation and Basic American
Medical, Inc.) through their fiscal years ended in 1989, (ii)
Smith Laboratories, Inc., Sutter Corporation and Basic American
Medical, Inc. through their respective fiscal years ended in
1988, 1988 and 1986, respectively, (iii) Galen and its
Subsidiaries through their fiscal years ended in 1989 and (iv)
HCA and its Subsidiaries through their fiscal years ended in
1990, have been audited by the Internal Revenue Service or are
not subject to such audit by virtue of the expiration of the
applicable period of limitations, and the results of such audits
are adequately reflected in the balance sheets referred to in
subsection 3.3. 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 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
40
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.
Neither the Company nor any Subsidiary nor any Control Group
Person maintains, contributes to or participates in any Plan that
is a "defined benefit plan" as defined in ERISA. Neither the
Company, any Subsidiary, nor any Control Group Person has since
August 31, 1986 maintained, contributed to or participated in any
Multiemployer Plan, with respect to which a complete withdrawal
would result in any withdrawal liability. The Company and its
Subsidiaries have met all of the funding standards applicable to
all Plans that are not Multiemployer 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 benefits guaranteed under Title
IV of ERISA of each Plan that is not a Multiemployer Plan does
not exceed the current value of such Plan's assets allocable to
such benefits.
3.13 DISCLOSURE. Neither this Agreement nor any
agreement, document, certificate or statement furnished to the
Banks by the Company in connection herewith or with the planning
or the consummation of the transactions contemplated by the
Merger, including, without limitation, the information relating
41
to the Company and its Subsidiaries after the Merger included in
the Confidential Information Memorandum and Proxy, 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. All pro forma financial statements
and other materials describing the structure of the transactions
contemplated by the Proxy that have been prepared by the Company
and made available to Banks have been prepared in good faith
based upon reasonable assumptions. There is no fact known to the
Company which has or in the future may have (so far as the
Company can now foresee) a material adverse effect on the
business or assets or the condition, financial or otherwise, of
the Company and its Subsidiaries on a consolidated basis, except
to the extent that they may be affected by future general
economic conditions.
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 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
42
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.
SECTION 4. CONDITIONS
The obligations of each Bank to make the Loans
contemplated by subsections 2.1 and 2.2 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, a Revolving Credit Note and a
Grid CAF Loan 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 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 shall be
true and correct 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, 1992 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 or HCA 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, 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
43
to those enumerated 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 TERMINATION OF PRIOR AGREEMENTS. On the Closing
Date, each of (i) the $300,000,000 Credit Agreement, (ii) the
$500,000,000 Credit Agreement, (iii) the $800,000,000 Credit
Agreement and (iv) the $1,642,000,000 Credit Agreement shall have
been terminated and the Company shall have paid in full all
indebtedness outstanding thereunder, including, without
limitation, all interest and fees owing with respect to such
indebtedness.
4.5 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.
4.6 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,
including the Merger Agreement executed and delivered by each of
the signatories thereto, the Proxy and all amendments and
exhibits thereto, 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.
4.7 FEES. The Agent shall have received the fees to
be received on the Closing Date referred to in subsection 2.3.
4.8 CONSUMMATION OF THE MERGER. The Agent shall have
received evidence, which evidence shall be in form and substance
satisfactory to the Agent, that the transactions contemplated by
the Merger, including, without limitation, the transactions
contemplated by the Proxy and subsections 1.1 and 4.1 of the
Merger Agreement, have been consummated.
SECTION 5. GENERAL COVENANTS
On and after the date hereof, until all of the Notes
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.
44
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 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; and (iii) 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
45
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 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 profit and loss and of
retained earnings 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 changes in financial position for the year
then ended and the statement of such Auditor and of a
46
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, 5.7 and 5.10.
(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, consolidated balance sheets as at
the end of such fiscal quarter and consolidated profit and
loss and retained earnings statements for the portion of the
fiscal year then ended, of the Company and its Subsidiaries,
together with computations showing compliance with
subsections 5.6, 5.7 and 5.10, accompanied by a certificate
of a Responsible Officer of the Company that such statements
and computations have been properly 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 quarter and the results of their
operations and changes in financial position 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.
(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,
47
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 Moody's 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, 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
send or make available to its stockholders including,
without limitation, the Proxy and all other materials
relating thereto, and all registration statements and
amendments thereto, and 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,
48
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 TOTAL DEBT TO TANGIBLE NET WORTH. The
Company and its Subsidiaries will not at any time have
outstanding Consolidated Total Debt in an amount in excess of
200% of Consolidated Tangible Net Worth.
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 Subsidiary owned
by the Company for the purpose of causing the Company to be
incorporated in a different jurisdiction in the United States.
49
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, 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 and (b) exchange 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) 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.
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
(calculated as if the 30% of collective net worth amount referred
to in Section 4062(b)(1)(A)(i)(II) of ERISA exceeded the actual
total amount of unfunded guaranteed benefits referred to in
Section 4062(B)(1)(A)(i)(I) 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
50
provided for in Section 4068 of ERISA to attach to the assets of
the Company or any of its Subsidiaries.
5.12 NEGATIVE PLEDGE. The Company will not and will
ensure that no Subsidiary will create or have outstanding any
security on or over any Principal Property in respect of any
Indebtedness except 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 at the time of
acquisition of such property by the Company or a Subsidiary
or on the property 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 existing at the date of this
Agreement set forth on Schedule IV;
(e) any security created by operation of law in favor
of government agencies of the United States of America or
any State thereof;
(f) 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 with an
independent appraised fair market value at least equal to
the appraised fair market value of the Principal Property
secured by the new security; and
(g) any extension, renewal or replacement of any
security referred to in the foregoing clauses (a) through
(f) provided that the amount thereby secured is not
increased;
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,
51
issue or assume Indebtedness which would otherwise be subject to
the foregoing restrictions in an aggregate principal amount
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 (g) 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.
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 (g) 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 on any of the Notes or
any facility fee 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 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
52
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 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 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
53
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 (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 further
Revolving Credit 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 further Revolving
Credit Loans hereunder shall automatically terminate and the
unpaid balance of the Notes 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 Revolving Credit 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
54
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.
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 extent
required by the provisions hereof), protests, notices of protest
and notices of dishonor in connection with any of the
Indebtedness 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 Chemical Bank as the Agent and CAF Loan
Agent of such Bank under this Agreement, and each such Bank
irrevocably authorizes Chemical Bank, as the Agent and CAF Loan
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 or
CAF Loan Agent, as the case may be, by the terms of this
55
Agreement, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, neither the Agent nor the
CAF Loan Agent shall 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 or
the CAF Loan Agent.
7.2 DELEGATION OF DUTIES. The Agent or the CAF Loan
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. Neither the Agent nor the CAF Loan Agent shall 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 the
CAF Loan 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 or the CAF Loan
Agent under or in 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. Neither the
Agent nor the CAF Loan Agent shall 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 and the CAF Loan
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 or the CAF Loan 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 and the CAF Loan Agent shall be fully justified
in failing or refusing to take any action under this Agreement
56
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 and the
CAF Loan 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 the CAF Loan
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 or the CAF Loan
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 and the CAF Loan Agent that it has, independently and
without reliance upon the Agent or the CAF Loan 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 the CAF Loan 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 creditworthiness of
the Company. Except for notices, reports and other documents
expressly required to be furnished to the Banks by the Agent or
the CAF Loan Agent hereunder, neither the Agent nor the CAF Loan
57
Agent shall 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 the CAF Loan Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
7.7 INDEMNIFICATION. The Banks agree to indemnify the
Agent and the CAF Loan 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 Commitments, 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 Notes) be imposed on, incurred by or asserted against the
Agent or the CAF Loan 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 or the CAF Loan 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 or the CAF Loan 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 AND CAF LOAN AGENT IN ITS INDIVIDUAL
Capacity. The Agent and the CAF Loan 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 or the
CAF Loan Agent were not the Agent or the CAF Loan Agent
hereunder. With respect to its Loans made or renewed by it and
any Note issued to it, the Agent and the CAF Loan 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 or the CAF
Loan Agent in its individual capacity.
7.9 SUCCESSOR AGENT AND CAF LOAN AGENT. The Agent or
the CAF Loan Agent may resign as Agent or CAF Loan Agent, as the
case may be, upon 10 days' notice to the Banks. If the Agent or
the CAF Loan Agent shall resign as Agent or CAF Loan Agent, as
the case may be, 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 or CAF Loan Agent, as the case may
be, and the term "Agent" or "CAF Loan Agent", as the case may be,
shall mean such successor agent effective upon its appointment,
and the former Agent's or CAF Loan Agent's rights, powers and
58
duties as Agent or CAF Loan Agent shall be terminated, without
any other or further act or deed on the part of such former Agent
or CAF Loan Agent or any of the parties to this Agreement or any
holders of the Notes. After any retiring Agent's or CAF Loan
Agent's resignation hereunder as Agent or CAF Loan Agent, the
provisions of this subsection 7.9 shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was
Agent or CAF Loan Agent under this Agreement. The Co-Agents in
their capacities as such shall have no rights, duties or
obligations 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 Note, 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 all the Banks, 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
59
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, the Agent, and the CAF Loan 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 Healthcare Corporation
201 West Main Street
Louisville, Kentucky 40202
Attention: Treasurer, with a copy to
the General Counsel
Telecopy: 502-572-2163
The Agent and
CAF Loan Agent: Chemical Bank
270 Park Avenue
New York, New York 10017
Attention: Carol J. Burt,
Managing Director
Telecopy: (212) 270-3279
with a copy to: Chemical Bank Agency Services
Corporation
140 East 45th Street
New York, New York 10017
Attention: Janet Belden and
Wallace Chin
Telecopy: (212) 270-0854
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.
60
(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, 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 or the announcement or consummation of the
Merger, 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 right 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.
61
(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 2.12, 2.13 and 2.15 with respect to its participation
in the Commitments and 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 assign to one or more banks or other entities
("CAF LOAN ASSIGNEES") any CAF Loan owing to such Bank and any
Individual CAF Loan Note held by such Bank evidencing such CAF
Loan, pursuant to a CAF Loan Assignment executed by the assignor
Bank and the CAF Loan Assignee. Upon such execution, from and
after the date of such CAF Loan Assignment, the CAF Loan Assignee
shall, to the extent of the assignment provided for in such CAF
Loan Assignment, be deemed to have the same rights and benefits
of payment and enforcement with respect to such CAF Loan and
Individual CAF Loan Note and the same rights of offset pursuant
to subsection 6.1 and under applicable law and obligation to
share pursuant to subsection 8.7 as it would have had if it were
a Bank hereunder; PROVIDED that unless such CAF Loan Assignment
62
shall otherwise specify and a copy of such CAF Loan Assignment
shall have been delivered to the Agent for its acceptance and
recording in the Register in accordance with subsection 8.6(f),
the assignor thereunder shall act as collection agent for the CAF
Loan Assignee thereunder, and the Agent shall pay all amounts
received from the Company which are allocable to the assigned CAF
Loan or Individual CAF Loan Note directly to such assignor
without any further liability to such CAF Loan Assignee. A CAF
Loan Assignee under a CAF Loan Assignment shall not, by virtue of
such CAF Loan Assignment, become a party to this Agreement or
have any rights to consent to or refrain from consenting to any
amendment, waiver or other modification of any provision of this
Agreement or any related document; PROVIDED that if a copy of
such CAF Loan Assignment shall have been delivered to the Agent
for its acceptance and recording in the Register in accordance
with subsection 8.6(f), neither the principal amount of, the
interest rate on, nor the maturity date of any CAF Loan or
Individual CAF Loan Note assigned to the CAF Loan Assignee
thereunder will be modified without the written consent of such
CAF Loan Assignee. If a CAF Loan Assignee has caused a CAF Loan
Assignment to be recorded in the Register in accordance with
subsection 8.6(f), such CAF Loan Assignee may thereafter, in the
ordinary course of its business and in accordance with applicable
law, assign such Individual CAF Loan Note to any Bank, to any
affiliate or subsidiary of such CAF Loan Assignee or to any other
financial institution that has total assets in excess of
$1,000,000,000 and that in the ordinary course of its business
extends credit of the type evidenced by such Individual CAF Loan
Note, and the foregoing provisions of this subsection 8.6(c)
shall apply, MUTATIS MUTANDIS, to any such assignment by a CAF
Loan Assignee. Except in accordance with the preceding sentence,
CAF Loans and Individual CAF Loan Notes may not be further
assigned by a CAF Loan Assignee, subject to any legal or
regulatory requirement that the CAF Loan Assignee's assets must
remain under its control.
(d) 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 or any affiliate thereof, and,
with the consent of the Company and the Agent (which in each case
shall not be unreasonably withheld) 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, 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 shall be equal to or greater than $10,000,000 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 $10,000,000. Upon (i) such execution of such
Commitment Transfer Supplement, (ii) delivery of an executed copy
63
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(d), 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.
(e) The Agent shall maintain at its address referred
to in subsection 8.2 a copy of each CAF Loan Assignment and each
Commitment Transfer Supplement delivered to it and a register
(the "Register") for the recordation of (i) 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, and
(ii) with respect to each CAF Loan Assignment delivered to the
Agent, the name and address of the CAF Loan Assignee and the
principal amount of each CAF Loan owing to such CAF Loan
Assignee. 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 therein for all
purposes of this Agreement. The Register shall be available for
inspection by the Company or any Bank or CAF Loan Assignee at any
reasonable time and from time to time upon reasonable prior
notice.
(f) Upon its receipt of a CAF Loan Assignment executed
by an assignor Bank and a CAF Loan Assignee, together with
payment to the Agent of a registration and processing fee of
$1,000, the Agent shall promptly accept such CAF Loan Assignment,
record the information contained therein in the Register and give
notice of such acceptance and recordation to the assignor Bank,
the CAF Loan Assignee and the Company. 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 $2,500, the Agent shall (i) promptly accept
such Commitment Transfer Supplement (ii) on the Transfer
Effective Date determined pursuant thereto record the information
64
contained therein in the Register and give notice of such
acceptance and recordation to the Banks and the Company.
(g) Subject to subsection 5.5(g), the Company
authorizes each Bank to disclose to any Participant, CAF Loan
Assignee 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.
(h) 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 and any CAF Loan Assignee 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 and any CAF Loan Assignee 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.
(i) Nothing herein shall prohibit any Bank or any
Affiliate thereof from pledging or assigning any 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
65
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.
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,
THE CAF LOAN 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.
66
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 HEALTHCARE CORPORATION
By:
-------------------------------------
Name:
Title:
CHEMICAL BANK, as Agent, as CAF
Loan Agent and as a Bank
By:
-------------------------------------
Name:
Title:
BANK OF AMERICA NATIONAL TRUST & SAVINGS
ASSOCIATION, as a Co-Agent and as a Bank
By:
-------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA, as a Co-Agent
and as a Bank
By:
-------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, N.A., as a Co-
Agent and as a Bank
By:
-------------------------------------
Name:
Title:
67
CITIBANK, N.A., as a Co-Agent and as a
Bank
By:
-------------------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN
ISLANDS BRANCHES, as a Co-Agent and as a
Bank
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO, as a
Co-Agent and as a Bank
By:
-------------------------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
NEW YORK BRANCH, as a Co-Agent and as a
Bank
By:
-------------------------------------
Name:
Title:
MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, as a Co-Agent and as a Bank
By:
-------------------------------------
Name:
Title:
68
NATIONSBANK OF NORTH CAROLINA, N.A., as
a Co-Agent and as a Bank
By:
-------------------------------------
Name:
Title:
PNC BANK, KENTUCKY, INC., as a Co-Agent
and as a Bank
By:
-------------------------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC., as a Co-
Agent and as a Bank
By:
-------------------------------------
Name:
Title:
WACHOVIA BANK OF GEORGIA, N.A., as a Co-
Agent and as a Bank
By:
-------------------------------------
Name:
Title:
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By:
-------------------------------------
Name:
Title:
69
FIRST INTERSTATE BANK OF CALIFORNIA
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
THE FUJI BANK, LIMITED, HOUSTON AGENCY
By:
-------------------------------------
Name:
Title:
SHAWMUT BANK-CONNECTICUT, N.A.
By:
-------------------------------------
Name:
Title:
NATIONAL CITY BANK
By:
-------------------------------------
Name:
Title:
THIRD NATIONAL BANK IN NASHVILLE
By:
-------------------------------------
Name:
Title:
70
THE SANWA BANK, LIMITED, ATLANTA AGENCY
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
J.P. MORGAN DELAWARE
By:
-------------------------------------
Name:
Title:
THE SAKURA BANK, LTD. NEW YORK BRANCH
By:
-------------------------------------
Name:
Title:
ABN AMRO BANK N.V.
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA
By:
-------------------------------------
Name:
Title:
71
THE LONG-TERM CREDIT BANK OF JAPAN
By:
-------------------------------------
Name:
Title:
MELLON BANK, N.A.
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
THE MITSUBISHI BANK, LTD.
By:
-------------------------------------
Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
ROYAL BANK OF CANADA
By:
-------------------------------------
Name:
Title:
72
THE SUMITOMO BANK, LIMITED, NEW YORK
BRANCH
By:
-------------------------------------
Name:
Title:
SWISS BANK CORPORATION
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
THE TOKAI BANK, LIMITED, NEW YORK BRANCH
By:
-------------------------------------
Name:
Title:
NBD BANK, N.A.
By:
-------------------------------------
Name:
Title:
THE BANK OF TOKYO TRUST COMPANY
By:
-------------------------------------
Name:
Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By:
-------------------------------------
Name:
Title:
73
AMSOUTH BANK N.A.
By:
-------------------------------------
Name:
Title:
ARAB BANK PLC, GRAND CAYMAN BRANCH
By:
-------------------------------------
Name:
Title:
BANK ONE, TEXAS, NA
By:
-------------------------------------
Name:
Title:
BARNETT BANK OF TAMPA
By:
-------------------------------------
Name:
Title:
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS
By:
-------------------------------------
Name:
Title:
THE DAIWA BANK, LTD.
By:
-------------------------------------
Name:
Title:
FIRST AMERICAN NATIONAL BANK
By:
-------------------------------------
Name:
Title:
74
LIBERTY NATIONAL BANK AND TRUST COMPANY
OF LOUISVILLE
By:
-------------------------------------
Name:
Title:
THE NORTHERN TRUST COMPANY
By:
-------------------------------------
Name:
Title:
UNITED STATES NATIONAL BANK OF OREGON
By:
-------------------------------------
Name:
Title:
BANK OF LOUISVILLE & TRUST CO.
By:
-------------------------------------
Name:
Title:
SCHEDULE I
COMMITMENT AMOUNTS AND PERCENTAGES;
LENDING OFFICES; ADDRESSES FOR NOTICE
A. COMMITMENT AMOUNTS AND PERCENTAGES.
COMMITMENT COMMITMENT
NAME OF BANK AMOUNT PERCENTAGE
- ------------ ---------- ----------
CHEMICAL BANK $43,333,333.33 4.33%
BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION $40,000,000.00 4.00%
THE BANK OF NOVA SCOTIA $40,000,000.00 4.00%
THE CHASE MANHATTAN BANK, N.A. $40,000,000.00 4.00%
CITIBANK, N.A. $40,000,000.00 4.00%
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES $40,000,000.00 4.00%
THE FIRST NATIONAL BANK OF CHICAGO $40,000,000.00 4.00%
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, NEW YORK BRANCH $40,000,000.00 4.00%
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK $20,000,000.00 2.00%
NATIONSBANK OF NORTH CAROLINA, N.A. $40,000,000.00 4.00%
PNC BANK, KENTUCKY, INC. $40,000,000.00 4.00%
TORONTO DOMINION (TEXAS), INC. $40,000,000.00 4.00%
WACHOVIA BANK OF GEORGIA, N.A. $40,000,000.00 4.00%
CREDIT LYONNAIS CAYMAN
ISLAND BRANCH $25,000,000.00 2.50%
FIRST INTERSTATE BANK
OF CALIFORNIA $25,000,000.00 2.50%
THE FUJI BANK, LIMITED,
HOUSTON AGENCY $25,000,000.00 2.50%
SHAWMUT BANK-CONNECTICUT, N.A. $25,000,000.00 2.50%
NATIONAL CITY BANK $25,000,000.00 2.50%
THIRD NATIONAL BANK
IN NASHVILLE $25,000,000.00 2.50%
THE SANWA BANK, LIMITED,
ATLANTA AGENCY $23,333,333.33 2.33%
J.P. MORGAN DELAWARE $20,000,000.00 2.00%
THE SAKURA BANK, LTD.
NEW YORK BRANCH $20,000,000.00 2.00%
2
ABN AMRO BANK N.V. $16,666,666.67 1.67%
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA $16,666,666.67 1.67%
THE LONG-TERM CREDIT
BANK OF JAPAN $16,666,666.67 1.67%
MELLON BANK, N.A. $16,666,666.67 1.67%
THE MITSUBISHI BANK, LTD. $16,666,666.67 1.67%
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND",
NEW YORK BRANCH $16,666,666.67 1.67%
ROYAL BANK OF CANADA $16,666,666.67 1.67%
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH $16,666,666.67 1.67%
SWISS BANK CORPORATION $16,666,666.67 1.67%
THE TOKAI BANK, LIMITED,
NEW YORK BRANCH $16,666,666.67 1.67%
NBD BANK, N.A. $10,000,000.00 1.00%
THE BANK OF TOKYO
TRUST COMPANY $10,000,000.00 1.00%
THE MITSUBISHI TRUST
AND BANKING CORPORATION $10,000,000.00 1.00%
AMSOUTH BANK N.A. $ 8,333,333.33 0.83%
ARAB BANK PLC, GRAND
CAYMAN BRANCH $ 8,333,333.33 0.83%
BANK ONE, TEXAS, NA $ 8,333,333.33 0.83%
BARNETT BANK OF TAMPA $ 8,333,333.33 0.83%
THE BOATMEN'S NATIONAL BANK
OF ST. LOUIS $ 8,333,333.33 0.83%
THE DAIWA BANK, LTD. $ 8,333,333.33 0.83%
FIRST AMERICAN NATIONAL BANK $ 8,333,333.33 0.83%
LIBERTY NATIONAL BANK AND TRUST
COMPANY OF LOUISVILLE $ 8,333,333.33 0.83%
THE NORTHERN TRUST COMPANY $ 8,333,333.33 0.83%
UNITED STATES NATIONAL
BANK OF OREGON $ 8,333,333.33 0.83%
BANK OF LOUISVILLE & TRUST CO. $ 3,333,333.33 0.33%
-------------- -------
TOTAL $1,000,000,000 100.00%
-------------- -------
-------------- -------
3
B. LENDING OFFICES; ADDRESSES FOR NOTICE.
CHEMICAL BANK
Domestic Lending Office: Chemical Bank
270 Park Avenue
New York, NY 10017
Eurodollar Lending Office: Chemical Bank
270 Park Avenue
New York, NY 10017
Address for Notices: See subsection 8.2 of the
Credit Agreement
ABN AMRO BANK N.V.
Domestic Lending Office: ABN AMRO Bank N.V. -
Pittsburgh Branch
One PPG Place, Suite 2950
Pittsburgh, PA 15222-5400
Eurodollar Lending Office: ABN AMRO Bank N.V. -
Pittsburgh Branch
One PPG Place, Suite 2950
Pittsburgh, PA 15222-5400
Address for Notices: ABN AMRO Bank N.V. -
Pittsburgh Branch
One PPG Place, Suite 2950
Pittsburgh, PA 15222-5400
Attention: Dennis F. Lennon
Telecopy: (412) 566-2266
Confirmation: (412) 566-2256
4
AMSOUTH BANK N.A.
Domestic Lending Office: AmSouth Bank N.A.
1900 5th Ave. North
Birmingham, AL 35203
Eurodollar Lending Office: AmSouth Bank N.A.
1900 5th Ave. North
Birmingham, AL 35203
Address for Notices: AmSouth Bank N.A.
1900 5th Ave. North
Birmingham, AL 35203
Attention: William Page
Barnes
Telecopy: (205) 326-4075
Confirmation: (205) 326-4081
ARAB BANK PLC, GRAND CAYMAN BRANCH
Domestic Lending Office: Arab Bank Plc, Grand Cayman
Branch
520 Madison Avenue
New York, NY 10022
Eurodollar Lending Office: Arab Bank Plc, Grand Cayman
Branch
520 Madison Avenue
New York, NY 10022
Address for Notices: Arab Bank Plc, Grand Cayman
Branch
520 Madison Avenue
New York, NY 10022
Attention: Peter Boyadjian
Telecopy: (212) 593-4652
Confirmation: (212) 715-9714
5
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION
Domestic Lending Office: Bank of America National Trust
& Savings Association
555 S. Flower Street #5618
Los Angeles, CA 90071
Eurodollar Lending Office: Bank of America National Trust
& Savings Association
1850 Gateway Blvd., 4th Floor
Concord, CA 94520
Address for Notices: Bank of America National Trust
& Savings Association
555 S. Flower Street #5618
Los Angeles, CA 90071
Attention: Katherine McNallen
Telecopy: (213) 228-2958
Confirmation: (213) 228-2756
BANK OF LOUISVILLE & TRUST CO.
Domestic Lending Office: Bank of Louisville & Trust Co.
Eurodollar Lending Office: Bank of Louisville & Trust Co.
Address for Notices: Bank of Louisville & Trust Co.
Attention:
Telecopy:
Confirmation:
THE BANK OF NOVA SCOTIA
Domestic Lending Office: The Bank of Nova Scotia
55 Park Place
Suite 650
Atlanta, GA 30808
Eurodollar Lending Office: The Bank of Nova Scotia
55 Park Place
Suite 650
Atlanta, GA 30808
Address for Notices: The Bank of Nova Scotia
Atlanta Agency
600 Peachtree Street
Suite 2700
Atlanta, GA 30308
Attention: Joe Legista
Telecopy: (404) 888-8998
Confirmation: (408) 877-1562
6
THE BANK OF TOKYO TRUST COMPANY
Domestic Lending Office: The Bank of Tokyo Trust
Company
100 Broadway
New York, NY 10005
Eurodollar lending Office: The Bank of Tokyo Trust
Company
100 Broadway
New York, NY 10005
Address for Notices: The Bank of Tokyo Trust
Company
100 Broadway
New York, NY 10005
Attention:
Telecopy:
Confirmation:
BANK ONE, TEXAS, NA
Domestic Lending Office: Bank One, Texas, NA
500 Throckmorton
Fort Worth, TX 76102
Eurodollar Lending Office: Bank One, Texas, NA
500 Throckmorton
Fort Worth, TX 76102
Address for Notices: Bank One, Texas, NA
500 Throckmorton, 6th Floor
Fort Worth, TX 76102
Attention: J. Michael Wilson
Telecopy: (817) 884-5697
Confirmation: (817) 884-4283
BARNETT BANK OF TAMPA
Domestic Lending Office: Barnett Bank of Tampa
50 North Laura Street
Jacksonville, FL 32202
Eurodollar Lending Office: Barnett Bank of Tampa
50 North Laura Street
Jacksonville, FL 32202
Address for Notices: Barnett Bank
101 E. Kennedy Blvd.
P. O. Box 30014
Tampa, FL 33630
Attn: W. Thomas Bowry, Jr.
7
Telecopy: (813) 225-8752
Confirmation: (813) 225-8140
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS
Domestic Lending Office: The Boatmen's National Bank
of St. Louis
One Boatmen's Plaza
800 Market Street
St. Louis, MO 63166
Eurodollar Lending Office: The Boatmen's National Bank
of St. Louis
One Boatmen's Plaza
800 Market Street
St. Louis, MO 63166
Address for Notices: The Boatmen's National Bank
of St. Louis
One Boatmen's Plaza
800 Market Street
P. O. Box 236
St. Louis, MO 63166
Attention:
Telecopy:
Confirmation:
THE CHASE MANHATTAN BANK, N.A.
Domestic Lending Office: The Chase Manhattan Bank, N.A.
One Chase Manhattan Plaza
New York, NY 10081
Eurodollar Lending Office: The Chase Manhattan Bank, N.A.
One Chase Manhattan Plaza
New York, NY 10081
Address for Notices: The Chase Manhattan Bank, N.A.
One Chase Manhattan Plaza
5th Floor
New York, NY 10081
Attention: Elliot Jones
Telecopy: (212) 552-1457
Confirmation: (212) 552-5302
CITIBANK, N.A.
Domestic Lending Office: Citicorp North America, Inc.
2001 Ross Ave., Suite 1400
Dallas, TX 75201
8
Eurodollar Lending Office: Citicorp North America, Inc.
2001 Ross Ave., Suite 1400
Dallas, TX 75201
Address for Notices: Citicorp North America, Inc.
2001 Ross Ave., Suite 1400
Dallas, TX 75201
Attention: J. Lang Aston
Telecopy: (214) 953-3888
Confirmation: (214) 953-3833
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
Domestic Lending Office: Credit Lyonnais Cayman Island
Branch
227 W. Monroe Street
Suite 3800
Chicago, IL 60606
Eurodollar Lending Office: Credit Lyonnais Cayman Island
Branch
227 W. Monroe Street
Suite 3800
Chicago, IL 60606
Address for Notices: Credit Lyonnais Cayman Island
Branch
227 W. Monroe Street
Suite 3800
Chicago, IL 60606
Attention: Brian Jackson
Telecopy: (312) 641-0527
Confirmation: (312) 220-7309
THE DAIWA BANK, LTD.
Domestic Lending Office: The Daiwa Bank, Ltd.
75 Rockefeller Plaza
8th Floor
New York, NY 10019
Eurodollar Lending Office: The Daiwa Bank, Ltd.
75 Rockefeller Plaza
8th Floor
New York, NY 10019
Address for Notices: The Daiwa Bank, Ltd.
75 Rockefeller Plaza
8th Floor
New York, NY 10019
Attention:
Telecopy:
Confirmation:
9
DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN ISLANDS BRANCHES
Domestic Lending Office: Deutsche Bank AG,
New York Branch
31 West 52nd Street
New York, NY 10019
Eurodollar Lending Office: Deutsche Bank, AG,
Cayman Islands Branch
31 West 52nd Street
New York, NY 10019
Address for Notices: Deutsche Bank AG,
New York Branch
31 West 52nd Street
New York, NY 10019
Attention: Robert A. Maddux,
Director
Telecopy: (212) 474-8212
Confirmation: (212) 474-8228
FIRST AMERICAN NATIONAL BANK
Domestic lending Office: First American National Bank
327 Union Street
Nashville, TN 37237
Eurodollar Lending Office: First American National Bank
327 Union Street
Nashville, TN 37237
Address for Notices: First American National Bank
First American Center
Health Care Division - 2nd FL
First Union Street
Nashville, TN 37237-0203
Attention: Mark Mattson
Telecopy: (615) 748-2812
Confirmation: (615) 748-1479
10
FIRST INTERSTATE BANK OF CALIFORNIA
Domestic Lending Office: First Interstate Bank of
California
707 Wilshire Blvd.
Los Angeles, CA 90017
Eurodollar Lending Office: First Interstate Bank of
California
707 Wilshire Blvd.
Los Angeles, CA 90017
Address for Notices: First Interstate Bank of
California
707 Wilshire Blvd.
Los Angeles, CA 90017
Attention: Bruce P. McDonald
Telecopy: (213) 614-2569
Confirmation: (213) 614-4879
THE FIRST NATIONAL BANK OF CHICAGO
Domestic Lending Office: First National Bank of Chicago
One First National Plaza
Chicago, IL 60670
Eurodollar Lending Office: First National Bank of Chicago
One First National Plaza
Chicago, IL 60670
Address for Notices: First National Bank of Chicago
One First National Plaza
Mail Suite 0091
Chicago, IL 60670
Attn: L. Richard Schiller
Telecopy: (312) 732-2016
Confirmation: (312) 732-5932
11
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
Domestic Lending Office: First Union National
Bank of North Carolina
301 S. College Street
Charlotte, NC 28202
Eurodollar Lending Office: First Union National
Bank of North Carolina
301 S. College Street
Charlotte, NC 28202
Address for Notices: First Union National
Bank of North Carolina
One FUNB Plaza - 19th FL
Charlotte, NC 28288-0735
Attention: John Ronson
Telecopy: (704) 374-4092
Confirmation: (704) 383-5212
THE FUJI BANK, LIMITED, HOUSTON AGENCY
Domestic Lending Office: The Fuji Bank, Limited,
Houston Agency
909 Fannin, Suite 2800
Houston, TX 77010
Eurodollar Lending Office: The Fuji Bank, Limited,
Houston Agency
909 Fannin
2 Houston Center, Suite 2800
Houston, TX 77010
Address for Notices: The Fuji Bank, Limited,
Houston Agency
909 Fannin, Suite 2800
Houston, TX 77010
Attention: Glenn Mealey
Telecopy: (713) 759-0048
Confirmation: (713) 759-1800
12
THE INDUSTRIAL BANK OF JAPAN, LIMITED, NEW YORK BRANCH
Domestic Lending Office: The Industrial Bank of Japan
Trust Company
245 Park Avenue
New York, NY 10167
Eurodollar Lending Office: The Industrial Bank of Japan
Trust Company
245 Park Avenue
New York, NY 10167
Address for Notices: The Industrial Bank of Japan,
Limited
New York Branch
245 Park Avenue, 23rd FL
New York, NY 10167
Attention: Tomoya Aoki
Telecopy: (212) 856-9450
Confirmation: (212) 309-6595
J.P. MORGAN DELAWARE
Domestic Lending Office: J.P. Morgan Delaware
500 Stanton-Christiana Road
Newark, DE 19713-2007
Eurodollar Lending Office: J.P. Morgan Delaware
500 Stanton-Christiana Road
Newark, DE 19713-2007
Address for Notices: J.P. Morgan Delaware
902 Market Street
Wilmington, DE 19801-3015
Attention: David J. Morris
Telecopy: (302) 651-3788
Confirmation: (302) 654-5336
13
LIBERTY NATIONAL BANK AND TRUST COMPANY OF LOUISVILLE
Domestic Lending Office: Liberty National Bank and
Trust Company of Louisville
416 West Jefferson Street
Louisville, KY 40202
Eurodollar Lending Office: Liberty National Bank and
Trust Company of Louisville
416 West Jefferson Street
Louisville, KY 40202
Address for Notices: Liberty National Bank and
Trust Company of Louisville
416 West Jefferson Street
Louisville, KY 40202
Attention: Earl A. Dorsey, Jr.
Telecopy: (502) 566-2367
Confirmation: (502) 566-2458
THE LONG-TERM CREDIT BANK OF JAPAN
Domestic Lending Office: The Long-Term Credit Bank of
Japan
165 Broadway, 49th Floor
New York, NY 10006
Eurodollar Lending Office: The Long-Term Credit Bank of
Japan
165 Broadway, 49th Floor
New York, NY 10006
Address for Notices: The Long-Term Credit Bank of
Japan
New York Branch
165 Broadway, 49th Floor
New York, NY 10006
Attention: Theodore Koerner
Telecopy: (212) 608-2371
Confirmation: (212) 335-4566
14
MELLON BANK, N.A.
Domestic Lending Office: Mellon Bank, N.A.
2 Mellon Bank Center, Room 2
Pittsburgh, PA 15259
Eurodollar Lending Office: Mellon Bank, N.A.
2 Mellon Bank Center, Room 2
Pittsburgh, PA 15259
Address for Notices: Mellon Bank, N.A.
2 Mellon Bank Center, Room 270
Pittsburgh, PA 15259
Attention: Marsha Wicker
Telecopy: (412) 234-9010
Confirmation: (412) 234-3594
THE MITSUBISHI BANK, LTD.
Domestic Lending Office: The Mitsubishi Bank, Ltd.
2 World Financial Center
225 Liberty Street, 39th Floor
New York, NY 10281
Eurodollar Lending Office: The Mitsubishi Bank, Ltd.
2 World Financial Center
225 Liberty Street, 39th Floor
New York, NY 10281
Address for Notices: The Mitsubishi Bank, Ltd.
225 Liberty Street
2 World Financial Center
225 Liberty Street, 39th Floor
New York, NY 10281-1059
Attention: Hiroaki Fuchida
Telecopy: (212) 667-3562
Confirmation: (212) 667-2884
15
THE MITSUBISHI TRUST AND BANKING CORPORATION
Domestic Lending Office: The Mitsubishi Trust and
Banking Corporation
520 Madison Avenue, 25th Floor
New York, NY 10022
Eurodollar Lending Office: The Mitsubishi Trust and
Banking Corporation
520 Madison Avenue, 25th Floor
New York, NY 10022
Address for Notices: The Mitsubishi Trust and
Banking Corporation
520 Madison Avenue, 25th Floor
New York, NY 10022
Attn: Randolph E. J. Medrano
Telecopy: (212) 755-2349
Confirmation: (212) 891-8212
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
Domestic Lending Office: Morgan Guaranty Trust Company
of New York
60 Wall Street
New York, NY 10260-0060
Eurodollar Lending Office: Morgan Guaranty Trust Company
of New York
Nassau, Bahamas Office
c/o J.P. Morgan Services Inc.
Euro-Loan Servicing Unit
Morgan Christiana Center
500 Stanton Christiana Road
Newark, DE 19713
Address for Notices: Morgan Guaranty Trust Company
of New York
60 Wall Street
New York, NY 10260-0060
Attention: Laura E. Reim
Telecopy: (212) 648-5336
Confirmation: (212) 648-6793
16
NATIONAL CITY BANK
Domestic Lending Office: National City Bank
101 South Fifth Street
Louisville, KY 40202
Eurodollar Lending Office: National City Bank
101 South Fifth Street
Louisville, KY 40202
Address for Notices: National City Bank
P. O. Box 36000
Louisville, KY 40233
Attention: Charles Denny
Telecopy: (502) 581-4424
Confirmation: (502) 581-4212
NATIONSBANK OF NORTH CAROLINA, N.A.
Domestic Lending Office: NationsBank of North
Carolina N.A.
1 NationsBank Plaza
Charlotte, NC 28255
Eurodollar Lending Office: NationsBank of North
Carolina N.A.
1 NationsBank Plaza
Charlotte, NC 28255
Address for Notices: NationsBank of North
Carolina N.A.
Corporate Bank
1 NationsBank Plaza - 5th FL
Nashville, TN 37239-1694
Attention: Ashley Crabtree
Telecopy: (615) 749-4640
Confirmation: (615) 749-3524
17
NBD BANK, N.A.
Domestic Lending Office: NBD Bank, N.A.
611 Woodward Avenue
Detroit, MI 48226
Eurodollar Lending Office: NBD Bank, N.A.
611 Woodward Avenue
Detroit, MI 48226
Address for Notices: NBD Bank, N.A.
611 Woodward Avenue
Detroit, MI 48226
Attention: Steven P. Clemens
Telecopy: (313) 225-1671
Confirmation: (313) 225-1314
THE NORTHERN TRUST COMPANY
Domestic Lending Office: The Northern Trust Company
50 South La Salle Street
Chicago, IL 60657
Eurodollar Lending Office: The Northern Trust Company
50 South La Salle Street
Chicago, IL 60657
Address for Notices: The Northern Trust Company
50 South La Salle Street
Chicago, IL 60657
Attention: Robert Jones
Telecopy: (312) 444-3508
Confirmation: (312) 444-4575
PNC BANK, KENTUCKY, INC.
Domestic Lending Office: PNC Bank, Kentucky, Inc.
Citizens Plaza
Louisville, KY 40296
Eurodollar Lending Office: PNC Bank, Kentucky, Inc.
Citizens Plaza
Louisville, KY 40296
Address for Notices: PNC Bank, Kentucky, Inc.
500 West Jefferson Street
Louisville, KY 40202
Attention: Jefferson Green
Telecopy: (502) 581-3355
Confirmation: (502) 581-3248
18
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH
Domestic Lending Office: Rabobank Nederland
245 Park Avenue
New York, NY 10022
Eurodollar Lending Office: Rabobank Nederland
245 Park Avenue
New York, NY 10022
Address for Notices: Rabobank Nederland
New York Branch
245 Park Avenue
New York, NY 10022
Attention: Paul Beiboer
Telecopy: (212) 916-7837
Confirmation: (212) 916-7883
ROYAL BANK OF CANADA
Domestic Lending Office: Royal Bank of Canada
Pierrepont Plaza
300 Cadman Plaza West
Brooklyn, NY 11201
Eurodollar Lending Office: Royal Bank of Canada
Pierrepont Plaza
300 Cadman Plaza West
Brooklyn, NY 11201
Address for Notices: Royal Bank of Canada
New York Operations Center
Pierrepont Plaza
300 Cadman Plaza West
Brooklyn, NY 11201-2701
Attention: Linda Swanston
Telecopy: (718) 522-6292/6293
Confirmation: (212) 858-7176
19
THE SAKURA BANK, LTD. NEW YORK BRANCH
Domestic Lending Office: The Sakura Bank, Ltd.
New York Branch
277 Park Avenue
New York, NY 10172
Eurodollar Lending Office: The Sakura Bank, Ltd.
New York Branch
277 Park Avenue
New York, NY 10172
Address for Notices: The Sakura Bank, Ltd.
New York Branch
277 Park Avenue
New York, NY 10172
Attention: Yoshikazu Nagura
Telecopy: (212) 888-7651
Confirmation: (212) 756-6804
THE SANWA BANK, LIMITED, ATLANTA AGENCY
Domestic Lending Office: The Sanwa Bank, Limited
133 Peachtree Street
Suite 4750
Atlanta, GA 30303
Eurodollar Lending Office: The Sanwa Bank, Limited
133 Peachtree Street
Suite 4750
Atlanta, GA 30303
Address for Notice: The Sanwa Bank, Limited
133 Peachtree Street
Suite 4750
Atlanta, GA 30303
Attention: Kristie Hartrampf
Telecopy: (404) 589-1629
Confirmation: (404) 586-6893
20
SHAWMUT BANK - CONNECTICUT, N.A.
Domestic Lending Office: Shawmut Bank -
Connecticut, N.A.
777 Main Street, MSN 397
Hartford, CT 06115
Eurodollar Lending Office: Shawmut Bank -
Connecticut, N.A.
777 Main Street, MSN 397
Hartford, CT 06115
Address for Notice: Shawmut Bank -
Connecticut, N.A.
777 Main Street, MSN 397
Hartford, CT 06115
Attention: James Scully
Telecopy: (203) 986-5367
Confirmation: (203) 986-7005
THE SUMITOMO BANK, LIMITED, NEW YORK BRANCH
Domestic Lending Office: The Sumitomo Bank, Limited,
New York Branch
One World Trade Center
Suite 9651
New York, NY 10048
Eurodollar Lending Office: The Sumitomo Bank, Limited,
New York Branch
One World Trade Center
Suite 9651
New York, NY 10048
Address for Notices: The Sumitomo Bank, Limited,
New York Branch
One World Trade Center
Suite 9651
New York, NY 10048
Attention: Jeff Toner
Telecopy: (212) 553-0118
Confirmation: (212) 553-1864
21
SWISS BANK CORPORATION
Domestic Lending Office: Swiss Bank Corporation
10 East 50th Street
New York, NY 10022
Eurodollar Lending Office: Swiss Bank Corporation
10 East 50th Street
New York, NY 10022
Address for Notices: Swiss Bank Corporation
101 California Street
Suite 1700
San Francisco, CA 94111
Attention: Colin T. Taylor
Telecopy: (414) 774-3345
Confirmation: (415) 989-7570
THIRD NATIONAL BANK IN NASHVILLE
Domestic Lending Office: Third National Bank
In Nashville
201 Fourth Avenue North
Nashville, TN 37244
Eurodollar Lending Office: Third National Bank
In Nashville
201 Fourth Avenue North
Nashville, TN 37244
Address for Notices: Third National Bank
In Nashville
P.O. Box 305110
Nashville, TN 37230-5110
Attention: Leigh Ann Gregory
Telecopy: (615) 748-4089
Confirmation: (615) 748-5461
22
THE TOKAI BANK, LIMITED, NEW YORK BRANCH
Domestic Lending Office: The Tokai Bank, Ltd.
New York Branch
55 East 52nd Street
New York, NY 10055
Eurodollar Lending Office: The Tokai Bank, Ltd.
New York Branch
55 East 52nd Street
New York, NY 10055
Address for Notices: The Tokai Bank, Ltd.
New York Branch
55 East 52nd Street
New York, NY 10055
Attention: Stuart Schulman
Telecopy: (212) 754-2170
Confirmation: (212) 339-1117
TORONTO DOMINION (TEXAS), INC.
Domestic Lending Office: The Toronto-Dominion Bank,
Houston Agency
909 Fannin Street, Suite 1700
Houston, TX 77010
Eurodollar Lending Office: The Toronto-Dominion Bank,
Houston Agency
909 Fannin Street, Suite 1700
Houston, TX 77010
Address for Notices: The Toronto-Dominion Bank,
USA Division
31 West 52nd Street
New York, NY 10019-6101
Attention: Beth Olmstead
Telecopy: (212) 262-1929
Confirmation: (212) 468-0754
23
UNITED STATES NATIONAL BANK OF OREGON
Domestic Lending Office: United States National Bank
of Oregon
309 SW 6th Avenue, BB12
Portland, OR 97204
Eurodollar Lending Office: United States National Bank
of Oregon
309 SW 6th Avenue, BB12
Portland, OR 97204
Address for Notices: United States National Bank
of Oregon
309 SW 6th Avenue, BB12
Portland, OR 97204
Attention: Chris Kerlin
Telecopy: (503) 275-5428
Confirmation: (503) 275-4940
WACHOVIA BANK OF GEORGIA, N.A.
Domestic Lending Office: Wachovia Bank of Georgia, N.A.
191 Peachtree Street, N.E.
Atlanta, GA 30303
Eurodollar Lending Office: Wachovia Bank of Georgia, N.A.
191 Peachtree Street, N.E.
Atlanta, GA 30303
Address for Notices: Wachovia Bank of Georgia, N.A.
191 Peachtree Street, N.E.
28th Floor
Atlanta, GA 30303
Attention: Solomon Elisha
Telecopy: (404) 332-6898
Confirmation: (404) 332-1092
SCHEDULE V
APPLICABLE MARGINS
- --------------------------------------------------------------------------------
REVOLVING CREDIT LOANS
- --------------------------------------------------------------------------------
ALTERNATE BASE RATE LOANS EURODOLLAR LOANS
- --------------------------------------------------------------------------------
Level I Period .0000% .2500%
- --------------------------------------------------------------------------------
Level II Period .0000% .2250%
- --------------------------------------------------------------------------------
Level III Period .0000% .2500%
- --------------------------------------------------------------------------------
Level IV Period .0000% .3750%
- --------------------------------------------------------------------------------
Level V Period .0000% .5000%
- --------------------------------------------------------------------------------
EXHIBIT A
[FORM OF REVOLVING CREDIT NOTE]
$_____________ New York, New York
February __, 1994
FOR VALUE RECEIVED, the undersigned, COLUMBIA HEALTHCARE CORPORATION, a
Delaware corporation (the "Company"), hereby unconditionally promises to pay to
the order of _______________________________ (the "Bank") at the office of
Chemical Bank, located at 270 Park Avenue, New York, New York 10017, in lawful
money of the United States of America and in immediately available funds, the
principal amount of (a) _______________ DOLLARS ($__________), or, if less, (b)
the aggregate unpaid principal amount of all Revolving Credit Loans made by the
Bank to the Company pursuant to subsection 2.1 of the Credit Agreement
hereinafter referred to (the "Credit Agreement"). The principal amount of each
Revolving Credit Loan evidenced hereby shall be payable on the Termination Date.
The Company further agrees to pay interest in like money at such office on the
unpaid principal amount hereof from time to time outstanding at the applicable
interest rate per annum determined as provided in, and payable as specified in,
subsection 2.7 of the Credit Agreement.
The holder of this Note is authorized to record the date, Type and amount of
each Revolving Credit Loan made by the Bank pursuant to subsection 2.1 of the
Credit Agreement, the date and amount of each repayment of principal hereof, the
date of each interest rate conversion pursuant to subsection 2.6 of the Credit
Agreement and the principal amount subject thereto, and in the case of
Eurodollar Loans, the interest rate and maturity date with respect thereto on
the schedules annexed hereto and made a part hereof or on any other record
customarily maintained by such Bank with respect to this Note and any such
recordation shall constitute PRIMA FACIE evidence of the accuracy of the
information endorsed; PROVIDED, HOWEVER, that the failure to make any such
endorsement shall not affect the obligations of the Company in respect of such
Revolving Credit Loan.
This Note is one of the Revolving Credit Notes referred to in the
$_____________ Credit Agreement dated as of February __, 1994, among the
Company, the Bank, the other banks and financial institutions from time to
time parties thereto and Chemical Bank, as Agent and CAF Loan Agent, and is
entitled to the benefits thereof.
Upon the occurrence of any one or more of the Events of Default specified in
the Credit Agreement, all amounts then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all as provided
therein.
2
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Terms defined in the Credit Agreement are used herein with their defined
meanings unless otherwise defined herein. This Note shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
COLUMBIA HEALTHCARE
CORPORATION
By______________________
Title:
Schedule 1 to
Note
-------------
ALTERNATE BASE RATE LOANS
LOANS AND PAYMENTS OF PRINCIPAL
Amount Amount
Converted Amount Converted
Amount to Alter- of to Euro- Unpaid
of nate Base Principal dollar Principal Notation
Date Loans Rate Loans Repaid Loans Balance Made By
____ ______ __________ _________ _________ _________ _________
____ ______ __________ _________ _________ _________ _________
____ ______ __________ _________ _________ _________ _________
____ ______ __________ _________ _________ _________ _________
____ ______ __________ _________ _________ _________ _________
____ ______ __________ _________ _________ _________ _________
____ ______ __________ _________ _________ _________ _________
____ ______ __________ _________ _________ _________ _________
____ ______ __________ _________ _________ _________ _________
____ ______ __________ _________ _________ _________ _________
____ ______ __________ _________ _________ _________ _________
____ ______ __________ _________ _________ _________ _________
____ ______ __________ _________ _________ _________ _________
____ ______ __________ _________ _________ _________ _________
____ ______ __________ _________ _________ _________ _________
____ ______ __________ _________ _________ _________ _________
____ ______ __________ _________ _________ _________ _________
2
____ ______ __________ _________ _________ _________ _________
____ ______ __________ _________ _________ _________ _________
____ ______ __________ _________ _________ _________ _________
____ ______ __________ _________ _________ _________ _________
Schedule 2 to
Note
-------------
EURODOLLAR LOANS
LOANS AND PAYMENTS OF PRINCIPAL
Amount Amount
Converted Amount Converted
Amount to Euro- of to Alter- Unpaid
of dollar Principal nate Base Principal Notation
Date Loans Loans Repaid Rate Loans Balance Made By
____ ______ _________ _________ _________ _________ _________
____ ______ _________ _________ _________ _________ _________
____ ______ _________ _________ _________ _________ _________
____ ______ _________ _________ _________ _________ _________
____ ______ _________ _________ _________ _________ _________
____ ______ _________ _________ _________ _________ _________
____ ______ _________ _________ _________ _________ _________
____ ______ _________ _________ _________ _________ _________
____ ______ _________ _________ _________ _________ _________
____ ______ _________ _________ _________ _________ _________
____ ______ _________ _________ _________ _________ _________
____ ______ _________ _________ _________ _________ _________
____ ______ _________ _________ _________ _________ _________
____ ______ _________ _________ _________ _________ _________
____ ______ _________ _________ _________ _________ _________
____ ______ _________ _________ _________ _________ _________
____ ______ _________ _________ _________ _________ _________
2
____ ______ _________ _________ _________ _________ _________
____ ______ _________ _________ _________ _________ _________
____ ______ _________ _________ _________ _________ _________
____ ______ _________ _________ _________ _________ _________
EXHIBIT B
[FORM OF GRID CAF LOAN NOTE]
PROMISSORY NOTE
$_____________ New York, New York
February __, 1994
FOR VALUE RECEIVED, the undersigned, COLUMBIA HEALTHCARE CORPORATION,
a Delaware corporation (the "COMPANY"), hereby unconditionally promises to pay
to the order of ______________________________ (the "BANK") at the office of
Chemical Bank, located at 270 Park Avenue, New York, New York 10017, in lawful
money of the United States of America and in immediately available funds, the
principal amount of (a) ____________________ DOLLARS ($_________), or, if less,
(b) the aggregate unpaid principal amount of all CAF Loans that are (i) made by
the Bank to the Company pursuant to subsection 2.2 of the Credit Agreement
hereinafter referred to (the "CREDIT AGREEMENT") and (ii) not evidenced by an
Individual CAF Loan Note executed and delivered by the Company pursuant to
subsection 2.2(g) of the Credit Agreement. The principal amount of each CAF Loan
evidenced hereby shall be payable on the maturity date therefor set forth on the
schedule annexed hereto and made a part hereof or on a continuation thereof
which shall be attached hereto and made a part hereof (the "GRID"). The Company
further agrees to pay interest in like money at such office on the unpaid
principal amount of each CAF Loan evidenced hereby, at the rate per annum set
forth in respect of such CAF Loan on the Grid, calculated on the basis of a year
of 360 days and actual days elapsed from the date of such CAF Loan until the due
date thereof (whether at the stated maturity, by acceleration or otherwise) and
thereafter at the rates determined in accordance with subsection 2.2(e) of the
Credit Agreement. Interest on each CAF Loan evidenced hereby shall be payable on
the date or dates set forth in respect of such CAF Loan on the Grid. CAF Loans
evidenced by this Note may not be prepaid.
The holder of this Note is authorized to endorse on the Grid the date,
amount, interest rate, interest payment dates and maturity date in respect of
each CAF Loan made pursuant to subsection 2.2 of the Credit Agreement, each
payment of principal with respect thereto and any transfer of such CAF Loan from
this Note to an Individual CAF Loan Note delivered to the Bank pursuant to
subsection 2.2(g) of the Credit Agreement, which endorsement shall constitute
PRIMA FACIE evidence of the accuracy of the information endorsed; PROVIDED,
HOWEVER, that the failure to make any such endorsement shall not affect the
obligations of the Company in respect of such CAF Loan.
This Note is one of the Grid CAF Loan Notes referred to in the
$___________ Credit Agreement dated as of February __, 1994, among the Company,
the Bank, the other
2
banks and financial institutions from time to time parties thereto and Chemical
Bank, as Agent and CAF Loan Agent, and is entitled to the benefits thereof.
Upon the occurrence of any one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid on this
Note shall become, or may be declared to be, immediately due and payable, all as
provided therein.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Terms defined in the Credit Agreement are used herein with their
defined meanings unless otherwise defined herein. This Note shall be governed
by, and construed and interpreted in accordance with, the law of the State of
New York.
COLUMBIA HEALTHCARE
CORPORATION
By______________________
Title:
SCHEDULE OF CAF LOANS
Date of
Transfer
Date Amount Interest to Indi-
of of Interest Payment Maturity Payment vidual Author-
Loan Loan Rate Dates Date Date Note ization
- ---- ------ -------- -------- -------- ------- -------- -------
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
EXHIBIT C
[FORM OF INDIVIDUAL CAF LOAN NOTE]
NON-NEGOTIABLE CAF LOAN NOTE
$_____________ New York, New York
____________, 19__
FOR VALUE RECEIVED, the undersigned, COLUMBIA HEALTHCARE CORPORATION,
a Delaware corporation (the "COMPANY"), hereby promises to pay on ___________,
19__ to the order of _______________________ (the "BANK") at the office of
Chemical Bank, located at 270 Park Avenue, New York, New York 10017, in lawful
money of the United States of America and in immediately available funds, the
principal sum of ______________ DOLLARS ($__________). The Company further
agrees to pay interest in like money at such office on the unpaid principal
amount hereof from time to time from the date hereof at the rate of ___% per
annum (calculated on the basis of a year of 360 days and actual days elapsed)
until the due date hereof (whether at the stated maturity, by acceleration, or
otherwise) and thereafter at the rates determined in accordance with subsection
2.2(e) of the $____________ Credit Agreement, dated as of February __, 1994 (the
"CREDIT AGREEMENT"), among the Company, the Bank, the other banks and financial
institutions from time to time parties thereto and Chemical Bank, as Agent and
CAF Loan Agent. Interest shall be payable on ____________________. This Note may
not be prepaid.
This Note is one of the Individual CAF Loan Notes referred to in, is
subject to and is entitled to the benefits of, the Credit Agreement, which
Credit Agreement, among other things, contains provisions for acceleration of
the maturity hereof upon the happening of certain stated events.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
2
Terms defined in the Credit Agreement are used herein with their
defined meanings unless otherwise defined herein. This Note shall be governed by
and construed in accordance with the laws of the State of New York.
COLUMBIA HEALTHCARE
CORPORATION
By:______________________
Title:
EXHIBIT D
[FORM OF CAF LOAN REQUEST]
________________, 19__
Chemical Bank, as CAF Loan Agent
270 Park Avenue
New York, New York 10017
Dear Sirs:
Reference is made to the $___________ Credit Agreement, dated as of
February __, 1994, among the undersigned, the Banks named therein and Chemical
Bank, as Agent and CAF Loan Agent (the "CREDIT AGREEMENT"). Terms defined in the
Credit Agreement are used herein as therein defined.
This is a [LIBOR Auction Advance Rate] [Fixed Rate Auction Advance]
Request pursuant to subsection 2.2 of the Credit Agreement requesting quotes for
the following CAF Loans:
Aggregate Principal Amount $_______ $_______ $_______
CAF Loan Date _______ _______ _______
[Interest Period]* _______ _______ _______
Maturity Date** _______ _______ _______
Interest Payment Dates _______ _______ _______
Very truly yours,
COLUMBIA HEALTHCARE
CORPORATION
By:_______________________
Title:
[Note: Pursuant to the Credit Agreement, a CAF Loan Request may be transmitted
in writing, or by facsimile transmission, or by telephone, immediately
confirmed by facsimile transmission. In any case, a CAF Loan Request
shall contain the information specified in the second paragraph of this
form.]
- -----------------------------
*/ Insert only in a LIBOR Auction Advance Request.
**/ In a LIBOR Auction Advance Request, insert last day of Interest Period.
EXHIBIT E
[FORM OF CAF LOAN OFFER]
________________, 19__
Chemical Bank, as CAF Loan Agent
270 Park Avenue
New York, New York 10017
Dear Sirs:
Reference is made to the $__________ Credit Agreement, dated as of
February __, 1994, among Columbia Healthcare Corporation, the Banks named
therein and Chemical Bank, as Agent and CAF Loan Agent (as the same may be
amended, supplemented or otherwise modified, the "CREDIT AGREEMENT"). Terms
defined in the Credit Agreement are used herein as therein defined.
In accordance with subsection 2.2 of the Credit Agreement, the
undersigned Bank offers to make CAF Loans thereunder in the following amounts
with the following maturity dates:
CAF Loan Date: _____________, 19__
Aggregate Maximum Amount: $_____________
MATURITY DATE 1 ___: MATURITY DATE 2 ___: MATURITY DATE 3 ___:
Maximum Amount $___ Maximum Amount $___ Maximum Amount $___
Rate * Amount $___ Rate * Amount $___ Rate * Amount $___
Rate * Amount $___ Rate * Amount $___ Rate * Amount $___
Very truly yours,
By:
-------------------------
Name:
Title:
Telephone No.:
Fax No.:
- -------------------------
*/ In the case of LIBOR Auction Advance Rate CAF Loans, insert margin bid.
In the case of Fixed Rate Auction Advance CAF Loans, insert fixed rate
bid.
EXHIBIT F
[FORM OF CAF LOAN CONFIRMATION]
_________________, 19__
Chemical Bank, as CAF Loan Agent
270 Park Avenue
New York, New York 10017
Dear Sirs:
Reference is made to the $_________ Credit Agreement, dated as of
February __, 1994, among the undersigned, the Banks named therein and Chemical
Bank, as Agent and CAF Loan Agent (as the same may be amended, supplemented or
otherwise modified, the "CREDIT AGREEMENT"). Terms defined in the Credit
Agreement are used herein as therein defined.
In accordance with subsection 2.2 of the Credit Agreement, the
undersigned accepts and confirms the offers by the CAF Loan Bank(s) to make CAF
Loans to the undersigned on ____________, 19__ [CAF Loan Date] under said
subsection 2.2 in the (respective) amount(s) set forth on the attached list of
CAF Loans offered.
Very truly yours,
COLUMBIA HEALTHCARE
CORPORATION
By____________________________
Title:
[Company to attach CAF Loan offer list prepared by CAF Loan Agent with
accepted amount entered by the Company to right of each CAF Loan Offer].
EXHIBIT G
[FORM OF COMMITMENT TRANSFER SUPPLEMENT]
COMMITMENT TRANSFER SUPPLEMENT
COMMITMENT TRANSFER SUPPLEMENT, dated as of the date set forth in Item
1 of Schedule I hereto, among the Transferor Bank set forth in Item 2 of
Schedule I hereto (the "TRANSFEROR BANK"), each Purchasing Bank set forth in
Item 3 of Schedule I hereto (each, a "PURCHASING BANK"), and CHEMICAL BANK, as
agent for the Banks under the Credit Agreement described below (in such
capacity, the "AGENT").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, this Commitment Transfer Supplement is being executed and
delivered in accordance with subsection 8.6(d) of the $_______________ Credit
Agreement, dated as of February __, 1994, among Columbia Healthcare Corporation,
a Delaware corporation and the successor by merger to Columbia Hospital
Corporation (the "COMPANY"), the Transferor Bank and the other Banks party
thereto and the Agent (as from time to time amended, supplemented or otherwise
modified in accordance with the terms thereof, the "CREDIT AGREEMENT"; terms
defined therein being used herein as therein defined);
WHEREAS, each Purchasing Bank (if it is not already a Bank party to
the Credit Agreement) wishes to become a Bank party to the Credit Agreement; and
WHEREAS, the Transferor Bank is selling and assigning to each
Purchasing Bank, rights, obligations and commitments under the Credit Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Upon receipt by the Agent of five counterparts of this Commitment
Transfer Supplement, to each of which is attached a fully completed Schedule I
and Schedule II, and each of which has been executed by the Transferor Bank,
each Purchasing Bank (and any other person required by the Credit Agreement to
execute this Commitment Transfer Supplement), the Agent will transmit to the
Company, the Transferor Bank and each Purchasing Bank a Transfer Effective
Notice, substantially in the form of Schedule III to this Commitment Transfer
Supplement (a "TRANSFER EFFECTIVE NOTICE"). Such Transfer Effective Notice shall
set forth, INTER ALIA, the date on which the transfer effected by this
Commitment Transfer Supplement shall become effective (the "TRANSFER EFFECTIVE
DATE"), which date shall be the fifth Business Day following the date of such
Transfer Effective Notice. From and
2
after the Transfer Effective Date each Purchasing Bank shall be a Bank party to
the Credit Agreement for all purposes thereof.
2. At or before 12:00 Noon, local time of the Transferor Bank, on the
Transfer Effective Date, each Purchasing Bank shall pay to the Transferor Bank,
in immediately available funds, an amount equal to the purchase price, as agreed
between the Transferor Bank and such Purchasing Bank (the "PURCHASE PRICE"), of
the portion being purchased by such Purchasing Bank (such Purchasing Bank's
"PURCHASED PERCENTAGE") of the outstanding Loans and other amounts owing to the
Transferor Bank under the Credit Agreement and the Notes. Effective upon receipt
by the Transferor Bank of the Purchase Price from a Purchasing Bank, the
Transferor Bank hereby irrevocably sells, assigns and transfers to such
Purchasing Bank, without recourse, representation or warranty, and each
Purchasing Bank hereby irrevocably purchases, takes and assumes from the
Transferor Bank, such Purchasing Bank's Purchased Percentage of the Commitments
and the presently outstanding Loans and other amounts owing to the Transferor
Bank under the Credit Agreement and the Notes together with all instruments,
documents and collateral security pertaining thereto.
3. The Transferor Bank has made arrangements with each Purchasing Bank
with respect to (i) the portion, if any, to be paid, and the date or dates for
payment, by the Transferor Bank to such Purchasing Bank of any fees heretofore
received by the Transferor Bank pursuant to the Credit Agreement prior to the
Transfer Effective Date and (ii) the portion, if any, to be paid, and the date
or dates for payment, by such Purchasing Bank to the Transferor Bank of fees or
interest received by such Purchasing Bank pursuant to the Credit Agreement from
and after the Transfer Effective Date.
4. (a) All principal payments that would otherwise be payable from and
after the Transfer Effective Date to or for the account of the Transferor Bank
pursuant to the Credit Agreement and the Notes shall, instead, be payable to or
for the account of the Transferor Bank and the Purchasing Banks, as the case may
be, in accordance with their respective interests as reflected in this
Commitment Transfer Supplement.
(b) All interest, fees and other amounts that would otherwise
accrue for the account of the Transferor Bank from and after the Transfer
Effective Date pursuant to the Credit Agreement and the Notes shall, instead,
accrue for the account of, and be payable to, the Transferor Bank and the
Purchasing Banks, as the case may be, in accordance with their respective
interests as reflected in this Commitment Transfer Supplement. In the event that
any amount of interest, fees or other amounts accruing prior to the Transfer
Effective Date was included in the Purchase Price paid by any Purchasing Bank,
the Transferor Bank and each Purchasing Bank will make appropriate arrangements
for payment by the Transferor Bank to such Purchasing Bank of such amount upon
receipt thereof from the Company.
5. On or prior to the Transfer Effective Date, the Transferor Bank
will deliver to the Agent its Note[s]. On or prior to the Transfer Effective
Date, the Company will deliver to the Agent Notes for each Purchasing Bank and
the Transferor Bank, in each case in principal amounts reflecting, in accordance
with the Credit Agreement, their
3
Commitments (as adjusted pursuant to this Commitment Transfer Supplement). As
provided in subsection 8.6(d) of the Credit Agreement, each such new Note shall
be dated the Closing Date. Promptly after the Transfer Effective Date, the Agent
will send to each of the Transferor Bank and the Purchasing Banks its new Notes
and will send to the Company the superseded Note of the Transferor Bank, marked
"Cancelled" or if such Note cannot be located by such Transferee Bank, a lost
note indemnification agreement in form and substance reasonably acceptable to
the Company.
6. Concurrently with the execution and delivery hereof, the
Transferor Bank will provide to each Purchasing Bank (if it is not already a
Bank party to the Credit Agreement) conformed copies of all documents delivered
to such Transferor Bank on the Closing Date in satisfaction of the conditions
precedent set forth in the Credit Agreement.
7. Each of the parties to this Commitment Transfer Supplement agrees
that at any time and from time to time upon the written request of any other
party, it will execute and deliver such further documents and do such further
acts and things as such other party may reasonably request in order to effect
the purposes of this Commitment Transfer Supplement.
8. By executing and delivering this Commitment Transfer Supplement,
the Transferor Bank and each Purchasing Bank confirm to and agree with each
other and the Agent and the Banks as follows: (i) other than the representation
and warranty that it is the legal and beneficial owner of the interest being
assigned hereby free and clear of any adverse claim, the Transferor Bank makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, the Notes or any
other instrument or document furnished pursuant thereto; (ii) the Transferor
Bank makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Company or the performance or
observance by the Company of any of its obligations under the Agreement, the
Notes or any other instrument or document furnished pursuant hereto; (iii) each
Purchasing Bank confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements referred to in subsection 3.3,
the financial statements delivered pursuant to subsection 5.5, if any, and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Commitment Transfer Supplement;
(iv) each Purchasing Bank will, independently and without reliance upon the
Agent, the Transferor Bank 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 decisions in taking or not taking action under the Credit Agreement; (v)
each Purchasing Bank appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under the Agreement as are
delegated to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto, all in accordance with Section 7 of the Credit
Agreement; and (vi) each Purchasing Bank agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Bank.
4
9. Each party hereto represents and warrants to and agrees with the
Agent that it is aware of and will comply with the provision of subsection
8.6(h) of the Credit Agreement.
10. Schedule II hereto sets forth the revised Commitments and
Commitment Percentages of the Transferor Bank and each Purchasing Bank as well
as administrative information with respect to each Purchasing Bank.
11. This Commitment Transfer Supplement shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Commitment
Transfer Supplement to be executed by their respective duly authorized officers
on Schedule I hereto as of the date set forth in Item 1 of Schedule I hereto.
SCHEDULE I
TO
COMMITMENT
TRANSFER
SUPPLEMENT
COMPLETION OF INFORMATION AND
SIGNATURES FOR COMMITMENT
TRANSFER SUPPLEMENT
Re: $_________ Credit Agreement, dated as of February __, 1994,
with Columbia Healthcare Corporation
- --------------------------------------------------------------------------------
Item 1 (Date of Commitment Transfer [Insert date of Commitment Transfer
Supplement): Supplement]
- --------------------------------------------------------------------------------
Item 2 (Transferor Bank): [Insert name of Transferor Bank]
- --------------------------------------------------------------------------------
Item 3 (Purchasing Bank[s]): [Insert name[s] of Purchasing
Bank[s]]
- --------------------------------------------------------------------------------
2
- --------------------------------------------------------------------------------
Item 4 (Signatures of Parties to
Commitment Transfer
Supplement)
_____________________, as
Transferor Bank
By______________________
Title:
___________________, as a
Purchasing Bank
By______________________
Title:
___________________, as a
Purchasing Bank
By______________________
Title:
- --------------------------------------------------------------------------------
CONSENTED TO AND ACKNOWLEDGED:
COLUMBIA HEALTHCARE CORPORATION
By___________________________
Title:
CHEMICAL BANK, as Agent
By___________________________
Title:
3
[Consents Required only when
Purchasing Bank is not already
a Bank or affiliate thereof]
ACCEPTED FOR RECORDATION IN
REGISTER:
CHEMICAL BANK, as Agent
By___________________________
Title:
SCHEDULE II
TO COMMITMENT
TRANSFER
SUPPLEMENT
LIST OF LENDING OFFICES, ADDRESSES
FOR NOTICES AND COMMITMENT AMOUNTS
[Name of Transferor
Bank] REVISED COMMITMENT AMOUNTS: $________
REVISED COMMITMENT PERCENTAGE: ________
[Name of Purchasing
Bank] NEW COMMITMENT AMOUNTS: $________
NEW COMMITMENT PERCENTAGE: ________
ADDRESS FOR NOTICES:
[Address]
Attention: _____________
Telephone: _____________
Telecopier: ____________
EURODOLLAR LENDING OFFICE:
_________________________
_________________________
_________________________
DOMESTIC LENDING OFFICE:
_________________________
_________________________
_________________________
SCHEDULE III
TO COMMITMENT
TRANSFER
SUPPLEMENT
[Form of Transfer Effective Notice]
To: Columbia Healthcare Corporation, [Insert Name of Transferor
Bank and each Purchasing Bank]
The undersigned, as Agent [delegate of the Agent performing
administrative functions of the Agent] under the $__________ Credit Agreement,
dated as of February __, 1994, among Columbia Healthcare Corporation, the Banks
parties thereto and Chemical Bank, as Agent and as CAF Loan Agent, acknowledges
receipt of five executed counterparts of a completed Commitment Transfer
Supplement, as described in Schedule I hereto. [Note: attach copy of Schedule I
from Commitment Transfer Supplement.] Terms defined in such Commitment Transfer
Supplement are used herein as therein defined.
1. Pursuant to such Commitment Transfer Supplement, you are advised
that the Transfer Effective Date will be ____________ [Insert fifth business day
following date of Transfer Effective Notice].
2. Pursuant to such Commitment Transfer Supplement, the Transferor
Bank is required to deliver to the Agent on or before the Transfer Effective
Date its Note[s] or lost note indemnity.
3. Pursuant to such Commitment Transfer Supplement, the Company is
required to deliver to the Agent on or before the Transfer Effective Date the
following Notes, each dated ____________ [Insert Closing Date].
[Describe each new Note for Transferor Bank and Purchasing Bank as to
principal amount, payee and type of Note (e.g. Revolving Credit Note, Grid CAF
Loan Note, Individual CAF Loan Note etc.]
2
4. Pursuant to such Commitment Transfer Supplement each Purchasing
Bank is required to pay its Purchase Price to the Transferor Bank at or before
12:00 Noon on the Transfer Effective Date in immediately available funds.
Very truly yours,
CHEMICAL BANK
By________________________
Title: