EXHIBIT 10(c)
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$1,000,000,000 AGREEMENT
AMONG
COLUMBIA/HCA HEALTHCARE CORPORATION,
THE SEVERAL BANKS AND OTHER FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTIES HERETO,
THE CO-AGENTS NAMED HEREIN,
NATIONSBANK, N.A.,
AS DOCUMENTATION AGENT,
THE BANK OF NOVA SCOTIA
AND
DEUTSCHE BANK SECURITIES,
AS CO-SYNDICATION AGENTS,
AND
THE CHASE MANHATTAN BANK,
AS AGENT
DATED AS OF JULY 10, 1998
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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............................. 12
SECTION 2. AMOUNT AND TERMS OF LOANS................................. 12
2.1 Loans and Notes........................................... 12
2.2 Fees...................................................... 13
2.3 Termination or Reduction of Commitments................... 13
2.4 Optional Prepayments...................................... 13
2.5 Conversion Options; Minimum Amount of Loans............... 14
2.6 Interest Rate and Payment Dates for Loans................. 14
2.7 Computation of Interest and Fees.......................... 15
2.8 Inability to Determine Interest Rate...................... 16
2.9 Pro Rata Borrowings and Payments.......................... 16
2.10 Illegality................................................ 17
2.11 Requirements of Law....................................... 17
2.12 Capital Adequacy.......................................... 18
2.13 Taxes..................................................... 18
2.14 Indemnity................................................. 20
2.15 Application of Proceeds of Loans.......................... 20
2.16 Notice of Certain Circumstances; Assignment of
Commitments Under Certain Circumstances................. 20
SECTION 3. REPRESENTATIONS AND WARRANTIES............................ 21
3.1 Corporate Organization and Existence...................... 21
3.2 Subsidiaries.............................................. 21
3.3 Financial Information..................................... 21
3.4 Changes in Condition...................................... 22
3.5 Assets.................................................... 22
3.6 Litigation................................................ 22
3.7 Tax Returns............................................... 23
3.8 Contracts, etc............................................ 23
3.9 No Legal Obstacle to Agreement............................ 23
3.10 Defaults.................................................. 23
3.11 Burdensome Obligations.................................... 23
3.12 Pension Plans............................................. 24
3.13 Disclosure................................................ 24
3.14 Environmental and Public and Employee Health
and Safety Matters...................................... 24
3.15 Federal Regulations....................................... 25
3.16 Investment Company Act; Other Regulations................. 25
3.17 Year 2000 Matters......................................... 25
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SECTION 4. CONDITIONS................................................ 25
4.1 Loan Documents............................................ 25
4.2 Legal Opinions............................................ 26
4.3 Company Officers' Certificate............................. 26
4.4 Legality, etc............................................. 26
4.5 General................................................... 26
4.6 Fees...................................................... 26
4.7 Amendments to Existing Agreements......................... 27
SECTION 5. GENERAL COVENANTS......................................... 27
5.1 Taxes, Indebtedness, etc.................................. 27
5.2 Maintenance of Properties; Compliance with Law............ 27
5.3 Transactions with Affiliates.............................. 28
5.4 Insurance................................................. 28
5.5 Financial Statements...................................... 28
5.6 Ratio of Consolidated Total Debt to
Consolidated Total Capitalization....................... 31
5.7 Interest Coverage Ratio................................... 31
5.8 Distributions............................................. 31
5.9 Merger or Consolidation................................... 31
5.10 Sales of Assets........................................... 31
5.11 Compliance with ERISA..................................... 32
5.12 Negative Pledge........................................... 32
5.13 Sale-and-Lease-back Transactions.......................... 34
5.14 Maximum Consolidated Total Debt........................... 34
5.15 Minimum Consolidated Earnings Before Interest,
Taxes, Depreciation and Amortization.................... 34
5.16 Limitation on Optional Payments and
Modifications of Debt Instruments......................... 34
SECTION 6. DEFAULTS.................................................. 35
6.1 Events of Default......................................... 35
6.2 Annulment of Defaults..................................... 37
6.3 Waivers................................................... 37
6.4 Course of Dealing......................................... 37
SECTION 7. THE AGENT................................................. 37
7.1 Appointment............................................... 37
7.2 Delegation of Duties...................................... 38
7.3 Exculpatory Provisions.................................... 38
7.4 Reliance by Agent......................................... 38
7.5 Notice of Default......................................... 39
7.6 Non-Reliance on Agent and Other Banks..................... 39
7.7 Indemnification........................................... 39
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7.8 Agent in Its Individual Capacity.......................... 40
7.9 Successor Agent........................................... 40
SECTION 8. MISCELLANEOUS............................................. 40
8.1 Amendments and Waivers.................................... 40
8.2 Notices................................................... 41
8.3 No Waiver; Cumulative Remedies............................ 41
8.4 Survival of Representations and Warranties................ 41
8.5 Payment of Expenses and Taxes; Indemnity.................. 42
8.6 Successors and Assigns; Participations;
Purchasing Banks........................................ 42
8.7 Adjustments; Set-off...................................... 45
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8.8 Counterparts.............................................. 45
8.9 GOVERNING LAW............................................. 45
8.10 WAIVERS OF JURY TRIAL..................................... 45
8.11 Submission To Jurisdiction; Waivers....................... 45
SCHEDULES
SCHEDULE I Commitment Amounts and Percentages; Lending
Offices; Addresses for Notice
SCHEDULE II Subsidiaries of the Company
SCHEDULE III Indebtedness
SCHEDULE IV Applicable Margins
SCHEDULE V Significant Litigation
EXHIBITS
EXHIBIT A Form of Note
EXHIBIT B Form of Commitment Transfer Supplement
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AGREEMENT, dated as of July 10, 1998 (this "Agreement"), among COLUMBIA/HCA
HEALTHCARE CORPORATION, a Delaware corporation (the "Company"), the several
banks and other financial institutions from time to time parties hereto (the
"Banks"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, THE BANK OF
NEW YORK, THE FIRST NATIONAL BANK OF CHICAGO, FLEET NATIONAL BANK, TORONTO
DOMINION (TEXAS), INC. AND WACHOVIA BANK OF GEORGIA, N.A. as Co-Agents
(collectively, the "Co-Agents"), NATIONSBANK, N.A., as documentation agent for
the Banks hereunder (the "Documentation Agent") and THE BANK OF NOVA SCOTIA and
DEUTSCHE BANK SECURITIES INC., as co-syndication agents for the Banks hereunder
(the "Co-Syndication Agents"); and THE CHASE MANHATTAN BANK, a New York banking
corporation, as agent for the Banks hereunder (in such capacity, the "Agent").
In consideration of the promises and mutual agreements herein contained and
for other good and valuable consideration, the parties hereto hereby agree as
follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms have
the following meanings:
"Affiliate": (a) any director or officer of any corporation or
partner or joint venturer or Person holding a similar position in another
Person or members of their families, whether or not living under the same
roof, or any Person owning beneficially more than 5% of the outstanding
common stock or other evidences of beneficial interest of the Person in
question, (b) any Person of which any one or more of the Persons described
in clause (a) above is an officer, director or beneficial owner of more
than 5% of the shares or other beneficial interest and (c) any Person
controlled by, controlling or under common control with the Person in
question.
"Alternate Base Rate": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of (a)
the Prime Rate in effect on such day, (b) the Base CD Rate in effect on
such day plus 1% and (c) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean the rate
of interest per annum publicly announced from time to time by the Agent as
its prime rate in effect at its principal office in New York City (each
change in the Prime Rate to be effective on the date such change is
publicly announced); "Base CD Rate" shall mean the sum of (a) the product
of (i) the Three-Month Secondary CD Rate and (ii) a fraction, the numerator
of which is one and the denominator of which is one minus the C/D Reserve
Percentage and (b) the C/D Assessment Rate; "Three-Month Secondary CD Rate"
shall mean, for any day, the secondary market rate for three-month
certificates of deposit reported as being in effect on such day (or, if
such day shall not be a Business Day, the next preceding Business Day) by
the Board of Governors of the Federal Reserve System (the "Board") through
the public information telephone line of the Federal Reserve Bank of New
York (which rate will, under the current practices of the Board, be
published in Federal Reserve Statistical Release H.15(519) during the week
following such day), or, if such rate shall not be so reported on such day
or such next preceding Business Day, the average of the secondary market
quotations for three-month
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certificates of deposit of major money center banks in New York City
received at approximately 10:00 A.M., New York City time, on such day (or,
if such day shall not be a Business Day, on the next preceding Business
Day) by the Agent from three New York City negotiable certificate of
deposit dealers of recognized standing selected by it; "C/D Reserve
Percentage" shall mean, for any day, that percentage (expressed as a
decimal) which is in effect on such day, as prescribed by the Board (or any
successor), for determining the maximum reserve requirement for a member
bank of the Federal Reserve System in New York City with deposits exceeding
one billion Dollars in respect of new non-personal three-month certificates
of deposit in the secondary market in Dollars in New York City and in an
amount of $100,000 or more; "C/D Assessment Rate" shall mean, for any day,
the net annual assessment rate (rounded upward to the nearest 1/100 of 1%)
determined by Chase to be payable on such day to the Federal Deposit
Insurance Corporation or any successor (the "FDIC") for FDIC's insuring
time deposits made in Dollars at offices of Chase in the United States; and
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight federal funds transactions with members
of the Federal Reserve System arranged by federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for the day of such
transactions received by the Agent from three federal funds brokers of
recognized standing selected by it. If for any reason the Agent shall have
determined (which determination shall be conclusive absent manifest error)
that it is unable to ascertain the Base CD Rate or the Federal Funds
Effective Rate, or both, for any reason, including the inability or failure
of the Agent to obtain sufficient quotations in accordance with the terms
thereof, the Alternate Base Rate shall be determined without regard to
clause (b) or (c), or both, of the first sentence of this definition, as
appropriate, until the circumstances giving rise to such inability no
longer exist. Any change in the Alternate Base Rate due to a change in the
Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate shall be effective on the effective day of such change in
the Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate, respectively.
"Alternate Base Rate Loans": Loans hereunder at such time as they
are made and/or being maintained at a rate of interest based upon the
Alternate Base Rate.
"Applicable Margin": for each Type of Loan during a Level I Period,
Level II Period, Level III Period or Level IV Period, the rate per annum
set forth under the relevant column heading in Schedule IV. Increases or
decreases in the Applicable Margin shall become effective on the first day
of the Level I Period, Level II Period, Level III Period or Level IV
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.
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"Auditor": any independent certified public accountant of nationally
recognized standing and reputation selected by the Company.
"Available Commitments": at a particular time, an amount equal to
the difference between (a) the amount of the Commitments at such time and
(b) the aggregate unpaid principal amount at such time of all Loans.
"Bank Obligations": as defined in subsection 6.1.
"Benefitted Bank": as defined in subsection 8.7.
"Borrowing Date": any Business Day specified in a notice pursuant to
subsection 2.1(c) as a date on which the Company requests the Banks to make
Loans hereunder.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law
to close.
"Change in Control": of any corporation, (a) any Person or "group"
(as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended), other than the Company, that shall acquire more than 50% of the
Voting Stock of such corporation or (b) any Person or group (as defined in
preceding clause (a)), other than the Company, that shall acquire more than
20% of the Voting Stock of such corporation and, at any time following an
acquisition described in this clause (b), the Continuing Directors shall
not constitute a majority of the board of directors of such corporation.
"Chase": The Chase Manhattan Bank, a New York banking corporation.
"Closing Date": the date on which all of the conditions precedent
for the Closing Date set forth in Section 4 are satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment": as to any Bank, its obligation to make Loans to the
Company pursuant to subsection 2.1(a) in an aggregate amount not to exceed
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 B.
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"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 (i) all amounts deducted in computing such
Consolidated Net Income in respect of interest expense on Indebtedness and
income taxes and (ii) non-cash non-recurring charges (including charges as
a result of changes in method of accounting) and adjustments for impairment
of long-lived assets in accordance with original pronouncement number 121
of the Financial Accounting Standards Board incurred or made as of or for
the fiscal quarters ending September 30, 1997 and December 31, 1997 not
exceeding in the aggregate $1,200,000,000 on a pre-tax basis, all
determined in accordance with GAAP.
"Consolidated Earnings Before Interest, Taxes, Depreciation and
Amortization": for any period for which the amount thereof is to be
determined, consolidated net revenues for such period minus consolidated
operating expenses plus or minus equity in earnings of affiliates of the
Company and its Subsidiaries (excluding Value Health and home health
operations included in discontinued operations) for such period (which
consolidated operating expenses shall, in any event, include and be limited
to salaries and benefits, supplies, other operating expenses and provision
for doubtful accounts), all determined in accordance with GAAP and
consistent with the Company's reporting on Forms 10-Q and 10-K.
"Consolidated Interest Expense": for any period for which the amount
thereof is to be determined, all amounts deducted in computing Consolidated
Net Income for such period in respect of interest expense on Indebtedness
determined in accordance with GAAP.
"Consolidated Net Income": for any period, the consolidated net
income, if any, after taxes, of the Company and its Subsidiaries for such
period determined in accordance with GAAP; provided, however, that
Consolidated Net Income shall not include any gain or loss attributable to
extraordinary items, any sale of assets not in the ordinary course of
business or any taxes or tax savings as a result thereof.
"Consolidated Net Tangible Assets": means the total amount of assets
(less applicable reserves and other properly deductible items) after
deducting therefrom (i) all current liabilities as disclosed on the
consolidated balance sheet of the Company (excluding any thereof which are
by their terms extendable or renewable at the option of the obligor thereon
to a time more than 12 months after the time as of which the amount thereof
is being computed and excluding any deferred income taxes that are included
in current liabilities), and (ii) all goodwill, trade names, trademarks,
patents, unamortized debt discount and expense and other like intangible
assets, all as set forth on the most recent consolidated balance sheet of
the Company and computed in accordance with GAAP.
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"Consolidated Net Worth": as of the date of determination, all items
which in conformity with GAAP would be included under shareholders' equity
on a consolidated balance sheet of the Company and its Subsidiaries at such
date.
"Consolidated Total Capitalization": for any period for which the
amount thereof is to be determined, the sum of Consolidated Net Worth at
such date and Consolidated Total Debt at such date.
"Consolidated Total Debt": the aggregate of all Indebtedness
(including the current portion thereof) of the Company and its Subsidiaries
on a consolidated basis.
"Continuing Director": any member of the Board of Directors of the
Company who is a member of such Board on the date of this Agreement, and
any Person who is a member of such Board and whose nomination as a director
was approved by a majority of the Continuing Directors then on such Board.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control Group Person": any Person which is a member of the
controlled group or is under common control with the Company within the
meaning of Section 414(b) or 414(c) of the Code or Section 4001(b)(1) of
ERISA.
"Default": any of the events specified in subsection 6.1, whether or
not any requirement for the giving of notice, the lapse of time, or both,
or any other condition, has been satisfied.
"Distribution": (a) the declaration or payment of any dividend on or
in respect of any shares of any class of capital stock of the Company other
than dividends payable solely in shares of common stock of the Company; (b)
the purchase, redemption or other acquisition of any shares of any class of
capital stock of the Company directly or indirectly through a Subsidiary or
otherwise; and (c) any other distribution on or in respect of any shares of
any class of capital stock of the Company.
"Dollars" and "$": dollars in lawful currency of the United States
of America.
"Domestic Lending Office": the office of each Bank designated as
such in Schedule I.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on such
day (including, without limitation, basic,
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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": the office of each Bank designated as
such in Schedule I.
"Eurodollar Loans": Loans hereunder at such time as they are made
and/or are being maintained at a rate of interest based upon the Eurodollar
Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum equal to the
average (rounded upwards to the nearest whole multiple of one sixteenth of
one percent) of the respective rates notified to the Agent by the Reference
Banks as the rate at which each of their Eurodollar Lending Offices is
offered Dollar deposits two Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where the eurodollar and
foreign currency and exchange operations of such Eurodollar Lending Office
are then being conducted at or about 10:00 A.M., New York City time, for
delivery on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to the amount of the
Eurodollar Loan of such Reference Bank to be outstanding during such
Interest Period.
"Eurodollar Tranche": the collective reference to Eurodollar Loans
having the same Interest Period (whether or not originally made on the same
day).
"Event of Default": any of the events specified in subsection 6.1,
provided that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, event or act has been satisfied.
"February 1997 Five-Year Agreement and Amendment": the Agreement and
Amendment, dated as of February 26, 1997 (as amended, modified or
supplemented), among the Company, the Co-Agents (as defined therein),
Chase, as Agent and as CAF Loan Agent (as defined therein), and the several
banks and other financial institutions parties thereto, which adopts and
incorporates by reference to the extent provided therein the Five-Year
Composite Credit Agreement dated as of February 28, 1996.
"Financing Lease": any lease of property, real or personal, if the
then present value of the minimum rental commitment thereunder should, in
accordance with GAAP, be capitalized on a balance sheet of the lessee.
"GAAP": (a) with respect to determining compliance by the Company
with the provisions of subsections 5.6, 5.7 and 5.10, generally accepted
accounting principles in the United States of America consistent with those
utilized in preparing the audited financial statements referred to in
subsection 3.3 and (b) with respect to the financial
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statements referred to in subsection 3.3 or the furnishing of financial
statements pursuant to subsection 5.5 and otherwise, generally accepted
accounting principles in the United States of America from time to time in
effect.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"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 the obligor or referred to in a footnote thereto, but shall not include
endorsements of items for collection in the ordinary course of business.
"Indebtedness": of a Person, at a particular date, the sum (without
duplication) at such date of (a) all indebtedness of such Person for
borrowed money or for the deferred purchase price of property or services
or which is evidenced by a note, bond, debenture or similar instrument, (b)
all obligations of such Person under Financing Leases, (c) all obligations
of such Person in respect of letters of credit, acceptances, or similar
obligations issued or created for the account of such Person in excess of
$1,000,000, (d) all liabilities secured by any Lien on any property owned
by the Company or any Subsidiary even though such Person has not assumed or
otherwise become liable for the payment thereof and (e) all Guarantee
Obligations relating to any of the foregoing in excess of $1,000,000.
"Insolvency" or "Insolvent": at any particular time, a Multiemployer
Plan which is insolvent within the meaning of Section 4245 of ERISA.
"Interest Payment Date": (a) as to any Alternate Base Rate Loan, the
last day of each March, June, September and December, commencing on the
first of such days to occur after Alternate Base Rate Loans are made or
Eurodollar Loans are converted to Alternate Base Rate Loans, (b) as to any
Eurodollar Loan in respect of which the Company has selected an Interest
Period of one, two or three months, the last day of such Interest Period
and (c) as to any Eurodollar Loan in respect of which the Company has
selected a longer Interest Period than the periods described in clause (b),
the last day of each March, June, September and December falling within
such Interest Period and the last day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loans:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loans and ending one, two, three or six months thereafter (or, with
the consent of all the Banks, nine or
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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 2.5(a), as the case may be; and
(ii) thereafter, each period commencing on the last day of
the next preceding Interest Period applicable to such Eurodollar
Loans and ending one, two, three or six months thereafter (or, with
the consent of all the Banks, nine or twelve months thereafter), as
selected by the Company by irrevocable notice to the Agent not less
than three Business Days prior to the last day of the then current
Interest Period with respect to such Eurodollar Loans;
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.
"June 1997 364-Day Agreement and Amendment": the $3,000,000,000
Agreement and Amendment, dated as of June 17, 1997, among the Company, the
several banks and other financial institutions from time to time parties
thereto, the co-agents and lead managers named therein and The Chase
Manhattan Bank, as Agent and as CAF Loan Agent therein, as the same has
been and may be amended, supplemented or otherwise modified or replaced or
extended from time to time.
"Level I Period": any period during which the lower of the publicly
announced ratings by S&P and Moody's of the then current senior unsecured,
non-credit enhanced,
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long-term Indebtedness of the Company that has been publicly issued are BBB
- or better or Baa3 or better, respectively.
"Level II Period": any period during which the lower 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 BB+ or Ba1, respectively.
"Level III Period": any period during which the lower 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 BB or Ba2, respectively.
"Level IV 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 equal to or below BB- or unrated or equal to or below
Ba3 or unrated, as the case may be.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement or preferential arrangement of any
kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing).
"Loan": as defined in subsection 2.1(a).
"Loan Documents": this Agreement and the Notes.
"Moody's": Moody's Investors Service, Inc., or any successor
thereto.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": means, with respect to any sale or disposition
by the Company of assets, cash payments received by the Company or any of
its Subsidiaries from such sale or disposition net of bona fide direct
costs of sale including, without limitation, (i) income taxes reasonably
estimated to be actually payable as a result of such sale or disposition
within one year of the date of receipt of such cash payments, (ii)
transfer, sales, use and other taxes payable in connection with such sale
or disposition, (iii) payment of the outstanding principal amount of,
premium or penalty, if any, and interest on any Indebtedness (other than on
the revolving credit loans under the June 1997 364-Day Amendment and
Agreement) that is secured by a Lien on the stock or assets in question and
that is required to be repaid under the terms thereof as a result of such
sale or disposition, and (iv) broker's commissions and reasonable fees and
expenses of counsel, accountants and other professional advisors in
connection with such sale or disposition.
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"Notes": as defined in subsection 2.1(b).
"Participants": as defined in subsection 8.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Company or a Control Group
Person is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of ERISA.
"Principal Property": means each acute care hospital providing
general medical and surgical services (including real property but
excluding equipment, personal property and hospitals which primarily
provide specialty medical services, such as psychiatric and obstetrical and
gynecological services) at least 50% of which is owned by the Company and
its Subsidiaries on a consolidated basis and located in the United States
of America.
"Purchasing Banks": as defined in subsection 8.6(c).
"Reference Banks": Chase and Citibank, N.A.
"Register": as defined in subsection 8.6(d).
"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System.
"Regulation X": Regulation X of the Board of Governors of the
Federal Reserve System.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of such
term as used in Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b)
of ERISA, other than those events as to which the thirty day notice period
is waived under subsections .13,.14,.16,.18,.19 or .20 of PBGC Reg. (S)
2615.
"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.
11
"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.
"S&P": Standard & Poor's Ratings Service, or any successor thereto.
"Sale-and-Leaseback Transaction": means any arrangement entered into
by the Company or any Significant Subsidiary with any person (other than
the Company or a Significant Subsidiary), or to which any such person is a
party, providing for the leasing to the Company or any Significant
Subsidiary for a period of more than three years of any Principal Property
which has been or is to be held or transferred by the Company or such
Significant Subsidiary to such Person or to any other Person (other than
the Company or a Significant Subsidiary), to which funds have been or are
to be advanced by such Person on the security of the leased property.
"Significant Subsidiary": means, at any particular time, any
Subsidiary of the Company having total assets of $15,000,000 or more at
that time.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, 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 2.13.
"Termination Date": February 25, 2002.
"Transfer Effective Date": as defined in each Commitment Transfer
Supplement.
"Transferee": as defined in subsection 8.6(f).
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"Type": as to any Loan, its nature as an Alternate Base Rate Loan or
Eurodollar Loan.
"Voting Stock": of any corporation, shares of capital stock or other
securities of such corporation entitled to vote generally in the election
of directors of such corporation.
"Working Day": any Business Day on which dealings in foreign
currencies and exchange between banks may be carried on in London, England.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the Notes or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Company and its Subsidiaries not defined in
subsection 1.1 and accounting terms partly defined in subsection 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF LOANS
2.1 Loans and Notes. (a) Subject to the terms and conditions
hereof, each Bank severally agrees to make loans ("Loans") to the Company on the
Closing Date in an aggregate principal amount not to exceed the Commitment of
such Bank. The Loans may be (i) Eurodollar Loans, (ii) Alternate Base Rate
Loans or (iii) a combination thereof, as determined by the Company and notified
to the Agent in accordance with subsection 2.1(c).
(b) Upon the request by any Bank, the Loan made by such Bank shall
be evidenced by a promissory note of the Company, substantially in the form of
Exhibit A with appropriate insertions as to payee, date and principal amount (a
"Note"), payable to the order of such Bank and evidencing the obligation of the
Company to pay a principal amount equal to the amount of the initial Commitment
of such Bank or, if a lesser amount, the aggregate unpaid principal amount of
all Loans made by such Bank. Each Bank is hereby authorized to record the date,
Type and amount of each Loan made or converted by such Bank, and the date and
amount of each payment or prepayment of principal thereof, and, in the case of
Eurodollar Loans, the Interest Period with respect thereto, on the schedule
annexed to and constituting a part of such Note, and any such recordation shall
constitute prima facie evidence of the accuracy of the
13
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 Note. Each such 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 2.6.
(c) The Company may borrow under the Commitments on the Closing
Date; provided that the Company shall give the Agent irrevocable notice (which
notice must be received by the Agent (i) prior to 11:30 A.M., New York City time
three Business Days prior to the Closing Date, in the case of Eurodollar Loans,
and (ii) prior to 10:00 A.M., New York City time, on the Closing Date, in the
case of Alternate Base Rate Loans), specifying (A) the amount to be borrowed,
(B) whether the borrowing is to be of Eurodollar Loans, Alternate Base Rate
Loans, or a combination thereof, and (C) if the borrowing is to be entirely or
partly of Eurodollar Loans, the length of the Interest Period therefor. Upon
receipt of such notice from the Company, the Agent shall promptly notify each
Bank thereof. Each Bank will make the amount of its pro rata share of each
borrowing available to the Agent for the account of the Company at the office of
the Agent set forth in subsection 8.2 prior to 12:00 P.M., New York City time,
on the Closing Date in funds immediately available to the Agent. The proceeds of
all such Loans will then be made available to the Company by the Agent at such
office of the Agent by crediting the account of the Company on the books of such
office with the aggregate of the amounts made available to the Agent by the
Banks.
2.2 Fees. The Company agrees to pay to the Agent the other fees in
the amounts, and on the date, agreed to by the Company and the Agent in the fee
letter, dated June 4, 1998, between the Agent and the Company.
2.3 Termination or Reduction of Commitments. The Company shall have
the right, upon not less than five Business Days' notice to the Agent, to
terminate the Commitments or, from time to time, to reduce ratably the amount of
the Commitments, 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 multiple of $1,000,000
in excess thereof, and shall reduce permanently the amount of the Commitments
then in effect.
2.4 Optional Prepayments. The Company may on the last day of the
relevant Interest Period if the Loans to be prepaid are in whole or in part
Eurodollar Loans, or at any time and from time to time if the Loans to be
prepaid are Alternate Base Rate Loans, prepay the Loans, in whole or in part,
without premium or penalty, upon at least three Business Days' irrevocable
notice to the Agent, specifying the date and amount of prepayment and whether
the prepayment is of Eurodollar Loans or Alternate Base Rate Loans or a
combination thereof, and if of a combination thereof, the amount of prepayment
allocable to each. Upon receipt of such notice the Agent shall promptly notify
each Bank thereof. If such notice is given, the payment amount specified in such
notice shall be due and payable on the date specified therein, together with
accrued interest to such date on the amount prepaid. Partial prepayments shall
be in an aggregate principal amount of $5,000,000, or a whole multiple of
$1,000,000 in excess thereof,
14
and may only be made if, after giving effect thereto, subsection 2.5(c) shall
not have been contravened. Partial prepayments under this subsection 2.4 shall
be applied ratably to scheduled installments of the Loans pursuant to subsection
2.6(e).
2.5 Conversion Options; Minimum Amount of Loans. (a) The Company
may elect from time to time to convert Eurodollar Loans to Alternate Base Rate
Loans by giving the Agent at least two Business Days' prior irrevocable notice
of such election (given before 10:00 A.M., New York City time, on the date on
which such notice is required), provided that any such conversion of Eurodollar
Loans shall, subject to the fourth following sentence, only be made on the last
day of an Interest Period with respect thereto. The Company may elect from time
to time to convert Alternate Base Rate Loans to Eurodollar Loans by giving the
Agent at least three Business Days' prior irrevocable notice of such election
(given before 11:30 A.M., New York City time, on the date on which such notice
is required). Upon receipt of such notice, the Agent shall promptly notify each
Bank thereof. Promptly following the date on which such conversion is being
made each Bank shall take such action as is necessary to transfer its portion of
such Loans to its Domestic Lending Office or its Eurodollar Lending Office, as
the case may be. All or any part of outstanding Eurodollar Loans and Alternate
Base Rate Loans may be converted as provided herein, provided that, unless the
Required Banks otherwise agree, (i) no Loan may be converted into a Eurodollar
Loan when any Event of Default has occurred and is continuing, (ii) partial
conversions shall be in an aggregate principal amount of $5,000,000 or a whole
multiple thereof, and (iii) any such conversion may only be made if, after
giving effect thereto, subsection 2.5(c) shall not have been contravened.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of an Interest Period with respect thereto by compliance by the
Company with the notice provisions contained in subsection 2.5(a); provided
that, unless the Required Banks otherwise agree, no Eurodollar Loan may be
continued as such when any Event of Default has occurred and is continuing, but
shall be automatically converted to an Alternate Base Rate Loan on the last day
of the then current Interest Period with respect thereto. The Agent shall notify
the Banks promptly that such automatic conversion contemplated by this
subsection 2.5(b) will occur.
(c) All borrowings, conversions, payments, prepayments and
selection of Interest Periods hereunder shall be in such amounts and be made
pursuant to such elections so that, after giving effect thereto, the aggregate
principal amount of the Loans comprising any Eurodollar Tranche shall not be
less than $10,000,000. At no time shall there be more than 10 Eurodollar
Tranches.
2.6 Interest Rate and Payment Dates for Loans. (a) The Eurodollar
Loans comprising each Eurodollar Tranche shall bear interest for each day during
each Interest Period with respect thereto on the unpaid principal amount thereof
at a rate per annum equal to the Eurodollar Rate plus the Applicable Margin.
(b) Alternate Base Rate Loans shall bear interest for each day from
and including the date thereof on the unpaid principal amount thereof at a rate
per annum equal to the Alternate Base Rate plus the Applicable Margin.
15
(c) If all or a portion of the principal amount of any Loans shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise), each Eurodollar Loan shall, unless the Required Banks otherwise
agree, be converted to an Alternate Base Rate Loan at the end of the last
Interest Period with respect thereto. Any such overdue principal amount shall
bear interest at a rate per annum which is 2% above the rate which would
otherwise be applicable pursuant to subsection 2.6(a) or (b), and any overdue
interest or other amount payable hereunder shall bear interest at a rate per
annum which is 2% above the Alternate Base Rate, in each case from the date of
such non-payment until paid in full (after as well as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date.
(e) The Company shall make principal payments on the Loans in
installments on the dates and in the amounts set forth below:
Installment Date Principal Amount
---------------- ----------------
August 1, 1999 $100,000,000
February 1, 2000 $100,000,000
August 1, 2000 $150,000,000
February 1, 2001 $150,000,000
August 1, 2001 $250,000,000
February 25, 2002 $250,000,000
2.7 Computation of Interest and Fees. (a) Interest in respect of
Alternate Base Rate Loans shall be calculated on the basis of a (i) 365-day (or
366-day, as the case may be) year for the actual days elapsed when such
Alternate Base Rate Loans are based on the Prime Rate, and (ii) a 360-day year
for the actual days elapsed when based on the Base CD Rate or the Federal Funds
Effective Rate. Interest in respect of Eurodollar Loans shall be calculated on
the basis of a 360-day year for the actual days elapsed. The Agent shall as
soon as practicable notify the Company and the Banks of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the Alternate Base Rate or the Applicable Margin or the Eurocurrency
Reserve Requirements shall become effective as of the opening of business on the
day on which such change in the Alternate Base Rate is announced, such
Applicable Margin changes as provided herein or such change in or the
Eurocurrency Reserve Requirements shall become effective, as the case may be.
The Agent shall as soon as practicable notify the Company and the Banks of the
effective date and the amount of each such change.
(b) Each determination of an interest rate by the Agent pursuant to
any provision of this Agreement shall be conclusive and binding on the Company
and the Banks in the absence of manifest error. The Agent shall, at the request
of the Company, deliver to the Company a statement showing the quotations used
by the Agent in determining any interest rate pursuant to subsection 2.6(a) or
(c).
(c) If any Reference Bank's Commitment shall terminate (otherwise
than on termination of all the commitments), or its Loan shall be assigned for
any reason whatsoever, such Reference Bank shall thereupon cease to be a
Reference Bank, and if, as a result of the
16
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 furnished
quotations of rates to the Agent as contemplated hereby. If any of the
Reference Banks shall be unable or otherwise fails to supply such rates to the
Agent upon its request, the rate of interest shall be determined on the basis of
the quotations of the remaining Reference Banks or Reference Bank.
2.8 Inability to Determine Interest Rate. In the event that:
(i) the Agent shall have determined (which determination
shall be conclusive and binding upon the Company) that, by reason of
circumstances affecting the interbank eurodollar market generally, adequate
and reasonable means do not exist for ascertaining the Eurodollar Rate for
any requested Interest Period;
(ii) only one of the Reference Banks is able to obtain bids
for its Dollar deposits for such Interest Period in the manner contemplated
by the term "Eurodollar Rate"; or
(iii) the Agent shall have received notice prior to the first
day of such Interest Period from Banks constituting the Required Banks that
the interest rate determined pursuant to subsection 2.6(a) for such
Interest Period does not accurately reflect the cost to such Banks (as
conclusively certified by such Banks) of making or maintaining their
affected Loans during such Interest Period;
with respect to (A) proposed Loans that the Company has requested be made as
Eurodollar Loans, (B) Eurodollar Loans that will result from the requested
conversion of Alternate Base Rate Loans into Eurodollar Loans or (C) the
continuation of Eurodollar Loans beyond the expiration of the then current
Interest Period with respect thereto, the Agent shall forthwith give facsimile
or telephonic notice of such determination to the Company and the Banks at least
one day prior to, as the case may be, the requested Borrowing Date for such
Eurodollar Loans, the conversion date of such Loans or the last day of such
Interest Period. If such notice is given (x) any requested Eurodollar Loans
shall be made as Alternate Base Rate Loans, (y) any Alternate Base Rate Loans
that were to have been converted to Eurodollar Loans shall be continued as
Alternate Base Rate Loans and (z) any outstanding Eurodollar Loans shall be
converted, on the last day of the then current Interest Period with respect
thereto, to Alternate Base Rate Loans. Until such notice has been withdrawn by
the Agent, no further Eurodollar Loans shall be made, nor shall the Company have
the right to convert Alternate Base Rate Loans to Eurodollar Loans.
2.9 Pro Rata Borrowings and Payments. (a) Borrowing by the Company
of Loans shall be made ratably from the Banks in accordance with their
Commitment Percentages.
17
(b) 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.
2.10 Illegality. Notwithstanding any other provisions herein, if
after the date hereof the adoption of or any change in any Requirement of Law or
in the interpretation or application thereof shall make it unlawful for any Bank
to make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the
Bank shall, within 30 Business Days after it becomes aware of such fact, notify
the Company, through the Agent, of such fact, (b) the commitment of such Bank
hereunder to make Eurodollar Loans or convert Alternate Base Rate Loans to
Eurodollar Loans shall forthwith be cancelled and (c) such Bank's Loans then
outstanding as Eurodollar Loans, if any, shall be converted automatically to
Alternate Base Rate Loans on the respective last days of the then current
Interest Periods for such Loans or within such earlier period as required by
law. Each Bank shall take such action as may be reasonably available to it
without legal or financial disadvantage (including changing its Eurodollar
Lending Office) to prevent the adoption of or any change in any such Requirement
of Law from becoming applicable to it.
2.11 Requirements of Law. (a) If after the date hereof the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof or compliance by any Bank with any request or directive
(whether or not having the force of law) after the date hereof from any central
bank or other Governmental Authority:
(i) shall subject any Bank to any tax of any kind
whatsoever with respect to this Agreement, any Note or any Eurodollar Loans
made by it, or change the basis of taxation of payments to such Bank of
principal, facility fee, interest or any other amount payable hereunder in
respect of Loans (except for changes in the rate of tax on the overall net
income of such Bank);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held
by, or deposits or other liabilities in or for the account of, advances or
loans by, or other credit extended by, or any other acquisition of funds
by, any office of such Bank which are not otherwise included in the
determination of the Eurodollar Rate hereunder; or
(iii) shall impose on such Bank any other condition;
18
and the result of any of the foregoing is to increase the cost to such Bank, by
any amount which such Bank deems to be material, of making, renewing or
maintaining advances or extensions of credit or to reduce any amount receivable
hereunder, in each case, in respect of its Eurodollar Loans, then, in any such
case, the Company shall promptly pay such Bank, upon its demand, any additional
amounts necessary to compensate such Bank for such additional cost or reduced
amount receivable. If a Bank becomes entitled to claim any additional amounts
pursuant to this subsection 2.11(a), it shall, within 30 Business Days after it
becomes aware of such fact, notify the Company, through the Agent, of the event
by reason of which it has become so entitled. A certificate as to any
additional amounts payable pursuant to the foregoing sentence submitted by such
Bank, through the Agent, to the Company shall be conclusive in the absence of
manifest error. Each Bank shall take such action as may be reasonably available
to it without legal or financial disadvantage (including changing its Eurodollar
Lending Office) to prevent any such Requirement of Law or change from becoming
applicable to it. This covenant shall survive the termination of this Agreement
and payment of the outstanding Indebtedness hereunder or pursuant to the Notes.
(b) In the event that after the date hereof a Bank is required to
maintain reserves of the type contemplated by the definition of "Eurocurrency
Reserve Requirements", such Bank may require the Company to pay, promptly after
receiving notice of the amount due, additional interest on the related
Eurodollar Loan of such Bank at a rate per annum determined by such Bank up to
but not exceeding the excess of (i) (A) the applicable Eurodollar Rate divided
by (B) one minus the Eurocurrency Reserve Requirements over (ii) the applicable
Eurodollar Rate. Any Bank wishing to require payment of any such additional
interest on account of any of its Eurodollar Loans shall notify the Company no
more than 30 Business Days after each date on which interest is payable on such
Eurodollar Loan of the amount then due it under this subsection 2.11(b), in
which case such additional interest on such Eurodollar Loan shall be payable to
such Bank at the place indicated in such notice. Each such notification shall
be accompanied by such information as the Company may reasonably request.
2.12 Capital Adequacy. If any Bank shall have determined that
after the date hereof the adoption of or any change in any Requirement of Law
regarding capital adequacy or in the interpretation or application thereof or
compliance by such Bank or any corporation controlling such Bank with any
request or directive after the date hereof regarding capital adequacy (whether
or not having the force of law) from any central bank or Governmental Authority,
does or shall have the effect of reducing the rate of return on such Bank's or
such corporation's capital as a consequence of its obligations hereunder to a
level below that which such Bank or such corporation could have achieved but for
such adoption, change or compliance (taking into consideration such Bank's or
such corporation's policies with respect to capital adequacy) by an amount which
is reasonably deemed by such Bank to be material, then from time to time,
promptly after submission by such Bank, through the Agent, to the Company of a
written request therefor (such request shall include details reasonably
sufficient to establish the basis for such additional amounts payable and shall
be submitted to the Company within 30 Business Days after it becomes aware of
such fact), the Company shall promptly pay to such Bank such additional amount
or amounts as will compensate such Bank for such reduction. The agreements in
this subsection 2.12 shall survive the termination of this Agreement and payment
of the Loans and the Notes and all other amounts payable hereunder.
19
2.13 Taxes. (a) All payments made by the Company under this
Agreement shall be made free and clear of, and without reduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority excluding, in the case of the Agent and each Bank, net income and
franchise taxes imposed on the Agent or such Bank by the jurisdiction under the
laws of which the Agent or such Bank is organized or any political subdivision
or taxing authority thereof or therein, or by any jurisdiction in which such
Bank's Domestic Lending Office or Eurodollar Lending Office, as the case may be,
is located or any political subdivision or taxing authority thereof or therein
(all such non-excluded taxes, levies, imposts, deductions, charges or
withholdings being hereinafter called "Taxes"). If any Taxes are required to be
withheld from any amounts payable to the Agent or any Bank hereunder or under
the Notes, the amounts so payable to the Agent or such Bank shall be increased
to the extent necessary to yield to the Agent or such Bank (after payment of all
Taxes) interest or any such other amounts payable hereunder at the rates or in
the amounts specified in this Agreement and the Notes. Whenever any Taxes are
payable by the Company, as promptly as possible thereafter, the Company shall
send to the Agent for its own account or for the account of such Bank, as the
case may be, a certified copy of an original official receipt received by the
Company showing payment thereof. If the Company fails to pay any Taxes when due
to the appropriate taxing authority or fails to remit to the Agent the required
receipts or other required documentary evidence, the Company shall indemnify the
Agent and the Banks for any incremental taxes, interest or penalties that may
become payable by the Agent or any Bank as a result of any such failure.
(b) Each Bank that is not incorporated under the laws of the United
States of America or a state thereof agrees that it will deliver to the Company
and the Agent (i) two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224 or successor applicable form, as the case may be,
certifying in each case that such Bank is entitled to receive 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 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 States federal income tax, and in the
case of a Form W-8 or W-9, establishing an exemption from United States backup
withholding tax.
20
(c) The agreements in subsection 2.13 shall survive the termination
of this Agreement and the payment of the Notes and all other amounts payable
hereunder.
2.14 Indemnity. The Company agrees to indemnify each Bank and to
hold each Bank harmless from any loss or expense (other than any loss of
anticipated margin or profit) which such Bank may sustain or incur as a
consequence of (a) default by the Company in payment when due of the principal
amount of or interest on any Eurodollar Loans of such Bank, (b) default by the
Company in making a borrowing or conversion after the Company has given a notice
of borrowing in accordance with subsection 2.1(c) or a notice of continuation or
conversion pursuant to subsection 2.5, (c) default by the Company in making any
prepayment after the Company has given a notice in accordance with subsection
2.4 or (d) the making of a prepayment of a Eurodollar Loan on a day which is not
the last day of an Interest Period with respect thereto, including, without
limitation, in each case, any such loss or expense arising from the reemployment
of funds obtained by it to maintain its Eurodollar Loans hereunder or from fees
payable to terminate the deposits from which such funds were obtained. Any Bank
claiming any amount under this subsection 2.14 shall provide calculations, in
reasonable detail, of the amount of its loss or expense. This covenant shall
survive termination of this Agreement and payment of the outstanding
Indebtedness hereunder or pursuant to the Notes.
2.15 Application of Proceeds of Loans. Subject to the provisions of
the following sentence, the Company may use the proceeds of the Loans for any
lawful corporate purpose, including for the repurchase of shares of common stock
of the Company and the repayment of loans under the February 1997 Five-Year
Agreement and Amendment. 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, except in a manner which is not in violation of Regulations U and X.
2.16 Notice of Certain Circumstances; Assignment of Commitments
Under Certain Circumstances. (a) Any Bank claiming any additional amounts
payable pursuant to subsections 2.11, 2.12 or 2.13 or exercising its rights
under subsection 2.10, shall, in accordance with the respective provisions
thereof, provide notice to the Company and the Agent. Such notice to the Company
and the Agent shall include details reasonably sufficient to establish the basis
for such additional amounts payable or the rights to be exercised by the Bank.
(b) Any Bank claiming any additional amounts payable pursuant to
subsections 2.11, 2.12 or 2.13 or exercising its rights under subsection 2.10,
shall use reasonable efforts (consistent with legal and regulatory restrictions)
to file any certificate or document requested by the Company or to change the
jurisdiction of its applicable lending office if the making of such filing or
change would avoid the need for or reduce the amount of any such additional
amounts which may thereafter accrue or avoid the circumstances giving rise to
such exercise and would not, in the sole determination of such Bank, be
otherwise disadvantageous to such Bank.
(c) In the event that the Company shall be required to make any
additional payments to any Bank pursuant to subsections 2.11, 2.12 or 2.13 or
any Bank shall exercise its rights under subsection 2.10, the Company shall have
the right at its own expense, upon notice
21
to such Bank and the Agent, to require such Bank to transfer and to assign
without recourse (in accordance with and subject to the terms of subsection 8.6)
all its interest, rights and obligations under this Agreement to another
financial institution (including any Bank) acceptable to the Agent (which
approval shall not be unreasonably withheld) which shall assume such
obligations; provided that (i) no such assignment shall conflict with any
Requirement of Law and (ii) such assuming financial institution shall pay to
such Bank in immediately available funds on the date of such assignment the
outstanding principal amount of such Bank's Loans hereunder together with
accrued interest thereon and all other amounts accrued for its account or owed
to it hereunder, including, but not limited to additional amounts payable under
subsections 2.2, 2.10, 2.11, 2.12, 2.13 and 2.14.
SECTION 3. REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants that:
3.1 Corporate Organization and Existence. Each of the Company and
each Subsidiary is a corporation, partnership or other entity duly organized and
validly existing and in good standing under the laws of the jurisdiction in
which it is organized (except, in the case of Subsidiaries, where the failure to
be in good standing would not be material to the Company and its Subsidiaries on
a consolidated basis) and has all necessary power to carry on the business now
conducted by it. The Company has all necessary corporate power and has taken
all corporate action required to make all the provisions of this Agreement and
the Notes and all other agreements and instruments executed in connection
herewith and therewith, the valid and enforceable obligations they purport to
be. Each of the Company and each Subsidiary is duly qualified and in good
standing in all jurisdictions other than that of its organization in which the
physical properties owned, leased or operated by it are located (except, in the
case of Subsidiaries, where the failure to be in good standing would not be
material to the Company and its Subsidiaries on a consolidated basis), and is
duly authorized, qualified and licensed under all laws, regulations, ordinances
or orders of Governmental Authorities, or otherwise, to carry on its business in
the places and in the manner presently conducted.
3.2 Subsidiaries. As of the date hereof, the Company has only the
Subsidiaries set forth in Schedule II. Schedule II indicates all Subsidiaries
of the Company which are not wholly-owned Subsidiaries. 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, 1997, containing the consolidated balance sheet of the Company
and its Subsidiaries as
22
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 LLP;
(b) the Annual Report of the Company on Form 10-K for the fiscal
year ended December 31, 1997;
(c) Quarterly Report of the Company on Form 10-Q for the fiscal
quarter ended March 31, 1998; and
(d) Current Reports on Form 8-K filed with the Securities and
Exchange Commission on February 6, 1998, February 13, 1998, March 6, 1998
and May 27, 1998, respectively.
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 dates thereof and the results of their
operations for the periods covered thereby, subject to normal year-end
adjustments in the case of interim statements. As of the date hereof and
except as disclosed in the above-referenced reports, neither the Company
nor any of its Subsidiaries has any known contingent liabilities of any
significant amount which are not referred to in said financial statements
or in the notes thereto which could reasonably be expected to have a
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, 1997 there has been
no material adverse change in the business or assets or in the condition,
financial or otherwise, of the Company and its Subsidiaries, on a consolidated
basis.
3.5 Assets. The Company and each Subsidiary have good and
marketable title to all material assets carried on their books and reflected in
the most recent balance sheet referred to in subsection 3.3 or furnished
pursuant to subsection 5.5, except for assets held on Financing Leases or
purchased subject to security devices providing for retention of title in the
vendor, and except for assets disposed of as permitted by this Agreement.
3.6 Litigation. Except as disclosed in the Company's Annual Report
on Form 10-K for its fiscal year ended December 31, 1997 and its Quarterly
Report on Form 10-Q for its fiscal quarter ended March 31, 1998, in each case as
filed with the Securities and Exchange Commission and previously distributed to
the Banks, and except as set forth on Schedule V hereto, there is no litigation,
at law or in equity, or any proceeding before any federal, state, provincial or
municipal board or other governmental or administrative agency pending or to the
knowledge of the Company threatened which, after giving effect to any applicable
insurance, may involve any material risk of a material adverse effect on the
business or assets or on the condition, financial or otherwise, of the Company
and its Subsidiaries on a consolidated basis or which seeks to enjoin the
consummation of any of the transactions contemplated by this Agreement or any
other Loan Document and involves any
23
material risk that any such injunction will be issued, and no judgment, decree,
or order of any federal, state, provincial or municipal court, board or other
governmental or administrative agency has been issued against the Company or any
Subsidiary which has, or may involve, a material risk of a material adverse
effect on the business or assets or on the condition, financial or otherwise, of
the Company and its Subsidiaries on a consolidated basis. With respect to the
matters disclosed in the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997 and its Quarterly Report on Form 10-Q for its
fiscal quarter ended March 31, 1998, in each case as filed with the Securities
and Exchange Commission and previously distributed to the Banks, and the matters
set forth on Schedule V hereto, since the date of such disclosures there has
been no development which is material and adverse to the business or assets or
to the condition, financial or otherwise, of the Company and its Subsidiaries on
a consolidated basis.
3.7 Tax Returns. The Company and each of its Subsidiaries have
filed all tax returns which are required to be filed and have paid, or made
adequate provision for the payment of, all taxes which have or may become due
pursuant to said returns or to assessments received. The Company knows of no
material additional assessments since said date for which adequate reserves
appearing in the said balance sheet have not been established.
3.8 Contracts, etc. Attached hereto as Schedule III is a statement
of outstanding Indebtedness of the Company and its Subsidiaries for borrowed
money as of the date set forth therein and a complete and correct list of all
agreements, contracts, indentures, instruments, documents and amendments thereto
to which the Company or any Subsidiary is a party or by which it is bound
pursuant to which any such Indebtedness of the Company and its Subsidiaries in
excess of $25,000,000 is outstanding on the date hereof. Said Schedule III also
includes a complete and correct list of all such Indebtedness of the Company and
its Subsidiaries outstanding on the date indicated in respect of Guarantee
Obligations in excess of $1,000,000 and letters of credit in excess of
$1,000,000, and there have been no increases in such Indebtedness since said
date other than as permitted by this Agreement.
3.9 No Legal Obstacle to Agreement. Neither the execution and
delivery of this Agreement or of any Notes, nor the making by the Company of any
borrowings hereunder, nor the consummation of any transaction herein or therein
referred to or contemplated hereby or thereby nor the fulfillment of the terms
hereof or thereof or of any agreement or instrument referred to in this
Agreement, has constituted or resulted in or will constitute or result in a
breach of the provisions of any contract to which the Company or any of its
Subsidiaries is a party or by which it is bound or of the charter or by-laws of
the Company, or the violation of any law, judgment, decree or governmental
order, rule or regulation applicable to the Company or any of its Subsidiaries,
or result in the creation under any agreement or instrument of any security
interest, lien, charge or encumbrance upon any of the assets of the Company or
any of its Subsidiaries. Other than those which have already been obtained, no
approval, authorization or other action by any governmental authority or any
other Person is required to be obtained by the Company or any of its
Subsidiaries in connection with the execution, delivery and performance of this
Agreement or the transactions contemplated hereby, or the making of any
borrowing by the Company hereunder.
24
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 June 30, 1993 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 contains any untrue statement of material fact or omits to
state a material fact necessary in order to make the statements contained herein
or therein not misleading.
3.14 Environmental and Public and Employee Health and Safety
Matters. The Company and each Subsidiary has complied with all applicable
Federal, state, and other laws, rules and regulations relating to environmental
pollution or to environmental regulation or control or to public or employee
health or safety, except to the extent that the failure to so comply would not
be reasonably likely to result in a material adverse effect on the business or
assets or on the condition, financial or otherwise, of the Company and its
Subsidiaries on a consolidated basis. The Company's and the Subsidiaries'
facilities do not contain, and have not previously contained, any hazardous
wastes, hazardous substances, hazardous materials, toxic substances or toxic
pollutants regulated under the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response Compensation and Liability Act, the
25
Hazardous Materials Transportation Act, the Toxic Substance Control Act, the
Clean Air Act, the Clean Water Act or any other applicable law relating to
environmental pollution or public or employee health and safety, in violation of
any such law, or any rules or regulations promulgated pursuant thereto, except
for violations that would not be reasonably likely to result in a material
adverse effect on the business or assets or on the condition, financial or
otherwise, of the Company and its Subsidiaries on a consolidated basis. The
Company is aware of no events, conditions or circumstances involving
environmental pollution or contamination or public or employee health or safety,
in each case applicable to it or its Subsidiaries, that would be reasonably
likely to result in a material adverse effect on the business or assets or on
the condition, financial or otherwise, of the Company and its Subsidiaries on a
consolidated basis.
3.15 Federal Regulations. No part of the proceeds of any Loans
will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U as now and
from time to time hereafter in effect (except in a manner which is not in
violation of Regulation U or X) or for any purpose which violates the provisions
of the Regulations of the Board of Governors of the Federal Reserve System. If
requested by any Bank or the Agent, the Company will furnish to the Agent and
each Bank a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in said Regulation U.
3.16 Investment Company Act; Other Regulations. The Company is not
an "investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. The
Company is not subject to regulation under any Federal or State statute or
regulation which limits its ability to incur Indebtedness.
3.17 Year 2000 Matters. Any reprogramming required to permit the
proper functioning (but only to the extent that such proper functioning would
otherwise be materially impaired by the occurrence of the year 2000) in the year
2000 of computer systems and other equipment containing embedded microchips, in
either case owned or operated by the Company or any of its Subsidiaries or used
or relied upon in the conduct of their business (including any such systems and
other equipment supplied by others or with which the computer systems of the
Company or any of its Subsidiaries interface), and the testing of all material
systems and other equipment as so reprogrammed, will be completed by September
30, 1999. The costs to the Company and its Subsidiaries that have not been
incurred as of the date hereof for such reprogramming and testing and for the
other reasonably foreseeable consequences to them of any improper functioning of
other computer systems and equipment containing embedded microchips due to the
occurrence of the year 2000 could not reasonably be expected to result in a
Default or Event of Default or to have a 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.
26
SECTION 4. CONDITIONS
The obligations of each Bank to make the Loans contemplated by
subsection 2.1 shall be subject to the compliance by the Company with its
agreements herein contained and to the satisfaction on or before the Closing
Date and each Borrowing Date of such of the following further conditions as are
applicable on the Closing Date or such Borrowing Date, as the case may be:
4.1 Loan Documents. The Agent shall have received (i) this
Agreement, executed and delivered by a duly authorized officer of the Company,
with a counterpart for each Bank, and (ii) for the account of each Bank, if
requested by such Bank, a Note conforming to the requirements hereof and
executed by a duly authorized officer of the Company.
4.2 Legal Opinions. On the Closing Date and on any Borrowing Date
as the Agent shall request, each Bank shall have received from any general,
associate, or assistant general counsel to the Company, such opinions as the
Agent shall have reasonably requested with respect to the transactions
contemplated by this Agreement.
4.3 Company Officers' Certificate. The representations and
warranties contained in Section 3 (as qualified by the disclosures in (i) the
Company's Annual Report on Form 10-K for its fiscal year ended December 31,
1997, (ii) the Company's Quarterly Reports on Form 10-Q for its fiscal quarters
ended June 30, 1997, September 30, 1997 and March 31, 1998 and (iii) the
Company's Reports on Form 8-K dated February 6, 1998, February 13, 1998, March
6, 1998 and May 27, 1998, in each case as filed with the Securities and Exchange
Commission and previously distributed to the Banks) shall be true and correct in
all material respects on the Closing Date and on and as of each Borrowing Date
with the same force and effect as though made on and as of such date; no Default
shall have occurred (except a Default which shall have been waived in writing or
which shall have been cured) and no Default shall exist after giving effect to
the Loan to be made; between December 31, 1997 and such Borrowing Date, neither
the business nor assets, nor the condition, financial or otherwise, of the
Company and its Subsidiaries on a consolidated basis shall have been adversely
affected in any material manner as a result of any fire, flood, explosion,
accident, drought, strike, lockout, riot, sabotage, confiscation, condemnation,
or any purchase of any property by Governmental Authority, activities of armed
forces, acts of God or the public enemy, new or amended legislation, regulatory
order, judicial decision or any other event or development whether or not
related to those enumerated above (all subject to the disclosures referred to
above); and the Agent shall have received a certificate containing a
representation to these effects dated such Borrowing Date and signed by a
Responsible Officer.
4.4 Legality, etc. The making of the Loan to be made by such Bank
on each Borrowing Date shall not subject such Bank to any penalty or special
tax, shall not be prohibited by any Requirement of Law applicable to such Bank
or the Company, and all necessary consents, approvals and authorizations of any
Governmental Authority or any Person to or of any such Loan shall have been
obtained and shall be in full force and effect.
27
4.5 General. All instruments and legal and corporate proceedings
in connection with the Loans contemplated by this Agreement shall be
satisfactory in form and substance to the Agent, and the Agent shall have
received copies of all documents, and favorable legal opinions and records of
corporate proceedings, which the Agent may have reasonably requested in
connection with the Loans and other transactions contemplated by this Agreement.
4.6 Fees. The Agent shall have received the fees to be received on
the Closing Date referred to in subsection 2.2.
4.7 Amendments to Existing Agreements. The conditions to the
effectiveness of the Fourth Amendment to the February 1997 Five-year Agreement
and Amendment and the Third Amendment to the June 1997 364-Day Agreement and
Amendment shall have been satisfied.
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.
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; (iii) Indebtedness incurred pursuant to an accounts receivable
program; and (iv) additional Indebtedness at any time outstanding in an
aggregate principal amount not to exceed 10% of Consolidated Assets.
5.2 Maintenance of Properties; Compliance with Law. Each of the
Company and its Subsidiaries (a) will keep its material properties in good
repair, working order and
28
condition and will from time to time make all necessary and proper repairs,
renewals, replacements, additions and improvements thereto and will comply at
all times with the provisions of all material leases and other material
agreements to which it is a party so as to prevent any loss or forfeiture
thereof or thereunder unless compliance therewith is being currently contested
in good faith by appropriate proceedings and (b) in the case of the Company or
any Subsidiary of the Company while such Person remains a Subsidiary, will do
all things necessary to preserve, renew and keep in full force and effect and in
good standing its corporate existence and franchises necessary to continue such
businesses. The Company and its Subsidiaries will comply in all material
respects with all valid and applicable Requirements of Law (including any such
laws, rules, regulations or governmental orders relating to the protection of
environmental or public or employee health or safety) of the United States, of
the States thereof and their counties, municipalities and other subdivisions and
of any other jurisdiction, applicable to the Company and its Subsidiaries,
except where compliance therewith shall be contested in good faith by
appropriate proceedings, the Company or the Subsidiary in question shall have
set aside on its books appropriate reserves in conformity with GAAP with respect
thereto, and the failure to comply therewith could not reasonably be expected
to, in the aggregate, have a material adverse effect on the business or assets
or on the condition, financial or otherwise, of the Company and its Subsidiaries
on a consolidated basis.
5.3 Transactions with Affiliates. Neither the Company nor any of
its Subsidiaries will enter into any transactions, including, without
limitation, the purchase, sale or exchange of property or the rendering of any
service, with any of their Affiliates (other than the Company and its
Subsidiaries) unless such transaction is otherwise permitted under this
Agreement, is in the ordinary course of the Company's or such Subsidiary's
business and is upon fair and reasonable terms no less favorable to the Company
or such Subsidiary, as the case may be, than it would obtain in an arm's-length
transaction.
5.4 Insurance. The Company will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained, with financially sound and
reputable insurers including any Subsidiary which is engaged in the business of
providing insurance protection, insurance (including, without limitation,
professional liability insurance against claims for malpractice) with respect to
its properties and business and the properties and business of its Subsidiaries
against loss or damage of the kinds customarily insured against of such types
and such amounts as are customarily carried under similar circumstances by other
corporations. Such insurance 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):
29
(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 Responsible Officer of the Company that such Auditor
and Responsible Officer have caused the provisions of this Agreement to be
reviewed and that nothing has come to their attention to lead them to
believe that any Default exists hereunder or, if such is not the case,
specifying such Default or possible Default and the nature thereof. In
addition, such financial statements shall be accompanied by a certificate
of a Responsible Officer of the Company containing computations showing
compliance with subsections 5.6 through 5.8, 5.10, 5.12, 5.14 and 5.15.
(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 through 5.8, 5.10, 5.12, 5.14 and
5.15, 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
30
upon acquiring knowledge thereof, the Company will notify each Bank of the
existence of any Default, including, without limitation, any default in the
payment of any Indebtedness for money borrowed of the Company or any
Subsidiary or under the terms of any agreement relating to such
Indebtedness, specifying the nature of such Default and what action the
Company has taken or is taking or proposes to take with respect thereto.
Promptly upon acquiring knowledge thereof, the Company will notify each
Bank of a change in the publicly announced ratings by S&P and 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, all reports on Form 8-K, 10-Q
or 10-K or any similar form hereafter in use which the Company shall file
with the Securities and Exchange Commission.
(f) Other Information. From time to time upon request of the Agent
or any Bank, the Company will furnish information regarding the business
affairs and condition, financial or otherwise, of the Company and its
Subsidiaries. The Company agrees that any authorized officers and
representatives of any Bank shall have the right during reasonable business
hours to examine the books and records of the Company and its Subsidiaries,
and to make notes and abstracts therefrom, to make an
31
independent examination of its books and records for the purpose of
verifying the accuracy of the reports delivered by the Company and its
Subsidiaries pursuant to this Agreement or otherwise, and ascertaining
compliance with this Agreement.
(g) Confidentiality of Information. Each Bank acknowledges that
some of the information furnished to such Bank pursuant to this subsection
5.5 may be received by such Bank prior to the time it shall have been made
public, and each Bank agrees that it will keep all information so furnished
confidential and shall make no use of such information until it shall have
become public, except (i) in connection with matters involving operations
under or enforcement of this Agreement or the Notes, (ii) in accordance
with each Bank's obligations under law or pursuant to subpoenas or other
process to make information available to governmental agencies and
examiners or to others, (iii) to each Bank's corporate Affiliates and
Transferees and prospective Transferees so long as such Persons agree to be
bound by this subsection 5.5(g) or (iv) with the prior consent of the
Company.
5.6 Ratio of Consolidated Total Debt to Consolidated Total
Capitalization. The Company and its Subsidiaries will not at any time have
outstanding Consolidated Total Debt in an amount in excess of 65% of
Consolidated Total Capitalization.
5.7 Interest Coverage Ratio. On the last day of each fiscal
quarter of the Company, commencing with the fiscal quarter ending December 31,
1998, 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; provided however, that at
any time the Commitments under the February 1997 Five-Year Agreement and
Amendment plus the commitments under the June 1997 364-Day Agreement and
Amendment (or, if such commitments have expired or been terminated, the
outstanding loans thereunder) shall exceed $2,000,000,000 in aggregate amount,
the Company will not purchase, repurchase, redeem or otherwise acquire
(including any "synthetic" acquisitions through equity derivatives) any shares
of any class of capital stock of the Company directly or indirectly through a
Subsidiary or otherwise, except for such acquisitions funded with the proceeds
of Loans made pursuant to this Agreement or the February 1997 Five-Year
Agreement and Amendment in an aggregate principal amount not to exceed
$1,000,000,000.
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.
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5.10 Sales of Assets. The Company and its Subsidiaries may from
time to time sell or otherwise dispose of all or any part of their respective
assets; provided, however, that in any fiscal year, the Company and its
Subsidiaries will not (a) sell or dispose of (including, without limitation, any
disposition resulting from any merger or consolidation involving a Subsidiary of
the Company, and any Sale-and-Leaseback Transaction), outside of the ordinary
course of business, to Persons other than the Company and its Subsidiaries,
assets constituting in the aggregate more than 12% of Consolidated Assets of the
Company and its Subsidiaries as at the end of the immediately preceding fiscal
year (excluding an amount equal to the book value of those assets the Net Cash
Proceeds from the disposition of which have been applied to prepay the
outstanding revolving credit loans under the June 1997 364-Day Agreement and
Amendment in accordance with subsection 2.18 thereof) and (b) exchange with any
Persons other than the Company and its Subsidiaries any asset or group of assets
for another asset or group of assets unless (i) such asset or group of assets
are exchanged for an asset or group of assets of a substantially similar type or
nature, (ii) on a pro forma basis both before and after giving effect to such
exchange, no Default or Event of Default shall have occurred and be continuing,
(iii) the aggregate fair market value (as determined in good faith by the Board
of Directors of the Company) of the asset or group of assets being transferred
by the Company or such Subsidiary and the asset or group of assets being
acquired by the Company or such Subsidiary are substantially equal and (iv) the
aggregate of (x) all assets of the Company and its Subsidiaries sold pursuant to
subsection 5.10(a) (including, without limitation, any disposition resulting
from any merger or consolidation involving a Subsidiary of the Company, and any
Sale-and-Leaseback Transaction) (excluding an amount equal to the book value of
those assets the Net Cash Proceeds from the disposition of which have been
applied to prepay the outstanding revolving credit loans under the June 1997
364-Day Agreement and Amendment in accordance with subsection 2.18 thereof) 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 provided for in Section 4068 of ERISA to attach to the assets of the
Company or any of its Subsidiaries.
33
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 and the Company will not create or have
outstanding any security on or over the capital stock of any of its Subsidiaries
that own a Principal Property and will ensure that no Subsidiary will create or
have outstanding any security on or over the capital stock of any of its
respective Subsidiaries that own a Principal Property except in either case for:
(a) any security for the purchase price or cost of construction of
real property acquired by the Company or any of its Subsidiaries (or
additions, substantial repairs, alterations or substantial improvements
thereto) or equipment, provided that such Indebtedness and such security
are incurred within 18 months of the acquisition or completion of
construction (or alteration or repair) and full operation;
(b) any security existing on property or on capital stock, as the
case may be, at the time of acquisition of such property or capital stock,
as the case maybe, by the Company or a Subsidiary or on the property or
capital stock, as the case may be, of a corporation at the time of the
acquisition of such corporation by the Company or a Subsidiary (including
acquisitions through merger or consolidation);
(c) any security created in favor of the Company or a Subsidiary;
(d) any security created by operation of law in favor of government
agencies of the United States of America or any State thereof;
(e) any security created in connection with the borrowing of funds
if within 120 days such funds are used to repay Indebtedness in at least
the same principal amount as secured by other security of Principal
Property or capital stock of a Subsidiary that owns a Principal Property,
as the case may be, with an independent appraised fair market value at
least equal to the appraised fair market value of the Principal Property or
capital stock of a Subsidiary that owns a Principal Property, as the case
may be, secured by the new security; and
(f) any extension, renewal or replacement of any security referred
to in the foregoing clauses (a) through (e) provided that the amount
thereby secured is not increased;
unless any Loans made and/or to be made to and all other sums payable by the
Company under this Agreement shall be secured equally and ratably with (or prior
to) such Indebtedness so long as such Indebtedness shall be so secured.
Notwithstanding the foregoing, the Company and any one or more Subsidiaries may,
without securing the Loans made and/or to be made to and all other sums payable
by the Company under this Agreement, create, issue or assume Indebtedness which
would otherwise be subject to the foregoing restrictions in an aggregate
principal amount which, together with all other such Indebtedness of the Company
and its Subsidiaries (not including Indebtedness permitted to be secured
pursuant to the foregoing clauses (a) through (f) and the aggregate Attributable
Debt),
34
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
(f) to incur Indebtedness secured by a security on the property to be leased
without equally and ratably securing the Loans made and/or to be made to and all
other sums payable by the Company under this Agreement, or (b) the Company
during or immediately after the expiration of 120 days after the effective date
of such transaction applies to the voluntary retirement of its Indebtedness
and/or the acquisition or construction of Principal Property an amount equal to
the greater of the net proceeds of the sale of the property leased in such
transaction or the fair value in the opinion of the chief financial officer of
the Company of the leased property at the time such transaction was entered
into.
5.14 Maximum Consolidated Total Debt. The Company and its
Subsidiaries will not at any time to and including September 30, 1998 have
outstanding Consolidated Total Debt in an amount in excess of $10,000,000,000.
5.15 Minimum Consolidated Earnings Before Interest, Taxes,
Depreciation and Amortization. The Consolidated Earnings Before Interest,
Taxes, Depreciation and Amortization of the Company and its Subsidiaries will
be, for each period specified below, an amount which equals or exceeds the
amount set forth opposite such period:
Period Amount
------ ------
Two fiscal quarters ending
June 30, 1998 $1,500,000,000
Three fiscal quarters
ending September 30, 1998 $2,250,000,000
5.16 Limitation on Optional Payments and Modifications of Debt
Instruments. At any time the commitments under the February 1997 Five-Year
Agreement and Amendment plus the commitments under the June 1997 364-Day
Agreement and Amendment (or, if such commitments have expired or been
terminated, the outstanding loans thereunder) exceed $2,000,000,000 in aggregate
amount, the Company will not make, and will not permit any of its Subsidiaries
to make, any optional payment or prepayment on or redemption, defeasance or
purchase of any Indebtedness of the Company or any of its Subsidiaries (other
than Indebtedness under this Agreement, the February 1997 Five-Year Agreement
and Amendment or under the June 1997 364-Day Agreement and Amendment or under
Financing Leases in an aggregate amount not to exceed $50,000,000 in any fiscal
year of the Company), or amend, modify or change, or consent or agree to any
amendment, modification or change to any of
35
the terms relating to the payment or prepayment or principal of or interest on,
any such Indebtedness, other than any amendment, modification or change which
would extend the maturity or reduce the amount of any payment of principal
thereof or which would reduce the rate or extend the date for payment of
interest thereon or which would not be adverse to the Banks.
SECTION 6. DEFAULTS
6.1 Events of Default. Upon the occurrence of any of the following
events:
(a) any default shall be made by the Company in any payment in
respect of: (i) interest payable hereunder as the same shall become due and
such default shall continue for a period of five days; or (ii) principal of
any of the Indebtedness hereunder or evidenced by the Notes as the same
shall become due, whether at maturity, by prepayment, by acceleration or
otherwise; or
(b) any default shall be made by either the Company or any
Subsidiary of the Company in the performance or observance of any of the
provisions of subsections 5.6 through 5.10 and 5.12 through 5.15; or
(c) any default shall be made in the due performance or observance
of any other covenant, agreement or provision to be performed or observed
by either the Company or any Subsidiary under this Agreement, and such
default shall not be rectified or cured to the satisfaction of the Required
Banks within a period expiring 30 days after written notice thereof by the
Agent to the Company; or
(d) any representation or warranty of or with respect to the
Company or any Subsidiary of the Company to the Banks in connection with
this Agreement shall have 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
36
Required Banks for a period of 30 days after written notice thereof by the
Agent to the Company; or
(f) either the Company or any Significant Subsidiary shall be
involved in financial difficulties as evidenced:
(i) by its commencement of a voluntary case under Title 11
of the United States Code as from time to time in effect, or by its
authorizing, by appropriate proceedings of its board of directors or
other governing body, the commencement of such a voluntary case;
(ii) by the filing against it of a petition commencing an
involuntary case under said Title 11 which shall not have been
dismissed within 60 days after the date on which said petition is
filed or by its filing an answer or other pleading within said 60-
day period admitting or failing to deny the material allegations of
such a petition or seeking, consenting or acquiescing in the relief
therein provided;
(iii) by the entry of an order for relief in any involuntary
case commenced under said Title 11;
(iv) by its seeking relief as a debtor under any applicable
law, other than said Title 11, of any jurisdiction relating to the
liquidation or reorganization of debtors or to the modification or
alteration of the rights of creditors, or by its consenting to or
acquiescing in such relief;
(v) by the entry of an order by a court of competent
jurisdiction (i) finding it to be bankrupt or insolvent, (ii)
ordering or approving its liquidation, reorganization or any
modification or alteration of the rights of its creditors, or (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
37
obligations of the Banks to make the Loans hereunder, and thereupon such
obligations shall terminate forthwith and (z) (unless there shall have occurred
an Event of Default under subsection 6.1(f), in which case the obligations of
the Banks to make the Loans hereunder shall automatically terminate and the
unpaid balance of the Indebtedness hereunder and accrued interest thereon and
all other amounts payable hereunder (the "Bank Obligations") shall automatically
become due and payable) the Agent may, with the consent of the Required Banks,
or shall, at the direction of the Required Banks, by notice in writing to the
Company declare all or any part of the unpaid balance of the Bank Obligations
then outstanding to be forthwith due and payable, and thereupon such unpaid
balance or part thereof shall become so due and payable without presentment,
protest or further demand or notice of any kind, all of which are hereby
expressly waived, the obligations of the Banks to make further Loans hereunder
shall terminate forthwith, and the Agent may, with the consent of the Required
Banks, or shall, at the direction of the Required Banks, proceed to enforce
payment of such balance or part thereof in such manner as the Agent may elect,
and each Bank may offset and apply toward the payment of such balance or part
thereof, and to the curing of any such Event of Default, any Indebtedness from
such Bank to the Company, including any Indebtedness represented by deposits in
any general or special account maintained with such Bank.
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 hereunder or evidenced by the Notes, (b) any requirement of
diligence or promptness on the part of any Bank in the enforcement of its rights
under the provisions of this Agreement or any Note, and (c) any and all notices
of every kind and description which may be required to be given by any statute
or rule of law and any defense of any kind which the Company may now or
hereafter have with respect to its liability under this Agreement or any Note.
6.4 Course of Dealing. No course of dealing between the Company
and any Bank shall operate as a waiver of any of the Banks' rights under this
Agreement or any Note. No delay or omission on the part of any Bank in
exercising any right under this Agreement or any Note or with respect to any of
the Bank Obligations shall operate as a waiver of such right or any other right
hereunder. A waiver on any one occasion shall not be construed as a bar to or
waiver of any right or remedy on any future occasion. No waiver or consent shall
be binding upon any Bank unless it is in writing and signed by the Agent or such
of the Banks as may be required by the provisions of this Agreement. The making
of a Loan hereunder during the existence of a Default shall not constitute a
waiver thereof.
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SECTION 7. THE AGENT
7.1 Appointment. Each Bank hereby irrevocably designates and
appoints Chase as the Agent of such Bank under this Agreement, and each such
Bank irrevocably authorizes Chase, as the Agent for such Bank, to take such
action on its behalf under the provisions of this Agreement and to exercise such
powers and perform such duties as are expressly delegated to the Agent, by the
terms of this Agreement, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Agent shall not have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with any Bank,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against the
Agent.
7.2 Delegation of Duties. The Agent may execute any of its duties
under this Agreement by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
The Agent shall not be responsible for the negligence or misconduct of any
agents or attorneys-in-fact selected by it with reasonable care.
7.3 Exculpatory Provisions. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(a) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement (except for its or such
Person's own gross negligence or willful misconduct), or (b) responsible in any
manner to any of the Banks for any recitals, statements, representations or
warranties made by the Company or any officer thereof contained in this
Agreement or in any certificate, report, statement or other document referred to
or provided for in, or received by the Agent under or in connection with, this
Agreement or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or the Notes or for any failure of the Company
to perform its obligations hereunder. The Agent shall not be under any
obligation to any Bank to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement, or to inspect the properties, books or records of the Company.
7.4 Reliance by Agent. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any Note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Company), independent accountants and other
experts selected by the Agent. The Agent may deem and treat the payee of any
Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Agent. The Agent shall be fully justified in failing or refusing to take any
action under this Agreement unless it shall first receive such advice or
concurrence of the Required Banks as it deems appropriate or it shall first be
indemnified to its satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Agent
39
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement and the Notes in accordance with a request of the Required
Banks, and such request and any action taken or failure to act pursuant thereto
shall be binding upon all the Banks and all future holders of the Notes.
7.5 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received notice from a Bank or the Company
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the Agent
receives such a notice, the Agent shall promptly give notice thereof to the
Banks. The Agent shall take such action with respect to such Default or Event
of Default as shall be reasonably directed by the Required Banks; provided that,
unless and until the Agent shall have received such directions, the Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Banks.
7.6 Non-Reliance on Agent and Other Banks. Each Bank expressly
acknowledges that neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representations
or warranties to it and that no act by the Agent hereinafter taken, including
any review of the affairs of the Company, shall be deemed to constitute any
representation or warranty by the Agent to any Bank. Each Bank represents to
the Agent that it has, independently and without reliance upon the Agent or any
other Bank, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Company and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Bank also represents that it will, independently and
without reliance upon the Agent or any other Bank, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Company. Except for notices, reports and
other documents expressly required to be furnished to the Banks by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the business, operations,
property, financial and other condition or creditworthiness of the Company which
may come into the possession of the Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
7.7 Indemnification. The Banks agree to indemnify the Agent in its
capacity as such (to the extent not reimbursed by the Company and without
limiting the obligation of the Company to do so), ratably according to the
respective amounts of their then existing Loans hereunder, from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time (including without limitation at any time following the payment
of the Indebtedness hereunder or pursuant to the Notes) be imposed on, incurred
by or asserted against the Agent in any way relating to or arising out of this
Agreement, or any documents
40
contemplated by or referred to herein or the transactions contemplated hereby or
any action taken or omitted by the Agent under or in connection with any of the
foregoing; provided that no Bank shall be liable for the payment of any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting solely from the
Agent's gross negligence or willful misconduct. The agreements in this
subsection shall survive the payment of the Notes and all other amounts payable
hereunder.
7.8 Agent in Its Individual Capacity. The Agent and its Affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with the Company as though the Agent was not the Agent hereunder. With
respect to its Loans made or renewed by it and any Note issued to it, the Agent
shall have the same rights and powers under this Agreement as any Bank and may
exercise the same as though it were not the Agent, and the terms "Bank" and
"Banks" shall include the Agent in its individual capacity.
7.9 Successor Agent. The Agent may resign as Agent, as the case
may be, upon 10 days' notice to the Banks. If the Agent shall resign as Agent,
under this Agreement, then the Required Banks shall appoint from among the Banks
a successor agent for the Banks which successor agent shall be approved by the
Company, whereupon such successor agent shall succeed to the rights, powers and
duties of the Agent, and the term "Agent" shall mean such successor agent
effective upon its appointment, and the former Agent's rights, powers and duties
as Agent shall be terminated, without any other or further act or deed on the
part of such former Agent or any of the parties to this Agreement or any holders
of the Notes. After any retiring Agent's resignation hereunder as Agent, the
provisions of this subsection 7.9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
SECTION 8. MISCELLANEOUS
8.1 Amendments and Waivers. Neither this Agreement, any Note, nor
any terms hereof or thereof may be amended, supplemented or modified except in
accordance with the provisions of this subsection. With the written consent of
the Required Banks, the Agent and the Company may, from time to time, enter into
written amendments, supplements or modifications hereto for the purpose of
adding any provisions to this Agreement or the Notes or changing in any manner
the rights of the Banks or of the Company hereunder or thereunder or waiving, on
such terms and conditions as the Agent may specify in such instrument, any of
the requirements of this Agreement or the Notes or any Default or Event of
Default and its consequences; provided, however, that no such waiver and no such
amendment, supplement or modification shall (a) extend the maturity (whether as
stated, by acceleration or otherwise) of any Indebtedness hereunder, or reduce
the rate or extend the time of payment of interest thereon, or reduce any fee
payable to the Banks hereunder, or reduce the principal amount thereof, or
change the amount of any Bank's Commitment or amend, modify or waive any
provision of this subsection 8.1 or reduce the percentage specified in the
definition of Required Banks, or consent to the assignment or transfer by the
Company of any of its rights and obligations under this Agreement, in each case
without the written consent of each Bank directly affected thereby, or (b)
amend, modify or waive any
41
provision of Section 7 without the written consent of the then Agent. Any such
waiver and any such amendment, supplement or modification shall apply equally to
each of the Banks and shall be binding upon the Company, the Banks, the Agent
and all future holders of the Notes. In the case of any waiver, the Company,
the Banks and the Agent shall be restored to their former position and rights
hereunder and under the outstanding Notes, and any Default or Event of Default
waived shall be deemed to be cured and not continuing; but no such waiver shall
extend to any subsequent or other Default or Event of Default, or impair any
right consequent thereon.
8.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
sent, confirmation of receipt received, addressed as follows in the case of the
Company and the Agent and as set forth in Schedule I in the case of the other
parties hereto, or to such other address as may be hereafter notified by the
respective parties hereto and any future holders of the Notes:
The Company: Columbia/HCA Healthcare Corporation
One Park Plaza
Nashville, Tennessee 37203
Attention: David Anderson
Telecopy: (615) 344-2015
The Agent: The Chase Manhattan Bank
270 Park Avenue - 48th Floor
New York, New York 10017
Attention: Dawn Lee Lum
Telecopy: (212) 270-3279
with a copy to: Chase Agent Bank Services
1 Chase Manhattan Plaza - 8th Floor
New York, New York 10081
Attention: Janet Belden
Telecopy: (212) 552-5658
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.
42
8.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the Notes.
8.5 Payment of Expenses and Taxes; Indemnity. (a) The Company
agrees (i) to pay or reimburse the Agent for all its reasonable out-of-pocket
costs and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the Notes and any other documents prepared in connection herewith, and the
consummation of the transactions contemplated hereby and thereby, including,
without limitation, the reasonable fees and disbursements of counsel to the
Agent, (ii) to pay or reimburse each Bank and the Agent for all their reasonable
costs and expenses incurred in connection with the enforcement or preservation
of any rights under this Agreement, the Notes and any such other documents,
including, without limitation, reasonable fees and disbursements of counsel to
the Agent and to each of the Banks and (iii) to pay, indemnify, and hold each
Bank and the Agent harmless from, any and all recording and filing fees and any
and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation of any
of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this
Agreement, the Notes and any such other documents.
(b) The Company will indemnify each of the Agent and the Banks and
the directors, officers and employees thereof and each Person, if any, who
controls each one of the Agent and the Banks (any of the foregoing, an
"Indemnified Person") and hold each Indemnified Person harmless from and against
any and all claims, damages, liabilities and expenses (including without
limitation all fees and disbursements of counsel with whom an Indemnified Person
may consult in connection therewith and all expenses of litigation or
preparation therefor) which an Indemnified Person may incur or which may be
asserted against it in connection with any litigation or investigation involving
this Agreement, the use of any proceeds of any Loans under this Agreement by the
Company or any Subsidiary, any officer, director or employee thereof other than
litigation commenced by the Company against any of the Agent or the Banks which
(i) seeks enforcement of any of the Company's rights hereunder and (ii) is
determined adversely to any of the Agent or the Banks.
(c) The agreements in this subsection 8.5 shall survive repayment
of the Notes and all other amounts payable hereunder.
8.6 Successors and Assigns; Participations; Purchasing Banks. (a)
This Agreement shall be binding upon and inure to the benefit of the Company,
the Banks, the Agent, all future holders of the Notes and their respective
successors and assigns, except that the Company may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of each Bank.
43
(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 2.11, 2.12 and 2.14 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 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 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
44
resulting adjustment of Commitment Percentages arising from the purchase by such
Purchasing Bank of all or a portion of the rights and obligations of such
transferor Bank under this Agreement and the Notes. Upon the consummation of
any transfer to a Purchasing Bank, pursuant to this subsection 8.6(c), the
transferor Bank, the Agent and the Company shall make appropriate arrangements
so that, if required, replacement Notes are issued to such transferor Bank and
new Notes or, as appropriate, replacement Notes, are issued to such Purchasing
Bank, in each case in principal amounts reflecting their Commitment Percentages
or, as appropriate, their outstanding Loans as adjusted pursuant to such
Commitment Transfer Supplement.
(d) The Agent shall maintain at its address referred to in
subsection 8.2 a copy of each Commitment Transfer Supplement delivered to it and
a register (the "Register") for the recordation of the names and addresses of
the Banks and the Commitment of, and principal amount of the Loans owing to,
each Bank from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Company, the Agent and the Banks may
treat each Person whose name is recorded in the Register as the owner of the
Loan recorded therein for all purposes of this Agreement. The Register shall be
available for inspection by the Company or any Bank at any reasonable time and
from time to time upon reasonable prior notice.
(e) Upon its receipt of a Commitment Transfer Supplement executed
by a transferor Bank and a Purchasing Bank (and, in the case of a Purchasing
Bank that is not then a Bank or an affiliate thereof, by the Company and the
Agent) together with payment to the Agent of a registration and processing fee
of $2,500, the Agent shall (i) promptly accept such Commitment Transfer
Supplement (ii) on the Transfer Effective Date determined pursuant thereto
record the information contained therein in the Register and give notice of such
acceptance and recordation to the Banks and the Company.
(f) Subject to subsection 5.5(g), the Company authorizes each Bank
to disclose to any Participant or Purchasing Bank (each, a "Transferee") and any
prospective Transferee any and all financial information in such Bank's
possession concerning the Company which has been delivered to such Bank by the
Company pursuant to this Agreement or which has been delivered to such Bank by
the Company in connection with such Bank's credit evaluation of the Company
prior to entering into this Agreement.
(g) If, pursuant to this subsection 8.6, any interest in this
Agreement or any Note is transferred to any Transferee which is organized under
the laws of any jurisdiction other than the United States or any State thereof,
the transferor Bank shall cause such Transferee, concurrently with the
effectiveness of such transfer, (i) to represent to the transferor Bank (for the
benefit of the transferor Bank, the Agent and the Company) that under applicable
law and treaties no taxes will be required to be withheld by the Agent, the
Company or the transferor Bank with respect to any payments to be made to such
Transferee in respect of the Loans, (ii) to furnish to the transferor Bank (and,
in the case of any Purchasing Bank registered in the Register, the Agent and the
Company) either U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue
Service Form 1001 (wherein such Transferee claims entitlement to complete
exemption from U.S. federal withholding tax on all
45
interest payments hereunder) and (iii) to agree (for the benefit of the
transferor Bank, to provide the transferor Bank (and, in the case of any
Purchasing Bank registered in the Register, the Agent and the Company) a new
form 4224 or Form 1001 upon the obsolescence of any previously delivered form
and comparable statements in accordance with applicable U.S. laws and
regulations and amendments duly executed and completed by such Transferee, and
to comply from time to time with all applicable U.S. laws and regulations with
regard to such withholding tax exemption.
(h) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection 8.6 concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including any pledge or
assignment by a Bank of any Loan or Note to any Federal Reserve Bank in
accordance with applicable law.
8.7 Adjustments; Set-off. If any Bank (a "Benefitted Bank") shall
at any time receive any payment of all or part of its Loans, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by offset, pursuant to events or proceedings of the nature
referred to in subsection 6.1(f), or otherwise) in a greater proportion than any
such payment to and collateral received by any other Bank, if any, in respect of
such other Bank's Loans, or interest thereon, such Benefitted Bank shall
purchase for cash from the other Banks such portion of each such other Bank's
Loans, or shall provide such other Banks with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefitted Bank to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Banks; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
Benefitted Bank, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest. The
Company agrees that each Bank so purchasing a portion of another Bank's Loan may
exercise all rights of a payment (including, without limitation, rights of
offset) with respect to such portion as fully as if such Bank were the direct
holder of such portion.
8.8 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Company and the Agent.
8.9 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
8.10 WAIVERS OF JURY TRIAL. THE COMPANY, THE AGENT AND THE BANKS
EACH HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING
46
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.
47
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
COLUMBIA/HCA HEALTHCARE CORPORATION
By: /s/ David G. Anderson
-----------------------------------------
Name: David G. Anderson
Title: Vice President Finance and
Treasurer
THE CHASE MANHATTAN BANK, as Agent and as a
Bank
By: /s/ Dawn Lee Lum
-----------------------------------------
Name: Dawn Lee Lum
Title: Vice President
ABN AMRO BANK N.V., as a Bank
By: /s/ Thomas S. Thornhill
-----------------------------------------
Name: Thomas S. Thornhill
Title: Group Vice President
By: /s/ Larry K. Kelley
-----------------------------------------
Name: Larry K. Kelley
Title: Group Vice President
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Co-Agent
By: /s/ J. Gregory Seibly
-----------------------------------------
Name: J. Gregory Seibly
Title: Vice President
48
THE BANK OF NEW YORK, as Co-Agent
By: /s/ Ann Marie Hughes
------------------------------------------
Name: Ann Marie Hughes
Title: Vice President
THE BANK OF NOVA SCOTIA, as Co-Syndication
Agent and as a Bank
By: /s/ W.J. Brown
------------------------------------------
Name: W.J. Brown
Title: Vice President
DEUTSCHE BANK SECURITIES, INC.,
as Co-Syndication Agent
By: /s/ Jean M. Hannigan Iain Stewart
------------------------------------------
Name: Jean M. Hannigan Iain Stewart
Title: Vice President Vice President
DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN
ISLANDS BRANCH(ES), as a Bank
By: /s/ Jean M. Hannigan Susan L. Pearson
------------------------------------------
Name: Jean M. Hannigan Susan L. Pearson
Title: Vice President Director
FIRST AMERICAN NATIONAL BANK, as a Bank
By: /s/ Sandy Hamrick
------------------------------------------
Name: Sandy Hamrick
Title: Senior Vice President
49
THE FIRST NATIONAL BANK OF CHICAGO,
as Co-Agent
By: /s/ L. Richard Schiller
-----------------------------------------
Name: L. Richard Schiller
Title: Vice President
FIRST UNION NATIONAL BANK, as a Bank
By: /s/ James A. Hobensack
-----------------------------------------
Name: James A. Hobensack
Title: Senior Vice President
FLEET NATIONAL BANK, as Co-Agent
By: /s/ Maryann S. Smith
-----------------------------------------
Name: Maryann S. Smith
Title: Vice President
KEYBANK NATIONAL ASSOCIATION, as a Bank
By: /s/ Thomas J. Purcell
-----------------------------------------
Name: Thomas J. Purcell
Title: Vice President
NATIONSBANK, N.A. as Documentation Agent and
as a Bank
By: /s/ Kevin Wagley
-----------------------------------------
Name: Kevin Wagley
Title: Vice President
50
SUNTRUST BANK, NASHVILLE, N.A., as a Bank
By: /s/ Mark D. Mattson
-----------------------------------------
Name: Mark D. Mattson
Title: Vice President
TORONTO DOMINION (TEXAS), INC., as Co-Agent
By: /s/ Jorge A. Garcia
-----------------------------------------
Name: Jorge A. Garcia
Title: Vice President
UNION PLANTERS BANK OF MIDDLE TENNESSEE,
N.A., as a Bank
By: /s/ William A. Collier
-----------------------------------------
Name: William A. Collier
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A., as Co-Agent
By: /s/ Kenneth Washington
-----------------------------------------
Name: Kenneth Washington
Title: Vice President