EXHIBIT 1
COLUMBIA/HCA HEALTHCARE CORPORATION
Medium-Term Notes
Due Nine Months or More from Date of Issue
DISTRIBUTION AGREEMENT
July 11, 1994
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
SALOMON BROTHERS INC
Dear Sirs:
Columbia/HCA Healthcare Corporation, a Delaware corporation (the
"Company"), confirms its agreement with Goldman, Sachs & Co., Lehman Brothers
Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co.
Incorporated and Salomon Brothers Inc (individually, an "Agent", and
collectively, the "Agents") with respect to the issue and sale by the Company of
its Medium-Term Notes described herein (the "Notes"). The Notes are to be
issued pursuant to an indenture (the "Indenture") dated as of December 15, 1993
between the Company and The First National Bank of Chicago, as trustee (the
"Trustee"). As of the date hereof, the Company has authorized the issuance and
sale of up to $1,525,000,000 initial offering price (or its equivalent, based
upon the applicable exchange rate at the time of issuance, in such foreign or
composite currencies as the Company shall designate at the time of issuance) of
Notes to or through the Agents pursuant to the terms of this Agreement. It is
understood, however, that the Company may from time to time authorize the
issuance of additional Notes and that such additional Notes may be sold to or
through the Agents pursuant to the terms of this Agreement, all as though the
issuance of such Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company to the
Agents as principal for resale to investors and other purchasers and for the
sale of Notes by the Company directly to investors (as may from time to time be
agreed to by the Company and the Agents), in which case the Agents will act as
an agent of the Company in soliciting Note purchases.
The Company has filed with the Securities and Exchange Commission (the
"SEC') a registration statement on Form S-3 (No. 33-53409) for the registration
of debt securities, including the Notes, under the Securities Act of 1933, as
amended (the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the SEC under the 1933
Act (the "1933 Act Regulations"). Such registration statement has been declared
effective by the SEC and the Indenture has been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). Such registration statement
(and any further registration statements which may be filed by the Company for
the purpose of registering additional Notes and in connection with which this
Agreement is included or incorporated by reference as an exhibit) and the
prospectus constituting a part thereof, and any prospectus supplements relating
to the Notes, including all documents incorporated therein by reference, as from
time to time amended or supplemented by the filing of documents pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), or the 1933 Act or
otherwise, are referred to herein as the "Registration Statement" and the
"Prospectus", respectively, except that if any revised prospectus shall be
provided to the Agents by the Company for use in connection with the offering of
the Notes, whether or not such revised prospectus is required to be filed by the
Company pursuant to Rule 424(b) of the 1933 Act Regulations, the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Agents for such use.
SECTION 1. Appointment as Agents.
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(a) Appointment. Subject to the terms and conditions stated herein and
subject to the reservation by the Company of the right to sell Notes directly on
its own behalf, the Company hereby appoints each of the Agents as the agents of
the Company for the purpose of soliciting or receiving offers to purchase the
Notes from the Company by others. The Company reserves the right to sell Notes
directly on its own behalf to investors and to appoint additional agents to
solicit sales of the Notes, provided that any such solicitation and sale of the
Notes shall be on substantially the same terms and conditions contained in this
Agreement. In performing its obligations under this Agreement, regardless of
whether it is soliciting offers to purchase the Notes from the Company as its
agent or purchasing Notes from the Company as principal, each Agent is acting
individually and not jointly.
(b) Sale of Notes. The Company shall not sell or approve the solicitation
of purchases of Notes in excess of the amount that shall be authorized by the
Company from time to time or in excess of the principal amount of Notes
registered pursuant to the Registration Statement. The Agents will have no
responsibility for maintaining records with respect to the aggregate principal
amount of Notes sold, or of otherwise monitoring the availability of Notes for
sale, under the Registration Statement.
(c) Purchases as Principal. No Agent shall have any obligation to purchase
Notes from the Company as principal, but any Agent may agree from time to time
to purchase Notes as principal. Any such purchase of Notes by an Agent as
principal shall be made in accordance with Section 3(a) hereof.
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(d) Solicitations as Agent. If agreed upon by an Agent and the Company, an
Agent, acting solely as agent for the Company and not as principal, will solicit
purchases of the Notes. Such Agent will communicate to the Company, orally,
each offer to purchase Notes solicited by such Agent on an agency basis, other
than those offers rejected by such Agent. Such Agent shall have the right, in
its discretion reasonably exercised, to reject any proposed purchase of Notes,
as a whole or in part, and any such rejection shall not be deemed a breach of
the Agent's agreement contained herein. The Company may accept or reject any
proposed purchase of Notes, in whole or in part. The Agent shall make
reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by such Agent and
accepted by the Company. The Agent shall not have any liability to the Company
in the event any such agency purchase is not consummated for any reason. If the
Company shall default on its obligation to deliver Notes to a purchaser whose
offer it has accepted, the Company shall (i) hold such Agent harmless against
any loss, claim or damage arising from or as a result of such default by the
Company and (ii) notwithstanding such default, pay to such Agent any commission
to which it would be entitled in connection with such sale.
(e) Reliance. The Company and the Agents agree that any Notes purchased by
an Agent shall be purchased, and any Notes the placement of which an Agent
arranges shall be placed by the Agent, in reliance on the representations,
warranties, covenants and agreements of the Company contained herein and on the
terms and conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
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(a) Representations and Warranties. The Company represents and warrants to
the Agents as of the date hereon, as of the date of each acceptance by the
Company of an offer for the purchase of Notes (whether to an Agent as principal
or through an Agent as agent), as of the date of each delivery of Notes (whether
to an Agent as principal or through an Agent as agent) (the date of each such
delivery to an Agent as principal being hereafter referred to as a "Settlement
Date"), and as of any time that the Registration Statement or the Prospectus
shall be amended or supplemented or there is filed with the SEC any document
incorporated by reference into the Prospectus (each of the times referenced
above being referred to herein as a "Representation Date") as follows:
(i) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the SEC.
(ii) (a) Each document, if any, filed or to be filed pursuant to the 1934
Act and incorporated by reference in the Prospectus complied or will comply when
so filed in all material respects with the 1934 Act and the applicable rules and
regulations of the SEC thereunder, (b) each part of the Registration Statement,
when such part became effective, did not contain, and each such part, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (c) the Registration
Statement and
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the Prospectus comply, and, as amended or supplemented, if applicable, will
comply in all material respects with the 1933 Act and the 1933 Act Regulations,
and (d) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this Section 1(b) do not apply (A)
to statements or omissions in the Registration Statement or the Prospectus based
upon information relating to any Agent furnished to the Company in writing by
such Agent expressly for use therein or (B) to that part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1) under the
1939 Act of the Trustee.
(iii) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
Subsidiaries (as hereinafter defined), taken as a whole.
(iv) Each direct and indirect subsidiary of the Company (the "Corporate
Subsidiaries") has been duly incorporated, is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
Subsidiaries, taken as a whole.
(v) Each of the partnerships owned or controlled, directly or indirectly,
by the Company (the "Partnerships," and together with the Corporate
Subsidiaries, the "Subsidiaries") has been duly formed and is validly existing
under the laws of its jurisdiction of formation and has the partnership power
and authority to carry on its business as it is currently being conducted and to
own, lease and operate its properties, and each is duly qualified as a foreign
partnership authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the Company and its Subsidiaries, taken as a whole.
(vi) This Agreement has been duly authorized, executed and delivered by the
Company.
(vii) The Indenture has been duly qualified under the 1939 Act and has
been duly authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting
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creditors' rights generally and (b) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability.
(viii) The Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the purchasers thereof in accordance with the terms of this
Agreement, will be entitled to the benefits of the Indenture, and will be valid
and binding obligations of the Company, in each case enforceable against the
Company in accordance with their respective terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (b) rights of acceleration, if any,
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
(ix) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement, the Indenture, and the
Notes will not contravene any provision of applicable law or the certificate of
incorporation or bylaws of the Company or any agreement or other instrument
binding upon the Company or any of its Subsidiaries that is material to the
Company and its Subsidiaries, taken as a whole, or any judgment, order or decree
of any governmental body, agency or court having jurisdiction over the Company
or any subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture, or the Notes except such as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and sale of the
Notes.
(x) There has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
Subsidiaries, taken as a whole, from that set forth in the Prospectus.
(xi) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of its
Subsidiaries is a party or to which any of the properties of the Company or any
of its Subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration Statement that are not
described, filed or incorporated as required.
(xii) The Company is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the Investment Company
Act of 1940, as amended.
(xiii) The Company and its Subsidiaries are (a) in compliance with any and
all applicable foreign, federal, state and local laws and regulations relating
to the protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental Laws"),
(b) have received all permits, licenses or other
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approvals required of them under applicable Environmental Laws to conduct their
respective businesses, and (c) are in compliance with all terms and conditions
of any such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a material
adverse effect on the Company and its Subsidiaries, taken as a whole.
(xiv) In the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on the business, operations
and properties of the Company and its Subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up, closure
of properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review, the Company has
reasonably concluded that such associated costs and liabilities would not,
singly or in the aggregate, have a material adverse effect on the Company and
its Subsidiaries, taken as a whole.
(xv) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
(b) Additional Certifications. Any certificate signed by any director or
officer of the Company and delivered to an Agent or to counsel for an Agent in
connection with an offering of Notes through such Agent as agent or the sale of
Notes to an Agent as principal shall be deemed a representation and warranty by
the Company to such Agent as to the matters covered thereby on the date of such
certificate and at each Representation Date subsequent thereto.
SECTION 3. Solicitations as Agent; Purchases as Principal.
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(a) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and an Agent, such Agent, as an agent of the
Company, will use its reasonable efforts to solicit offers to purchase the Notes
upon the terms and conditions set forth herein and in the Prospectus. All Notes
sold through an Agent as agent will be sold at 100% of their principal amount
unless otherwise agreed to by the Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through any Agent, as agent, commencing
at any time for any period of time or permanently. Upon receipt of instructions
from the Company, such Agent will forthwith suspend solicitation of purchases
from the Company until such time as the Company has advised the Agent that such
solicitation may be resumed.
The Company agrees to pay such Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by such Agent as set
forth in Schedule A hereto.
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(b) Purchases as Principal. Such purchases shall be made in accordance
with terms agreed upon by such Agent and the Company (which terms, unless
otherwise agreed, shall be agreed upon orally, with written confirmation
prepared by such Agent and mailed or telecopied to the Company). An Agent's
commitment to purchase Notes as principal shall be deemed to have been made on
the basis of the representations and warranties of the Company herein contained
and shall be subject to the terms and conditions herein set forth. Each
purchase of Notes, unless otherwise agreed, shall be at a discount from the
principal amount of each such Note equivalent to the applicable commission set
forth in Schedule A hereto. An Agent may engage the services of any other
broker or dealer in connection with the resale of the Notes purchased as
principal and may allow any portion of the discount received in connection with
such purchases from the Company to such brokers and dealers. At the time of
each purchase of Notes by an Agent as principal, such Agent shall specify the
requirements for the stand-off agreement, officer's certificate, opinion of
counsel and comfort letter pursuant to Sections 4(k), 7(b), 7(c) and 7(d)
hereof.
(c) Administrative Procedures. The purchase price, interest rate or
formula, maturity date and other terms of the Notes (as applicable) specified in
Exhibit A hereto shall be agreed upon by the Company and any Agent and set forth
in a pricing supplement to the Prospectus to be prepared in connection with each
sale of Notes. Except as may be otherwise provided in such supplement to the
Prospectus, the Notes will be issued in denominations of $1,000 or any larger
amount that is an integral multiple of $1,000. Administrative procedures with
respect to the sale of Notes shall be agreed upon from time to time by the
Agents, the Company and the Trustee (the "Procedures"). The Agents and the
Company agree to perform the respective duties and obligations specifically
provided to be performed by them in the Procedures.
SECTION 4. Covenants of the Company.
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The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company will notify the Agents
immediately (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the SEC for filing of any supplement to
the Prospectus or any document to be filed pursuant to the 1934 Act which will
be incorporated by reference in the Prospectus, (iii) of the receipt of any
comments from the SEC with respect to the Registration Statement or the
Prospectus, (iv) of any request by the SEC for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information, and (v) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Notice of Certain Proposed Filings. The Company will give each Agent
advance notice of its intention to file any amendment to the Registration
Statement or any amendment or supplement to the Prospectus (other than an
amendment or supplement providing solely for a change in the interest rates of
Notes), whether by the filing of documents pursuant to the 1934
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Act, the 1933 Act or otherwise, and will furnish each Agent with copies of any
such amendment or supplement or other documents proposed to be filed in advance
of such proposed filing.
(c) Copies of the Registration Statement and the Prospectus. The Company
will deliver to each Agent as many conformed copies of the Registration
Statement (as originally filed) and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and documents
incorporated by reference in the Prospectus) as such Agent may reasonably
request. The Company will furnish to each Agent as many copies of the
Prospectus (as amended or supplemented) as such Agent shall reasonably request
so long as such Agent is required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Notes.
(d) Preparation of Pricing Supplements. The Company will prepare, with
respect to any Notes to be sold through or to the Agents pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the Agents and will file such Pricing Supplement pursuant to Rule
424(b)(3) under the 1933 Act not later than the close of business of the SEC on
the fifth business day after the date on which such Pricing Supplement is first
used.
(e) Revisions of Prospectus -- Material Changes. Except as otherwise
provided in subsection (k) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of counsel for the Agents or counsel for
the Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time the Prospectus
is delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of either such counsel, to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, immediate notice shall be given, and confirmed
in writing, to each Agent to cease the solicitation of offers to purchase the
Notes in such Agent's capacity as agent and to cease sales of any Notes any
Agent may then own as principal, and the Company will promptly amend the
Registration Statement and the Prospectus, whether by filing documents pursuant
to the 1934 Act, the 1933 Act or otherwise, as may be necessary to correct such
untrue statement or omission or to make the Registration Statement and
Prospectus comply with such requirements.
(f) Prospectus Revisions -- Periodic Financial Information. Except as
otherwise provided in subsection (k) of this Section, on the date on which there
shall be released to the general public interim financial statement information
related to the Company with respect to each of the first three quarters of any
fiscal year or preliminary financial statement information with respect to any
fiscal year, the Company shall cause the Prospectus to be amended or
supplemented to include or incorporate by reference financial information with
respect thereto and corresponding information for the comparable period of the
preceding fiscal year, as well as such other information and explanations as
shall be necessary for an understanding thereof or as shall be required by the
1933 Act or the 1933 Act Regulations.
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(g) Prospectus Revisions -- Audited Financial Information. Except as
otherwise provided in subsection (k) of this Section, on or prior to the date on
which there shall be released to the general public financial information
included in or derived from the audited financial statements of the Company for
the preceding fiscal year, the Company shall cause the Registration Statement
and the Prospectus to be amended, whether by the filing of documents pursuant to
the 1934 Act, the 1933 Act or otherwise, to include or incorporate by reference
such audited financial statements and the report or reports, and consent or
consents to such inclusion or incorporation by reference, of the independent
accountants with respect thereto, as well as such other information and
explanations as shall be necessary for an understanding of such financial
statements or as shall be required by the 1933 Act or the 1933 Act Regulations.
(h) Earnings Statements. As soon as practicable, but not later than 18
months, after the date of each acceptance by the Company of an offer to purchase
Notes hereunder, to make generally available to its security holders an earnings
statement covering a period of at least 12 months beginning after the later of
(i) the effective date of the Registration Statement, (ii) the effective date of
the most recent post-effective amendment to the Registration Statement to become
effective prior to the date of such acceptance, and (iii) the date of the
Company's most recent Annual Report on Form 10-K filed with the SEC prior to the
date of such acceptance which will satisfy the provisions of Section 11(a) of
the 1933 Act (including, at the option of the Company, Rule 158 of the 1933 Act
Regulations);
(i) Blue Sky Qualifications. The Company will endeavor, in cooperation
with the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agents may designate, and will maintain such qualifications in effect for as
long as may be required for the distribution of the Notes; provided, however,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation in any jurisdiction in which
it is not so qualified. The Company will file such statements and reports as
may be required by the laws of each jurisdiction in which the Notes have been
qualified as above provided. The Company will promptly advise the Agents of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such purpose.
(j) 1934 Act Filings. The Company, during the period when the Prospectus
is required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the 1934 Act.
(k) Stand-Off Agreement. If specified by an Agent in connection with a
purchase by it of Notes as principal, between the date of the agreement to
purchase such Notes and the Settlement Date with respect to such purchase, the
Company will not, without such Agent's prior written consent, offer or sell or
enter into any agreement to sell, any debt securities of the Company (other than
the Notes that are to be sold pursuant to such agreement and commercial paper in
the ordinary course of business).
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(l) Suspension of Certain Obligations. The Company shall not be required
to comply with the provisions of subsections (e), (f) or (g) of this Section
during any period from the time (i) the Agents shall have suspended solicitation
of purchases of the Notes in their capacity as agents pursuant to a request from
the Company and (ii) no Agent shall then hold any Notes purchased as principal
pursuant hereto, until the time the Company shall determine that solicitation of
purchases of the Notes should be resumed or any Agent shall subsequently
purchase Notes from the Company as principal.
SECTION 5. Conditions of Obligations.
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The obligations of each Agent to purchase Notes as principal and to solicit
offers to purchase the Notes as agent of the Company, and the obligations of any
purchasers of the Notes sold through any Agent as agent, will be subject to the
accuracy of the representations and warranties on the part of the Company herein
and to the accuracy of the statements of the Company's officers made in any
certificate furnished pursuant to the provisions hereof, to the performance and
observance by the Company of all its covenants and agreements herein contained
and to the following additional conditions precedent:
(a) Legal Opinions. On the date hereof, the Agents shall have received the
following legal opinions, dated as of the date hereof and in form and substance
satisfactory to the Agents:
(1) Opinion of Company Counsel. The opinion of Stephen T. Braun,
Senior Vice President and General Counsel of the Company, to the effect
that:
(i) the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its Subsidiaries, taken as a whole;
(ii) each Corporate Subsidiary of the Company, which is a "Significant
Subsidiary" within the meaning of the 1933 Act Regulations (the "Material
Corporate Subsidiaries"), has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its Subsidiaries, taken as a whole;
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(iii) each of the Partnerships that is a "Significant Subsidiary"
within the meaning of the 1933 Act Regulations ("the "Material
Partnerships" and, together with the Material Corporate Subsidiaries, the
"Material Subsidiaries"), has been duly formed and is validly existing
under the laws of its jurisdiction of formation and has the partnership
power and authority to carry on its business as it is currently being
conducted and to own, lease and operate its properties, and each is duly
qualified as a foreign partnership authorized to do business in each
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the failure
to be so qualified would not have a material adverse effect on the Company
and its Subsidiaries, taken as a whole;
(iv) this Agreement has been duly authorized, executed and delivered
by the Company;
(v) the Indenture has been duly qualified under the 1939 Act and has
been duly authorized, executed and delivered by the Company and is a valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (b) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability;
(vi) the Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered in accordance with this Agreement against payment of the
consideration therefor, will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the Company, in each case
enforceable against the Company in accordance with their respective terms
except as (a) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (b)
rights of acceleration, if any, and the availability of equitable remedies
may be limited by equitable principles of general applicability;
(vii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture and the Notes will not contravene any provision of applicable law
or the certificate of incorporation or bylaws of the Company or, to the
best of such counsel's knowledge, any agreement or other instrument binding
upon the Company or any of its Material Subsidiaries that is material to
the Company and its Subsidiaries, taken as a whole, or, to the best of such
counsel's knowledge, any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture or the Notes except such as may be required by the securities or
Blue Sky laws of the various states in connection with the offer and sale
of the Notes;
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(viii) the statements (1) in the Prospectus under the captions
"Description of Notes" and "Plan of Distribution" and (2) in the
Registration Statement under Item 15, (3) in "Item 3 - Legal Proceedings"
of the Company's most recent annual report on Form 10-K incorporated by
reference in the Prospectus and (4) in "Item 1 - Legal Proceedings" of Part
II of the Company's quarterly reports on Form 10-Q, if any, filed since
such annual report, in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to such
legal matters, documents and proceedings and fairly summarize the matters
referred to therein;
(ix) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or any
of its Material Subsidiaries is a party or to which any of the properties
of the Company or any of its Material Subsidiaries is subject that are
required to be described in the Registration Statement or the Prospectus
and are not so described or incorporated by reference or of any statutes,
regulations, contracts or other documents that are required to be described
in the Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration Statement that
are not described, filed or incorporated as required;
(x) the Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended;
(xi) such counsel (1) is of the opinion that each document, if any,
filed pursuant to the 1934 Act and incorporated by reference in the
Prospectus (except for financial statements and schedules included therein
as to which such counsel need not express any opinion), complied when so
filed as to form in all material respects with the 1934 Act and the
applicable rules and regulations of the Commission thereunder and (2) is of
the opinion that the Registration Statement and Prospectus (except for
financial statements and schedules as to which such counsel need not
express any opinion), comply as to form in all material respects with the
1933 Act and the 1933 Act Regulations.
In addition, such counsel shall state his belief that (1) each part of
the Registration Statement (except for financial statements and schedules
as to which such counsel need not express any belief and except for that
part of the Registration Statement that constitutes the Form T-1 heretofore
referred to), when such part became effective did not, and, as of the date
such opinion is delivered, does not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and (2)
the Prospectus (except for financial statements and schedules as to which
such counsel need not express any belief) as of the date such opinion is
delivered does not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. Such counsel may state that his belief is based upon his
participation in the preparation
12
of the Registration Statement and Prospectus and any amendments or
supplements thereto and documents incorporated therein by reference and
review and discussion of the contents thereof, but are without independent
check or verification, except as specified.
(2) Opinion of Counsel to the Agents. The opinion of Jenkens &
Gilchrist, a Professional Corporation, counsel for the Agents, covering the
matters referred to in subparagraphs (iv), (v), (vi), (viii) (but only as
to the statements in the Prospectus under "Description of Notes", "Plan of
Distribution" and "Certain United States Federal Income Tax Consequences")
and (xi) (2) of paragraph (1) above.
In addition, such counsel shall state their belief that (1) each part
of the Registration Statement (except for financial statements and
schedules as to which such counsel need not express any belief and except
for that part of the Registration Statement that constitutes the Form T-1
heretofore referred to), when such part became effective did not, and, as
of the date such opinion is delivered, does not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading and (2) the Prospectus (except for financial statements and
schedules as to which such counsel need not express any belief) as of the
date such opinion is delivered does not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. Such counsel may state that their belief is
based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto (but not
including documents incorporated therein by reference) and review and
discussion of the contents thereof (including documents incorporated
therein by reference), but are without independent check or verification,
except as specified.
(b) Officer's Certificate. At the date hereof, the Agents shall have
received a certificate signed by the President, the Chief Financial Officer, any
Vice President, the Treasurer or an Assistant Treasurer of the Company, dated as
of the date hereof, to the effect that (i) since the respective dates as of
which information is given in the Registration Statement and the Prospectus or
since the date of any agreement by an Agent to purchase Notes as principal,
there has not been any material adverse change in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, (ii) the other representations and warranties of
the Company contained in Section 2 hereof are true and correct with the same
force and effect as though expressly made at and as of the date of such
certificate, (iii) the Company has performed or complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the date of such certificate, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been initiated or threatened by the SEC.
(c) Comfort Letter. At the date hereof, the Agents shall have received a
letter from the Company's independent public accountants, containing statements
and information of the type ordinarily included in accountants' "comfort
letters" with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Prospectus.
13
(d) Other Documents. On the date hereof and on each Settlement Date,
counsel to the Agents shall have been furnished with such documents and opinions
as such counsel may reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of Notes as herein contemplated shall be satisfactory in
form and substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement (or, at the option of an
Agent, any applicable agreement by such Agent to purchase Notes as principal)
may be terminated by such Agent by notice to the Company at any time and any
such termination shall be without liability of any party to any other party,
except that the covenant regarding provision of an earnings statement set forth
in Section 4(h) hereof, the provisions concerning payment of expenses under
Section 10 hereof, the indemnity and contribution agreement set forth in
Sections 8 and 9 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery of Section 11 hereof, the
provisions relating to governing law set forth in Section 14 and the provisions
set forth under "Parties" of Section 15 hereof shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold Through an Agent.
-------------------------------------------------------
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, such Agent shall promptly notify the Company and deliver
the Note to the Company, and, if such Agent has theretofore paid the Company for
such Note, the Company will promptly return such funds to such Agent. If such
failure occurred for any reason other than default by an Agent in the
performance of its obligations hereunder, the Company will reimburse such Agent
on an equitable basis for its loss of the use of the funds for the period such
funds were credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
-----------------------------------
The Company covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each acceptance by it
of an offer for the purchase of Notes (whether to an Agent as principal or
through an Agent as agent), and each delivery of Notes to an Agent (whether to
an Agent as principal or through an Agent as agent), shall be deemed to be an
affirmation that the representations and warranties of the Company contained in
this Agreement and in any certificate theretofore delivered to an Agent pursuant
hereto are true and correct at the time of such acceptance or sale, as the case
may be, and an undertaking that such representations and warranties will be true
and correct at the time of delivery to the purchaser or its agent, or to such
Agent, of the Note or Notes relating to such
14
acceptance or sale, as the case may be, as though made at and as of each such
time (and it is understood that such representations and warranties shall relate
to the Registration Statement and Prospectus as amended and supplemented to each
such time).
(b) Subsequent Delivery of Certificates. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a change in the interest
rates of Notes or similar changes, and, unless an Agent shall otherwise specify,
other than by an amendment or supplement which relates exclusively to an
offering of debt securities other than the Notes), (ii) there is filed with the
SEC any document incorporated by reference into the Prospectus (other than any
Current Report on Form 8-K relating exclusively to the issuance of debt
securities under the Registration Statement, unless an Agent shall otherwise
specify), (iii) (if required in connection with the purchase of Notes by an
Agent as principal) the Company sells Notes to an Agent as principal or (iv) if
the Company issues and sells Notes in a form not previously certified to an
Agent by the Company, the Company shall furnish or cause to be furnished to such
Agent forthwith a certificate dated the date of filing with the SEC of such
supplement or document, the date of effectiveness of such amendment, or the date
of such sale, as the case may be, in form satisfactory to such Agent to the
effect that the statements contained in the certificate referred to in Section
5(b) hereof which were last furnished to such Agent are true and correct at the
time of such amendment, supplement filing or sale, as the case may be, as though
made at and as of such time (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a certificate of the
same tenor as the certificate referred to in said Section 5(b), modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a change in the interest
rates of the Notes or similar changes or solely for the inclusion of additional
financial information, and, unless an Agent shall otherwise specify, other than
by an amendment or supplement which relates exclusively to an offering of debt
securities other than the Notes), (ii) there is filed with the SEC any document
incorporated by reference into the Prospectus (other than any Current Report on
Form 8-K, unless an Agent shall otherwise specify), (iii) (if required in
connection with the purchase of Notes by an Agent as principal) the Company
sells Notes to an Agent as principal, or (iv) if the Company issues and sells
Notes in a form not previously certified to an Agent by the Company, the Company
shall furnish or cause to be furnished forthwith to such Agent and to counsel to
the Agent a written opinion of Stephen T. Braun, Senior Vice President and
General Counsel to the Company, or other counsel satisfactory to such Agent,
dated the date of filing with the SEC of such supplement or document, the date
of effectiveness of such amendment, or the date of such sale, as the case may
be, in form and substance satisfactory to such Agent, of the same tenor as the
opinion referred to in Section 5(a)(1) hereof but modified, as necessary, to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion; or, in lieu of such
opinion, counsel last furnishing such opinion to such Agent shall furnish such
Agent with a letter to the effect that such Agent may rely on such last
15
opinion to the same extent as though it was dated the date of such letter
authorizing reliance (except that statements in such last opinion shall be
deemed to relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information or there is filed with the SEC any
document incorporated by reference into the Prospectus which contains additional
financial information, or (ii) (if required in connection with the purchase of
Notes by an Agent as principal) the Company sells Notes to an Agent as
principal, and in either case if an Agent so requests, the Company shall cause
the independent public accountants for the Company, forthwith to furnish such
Agent a letter, dated the date of effectiveness of such amendment, supplement or
document with the SEC, or the date of such sale, as the case may be, in form
satisfactory to such Agent, of the same tenor as the letter referred to in
Section 5(c) hereof but modified to relate to the Registration Statement and
Prospectus, as amended and supplemented to the date of such letter, and with
such changes as may be necessary to reflect changes in the financial statements
and other information derived from the accounting records of the Company.
SECTION 8. Indemnification.
---------------
(a) Indemnification of Agents. The Company agrees to indemnify and hold
harmless each Agent and each person, if any, who controls an Agent within the
meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or alleged
omission therefrom of a material fact necessary to make the statements therein
not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, unless such untrue statement or
omission or such alleged untrue statement or omission was made in reliance upon
and in conformity with written information furnished to the Company by an Agent
expressly for use in the Registration Statement or the Prospectus.
(b) Indemnification of Company. Each Agent agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by an Agent expressly for use in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto).
16
(c) General. In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either subsection (a) or (b) of this
section, such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
SECTION 9. Contribution.
------------
In order to provide for just and equitable contribution in circumstances in
which the indemnity agreement provided for in Section 8 hereof is for any reason
held to be unavailable to or insufficient to hold harmless the indemnified
parties although applicable in accordance with its terms, the Company and each
Agent shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the
Company and each such Agent, as incurred, in such proportions that each such
Agent is responsible for that portion represented by the percentage that the
total commissions and underwriting discounts received by each such Agent to the
date of such liability bears to the total net proceeds (before deducting
expenses) from the sale of Notes sold to or through the Agent to the date of
such liability, and the Company is responsible for the balance; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 9, each person, if any, who controls an Agent within
the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Agent, and each director of the Company, each officer of
the Company who signed the Registration Statement, and each person, if any, who
controls the Company within
17
the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company.
SECTION 10. Payment of Expenses.
-------------------
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and all
amendments thereto and the Prospectus and any amendments or supplements thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of book-entry notes;
(d) The fees and disbursements of the Company's accountants and counsel, of
the Trustee and its counsel, and of any Calculation Agent or Exchange Rate
Agent;
(e) The reasonable fees and disbursements of counsel to the Agents incurred
in connection with the establishment of the program relating to the Notes and
incurred from time to time in connection with the transactions contemplated
hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i) hereof including filing fees and
the reasonable fees and disbursements of counsel for the Agents in connection
therewith and in connection with the preparation of any Blue Sky Survey and any
Legal Investment Survey;
(g) The printing and delivery to each Agent in quantities as hereinabove
stated of copies of the Registration Statement and any amendments thereto, and
of the Prospectus and any amendments or supplements thereto, and the delivery by
any Agent of the Prospectus and any amendments or supplements thereto in
connection with solicitations or confirmations of sales of the Notes;
(h) The preparation, printing, reproducing and delivery to each Agent of
copies of the Indenture and all supplements and amendments thereto;
(i) Any fees charged by rating agencies for the rating of the Notes;
(j) The fees and expenses, if any, incurred with respect to any filing with
the National Association of Securities Dealers, Inc.;
(k) Any advertising and other out-of-pocket expenses of any Agent incurred
with the approval of the Company;
18
(l) The cost of providing, any CUSIP or other identification numbers for
the Notes; and
(m) The fees and expenses of any Depositary (as defined in the Indenture)
and any nominees thereof in connection with the Notes.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Company submitted pursuant hereto or
thereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Agent or any controlling person of the
Agent, or by or on behalf of the Company, and shall survive each delivery of and
payment for any of the Notes.
SECTION 12. Termination.
-----------
(a) Termination of this Agreement. This Agreement (excluding any agreement
hereunder by the Agent to purchase Notes as principal) may be terminated for any
reason, at any time by either the Company as to any Agent or by any Agent
insofar as this Agreement relates to such Agent upon the giving of 30 days'
written notice of such termination to the other party hereto.
(b) Termination of Agreement to Purchase Notes as Principal. Any Agent may
terminate any agreement hereunder by such Agent to purchase Notes as principal,
immediately upon notice to the Company, at any time prior to the Settlement Date
relating thereto (i) if there has been, since the date of such agreement or
since the respective dates as of which information is given in the Registration
Statement, in the reasonable opinion of such Agent any material adverse change
in the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, or (ii) if
there shall have occurred any material adverse change in the financial markets
in the United States or any outbreak or escalation of hostilities or other
national or international calamity or crisis the effect of which is such as to
make it, in the judgment of such Agent, impracticable to market the Notes or
enforce contracts for the sale of the Notes, or (iii) if trading in any
securities of the Company has been suspended by the SEC or a national securities
exchange, or if trading generally on either the American Stock Exchange or the
New York Stock Exchange shall have been suspended, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices for securities have
been required, by either of said exchanges or by order of the SEC or any other
governmental authority, or if a banking moratorium shall have been declared by
either Federal, New York or Delaware authorities or if a banking moratorium
shall have been declared by the relevant authorities in the country or countries
of origin of any foreign currency or currencies in which the Notes are
denominated or payable, or (iv) if the rating assigned by any nationally
recognized securities rating agency to any debt securities of the Company as of
the date of any applicable principal purchase shall have been lowered since that
date or if any such rating agency shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any debt securities of the Company, or (v) if there
19
shall have come to any Agent's attention any facts that would cause such Agent
to believe that the Prospectus, at the time it was required to be delivered to a
purchaser of Notes, included an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein, in
light of the circumstances existing at the time of such delivery, not
misleading.
(c) General. In the event of any such termination, neither party will have
any liability to the other party hereto, except that (i) the Agent shall be
entitled to any commission earned in accordance with the third paragraph of
Section 3(b) hereof, (ii) if at the time of termination (a) an Agent shall own
any Notes purchased by it as principal with the intention of reselling them or
(b) an offer to purchase any of the Notes has been accepted by the Company but
the time of delivery to the purchaser or his agent of the Note or Notes relating
thereto has not occurred, the covenants set forth in Sections 4 and 7 hereof
shall remain in effect until such Notes are so resold or delivered, as the case
may be, and (iii) the covenant set forth in Section 4(h) hereof, the provisions
of Section 10 hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, and the provisions of Sections 11, 14 and 15 hereof
shall remain in effect.
SECTION 13. Notices.
-------
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Columbia/HCA Healthcare Corporation
201 West Main Street
Louisville, Kentucky 40202
Attention: General Counsel
Fax: 502-572-2163
If to an Agent:
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Attention: Medium-Term Note Department
Fax: 212-902-3000
Lehman Brothers Inc.
3 World Financial Center
12th Floor
New York, NY 10285-1200
Attention: Medium-Term Note Department
20
Fax: 212-528-1718
Merrill Lynch & Co.
250 Vesey Street
World Financial Center
North Tower
New York, NY 10281
Attention: MTN Product Management
Fax: 212-449-2234
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
4th Floor
New York, NY 10005
Attention: Medium-Term Note Department
Fax: 212-921-7617
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Attention: Medium-Term Note Group
Fax: 212-783-2274
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law.
-------------
This Agreement and all the rights and obligations of the parties shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in such State.
SECTION 15. Parties.
-------
This Agreement shall inure to the benefit of and be binding upon the Agents
and the Company and their respective successors. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and their respective successors and
the controlling persons and officers and directors referred to in Sections 8 and
9 and their heirs and legal representatives, any legal or equitable right remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto and respective
successors and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other
21
person, firm or corporation. No purchaser of Notes shall be deemed to be a
successor by reason merely of such purchase.
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between the Agents and the Company in accordance with its terms.
Very truly yours,
COLUMBIA/HCA HEALTHCARE CORPORATION
By:________________________________
Name:______________________________
Title:_____________________________
22
Accepted:
GOLDMAN, SACHS & CO.
By:______________________________
Name:____________________________
Title:___________________________
LEHMAN BROTHERS INC.
By:______________________________
Name:____________________________
Title:___________________________
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By:____________________________
Name:__________________________
Title:_________________________
MORGAN STANLEY & CO. INCORPORATED
By:____________________________
Name:__________________________
Title:_________________________
SALOMON BROTHERS INC
By:____________________________
Name:__________________________
Title:_________________________
23
EXHIBIT A
The following terms, if applicable, shall be agreed to by the Agents and
the Company in connection with each sale of Notes:
Principal Amount: $________
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Spread or Spread Multiplier, if any: Interest Reset Date(s):
Interest Payment Date(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Reset Period:
Interest Payment Period:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
If Repayable:
Optional Repayment Date(s):
Date of Maturity:
Purchase Price: _____%
Settlement Date and Time:
Currency of Denomination:
Denominations (if currency is other than U.S. dollar):
Currency of Payment:
Additional Terms:
Also, in connection with the purchase of Notes by an Agent as principal,
agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinion pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company shall
pay it, on a discount basis, a commission for the sale of each Note equal to the
principal amount of such Note multiplied by the appropriate percentage set forth
below:
MATURITY RANGES PERCENT OF
PRINCIPAL AMOUNT
From 9 months to less than 1 year........... .125%
From 1 year to less than 18 months.......... .150
From 18 months to less than 2 years......... .200
From 2 years to less than 3 years........... .250
From 3 years to less than 4 years........... .350
From 4 years to less than 5 years........... .450
From 5 years to less than 6 years........... .500
From 6 years to less than 7 years........... .550
From 7 years to less than 10 years.......... .600
From 10 years to less than 15 years......... .625
From 15 years to less than 20 years......... .700
From 20 years to less than 30 years......... .750
Greater than 30 years....................... *
_______________
* As agreed to by the Company and the Agents at the time of sale.