Exhibit 10.1
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$2,500,000,000
CREDIT AGREEMENT
among
HCA INC.,
THE SEVERAL BANKS AND OTHER FINANCIAL INSTITUTIONS FROM TIME TO
TIME PARTIES HERETO,
J.P. MORGAN Securities Inc.,
as Sole Advisor, Lead Arranger and Bookrunner,
BANK OF AMERICA, N.A.,
as Documentation Agent and Co-Arranger,
CITICORP NORTH AMERICA, INC.,
DEUTSCHE BANK SECURITIES INC.,
MIZUHO CORPORATE BANK, LTD. and
WACHOVIA BANK, NATIONAL ASSOCIATION
as Syndication Agents and Co-Arrangers,
THE BANK OF NOVA SCOTIA,
MERRILL LYNCH & CO, MERRILL LYNCH,
PIERCE, FENNER & SMITH INCORPORATED, and
SUNTRUST BANK
as Senior Managing Agents,
THE BANK OF NEW YORK,
KEY BANK, and
CALYON NEW YORK BRANCH,
as Managing Agents,
AMSOUTH BANK,
FIFTH THIRD BANK, N.A.,
THE NORTHERN TRUST COMPANY,
SUMITOMO BANK,
US BANK, NA, and
UNION PLANTERS BANK, N.A., as Co-Agents,
JPMORGAN CHASE BANK,
as Administrative Agent
Dated as of November 9, 2004
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS................................................................................. 4
1.1 Defined Terms......................................................................... 4
1.2 Other Definitional Provisions......................................................... 18
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS............................................................. 18
2.1 Term Commitments...................................................................... 18
2.2 Procedure for Term Loan Borrowing..................................................... 18
2.3 Repayment of Term Loans............................................................... 19
2.4 Revolving Commitments................................................................. 19
2.5 Procedure for Revolving Loan Borrowing................................................ 20
2.6 CAF Advances.......................................................................... 20
2.7 Procedure for CAF Advance Borrowing................................................... 20
2.8 CAF Advance Payments.................................................................. 23
2.9 Evidence of Debt...................................................................... 23
2.10 Certain Restrictions.................................................................. 24
2.11 Facility Fees, etc.................................................................... 24
2.12 Termination or Reduction of Revolving Commitments..................................... 24
2.13 Optional Prepayments.................................................................. 25
2.14 Conversion and Continuation Options................................................... 25
2.15 Limitations on Eurodollar Tranches.................................................... 25
2.16 Interest Rates and Payment Dates...................................................... 26
2.17 Computation of Interest and Fees...................................................... 26
2.18 Inability to Determine Interest Rate.................................................. 27
2.19 Pro Rata Treatment and Payments....................................................... 27
2.20 Requirements of Law................................................................... 28
2.21 Taxes................................................................................. 29
2.22 Indemnity............................................................................. 31
2.23 Change of Lending Office.............................................................. 31
2.24 Replacement of Banks.................................................................. 32
SECTION 3. LETTERS OF CREDIT........................................................................... 32
3.1 L/C Commitment........................................................................ 32
3.2 Procedure for Issuance of Letter of Credit............................................ 33
3.3 Fees and Other Charges................................................................ 33
3.4 L/C Participations.................................................................... 33
3.5 Reimbursement Obligation of the Company............................................... 34
3.6 Obligations Absolute.................................................................. 34
3.7 Letter of Credit Payments............................................................. 35
3.8 Applications.......................................................................... 35
SECTION 4. REPRESENTATIONS AND WARRANTIES.............................................................. 35
4.1 Corporate Organization and Existence.................................................. 35
4.2 Subsidiaries.......................................................................... 35
4.3 Financial Information................................................................. 36
4.4 Changes in Condition.................................................................. 36
4.5 Assets................................................................................ 36
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4.6 Litigation............................................................................ 36
4.7 Tax Returns........................................................................... 37
4.8 Contracts, etc........................................................................ 37
4.9 No Legal Obstacle to Agreement........................................................ 37
4.10 Defaults.............................................................................. 38
4.11 Burdensome Obligations................................................................ 38
4.12 Pension Plans......................................................................... 38
4.13 Disclosure............................................................................ 38
4.14 Environmental and Public and Employee Health and Safety Matters....................... 38
4.15 Federal Regulations................................................................... 39
4.16 Investment Company Act; Other Regulations............................................. 39
SECTION 5. CONDITIONS.................................................................................. 39
5.1 Loan Documents........................................................................ 39
5.2 Legal Opinions........................................................................ 40
5.3 Company Officers' Certificate......................................................... 40
5.4 Legality, etc......................................................................... 40
5.5 Termination of Existing Credit Facilities............................................. 40
5.6 General............................................................................... 40
5.7 Fees.................................................................................. 40
5.8 Rating................................................................................ 40
SECTION 6. GENERAL COVENANTS........................................................................... 41
6.1 Taxes, Indebtedness, etc.............................................................. 41
6.2 Maintenance of Properties; Compliance with Law........................................ 41
6.3 Transactions with Affiliates.......................................................... 42
6.4 Insurance............................................................................. 42
6.5 Financial Statements.................................................................. 42
6.6 Ratio of Consolidated Total Debt to Consolidated Total Capitalization................. 44
6.7 Interest Coverage Ratio............................................................... 45
6.8 Distributions......................................................................... 45
6.9 Merger or Consolidation............................................................... 45
6.10 Sales of Assets....................................................................... 45
6.11 Compliance with ERISA................................................................. 45
6.12 Negative Pledge....................................................................... 46
6.13 Sale-and-Leaseback Transactions....................................................... 47
6.14 Use of Proceeds....................................................................... 47
SECTION 7. DEFAULTS.................................................................................... 47
7.1 Events of Default..................................................................... 47
7.2 Annulment of Defaults................................................................. 49
7.3 Waivers............................................................................... 50
7.4 Course of Dealing..................................................................... 50
SECTION 8. THE AGENT................................................................................... 50
8.1 Appointment........................................................................... 50
8.2 Delegation of Duties.................................................................. 50
8.3 Exculpatory Provisions................................................................ 50
8.4 Reliance by Agent..................................................................... 51
8.5 Notice of Default..................................................................... 51
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8.6 Non-Reliance on Agent and Other Banks................................................. 51
8.7 Indemnification....................................................................... 52
8.8 Agent in Its Individual Capacity...................................................... 52
8.9 Successor Agent....................................................................... 52
8.10 Agents Generally...................................................................... 52
SECTION 9. MISCELLANEOUS............................................................................... 53
9.1 Amendments and Waivers................................................................ 53
9.2 Notices............................................................................... 53
9.3 No Waiver; Cumulative Remedies........................................................ 54
9.4 Survival of Representations and Warranties............................................ 54
9.5 Payment of Expenses and Taxes; Indemnity.............................................. 54
9.6 Successors and Assigns; Participations; Purchasing Banks.............................. 55
9.7 Adjustments; Set-off.................................................................. 58
9.8 USA Patriot Act....................................................................... 58
9.9 Counterparts.......................................................................... 59
9.10 GOVERNING LAW......................................................................... 59
9.11 WAIVERS OF JURY TRIAL................................................................. 59
9.12 Submission To Jurisdiction; Waivers................................................... 59
SCHEDULES:
Schedule I. Commitment Amounts; Lending Offices; Addresses for Notice
Schedule II. Subsidiaries of the Company
Schedule III. Indebtedness of the Company and its Subsidiaries
Schedule IV. Applicable Margin and Facility Fee Rate
Schedule V. Significant Litigation
EXHIBITS:
Exhibit A-1. Form of Revolving Note
Exhibit A-2. Form of Term Note
Exhibit A-3. Form of Competitive Loan Note
Exhibit B. Form of Commitment Transfer Supplement
Exhibit C-1. Form of CAF Advance Request
Exhibit C-2. Form of CAF Advance Offer
Exhibit C-3. Form of CAF Advance Confirmation
Exhibit D. Form of Exemption Certificate
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CREDIT AGREEMENT (this "Agreement"), dated as of November 9, 2004,
among HCA INC., a Delaware corporation (the "Company"), the several banks and
other financial institutions from time to time parties hereto (the "Banks"),
BANK OF AMERICA, N.A., as Documentation Agent and Co-Arranger, CITICORP NORTH
AMERICA, INC., DEUTSCHE BANK SECURITIES INC., MIZUHO CORPORATE BANK, LTD. and
WACHOVIA BANK, NATIONAL ASSOCIATION, as Syndication Agents and Co-Arrangers, THE
BANK OF NOVA SCOTIA, MERRILL LYNCH & CO, MERRILL, LYNCH, PIERCE, FENNER & SMITH
INCORPORATED and SUNTRUST BANK, as Senior Managing Agents, THE BANK OF NEW YORK,
KEY BANK and CALYON NEW YORK BRANCH, as Managing Agents, AMSOUTH BANK, FIFTH
THIRD BANK, N.A., THE NORTHERN TRUST COMPANY, SUMITOMO BANK, US BANK, NA and
UNION PLANTERS BANK, N.A, as Co-Agents, J.P. MORGAN SECURITIES INC., as Sole
Advisor, Lead Arranger and Bookrunner, and JPMORGAN CHASE BANK, as agent (the
"Agent").
In consideration of the promises and mutual agreements herein
contained and for good and valuable consideration the parties hereto agree as
follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Agent.
"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.
"Agent" means JPMorgan Chase Bank, in its capacity as administrative
agent for the Banks hereunder.
"Aggregate Exposure": with respect to any Bank at any time, an
amount equal to (a) until the Closing Date, the aggregate amount of such Bank's
Commitments at such time and (b) thereafter, the sum of (i) the aggregate then
unpaid principal amount of such Bank's Term Loans and (ii) the amount of such
Bank's Revolving Commitment then in effect or, if the Revolving Commitments have
been terminated, the amount of such Bank's Revolving Extensions of Credit then
outstanding.
"Aggregate Exposure Percentage": with respect to any Bank at any
time, the ratio (expressed as a percentage) of such Bank's Aggregate Exposure at
such time to the Aggregate Exposure of all Banks at such time.
"Agreement": as defined in the preamble hereto.
"Alternate Base Rate": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/100 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on such day
plus 1% and (c) the Federal Funds Effective Rate in effect on such day plus -1/2
of 1%. For purposes hereof: "Prime Rate" shall mean the rate of interest per
annum publicly announced from time to time by the Agent as its prime rate in
effect at its principal office in New York City (each change in the Prime Rate
to be effective on the date such change is publicly announced); "Base CD Rate"
shall mean the sum of (a) the product of (i) the Three-Month Secondary CD Rate
and (ii) a fraction, the numerator of which is one and the denominator of which
is one minus the C/D Reserve Percentage and (b) the C/D Assessment Rate;
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary market
rate for three-month certificates of deposit reported as being in effect on such
day (or, if such day shall not be a Business Day, the next preceding Business
Day) by the Board of Governors of the Federal Reserve System (the "Board")
through the public information telephone line of the Federal Reserve Bank of New
York (which rate will, under the current practices of the Board, be published in
Federal Reserve Statistical Release H.15(519) during the week following such
day), or, if such rate shall not be so reported on such day or such next
preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 10:00 A.M., New York City time, on such day (or, if
such day shall not be a Business Day, on the next preceding Business Day) by the
Agent from three New York City negotiable certificate of deposit dealers of
recognized standing selected by it; "C/D Reserve Percentage" shall mean, for any
day, that percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board (or any successor), for determining the maximum 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 JPMCB 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 JPMCB 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.
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"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, Level IV Period or Level V Period the rate
per annum set forth under the relevant column heading in Schedule IV. The
Applicable Margin shall not be less than that for Level IV for the period
beginning on the Closing Date and ending on the date that is six months after
the Closing Date. 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, Level IV Period or Level V Period as the case may be, to which such
Applicable Margin relates.
"Application": an application, in such form as the Issuing Bank may
specify from time to time, requesting the Issuing Bank to open a Letter of
Credit.
"Approved Fund": with respect to any Bank that is a fund that
invests in commercial loans, any other fund that invests in commercial loans and
is managed or advised by the same investment advisor as such Bank or by an
Affiliate of such investment advisor.
"Attributable Debt": (i) as to any capitalized lease obligations,
the Indebtedness carried on the balance sheet in respect thereof in accordance
with GAAP and (ii) as to any operating leases, the total net amount of rent
required to be paid under such leases during the remaining term thereof.
"Auditor": any independent certified public accountant of nationally
recognized standing and reputation selected by the Company.
"Available Revolving Commitments": as to any Revolving Bank at any
time, an amount equal to the excess, if any, of (a) such Bank's Revolving
Commitment then in effect over (b) the sum of (i) such Bank's Revolving
Extensions of Credit then outstanding plus (ii) such Bank's Revolving Percentage
of the aggregate principal amount of the CAF Advances then outstanding,
calculated as if such outstanding CAF Advances were pro rata among the Revolving
Banks.
"Bank Obligations": as defined in subsection 7.1.
"Banks": as defined in the preamble hereto.
"Benefitted Bank": as defined in subsection 9.7.
"Borrowing Date": any Business Day specified by the Borrower as a
date on which the Borrower requests the relevant Banks to make Loans hereunder.
"Business Day": any day that is not a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by law to
remain closed; provided that, when used in connection with a Eurodollar Loan or
LIBO Rate CAF Advances, the term "Business Day" shall also exclude any day on
which banks are not open for dealings in dollar deposits in the London interbank
market.
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"CAF Advance": each CAF Advance made pursuant to subsection 2.6.
"CAF Advance Agent": JPMCB, in its capacity as CAF Advance Agent.
"CAF Advance Availability Period": the period from and including the
Closing Date to and including the date which is 14 days prior to the Revolving
Termination Date.
"CAF Advance Confirmation": each confirmation by the Company of its
acceptance of CAF Advance Offers, which confirmation shall be substantially in
the form of Exhibit C-3 and shall be delivered to the CAF Advance Agent by
facsimile transmission.
"CAF Advance Interest Payment Date": as to each CAF Advance, each
interest payment date specified by the Company for such CAF Advance in the
related CAF Advance Request.
"CAF Advance Maturity Date": as to any CAF Advance, the date
specified by the Company pursuant to subsection 2.7(d)(ii) in its acceptance of
the related CAF Advance Offer.
"CAF Advance Offer": each offer by a Bank to make CAF Advances
pursuant to a CAF Advance Request, which offer shall contain the information
specified in Exhibit C-2 and shall be delivered to the CAF Advance Agent by
telephone, immediately confirmed by facsimile transmission.
"CAF Advance Request": each request by the Company for Banks to
submit bids to make CAF Advances, which request shall contain the information in
respect of such requested CAF Advances specified in Exhibit C-1 and shall be
delivered to the CAF Advance Agent in writing, by facsimile transmission, or by
telephone, immediately confirmed by facsimile transmission.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Change in Control": of any corporation, (a) any Person or "group"
(as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended), other than the Company, that shall acquire more than 50% of the Voting
Stock of such corporation or (b) any Person or group (as defined in preceding
clause (a)), other than the Company, that shall acquire more than 20% of the
Voting Stock of such corporation and, at any time following an acquisition
described in this clause (b), the Continuing Directors shall not constitute a
majority of the board of directors of such corporation.
"Closing Date": the date on which the conditions precedent set forth
in Section 5 shall have been satisfied, which date is November 9, 2004.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
7
"Commitment": as to any Bank, the sum of the Term Commitment and
Revolving Commitment of such Bank.
"Commitment Transfer Supplement": a Commitment Transfer Supplement,
substantially in the form of Exhibit B.
"Company": HCA Inc., a Delaware corporation.
"Consolidated Assets": as of any date of determination, the
consolidated assets of the Company and its Subsidiaries at such date, determined
in accordance with GAAP.
"Consolidated Earnings Before Interest and Taxes": for any period
for which the amount thereof is to be determined, Consolidated Net Income for
such period plus all amounts deducted in computing such Consolidated Net Income
in respect of interest expense on Indebtedness and income taxes.
"Consolidated Interest Expense": for any period for which the amount
thereof is to be determined, all amounts deducted in computing Consolidated Net
Income for such period in respect of interest expense on Indebtedness determined
in accordance with GAAP.
"Consolidated Net Income": for any period, the consolidated net
income, if any, after taxes, of the Company and its Subsidiaries for such period
determined in accordance with GAAP; provided, however, that Consolidated Net
Income shall not include any gain or loss attributable to extraordinary items,
any sale of assets not in the ordinary course of business or any taxes or tax
savings as a result thereof.
"Consolidated Net Tangible Assets": as of any date of determination,
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 such date and excluding any
deferred income taxes that are included in current liabilities), and (ii) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangible assets, all as set forth on the most recent
consolidated balance sheet of the Company and computed in accordance with GAAP.
"Consolidated Net Worth": as of any date of determination, all items
which in conformity with GAAP would be included under shareholders' equity and
Temporary Equity on a consolidated balance sheet of the Company and its
Subsidiaries at such date.
"Consolidated Total Capitalization": as of any date of
determination, the sum of Consolidated Net Worth at such date and Consolidated
Total Debt at such date.
"Consolidated Total Debt": as of any date of determination, the
aggregate of all Indebtedness (including the current portion thereof) of the
Company and its Subsidiaries at such date determined in conformity with GAAP on
a consolidated basis.
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"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" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"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" or "$": dollars in lawful currency of the United States of
America.
"Domestic Lending Office": the office of each Bank designated as
such in Schedule I.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates (expressed as
a decimal fraction) of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and emergency reserves under
any regulations of the Board of Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect thereto), dealing with
reserve requirements prescribed for Eurocurrency funding (currently referred to
as "Eurocurrency Liabilities" in Regulation D of such Board) maintained by a
member bank of such System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum determined
on the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period appearing on
Page 3750 of the Telerate screen as of 11:00 A.M., London time, two Business
Days prior to the beginning of such Interest Period. In the event that such rate
does not appear on Page 3750 of the Telerate screen (or otherwise on such
screen), the "Eurodollar Base Rate" shall be determined by reference to such
other comparable publicly available service
9
for displaying eurodollar rates as may be selected by the Agent or, in the
absence of such availability, by reference to the rate at which the Agent is
offered Dollar deposits at or about 11:00 A.M., New York City time, two Business
Days prior to the beginning of such Interest Period in the interbank eurodollar
market where its eurodollar and foreign currency and exchange operations are
then being conducted for delivery on the first day of such Interest Period for
the number of days comprised therein.
"Eurodollar Lending Office": the office of each Bank designated as
such in Schedule I.
"Eurodollar Loans": Loans the rate of interest applicable to which
is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for such day
in accordance with the following formula (rounded upward to the nearest 1/100th
of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar Loans
under a particular Facility, the then current Interest Periods with respect to
all of which begin on the same date and end on the same later date (whether or
not such Loans shall originally have been made on the same day).
"Event of Default": any of the events specified in subsection 7.1,
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.
"Facility": each of (a) the Term Commitments and the Term Loans made
thereunder (the "Term Facility") and (b) the Revolving Commitments and the
extensions of credit made thereunder (the "Revolving Facility").
"Facility Fee": as defined in subsection 2.11(a).
"Facility Fee Rate": during a Level I Period, Level II Period, Level
III Period, Level IV Period or Level V Period, the rate per annum set forth
under the relevant column heading in Schedule IV. The Facility Fee Rate shall
not be less than that for Level IV for the period beginning on the Closing Date
and ending on the date that is six months after the Closing Date. Increases or
decreases in the Facility Fee Rate shall become effective on the first day of
the Level I Period, Level II Period, Level III Period, Level IV Period or Level
V Period, as the case maybe, to which such Facility Fee Rate relates.
"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.
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"Fixed Rate CAF Advance": any CAF Advance made pursuant to a Fixed
Rate CAF Advance Request.
"Fixed Rate CAF Advance Request": any CAF Advance Request requesting
the Banks to offer to make CAF Advances at a fixed rate (as opposed to a rate
composed of the LIBO Rate plus (or minus) a margin).
"Funding Office": the office of the Administrative Agent specified
in Section 9.2 or such other office as may be specified from time to time by the
Administrative Agent as its funding office by written notice to the Company and
the Banks.
"GAAP": (a) with respect to determining compliance by the Company
with the provisions of subsections 6.1, 6.6, 6.7, 6.10 and 6.12, generally
accepted accounting principles in the United States of America consistent with
those utilized in preparing the audited financial statements referred to in
subsection 4.3 and (b) with respect to the financial statements referred to in
subsection 4.3 or the furnishing of financial statements pursuant to subsection
6.5 and otherwise, generally accepted accounting principles in the United States
of America from time to time in effect.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Granting Bank": as defined in subsection 9.6(h).
"Guarantee Obligation": any arrangement whereby credit is extended
to one party on the basis of any promise of another, whether that promise is
expressed in terms of an 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) without duplication, 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.
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"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), each day that is three months, or a whole
multiple thereof, after the first day of such Interest Period and the last day
of such Interest Period.
"Interest Period": with respect to any Eurodollar Loans:
(i) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such Eurodollar Loans and ending
one, two, three or six months thereafter (or, with the consent of all the
Banks, nine or twelve months thereafter), as selected by the Company in
its notice of borrowing or its notice of conversion, 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 Revolving Termination Date or the Term Maturity
Date shall end on the Revolving Termination Date or Term Maturity Date, as
the case may be; 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.
12
"Issuing Bank": JPMCB, in its capacity as the issuer of any Letter
of Credit.
"JPMCB": JPMorgan Chase Bank.
"L/C Commitment": $250,000,000.
"L/C Fee Payment Date": the last day of each March, June, September
and December and the last day of the Revolving Commitment Period.
"L/C Obligations": at any time, an amount equal to the sum of (a)
the aggregate then undrawn and unexpired amount of the then outstanding Letters
of Credit and (b) the aggregate amount of drawings under Letters of Credit that
have not then been reimbursed pursuant to subsection 3.5.
"L/C Participants": the collective reference to all the Revolving
Banks other than the Issuing Bank.
"Letters of Credit": as defined in subsection 3.1(a).
"Level I Period": any period during which the publicly announced
ratings by S&P and Moody's of the then current senior unsecured, non-credit
enhanced, long-term Indebtedness of the Company that has been publicly issued
are BBB+ or better and Baa1 or better, respectively.
"Level II Period": any period during which the publicly announced
ratings by S&P and Moody's of the then current senior unsecured, non-credit
enhanced, long-term Indebtedness of the Company that has been publicly issued
are BBB and Baa2, respectively.
"Level III Period": any period which the publicly announced ratings
by S&P and Moody's of the then current senior unsecured, non-credit enhanced,
long-term Indebtedness of the Company that has been publicly issued are BBB- and
Baa3, respectively.
"Level IV Period": any period which the publicly announced ratings
by S&P or Moody's of the then current senior unsecured, non-credit enhanced,
long-term Indebtedness of the Company that has been publicly issued are BB+ and
Ba1, respectively.
"Level V Period": any period during which the publicly announced
ratings by S&P or Moody's of the then current senior unsecured, non-credit
enhanced, long-term Indebtedness of the Company that has been publicly issued
are equal to or below BB or unrated and equal to or below Ba2 or unrated, as the
case may be.
provided, that if on any day the ratings by S&P and Moody's do not coincide for
any rating category and the Level differential is (x) one level, then the higher
rating will be the applicable Level; (y) two levels, the Level at the midpoint
will be the applicable Level; and (z) more than two levels, the lower of the
intermediate Levels will be the applicable Level.
13
"LIBO Rate": in respect of any LIBO Rate CAF Advance, the Eurodollar
Base Rate for an interest period commencing on the date of such CAF Advance and
ending on the CAF Advance Maturity Date with respect thereto.
"LIBO Rate CAF Advance": any CAF Advance made pursuant to a LIBO
Rate CAF Advance Request.
"LIBO Rate CAF Advance Request": any CAF Advance Request requesting
the Banks to offer to make CAF Advances at an interest rate equal to the LIBO
Rate plus (or minus) a margin.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing lease having substantially the same economic
effect as any of the foregoing).
"Loan Documents": this Agreement and the Notes.
"Loans": the loans made by the Banks to the Company pursuant to this
Agreement.
"Majority Facility Banks": with respect to any Facility, the holders
of more than 50% of the aggregate unpaid principal amount of the Term Loans or
the Total Revolving Extensions of Credit, as the case may be, outstanding under
such Facility (or, in the case of the Revolving Facility, prior to any
termination of the Revolving Commitments, the holders of more than 50% of the
Total Revolving Commitments).
"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.
"Non-Excluded Taxes": as defined in subsection 2.21(a).
"Non-U.S. Banks": as defined in subsection 2.21(d).
"Notes": the collective reference to any promissory note evidencing
Loans.
"Other Taxes": any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement or any other Loan Document.
"Participants": as defined in subsection 9.6(b).
"PBGC": the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
14
"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 9.6(c).
"Register": as defined in subsection 9.6(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(c)
of ERISA for which reporting is required under such Section, other than those
events as to which the thirty day notice period is waived under subsections .27,
..28, .29, .30, .31, .32, .34 or .35 of PBGC Reg. Section 4043.
"Required Banks": at any time, the holders of more than 50% of (a)
until the Closing Date, the Commitments then in effect and (b) thereafter, the
sum of (i) the aggregate unpaid principal amount of the Term Loans then
outstanding and (ii) the Total Revolving Commitments then in effect or, if the
Revolving Commitments have been terminated, the Total Revolving Extensions of
Credit then outstanding; provided, that for the purposes of declaring the Loans
to be due and payable pursuant to Section 7, and for all purposes after the
Loans become due and payable pursuant to Section 7 or the Revolving Commitments
shall have been expired or terminated, the outstanding CAF Advances of each Bank
shall be included in its Revolving Extensions of Credit in determining the
Required Banks.
"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.
15
"Responsible Officer": the chief executive officer, the president,
any executive or senior vice president or vice president of the Company, the
chief financial officer, treasurer or controller of the Company.
"Revolving Bank": each Bank that has a Revolving Commitment or that
holds Revolving Loans.
"Revolving Commitment": as to any Bank, the obligation of such Bank,
if any, to make Revolving Loans and participate in Letters of Credit in an
aggregate principal and/or face amount not to exceed the amount set forth under
the heading "Revolving Commitment" opposite such Bank's name on Schedule I or in
the Commitment Transfer Supplement pursuant to which such Bank became a party
hereto, as the same may be changed from time to time pursuant to the terms
hereof. The original amount of the Total Revolving Commitments is
$1,750,000,000.
"Revolving Commitment Period": the period from and including the
Closing Date to the Revolving Termination Date.
"Revolving Extensions of Credit": as to any Revolving Bank at any
time, an amount equal to the sum of (a) the aggregate principal amount of all
Revolving Loans held by such Bank then outstanding and (b) such Bank's Revolving
Percentage of the L/C Obligations then outstanding.
"Revolving Loans": as defined in subsection 2.4(a).
"Revolving Percentage": as to any Revolving Bank at any time, the
percentage which such Bank's Revolving Commitment then constitutes of the Total
Revolving Commitments or, at any time after the Revolving Commitments shall have
expired or terminated, the percentage which the aggregate principal amount of
such Bank's Revolving Loans then outstanding constitutes of the aggregate
principal amount of the Revolving Loans then outstanding, provided, that, in the
event that the Revolving Loans are paid in full prior to the reduction to zero
of the Total Revolving Extensions of Credit, the Revolving Percentages shall be
determined in a manner designed to ensure that the other outstanding Revolving
Extensions of Credit shall be held by the Revolving Banks on a comparable basis.
"Revolving Termination Date": November 9, 2009.
"S&P": Standard & Poor's Ratings Service, or any successor thereto.
"Sale-and-Leaseback Transaction": 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.
16
"Significant Subsidiary": at any particular time, any Subsidiary of
the Company having total assets of $50,000,000 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.
"SPC": as defined in subsection 9.6(h).
"Subsidiary": as to any Person, a corporation, partnership or other
entity (i) of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests having such
power only by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation, partnership or
other entity are at the time owned directly or indirectly through one or more
intermediaries, by such Person or (ii) which otherwise is consolidated with the
Company for financial statement purposes as determined in accordance with GAAP.
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": any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Temporary Equity": any amount included on the consolidated balance
sheet of the Company and its Subsidiaries at such date as it pertains to (i) the
repurchase of the Company's common stock using derivative financial instruments
indexed to, and potentially settled in, the Company's own stock and (ii) amounts
attributed to the consolidation of special purpose vehicle(s) that are created
for the sole purpose of engaging in transactions to effect the Company's
repurchase of its own stock.
"Term Bank": each Bank that has a Term Commitment or that holds a
Term Loan.
"Term Commitment": as to any Bank, the obligation of such Bank, if
any, to make a Term Loan to the Company in a principal amount not to exceed the
amount set forth under the heading "Term Commitment" opposite such Bank's name
on Schedule I. The original aggregate amount of the Term Commitments is
$750,000,000.
"Term Loan": as defined in subsection 2.1.
"Term Maturity Date": November 9, 2009.
"Term Percentage": as to any Term Bank at any time, the percentage
which such Bank's Term Commitment then constitutes of the aggregate Term
Commitments (or, at any time after the Closing Date, the percentage which the
aggregate principal amount of such Bank's Term Loans then outstanding
constitutes of the aggregate principal amount of the Term Loans then
outstanding).
"Total Revolving Commitments": at any time, the aggregate amount of
the Revolving Commitments then in effect.
17
"Total Revolving Extensions of Credit": at any time, the aggregate
amount of the Revolving Extensions of Credit of the Revolving Banks outstanding
such time.
"Transfer Effective Date": as defined in each Commitment Transfer
Supplement.
"Transferee": as defined in subsection 9.6(f).
"Type": as to any Loan, its nature as an Alternate Base Rate Loan or
a Eurodollar Loan.
"United States": the United States of America.
"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.
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 COMMITMENTS
2.1 Term Commitments. Subject to the terms and conditions hereof,
(a) each Term Bank severally agrees to make a term loan (a "Term Loan") to the
Company on the Closing Date in an amount not to exceed the amount of the Term
Commitment of such Bank. The Term Loans may from time to time be Eurodollar
Loans and/or Alternate Base Rate Loans, as determined by the Company and
notified to the Agent in accordance with subsections 2.2 and 2.14.
2.2 Procedure for Term Loan Borrowing. The Company shall give the
Agent irrevocable notice (which notice must be received by the Agent (i) prior
to 12:00 Noon, New York City time, three Business Days prior to the anticipated
Closing Date, in the case of Eurodollar Loans and (ii) prior to 12:00 Noon, New
York City time, on the anticipated Closing Date, in the case of Alternate Base
Rate Loans) requesting that the Term Banks make the Term
18
Loans on the Closing Date and specifying the amount and Type(s) to be borrowed.
Upon receipt of such notice the Agent shall promptly notify each Term Bank
thereof. Not later than 12:00 Noon, New York City time, on the Closing Date each
Term Bank shall make available to the Agent at the Funding Office an amount in
immediately available funds equal to the Term Loan to be made by such Bank. The
Agent shall credit the account of the Company on the books of such office of the
Agent with the aggregate of the amounts made available to the Agent by the Term
Banks in immediately available funds.
2.3 Repayment of Term Loans. The Term Loan of each Term Bank shall
mature and be payable by the Company in 16 consecutive quarterly installments
commencing March 31, 2006, each of which shall be in an amount equal to such
Term Bank's Term Percentage multiplied by the amount set forth below opposite
such installment:
Installment Date Principal Amount
- ------------------ ----------------
March 31, 2006 $18,750,000
June 30, 2006 $18,750,000
September 30, 2006 $18,750,000
December 31, 2006 $18,750,000
March 31, 2007 $28,125,000
June 30, 2007 $28,125,000
September 30, 2007 $28,125,000
December 31, 2007 $28,125,000
March 31, 2008 $46,875,000
June 30, 2008 $46,875,000
September 30, 2008 $46,875,000
December 31, 2008 $46,875,000
March 31, 2009 $93,750,000
June 30, 2009 $93,750,000
September 30, 2009 $93,750,000
Term Maturity Date $93,750,000
2.4 Revolving Commitments. (a) Subject to the terms and conditions
hereof, each Revolving Bank severally agrees to make revolving credit loans
("Revolving Loans") to the Company from time to time during the Revolving
Commitment Period in an aggregate principal amount at any one time outstanding
which, when added to such Bank's Revolving Percentage of the sum of the L/C
Obligations then outstanding, does not exceed the amount of such Bank's
Revolving Commitment. The Company shall not request, and the Banks shall not
make, any Revolving Loan if, after giving effect to the making of such Revolving
Loan, the aggregate amount of the Available Revolving Commitments would be less
than zero. During the Revolving Commitment Period the Company may use the
Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in
part, and reborrowing, all in accordance with the terms and conditions hereof.
The Revolving Loans may from time to time be Eurodollar Loans and/or Alternate
Base Rate Loans, as determined by the Company and notified to the Agent in
accordance with subsections 2.5 and 2.14.
19
(b) The Company shall repay all outstanding Revolving Loans on the
Revolving Termination Date.
2.5 Procedure for Revolving Loan Borrowing. The Company may borrow
under the Revolving Commitments during the Revolving Commitment Period on any
Business Day, provided that the Company shall give the Agent irrevocable notice
(which notice must be received by the Agent (a) prior to 12:00 Noon, New York
City time, three Business Days prior to the requested Borrowing Date, in the
case of Eurodollar Loans, or (b) prior to 10:00 A.M., New York City time, on the
requested Borrowing Date, in the case of Alternate Base Rate Loans), specifying
(i) the amount and Type of Revolving Loans to be borrowed, (ii) the requested
Borrowing Date and (iii) in the case of Eurodollar Loans, the respective amounts
of each such Type of Loan and the respective lengths of the initial Interest
Periods therefor. Each borrowing under the Revolving Commitments shall be in an
amount equal to (x) in the case of Alternate Base Rate Loans, $1,000,000 or a
whole multiple thereof (or, if the then aggregate Available Revolving
Commitments are less than $1,000,000, such lesser amount) and (y) in the case of
Eurodollar Loans, $10,000,000 or a whole multiple of $1,000,000 in excess
thereof. Upon receipt of any such notice from the Company, the Agent shall
promptly notify each Revolving Bank thereof. Each Revolving 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 Funding Office prior to 12:00 Noon, New York City
time, on the Borrowing Date requested by the Company in funds immediately
available to the Agent. Such borrowing will then be made available to the
Company by the Agent 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
Revolving Banks and in like funds as received by the Agent.
2.6 CAF Advances. Subject to the terms and conditions of this
Agreement (and a fee payable by the Company to the Administrative Agent in an
amount to be mutually agreed upon), the Company may borrow CAF Advances from
time to time on any Business Day during the CAF Advance Availability Period. The
Company shall not request, and the Banks shall not make, any CAF Advance if,
after giving effect to the making of such CAF Advance, the aggregate amount of
the Available Revolving Commitments would be less than zero. Within the limits
and on the conditions hereinafter set forth with respect to CAF Advances, the
Company from time to time may borrow, repay and reborrow CAF Advances.
2.7 Procedure for CAF Advance Borrowing. (a) The Company shall
request CAF Advances by delivering a CAF Advance Request to the CAF Advance
Agent, not later than 12:00 Noon, New York City time, four Business Days prior
to the proposed Borrowing Date (in the case of a LIBO Rate CAF Advance Request),
and not later than 10:00 A.M., New York City time, one Business Day prior to the
proposed Borrowing Date (in the case of a Fixed Rate CAF Advance Request). Each
CAF Advance Request in respect of any Borrowing Date may solicit bids for CAF
Advances on such Borrowing Date in an aggregate principal amount of $10,000,000
or an integral multiple of $1,000,000 in excess thereof and having not more than
three alternative CAF Advance Maturity Dates. The CAF Advance Maturity Date for
each CAF Advance shall be the date set forth therefor in the relevant CAF
Advance Request, which date shall be (i) not less than 7 days nor more than 360
days after the Borrowing Date therefor, in the case of a Fixed Rate CAF Advance,
(ii) one, two, three or six months after the Borrowing Date therefor, in the
case of a LIBO CAF Advance and (iii) not later than the Revolving Termination
20
Date, in the case of any CAF Advance. The CAF Advance Agent shall notify each
Bank promptly by facsimile transmission of the contents of each CAF Advance
Request received by the CAF Advance Agent.
(b) In the case of a LIBO Rate CAF Advance Request, upon receipt of
notice from the CAF Advance Agent of the contents of such CAF Advance Request,
each Bank may elect, in its sole discretion, to offer irrevocably to make one or
more CAF Advances at the applicable LIBO Rate plus (or minus) a margin
determined by such Bank in its sole discretion for each such CAF Advance. Any
such irrevocable offer shall be made by delivering a CAF Advance Offer to the
CAF Advance Agent, before 10:30 A.M., New York City time, on the day that is
three Business Days before the proposed Borrowing Date, setting forth:
(i) the maximum amount of CAF Advances for each CAF Advance Maturity
Date and the aggregate maximum amount of CAF Advances for all CAF Advance
Maturity Dates which such Bank would be willing to make (which amounts
may, subject to subsection 2.6, exceed such Bank's Revolving Commitments);
and
(ii) the margin above or below the applicable LIBO Rate at which
such Bank is willing to make each such CAF Advance.
The CAF Advance Agent shall advise the Company before 11:00 A.M., New York City
time, on the date which is three Business Days before the proposed Borrowing
Date of the contents of each such CAF Advance Offer received by it. If the CAF
Advance Agent, in its capacity as a Bank, shall elect, in its sole discretion,
to make any such CAF Advance Offer, it shall advise the Company of the contents
of its CAF Advance Offer before 10:15 A.M., New York City time, on the date
which is three Business Days before the proposed Borrowing Date.
(c) In the case of a Fixed Rate CAF Advance Request, upon receipt of
notice from the CAF Advance Agent of the contents of such CAF Advance Request,
each Bank may elect, in its sole discretion, to offer irrevocably to make one or
more CAF Advances at a rate of interest determined by such Bank in its sole
discretion for each such CAF Advance. Any such irrevocable offer shall be made
by delivering a CAF Advance Offer to the CAF Advance Agent before 9:30 A.M., New
York City time, on the proposed Borrowing Date, setting forth:
(i) the maximum amount of CAF Advances for each CAF Advance Maturity
Date, and the aggregate maximum amount for all CAF Advance Maturity Dates,
which such Bank would be willing to make (which amounts may, subject to
subsection 2.6, exceed such Bank's Revolving Commitment); and
(ii) the rate of interest at which such Bank is willing to make each
such CAF Advance.
The CAF Advance Agent shall advise the Company before 10:00 A.M., New York City
time, on the proposed Borrowing Date of the contents of each such CAF Advance
Offer received by it. If the CAF Advance Agent, in its capacity as a Bank, shall
elect, in its sole discretion, to make any such CAF Advance Offer, it shall
advise the Company of the contents of its CAF Advance Offer before 9:15 A.M.,
New York City time, on the proposed Borrowing Date.
21
(d) Before 11:30 A.M., New York City time, three Business Days
before the proposed Borrowing Date (in the case of CAF Advances requested by a
LIBO Rate CAF Advance Request) and before 10:30 A.M., New York City time, on the
proposed Borrowing Date (in the case of CAF Advances requested by a Fixed Rate
CAF Advance Request), the Company, in its absolute discretion, shall:
(i) cancel such CAF Advance Request by giving the CAF Advance Agent
telephone notice to that effect, or
(ii) by giving telephone notice to the CAF Advance Agent
(immediately confirmed by delivery to the CAF Advance Agent of a CAF
Advance Confirmation by facsimile transmission) (A) subject to the
provisions of subsection 2.7(e), accept one or more of the offers made by
any Bank or Banks pursuant to subsection 2.7(b) or subsection 2.7(c), as
the case may be, and (B) reject any remaining offers made by Banks
pursuant to subsection 2.7(b) or subsection 2.7(c), as the case may be.
(e) The Company's acceptance of CAF Advances in response to any CAF
Advance Offers shall be subject to the following limitations:
(i) the amount of CAF Advances accepted for each CAF Advance
Maturity Date specified by any Bank in its CAF Advance Offer shall not
exceed the maximum amount for such CAF Advance Maturity Date specified in
such CAF Advance Offer;
(ii) the aggregate amount of CAF Advances accepted for all CAF
Advance Maturity Dates specified by any Bank in its CAF Advance Offer
shall not exceed the aggregate maximum amount specified in such CAF
Advance Offer for all such CAF Advance Maturity Dates;
(iii) the Company may not accept offers for CAF Advances for any CAF
Advance Maturity Date in an aggregate principal amount in excess of the
maximum principal amount requested in the related CAF Advance Request; and
(iv) if the Company accepts any of such offers, it must accept
offers based solely upon pricing for each relevant CAF Advance Maturity
Date and upon no other criteria whatsoever, and if two or more Banks
submit offers for any CAF Advance Maturity Date at identical pricing and
the Company accepts any of such offers but does not wish to (or, by reason
of the limitations set forth in subsection 2.6, cannot) borrow the total
amount offered by such Banks with such identical pricing, the Company
shall accept offers from all of such Banks in amounts allocated among them
pro rata according to the amounts offered by such Banks (with appropriate
rounding, in the sole discretion of the Company, to assure that each
accepted CAF Advance is an integral multiple of $1,000,000); provided that
if the number of Banks that submit offers for any CAF Advance Maturity
Date at identical pricing is such that, after the Company accepts such
offers pro rata in accordance with the foregoing provisions of this
paragraph, the CAF Advance to be made by any such Bank would be less than
$5,000,000 principal amount, the number of such Banks shall be reduced by
the
22
CAF Advance Agent by lot until the CAF Advances to be made by each such
remaining Bank would be in a principal amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof.
(f) If the Company notifies the CAF Advance Agent that a CAF Advance
Request is cancelled pursuant to subsection 2.7(d)(i), the CAF Advance Agent
shall give prompt telephone notice thereof to the Banks.
(g) If the Company accepts pursuant to subsection 2.7(d)(ii) one or
more of the offers made by any Bank or Banks, the CAF Advance Agent promptly
shall notify each Bank which has made such an offer of (i) the aggregate amount
of such CAF Advances to be made on such Borrowing Date for each CAF Advance
Maturity Date and (ii) the acceptance or rejection of any offers to make such
CAF Advances made by such Bank. Before 12:00 Noon, New York City time, on the
Borrowing Date specified in the applicable CAF Advance Request, each Bank whose
CAF Advance Offer has been accepted shall make available to the Agent at the
Funding Office the amount of CAF Advances to be made by such Bank, in
immediately available funds. The Agent will make such funds available to the
Company as soon as practicable on such date at such office of the Agent. As soon
as practicable after each Borrowing Date, the CAF Advance Agent shall notify
each Bank of the aggregate amount of CAF Advances advanced on such Borrowing
Date and the respective CAF Advance Maturity Dates thereof.
2.8 CAF Advance Payments. (a) The Company shall pay to the
Administrative Agent, for the account of each Bank which has made a CAF Advance,
on the applicable CAF Advance Maturity Date the then unpaid principal amount of
such CAF Advance. The Company shall not have the right to prepay any principal
amount of any CAF Advance without the consent of the Bank to which such CAF
Advance is owed.
(b) The Company shall pay interest on the unpaid principal amount of
each CAF Advance from the Borrowing Date to the applicable CAF Advance Maturity
Date at the rate of interest specified in the CAF Advance Offer accepted by the
Company in connection with such CAF Advance (calculated on the basis of a
360-day year for actual days elapsed), payable on each applicable CAF Advance
Interest Payment Date.
(c) If any principal of, or interest on, any CAF Advance shall not
be paid when due (whether at the stated maturity, by acceleration or otherwise),
such CAF Advance shall, without limiting any rights of any Bank under this
Agreement, bear interest from the date on which such payment was due at a rate
per annum which is 2% above the rate which would otherwise be applicable to such
CAF Advance until the stated CAF Advance Maturity Date of such CAF Advance, and
for each day thereafter at a rate per annum which is 2% above the Alternate Base
Rate, in each case until paid in full (as well after as before judgment).
Interest accruing pursuant to this paragraph (c) shall be payable from time to
time on demand.
2.9 Evidence of Debt. (a) The Company unconditionally promises to
pay to the Agent, for the account of each Bank that makes a CAF Advance, on the
CAF Advance Maturity Date with respect thereto, the principal amount of such CAF
Advance. The Company further unconditionally promises to pay interest on each
such CAF Advance for the period from and including the Borrowing Date of such
CAF Advance on the unpaid principal amount thereof from time to time outstanding
at the applicable rate per annum determined as provided in, and
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payable as specified in, subsection 2.8(b). Each Bank shall maintain in
accordance with its usual practice appropriate records evidencing indebtedness
of the Company to such Bank resulting from each CAF Advance of such Bank from
time to time, including the amounts of principal and interest payable and paid
to such Bank from time to time in respect of such CAF Advance. The Agent shall
maintain the Register pursuant to subsection 9.6(d), and a record therein for
each Bank, in which shall be recorded (i) the amount of each CAF Advance made by
such Bank, the CAF Advance Maturity Date thereof, the interest rate applicable
thereto and each CAF Advance Interest Payment Date applicable thereto, and (ii)
the amount of any sum received by the Agent hereunder from the Company on
account of such CAF Advance. The entries made in the Register and the records of
each Bank maintained pursuant to this subsection 2.9 shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the Company therein recorded; provided, however,
that the failure of any Bank or the Agent to maintain the Register or any such
record, or any error therein, shall not in any manner affect the obligation of
the Company to repay (with applicable interest) the CAF Advances made by such
Bank in accordance with the terms of this Agreement.
(b) At the request of any Bank at any time, the Company agrees that
it will execute and deliver to such Bank a Note evidencing the Revolving Loans,
the Term Loans or the CAF Advances of such Bank.
2.10 Certain Restrictions. A CAF Advance Request may request offers
for CAF Advances to be made on not more than one Borrowing Date and to mature on
not more than three CAF Advance Maturity Dates. No CAF Advance Request may be
submitted earlier than five Business Days after submission of any other CAF
Advance Request.
2.11 Facility Fees, etc. (a) The Company agrees to pay to the Agent
for the account of each Revolving Bank a facility fee ("Facility Fees"; each a
"Facility Fee") for the period from and including the Closing Date to the
earlier of the last day of the Revolving Commitment Period and the date upon
which this Agreement is otherwise terminated, computed at the Facility Fee Rate
on the average daily amount of the Revolving Commitment of such Bank during the
period for which payment is made, payable quarterly in arrears on the last day
of each March, June, September and December and on the earlier of the Revolving
Termination Date and the date upon which this Agreement is otherwise terminated,
commencing on the first of such dates to occur after the date hereof.
(b) The Company agrees to pay to the Agent the fees in the amounts
and on the dates set forth in the fee letter dated October 12, 2004 between the
Company and the Agent.
2.12 Termination or Reduction of Revolving Commitments. The Company
shall have the right, upon not less than three Business Days' notice to the
Agent, to terminate the Revolving Commitments or, from time to time, to reduce
the amount of the Revolving Commitments; provided that no such termination or
reduction of Revolving Commitments shall be permitted if, after giving effect
thereto and to any prepayments of the Revolving Loans made on the effective date
thereof, the Total Revolving Extensions of Credit and the aggregate amount of
CAF Advances outstanding would exceed the Total Revolving Commitments. Any such
reduction shall be in an amount equal to $10,000,000, or a whole multiple of
$1,000,000 in excess thereof, and shall reduce permanently the Revolving
Commitments then in effect.
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2.13 Optional Prepayments. The Company may at any time and from time
to time prepay the Loans, in whole or in part, without premium or penalty, upon
irrevocable notice delivered to the Agent at least three Business Days prior
thereto in the case of Eurodollar Loans and at least one Business Day prior
thereto in the case of Alternate Base Rate Loans, which notice shall specify the
date and amount of prepayment and whether the prepayment is of Eurodollar Loans
or Alternate Base Rate Loans or a combination thereof; provided, that if a
Eurodollar Loan is prepaid on any day other than the last day of the Interest
Period applicable thereto, the Company shall also pay any amounts owing pursuant
to subsection 2.22. Upon receipt of any such notice the Agent shall promptly
notify each relevant Bank thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein,
together with (except in the case of Revolving Loans that are Alternate Base
Rate Loans) accrued interest to such date on the amount prepaid. Partial
prepayments of Term Loans and/or Revolving Loans shall be in an aggregate
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. Partial prepayments of the Term Loans shall be applied to the
installments of principal under the Term Loans in the order in which
installments become due.
2.14 Conversion and Continuation Options. (a) The Company may elect
from time to time to convert all or any part of outstanding Eurodollar Loans to
Alternate Base Rate Loans by giving the Agent at least two Business Days' prior
irrevocable notice of such election, provided that any such conversion of
Eurodollar Loans may only be made on the last day of an Interest Period with
respect thereto. The Company may elect from time to time to convert all or any
part of outstanding Alternate Base Rate Loans to Eurodollar Loans by giving the
Agent at least three Business Days' prior irrevocable notice of such election
(which notice shall specify the length of the initial Interest Period therefor),
provided that no Alternate Base Rate Loan under a particular Facility may be
converted into a Eurodollar Loan when any Event of Default has occurred and is
continuing and the Agent or the Majority Facility Banks in respect of such
Facility have determined in its or their sole discretion not to permit such
conversions. Upon receipt of any such notice the Agent shall promptly notify
each relevant Bank thereof.
(b) All or any portion of any Eurodollar Loan may be continued as
such upon the expiration of the then current Interest Period with respect
thereto by the Company giving irrevocable notice to the Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
subsection 1.1, of the length of the next Interest Period to be applicable to
such Loans, provided that no Eurodollar Loan under a particular Facility may be
continued as such when any Event of Default has occurred and is continuing and
the Agent has or the Majority Facility Banks in respect of such Facility have
determined in its or their sole discretion not to permit such continuations, and
provided, further, that if the Company shall fail to give any required notice as
described above in this paragraph or if such continuation is not permitted
pursuant to the preceding proviso such Loans shall be automatically converted to
Alternate Base Rate Loans on the last day of such then expiring Interest Period.
Upon receipt of any such notice the Agent shall promptly notify each relevant
Bank thereof.
2.15 Limitations on Eurodollar Tranches. Notwithstanding anything to
the contrary in this Agreement, all borrowings, conversions and continuations of
Eurodollar Loans under each Facility and all selections of Interest Periods
shall be in such amounts and be made pursuant to such elections so that, (a)
after giving effect thereto, the aggregate principal amount of the Eurodollar
Loans comprising each Eurodollar Tranche shall be equal to $10,000,000 or a
25
whole multiple of $1,000,000 in excess thereof and (b) no more than 15
Eurodollar Tranches shall be outstanding at any one time.
2.16 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
under each Facility (other than a LIBO Rate CAF Advance) shall bear interest for
each day during each Interest Period with respect thereto at a rate per annum
equal to the Eurodollar Rate determined for such day plus the Applicable Margin
for such Facility.
(b) Each Alternate Base Rate Loan under each Facility shall bear
interest at a rate per annum equal to the Alternate Base Rate plus the
Applicable Margin for such Facility.
(c) (i) If all or a portion of the principal amount of any Loan or
Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum equal to (x) in the case of the Loans (other than CAF
Advances), the rate that would otherwise be applicable thereto pursuant to the
foregoing provisions of this subsection plus 2% or (y) in the case of
Reimbursement Obligations, the rate applicable to Alternate Base Rate Loans
under the Revolving Facility plus 2%, and (ii) if all or a portion of any
interest payable on any Loan or Reimbursement Obligation or any Facility Fee or
other amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum equal to the rate then applicable to Alternate Base Rate
Loans under the relevant Facility plus 2%, in each case, with respect to clauses
(i) and (ii) above, from the date of such non-payment until such amount is paid
in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
2.17 Computation of Interest and Fees. (a) Interest and fees payable
pursuant hereto shall be calculated on the basis of a 360-day year for the
actual days elapsed, except that, with respect to Alternate Base Rate Loans the
rate of interest on which is calculated on the basis of the Prime Rate, the
interest thereon shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed. The Agent shall as soon as
practicable notify the Company and the relevant 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 Eurocurrency Reserve Requirements shall
become effective as of the opening of business on the day on which such change
becomes effective. The Agent shall as soon as practicable notify the Company and
the relevant Banks of the effective date and the amount of each such change in
interest rate.
(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 2.16(a).
26
2.18 Inability to Determine Interest Rate. If prior to the first day
of any Interest Period:
(a) the Agent shall have determined (which determination shall be
conclusive and binding upon the Company) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist
for ascertaining the Eurodollar Rate for such Interest Period, or
(b) the Agent shall have received notice from the Majority Facility
Banks in respect of the relevant Facility that the Eurodollar Rate
determined or to be determined for such Interest Period will not
adequately and fairly reflect the cost to such Banks (as conclusively
certified by such Banks) of making or maintaining their affected Loans
during such Interest Period,
the Agent shall give telecopy or telephonic notice thereof to the Company and
the relevant Banks as soon as practicable thereafter. If such notice is given
(x) any Eurodollar Loans under the relevant Facility requested to be made on the
first day of such Interest Period shall be made as Alternate Base Rate Loans,
(y) any Loans under the relevant Facility that were to have been converted on
the first day of such Interest Period to Eurodollar Loans shall be continued as
Alternate Base Rate Loans and (z) any outstanding Eurodollar Loans under the
relevant Facility shall be converted, on the last day of the corresponding
Interest Period(s), to Alternate Base Rate Loans. Until such notice has been
withdrawn by the Agent, no further Eurodollar Loans under the relevant Facility
shall be made or continued as such, nor shall the Company have the right to
convert Loans under the relevant Facility to Eurodollar Loans.
2.19 Pro Rata Treatment and Payments. (a) Each borrowing by the
Company from the Banks hereunder (other than borrowing of CAF Advances), each
payment by the Company on account of any commitment fee and any reduction of the
Commitments of the Banks shall be made pro rata according to the respective Term
Percentages or Revolving Percentages, as the case may be, of the relevant Banks.
(b) Each payment (including each prepayment) by the Company on
account of principal of and interest on the Term Loans shall be made pro rata
according to the respective outstanding principal amounts of the Term Loans then
held by the Term Banks. Amounts prepaid on account of the Term Loans may not be
reborrowed.
(c) Each payment (including each prepayment) by the Company on
account of principal of and interest on the Revolving Loans shall be made pro
rata according to the respective outstanding principal amounts of the Revolving
Loans then held by the Revolving Banks.
(d) All payments (including prepayments) to be made by the Company
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim and shall be made prior to 1:00 P.M., New
York City time, on the due date thereof to the Agent, for the account of the
Banks, at the Agent's office set forth in subsection 9.2, in Dollars 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
27
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. 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. In the case of any
extension of any payment of principal pursuant to the preceding two sentences,
interest thereon shall be payable at the then applicable rate during such
extension.
(e) Unless the Agent shall have been notified in writing by any Bank
prior to a borrowing that such Bank will not make the amount that would
constitute its share of such borrowing available to the Agent, the Agent may
assume that such Bank is making such amount available to the Agent, and the
Agent may, in reliance upon such assumption, make available to the Company a
corresponding amount. If such amount is not made available to the Agent by the
required time on the Borrowing Date therefor, such Bank shall pay to the Agent,
on demand, such amount with interest thereon at a rate equal to the daily
average Federal Funds Effective Rate for the period until such Bank makes such
amount immediately available to the Agent. A certificate of the Agent submitted
to any Bank with respect to any amounts owing under this paragraph shall be
conclusive in the absence of manifest error. If such Bank's share of such
borrowing is not made available to the Agent by such Bank within three Business
Days after such Borrowing Date, the Agent shall also be entitled to recover such
amount with interest thereon at the rate per annum applicable to Alternate Base
Rate Loans under the relevant Facility, on demand, from the Company.
(f) Unless the Agent shall have been notified in writing by the
Company prior to the date of any payment due to be made by the Company hereunder
that the Company will not make such payment to the Agent, the Agent may assume
that the Company is making such payment, and the Agent may, but shall not be
required to, in reliance upon such assumption, make available to the Banks their
respective pro rata shares of a corresponding amount. If such payment is not
made to the Agent by the Company within three Business Days after such due date,
the Agent shall be entitled to recover, on demand, from each Bank to which any
amount which was made available pursuant to the preceding sentence, such amount
with interest thereon at the rate per annum equal to the daily average Federal
Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the
Agent or any Bank against the Company.
2.20 Requirements of Law. (a) If the adoption of or any change in
any Requirement of Law or in the interpretation or application thereof after the
date hereof or compliance by any Bank with any request or directive (whether or
not having the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof:
(i) shall subject any Bank to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any Application or any
Eurodollar Loan made by it, or change the basis of taxation of payments to
such Bank in respect thereof (except for Non-Excluded Taxes covered by
subsection 2.21 and changes in the rate of tax on the overall net income
of such Bank);
28
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Bank that is not otherwise included in the determination of
the Eurodollar Rate; or
(iii) shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank, by
an amount that such Bank deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, 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
increased cost or reduced amount receivable. If any Bank becomes entitled to
claim any additional amounts pursuant to this paragraph, it shall, within 90
days after it becomes aware of such fact, notify the Company (with a copy to the
Agent) of the event by reason of which it has become so entitled.
(b) If any Bank shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof after the date hereof or compliance by
such Bank or any corporation controlling such Bank with any request or directive
regarding capital adequacy (whether or not having the force of law) from any
Governmental Authority made subsequent to the date hereof 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 or under or in respect of any Letter of
Credit 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 deemed by such Bank to be material, then from time to time, after
submission by such Bank to the Company (with a copy to the Agent) of a written
request therefor (such request shall include details reasonably sufficient to
establish the basis for such additional costs and shall be submitted to the
Company within 30 Business Days after it becomes aware of such fact), the
Company shall pay to such Bank such additional amount or amounts as will
compensate such Bank or such corporation for such reduction; provided that the
Company shall not be required to compensate a Bank pursuant to this paragraph
for any amounts incurred more than 90 days prior to the date that such Bank
notifies the Company of such Bank's intention to claim compensation therefor;
and provided further that, if the circumstances giving rise to such claim have a
retroactive effect, then such 90 day period shall be extended to include the
period of such retroactive effect.
(c) A certificate as to any additional amounts payable pursuant to
this subsection submitted by any Bank to the Company (with a copy to the Agent)
shall be conclusive in the absence of manifest error. The obligations of the
Company pursuant to this subsection shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
2.21 Taxes. (a) All payments made by the Company under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any
29
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 net
income taxes, franchise taxes and excise taxes (imposed in lieu of net income
taxes) imposed on the Agent or any Bank as a result of a present or former
connection between the Agent or such Bank and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
the Agent or such Bank having executed, delivered or performed its obligations
or received a payment under, or enforced, this Agreement or any other Loan
Document). If any such non-excluded taxes, levies, imposts, duties, charges,
fees, deductions or withholdings ("Non-Excluded Taxes") or Other Taxes are
required to be withheld from any amounts payable to the Agent or any Bank
hereunder, 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
Non-Excluded Taxes and Other Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement, provided,
however, that the Company shall not be required to increase any such amounts
payable to any Bank with respect to any Non-Excluded Taxes (i) that are
attributable to such Bank's failure to comply with the requirements of paragraph
(d) or (e) of this subsection or (ii) that are United States withholding taxes
imposed on amounts payable to such Bank at the time such Bank becomes a party to
this Agreement, except to the extent that such Bank's assignor (if any) was
entitled, at the time of assignment, to receive additional amounts from the
Company with respect to such Non-Excluded Taxes pursuant to this paragraph.
(b) In addition, the Company shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other 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 the relevant 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 Non-Excluded Taxes or
Other 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.
(d) Each Bank (or Transferee) that is not a "U.S. Person" as defined
in Section 7701(a)(30) of the Code (a "Non-U.S. Bank") shall deliver to the
Company and the Agent (or, in the case of a Participant, to the Bank from which
the related participation shall have been purchased) two copies of either U.S.
Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of a
Non-U.S. Bank claiming exemption from U.S. federal withholding tax under Section
871(h) or 881(c) of the Code with respect to payments of "portfolio interest", a
statement substantially in the form of Exhibit D and a Form W-8BEN, or any
subsequent versions thereof or successors thereto, properly completed and duly
executed by such Non-U.S. Bank claiming complete exemption from, or a reduced
rate of, U.S. federal withholding tax on all payments by the Company under this
Agreement and the other Loan Documents. Such forms shall be delivered by each
Non-U.S. Bank on or before the date it becomes a party to this Agreement (or, in
the case of any Participant, on or before the date such Participant purchases
the related
30
participation). In addition, each Non-U.S. Bank shall deliver such forms
promptly upon the obsolescence or invalidity of any form previously delivered by
such Non-U.S. Bank. Each Non-U.S. Bank shall promptly notify the Company at any
time it determines that it is no longer in a position to provide any previously
delivered certificate to the Company (or any other form of certification adopted
by the U.S. taxing authorities for such purpose). Notwithstanding any other
provision of this paragraph, a Non-U.S. Bank shall not be required to deliver
any form pursuant to this paragraph that such Non-U.S. Bank is not legally able
to deliver.
(e) A Bank that is entitled to an exemption from or reduction of
non-U.S. withholding tax under the law of the jurisdiction in which the Company
is located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Company (with a copy to the
Agent), at the time or times prescribed by applicable law or reasonably
requested by the Company, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate, provided that such Bank is legally entitled to
complete, execute and deliver such documentation and in such Bank's judgment
such completion, execution or submission would not materially prejudice the
legal position of such Bank.
(f) The agreements in this subsection shall survive the termination
of this Agreement and the payment of the Loans and all other amounts payable
hereunder.
2.22 Indemnity. The Company agrees to indemnify each Bank for, and
to hold each Bank harmless from, any loss (excluding the Applicable Margin, if
included therein) or expense that such Bank may sustain or incur as a
consequence of (a) default by the Company in making a borrowing of, conversion
into or continuation of Eurodollar Loans after the Company has given a notice
requesting the same in accordance with the provisions of this Agreement, (b)
default by the Company in making any prepayment of or conversion from Eurodollar
Loans after the Company has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans on a day that is not the last day of an Interest Period with respect
thereto. Such indemnification may include an amount equal to the excess, if any,
of (i) the amount of interest that would have accrued on the amount so prepaid,
or not so borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Bank) that
would have accrued to such Bank on such amount by placing such amount on deposit
for a comparable period with leading banks in the interbank eurodollar market. A
certificate as to any amounts payable pursuant to this subsection 2.22, together
with calculations in reasonable detail, submitted to the Company by any Bank
shall be conclusive in the absence of manifest error. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
2.23 Change of Lending Office. Each Bank agrees that, upon the
occurrence of any event giving rise to the operation of subsection 2.20 or
2.21(a) with respect to such Bank, it will, if requested by the Company, use
reasonable efforts (subject to overall policy
31
considerations of such Bank) to designate another lending office for any Loans
affected by such event with the object of avoiding the consequences of such
event; provided, that such designation is made on terms that, in the sole
judgment of such Bank, cause such Bank and its lending office(s) to suffer no
economic, legal or regulatory disadvantage, and provided, further, that nothing
in this subsection shall affect or postpone any of the obligations of the
Company or the rights of any Bank pursuant to subsection 2.20 or 2.21(a).
2.24 Replacement of Banks. The Company shall be permitted to replace
any Bank that (a) requests reimbursement for amounts owing pursuant to
subsection 2.20 or 2.21(a) or (b) defaults in its obligation to make Loans
hereunder, with a replacement financial institution; provided that (i) such
replacement does not conflict with any Requirement of Law, (ii) prior to any
such replacement, such Bank shall have taken no action under subsection 2.23 so
as to eliminate the continued need for payment of amounts owing pursuant to
subsection 2.20 or 2.21(a), (iii) the replacement financial institution shall
purchase, at par, all Loans (and any Notes evidencing such Loans), any
outstanding reimbursement obligations on account of any Letters of Credit and
other amounts owing to such replaced Bank on or prior to the date of replacement
(which amounts shall include such replaced Bank's share of accrued fees and
accrued interest), (iv) the Company shall be liable to such replaced Bank under
subsection 2.22 if any Eurodollar Loan owing to such replaced Bank shall be
purchased other than on the last day of the Interest Period relating thereto,
(v) the replacement financial institution, if not already a Bank, shall be
reasonably satisfactory to the Agent, (vi) the replaced Bank shall be obligated
to make such replacement in accordance with the provisions of subsection 9.6
(provided that the Company shall be obligated to pay the registration and
processing fee referred to therein), (vii) until such time as such replacement
shall be consummated, the Company shall pay all additional amounts (if any)
required pursuant to subsection 2.20 or 2.21(a), as the case may be, and (viii)
any such replacement shall not be deemed to be a waiver of any rights that the
Company, the Agent or any other Bank shall have against the replaced Bank.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions hereof,
the Issuing Bank, in reliance on the agreements of the other Revolving Banks set
forth in subsection 3.4(a), agrees to issue letters of credit ("Letters of
Credit") for the account of the Company on any Business Day during the Revolving
Commitment Period in such form as may be approved from time to time by the
Issuing Bank; provided that the Issuing Bank shall have no obligation to issue
any Letter of Credit if, after giving effect to such issuance, (i) the L/C
Obligations would exceed the L/C Commitment or (ii) the aggregate amount of the
Available Revolving Commitments would be less than zero. Each Letter of Credit
shall (i) be denominated in Dollars and (ii) expire no later than the earlier of
(x) the first anniversary of its date of issuance and (y) the date that is five
Business Days prior to the Revolving Termination Date, provided that any Letter
of Credit with a one-year term may provide for the renewal thereof for
additional one-year periods (which shall in no event extend beyond the date
referred to in clause (y) above). Each letter of credit issued under the Credit
Agreement dated as of April 30, 2001, as amended, to which the Company is a
party, shall, from and after the Closing Date, be deemed to be a Letter of
Credit hereunder.
32
(b) The Issuing Bank shall not at any time be obligated to issue any
Letter of Credit if such issuance would conflict with, or cause the Issuing Bank
or any L/C Participant to exceed any limits imposed by, any applicable
Requirement of Law.
3.2 Procedure for Issuance of Letter of Credit. The Company may from
time to time request that the Issuing Bank issue a Letter of Credit by
delivering to the Issuing Bank at its address for notices specified herein an
Application therefor, completed to the satisfaction of the Issuing Bank, and
such other certificates, documents and other papers and information as the
Issuing Bank may request. Upon receipt of any Application, the Issuing Bank will
process such Application and the certificates, documents and other papers and
information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall the Issuing Bank be required to issue any Letter
of Credit earlier than three Business Days after its receipt of the Application
therefor and all such other certificates, documents and other papers and
information relating thereto) by issuing the original of such Letter of Credit
to the beneficiary thereof or as otherwise may be agreed to by the Issuing Bank
and the Company. The Issuing Bank shall furnish a copy of such Letter of Credit
to the Company promptly following the issuance thereof. The Issuing Bank shall
promptly furnish to the Agent, which shall in turn promptly furnish to the
Banks, notice of the issuance of each Letter of Credit (including the amount
thereof).
3.3 Fees and Other Charges. (a) The Company will pay a fee on all
outstanding Letters of Credit at a per annum rate equal to the Applicable Margin
then in effect with respect to Eurodollar Loans under the Revolving Facility,
shared ratably among the Revolving Banks and payable quarterly in arrears on
each L/C Fee Payment Date after the issuance date. In addition, the Company
shall pay to the Issuing Bank for its own account a fronting fee of 0.125% per
annum on the undrawn and unexpired amount of each Letter of Credit, payable
quarterly in arrears on each L/C Fee Payment Date after the Issuance Date.
(b) In addition to the foregoing fees, the Company shall pay or
reimburse the Issuing Bank for such normal and customary costs and expenses as
are incurred or charged by the Issuing Bank in issuing, negotiating, effecting
payment under, amending or otherwise administering any Letter of Credit.
3.4 L/C Participations. (a) The Issuing Bank irrevocably agrees to
grant and hereby grants to each L/C Participant, and, to induce the Issuing Bank
to issue Letters of Credit, each L/C Participant irrevocably agrees to accept
and purchase and hereby accepts and purchases from the Issuing Bank, on the
terms and conditions set forth below, for such L/C Participant's own account and
risk an undivided interest equal to such L/C Participant's Revolving Percentage
in the Issuing Bank's obligations and rights under and in respect of each Letter
of Credit and the amount of each draft paid by the Issuing Bank thereunder. Each
L/C Participant unconditionally and irrevocably agrees with the Issuing Bank
that, if a draft is paid under any Letter of Credit for which the Issuing Bank
is not reimbursed in full by the Company in accordance with the terms of this
Agreement, such L/C Participant shall pay to the Issuing Bank upon demand at the
Issuing Bank's address for notices specified herein an amount equal to such L/C
Participant's Revolving Percentage of the amount of such draft, or any part
thereof, that is not so reimbursed.
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(b) If any amount required to be paid by any L/C Participant to the
Issuing Bank pursuant to subsection 3.4(a) in respect of any unreimbursed
portion of any payment made by the Issuing Bank under any Letter of Credit is
paid to the Issuing Bank within three Business Days after the date such payment
is due, such L/C Participant shall pay to the Issuing Bank on demand an amount
equal to the product of (i) such amount, times (ii) the daily average Federal
Funds Effective Rate during the period from and including the date such payment
is required to the date on which such payment is immediately available to the
Issuing Bank, times (iii) a fraction the numerator of which is the number of
days that elapse during such period and the denominator of which is 360. If any
such amount required to be paid by any L/C Participant pursuant to subsection
3.4(a) is not made available to the Issuing Bank by such L/C Participant within
three Business Days after the date such payment is due, the Issuing Bank shall
be entitled to recover from such L/C Participant, on demand, such amount with
interest thereon calculated from such due date at the rate per annum applicable
to Alternate Base Rate Loans under the Revolving Facility. A certificate of the
Issuing Bank submitted to any L/C Participant with respect to any amounts owing
under this Section shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Bank has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with subsection 3.4(a), the Issuing
Bank receives any payment related to such Letter of Credit (whether directly
from the Company or otherwise, including proceeds of collateral applied thereto
by the Issuing Bank), or any payment of interest on account thereof, the Issuing
Bank will distribute to such L/C Participant its pro rata share thereof;
provided, however, that in the event that any such payment received by the
Issuing Bank shall be required to be returned by the Issuing Bank, such L/C
Participant shall return to the Issuing Bank the portion thereof previously
distributed by the Issuing Bank to it.
3.5 Reimbursement Obligation of the Company. The Company agrees to
reimburse the Issuing Bank on the Business Day next succeeding the Business Day
on which the Issuing Bank notifies the Company of the date and amount of a draft
presented under any Letter of Credit and paid by the Issuing Bank for the amount
of (a) such draft so paid and (b) any taxes, fees, charges or other costs or
expenses incurred by the Issuing Bank in connection with such payment. Each such
payment shall be made to the Issuing Bank at its address for notices referred to
herein in Dollars and in immediately available funds. Interest shall be payable
on any such amounts from the date on which the relevant draft is paid until
payment in full at the rate set forth in (i) until the Business Day next
succeeding the date of the relevant notice, subsection 2.16(b) with respect to
Revolving Loans and (ii) thereafter, subsection 2.16(c).
3.6 Obligations Absolute. The Company's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment that the
Company may have or have had against the Issuing Bank, any beneficiary of a
Letter of Credit or any other Person. The Company also agrees with the Issuing
Bank that the Issuing Bank shall not be responsible for, and the Company's
Reimbursement Obligations under subsection 3.5 shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Company and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Company against any
34
beneficiary of such Letter of Credit or any such transferee. The Issuing Bank
shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
the Issuing Bank. The Company agrees that any action taken or omitted by the
Issuing Bank under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in the Uniform
Commercial Code of the State of New York, shall be binding on the Company and
shall not result in any liability of the Issuing Bank to the Company.
3.7 Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the Issuing Bank shall promptly notify the
Company of the date and amount thereof. The responsibility of the Issuing Bank
to the Company in connection with any draft presented for payment under any
Letter of Credit shall, in addition to any payment obligation expressly provided
for in such Letter of Credit, be limited to determining that the documents
(including each draft) delivered under such Letter of Credit in connection with
such presentment are substantially in conformity with such Letter of Credit.
3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Banks that:
4.1 Corporate Organization and Existence. Each of the Company and
each Significant 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 (except where such failure would not be material to
the Company and its Subsidiaries on a consolidated basis).
4.2 Subsidiaries. As of the date hereof, the Company has only the
Subsidiaries set forth in Schedule II. The capital stock and securities owned by
the Company and its
35
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.
4.3 Financial Information. The Company has furnished to the Agent
and made available to each Bank copies of the following (the "SEC Reports"):
(a) the Annual Report to Stockholders of the Company for the fiscal
year ended December 31, 2003, containing the consolidated balance sheet of
the Company and its Subsidiaries as at said date and the related
consolidated statements of income, stockholders' equity and cash flows for
the fiscal year then ended, accompanied by the report of Ernst & Young
LLP;
(b) the Annual Report of the Company on Form 10-K for the fiscal
year ended December 31, 2003;
(c) the Quarterly Reports of the Company on Form 10-Q for the fiscal
quarters ended March 31, 2004, June 30, 2004 and September 30, 2004; and
(d) Current Reports on Form 8-K filed with the Securities and
Exchange Commission dated February 3, 2004, March 11, 2004, April 14,
2004, April 22, 2004, July 14, 2004, July 26, 2004, October 13, 2004,
October 22, 2004 and October 25, 2004, respectively.
The financial statements included in the reports identified in the preceding
paragraphs (a) through (c) (including any notes thereto) were prepared in
accordance with GAAP (except that financial statements for interim periods were
prepared in accordance with GAAP for interim financial information) and fairly
present the financial condition of the corporations covered thereby at the dates
thereof and the results of their operations for the periods covered thereby. 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.
4.4 Changes in Condition. Since December 31, 2003 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.
4.5 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 4.3 or furnished pursuant to
subsection 6.5, 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.
4.6 Litigation. Except as disclosed in the Company's SEC Reports,
and except as set forth on Schedule V hereto, there is no litigation, at law or
in equity, or any proceeding
36
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, 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 or which seeks to enjoin the consummation of any of the
transactions contemplated by this Agreement or any other Loan Document and
involves any material risk that any such injunction will be issued, and no
judgment, decree, or order of any federal, state, provincial or municipal court,
board or other governmental or administrative agency has been issued against the
Company or any Subsidiary which 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. With
respect to the matters disclosed in the Company's SEC Reports, and the matters
set forth on Schedule V hereto, since the date of such disclosures there has
been no development which is material and adverse to the business or assets or
to the condition, financial or otherwise, of the Company and its Subsidiaries on
a consolidated basis.
4.7 Tax Returns. The Company and each of its Subsidiaries have filed
all material tax returns which are required to be filed and have paid, or made
adequate provision for the payment of, all material taxes which have or may
become due pursuant to said returns or to assessments received. The Company
knows of no material additional assessments for which adequate reserves have not
been established.
4.8 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.
4.9 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 certificate of
incorporation 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
37
and performance of this Agreement or the transactions contemplated hereby, or
the making of any borrowing by the Company hereunder.
4.10 Defaults. Neither the Company nor any Significant Subsidiary is
in default under any provision of its certificate of incorporation, articles of
incorporation, 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.
4.11 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.
4.12 Pension Plans. Each Plan maintained by the Company, any
Subsidiary or any Control Group Person or to which any of them makes or will
make contributions is in material compliance with the applicable provisions of
ERISA and the Code. The Company and its Subsidiaries have met all of the funding
standards applicable to all Plans, and there exists no event or condition which
would permit the institution of proceedings to terminate any Plan that is not a
Multiemployer Plan. The aggregate vested liabilities (using Plan funding
assumptions) under the Plans that are subject to Title IV of ERISA and that are
not Multiemployer Plans do not exceed the aggregate value of such Plans' assets
by more than $50,000,000.
4.13 Disclosure. No statement or information contained in this
Agreement, any other Loan Document, the Confidential Information Memorandum or
any other document, certificate or written statement furnished by or on behalf
of the Company to the Agent or the Banks, or any of them, for use in connection
with the transactions contemplated by this Agreement or the other Loan
Documents, contained as of the date such statement, information, document or
certificate was so furnished (or, in the case of the Confidential Information
Memorandum, as of the date of this Agreement), any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements contained herein or therein not misleading. The projections and pro
forma financial information contained in the materials referenced above are
based upon good faith estimates and assumptions believed by management of the
Company to be reasonable at the time made, it being recognized by the Banks that
such financial information as it relates to future events is not to be viewed as
fact and that actual results during the period or periods covered by such
financial information may differ from the projected results set forth therein by
a material amount.
4.14 Environmental and Public and Employee Health and Safety
Matters. The Company and each Subsidiary has complied with all applicable
Federal, state, and other laws,
38
rules and regulations relating to environmental pollution or to environmental
regulation or control or to public or employee health or safety, except to the
extent that the failure to so comply would not be reasonably likely to result in
a material adverse effect on the business or assets or on the condition,
financial or otherwise, of the Company and its Subsidiaries on a consolidated
basis. The Company's and the Subsidiaries' facilities do not contain, and have
not previously contained, any hazardous wastes, hazardous substances, hazardous
materials, toxic substances or toxic pollutants regulated under the Resource
Conservation and Recovery Act, the Comprehensive Environmental Response
Compensation and Liability Act, the Hazardous Materials Transportation Act, the
Toxic Substance Control Act, the Clean Air Act, the Clean Water Act or any other
applicable law relating to environmental pollution or public or employee health
and safety, in violation of any such law, or any rules or regulations
promulgated pursuant thereto, except for violations that would not be reasonably
likely to result in a material adverse effect on the business or assets or on
the condition, financial or otherwise, of the Company and its Subsidiaries on a
consolidated basis. The Company is aware of no events, conditions or
circumstances involving environmental pollution or contamination or public or
employee health or safety, in each case applicable to it or its Subsidiaries,
that would be reasonably likely to result in a material adverse effect on the
business or assets or on the condition, financial or otherwise, of the Company
and its Subsidiaries on a consolidated basis.
4.15 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.
4.16 Investment Company Act; Other Regulations. The Company is not
an "investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. The
Company is not subject to regulation under any Federal or State statute or
regulation which limits its ability to incur Indebtedness.
SECTION 5. CONDITIONS
The obligations of each Bank to make any Loan and the Issuing Bank
to issue a Letter of Credit contemplated hereunder 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:
5.1 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.
39
5.2 Legal Opinions. On the Closing Date, each Bank shall have
received from any general, associate, or assistant general counsel or Vice
President-Legal to the Company, such opinions as the Agent shall have reasonably
requested with respect to the transactions contemplated by this Agreement.
5.3 Company Officers' Certificate. The representations and
warranties contained in Section 4 (as qualified by the disclosures in (i) the
Company's Annual Report on Form 10-K for its fiscal year ended December 31,
2003, (ii) the Company's Quarterly Reports on Form 10-Q for its fiscal quarters
ended March 31, 2004, June 30, 2004 and September 30, 2004, (iii) the Company's
Reports on Form 8-K dated February 3, 2004, March 11, 2004, April 14, 2004,
April 22, 2004, July 14, 2004, July 26, 2004, October 13, 2004, October 22, 2004
and October 25, 2004, respectively, in the case of each of the items referred to
in clauses (i), (ii) and (iii), as filed with the Securities and Exchange
Commission and previously distributed to the Agent and made available to each
Bank and (iv) Schedule V attached hereto) shall be true and correct in all
material respects on the Closing Date and on and as of each Borrowing Date with
the same force and effect as though made on and as of such date (except for
representations and warranties made as of a specified date, which shall be true
and correct as of such dates); 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, and the Agent
shall have received a certificate containing a representation to these effects
dated such Borrowing Date and signed by a Responsible Officer.
5.4 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.
5.5 Termination of Existing Credit Facilities. On the Closing Date,
the Agent shall have received satisfactory evidence that the Company's Credit
Agreement dated as of April 30, 2001, as amended, shall have been terminated and
all amounts thereunder shall have been paid in full by the proceeds of the Loans
hereunder (other than any outstanding letters of credit which will be deemed to
be Letters of Credit outstanding and covered under this Agreement).
5.6 General. On the Closing Date, 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.
5.7 Fees. The Agent shall have received the fees to be received on
the Closing Date referred to in subsection 2.11.
5.8 Rating. On the Closing Date, the Company shall have received
long-term unsecured debt ratings from S&P and Moody's of at least BB+ and Ba2,
respectively (in each case with a stable outlook).
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SECTION 6. GENERAL COVENANTS
On and after the date hereof, until all of the Loans and all other
amounts payable pursuant hereto shall have been paid in full and so long as the
Commitments shall remain in effect, the Company covenants that the Company will
comply, and will cause each of its Subsidiaries to comply, with such of the
provisions of this Section 6 and such other provisions of this Agreement as are
applicable to the Person in question.
6.1 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 material 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 adequate 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.
(c) 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.
6.2 Maintenance of Properties; Compliance with Law. Each of the
Company and its Subsidiaries (a) will keep its material properties in good
repair, working order and condition and will from time to time make all
necessary and proper repairs, renewals, replacements, additions and improvements
thereto and will comply at all times with the provisions of all material leases
and other material agreements to which it is a party so as to prevent any loss
or forfeiture thereof or thereunder unless compliance therewith is being
currently contested in good faith by appropriate proceedings and (b) in the case
of the Company or any Subsidiary of the Company while such Person remains a
Subsidiary, will do all things necessary to preserve, renew and keep in full
force and effect and in good standing its corporate existence and franchises
necessary to continue such businesses. The Company and its Subsidiaries will
comply in all material respects with all valid and applicable Requirements of
Law (including any such laws, rules, regulations or governmental orders relating
to the protection of environmental or public or employee health or safety) of
the United States, of the States thereof and their counties, municipalities and
other subdivisions and of any other jurisdiction, applicable to the Company and
its Subsidiaries, except where compliance therewith shall be contested in good
faith by appropriate proceedings, the Company or the Subsidiary in question
shall have set aside on its books appropriate reserves in conformity with GAAP
with respect thereto, and the failure to comply therewith could not reasonably
be expected to, in the aggregate, have a material adverse
41
effect on the business or assets or on the condition, financial or otherwise, of
the Company and its Subsidiaries on a consolidated basis.
6.3 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 not material to the Company and its Subsidiaries on a
consolidated basis or 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.
6.4 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.
6.5 Financial Statements. The Company will and will cause each of
its Subsidiaries to maintain a standard system of accounting in which full, true
and correct entries will be made of all dealings or transactions in relation to
its business and affairs in accordance with GAAP consistently applied, and will
furnish the following to each Bank (in duplicate if so requested):
(a) Annual Statements. As soon as available, and in any event
within 90 days after the end of each fiscal year, the consolidated balance
sheet as at the end of each fiscal year and consolidated statements of
operations and cash flows and of stockholders' equity for such fiscal year
of the Company and its Subsidiaries, together with comparative
consolidated figures for the next preceding fiscal year, accompanied by
reports or certificates of an Auditor, to the effect that such balance
sheet and statements were prepared in accordance with GAAP consistently
applied and fairly present the financial position of the Company and its
Subsidiaries as at the end of such fiscal year and the results of their
operations and cash flows for the year then ended and the statement of
such Auditor and of a Responsible Officer of the Company that such Auditor
and Responsible Officer have caused the provisions of this Agreement to be
reviewed and that nothing has come to their attention to lead them to
believe that any Default exists hereunder or, if such is not the case,
specifying such Default or possible Default and the nature thereof. In
addition, such financial statements shall be accompanied by a certificate
of a Responsible Officer of the Company containing computations showing
compliance with subsections 6.6, 6.7, 6.10 and 6.12.
42
(b) Quarterly Statements. As soon as available, and in any
event within 45 days after the close of each of the first three fiscal
quarters of the Company and its Subsidiaries in each year, condensed
consolidated balance sheets as at the end of such fiscal quarter and
condensed consolidated statements of operations and cash flows for the
portion of the fiscal year then ended, of the Company and its
Subsidiaries, together with computations showing compliance with
subsections 6.6, 6.7, 6.10 and 6.12, accompanied by a certificate of a
Responsible Officer of the Company that such statements and computations
have been properly prepared in accordance with GAAP for interim financial
information, consistently applied, and fairly present the financial
position of the Company and its Subsidiaries as at the end of such fiscal
quarter and the results of their operations and cash flows for such
quarter and for the portion of the fiscal year then ended (subject to
customary year-end adjustments not expected to be material), and to the
further effect that such Responsible Officer 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, has resulted or reasonably may be expected to
result in any material judgment or liability or has resulted or reasonably
may be expected to 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 and which litigation or
proceeding is otherwise required to be disclosed in such reports. Promptly
upon acquiring knowledge thereof, the Company will notify each Bank of the
existence of any Default, including, without limitation, any default in
the payment of any Indebtedness for money borrowed of the Company or any
Subsidiary or under the terms of any agreement relating to such
Indebtedness, specifying the nature of such Default and what action the
Company has taken or is taking or proposes to take with respect thereto.
Promptly upon acquiring knowledge thereof, the Company will notify each
Bank of a change in the publicly announced ratings by S&P and 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 that is a "defined benefit plan" as
defined in ERISA, or prior to the Plan administrator's terminating such
Plan pursuant to Section 4041 of ERISA, the Company will notify the Agent
and will furnish to the Agent a copy of any notice of such
43
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 its 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, the Company will furnish the Agent
with 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 the Agent shall have the right during reasonable
business hours and after reasonable notice to examine the books and
records of the Company and its Subsidiaries, and to make notes and
abstracts therefrom, to make an independent examination of its books and
records for the purpose of verifying the accuracy of the reports delivered
by the Company and its Subsidiaries pursuant to this Agreement or
otherwise, and ascertaining compliance with this Agreement.
Representatives of any Bank (at such Bank's expense) may accompany the
Agent during any examination referred to in the preceding sentence.
(g) Confidentiality of Information. Each Bank acknowledges
that some of the information furnished to such Bank pursuant to this
subsection 6.5 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 or regulatory 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
6.5(g) or (iv) with the prior consent of the Company.
6.6 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 (i) 75% of
Consolidated Total Capitalization from the Closing Date until
44
March 30, 2006, (ii) 70% of Consolidated Total Capitalization from March 31,
2006 until March 30, 2007 and (iii) 65% of Consolidated Total Capitalization
from March 31, 2007 and thereafter.
6.7 Interest Coverage Ratio. On the last day of each fiscal quarter
of the Company, the Consolidated Earnings Before Interest and Taxes of the
Company and its Subsidiaries for the four consecutive fiscal quarters of the
Company then ending will be an amount which equals or exceeds 200% of the
Consolidated Interest Expense of the Company and its Subsidiaries for the same
four consecutive fiscal quarters.
6.8 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 Distributions.
6.9 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 purposes of causing the Company to be incorporated in a different
jurisdiction in the United States or causing the Company to change its name.
6.10 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 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 (in
the case of any exchange of any material asset or group of assets, 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 6.10(a) (including, without
limitation, any disposition resulting from any merger or consolidation involving
a Subsidiary of the Company, and any Sale-and-Leaseback Transaction) and (y) the
aggregate fair market value (as determined in good faith by the Board of
Directors of the Company) of all assets of the Company and its Subsidiaries
exchanged pursuant to this subsection 6.10(b) does not exceed 20% of
Consolidated Assets of the Company and its Subsidiaries as at the end of the
immediately preceding fiscal year.
6.11 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
45
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, except where the failure to do so could not
reasonably be expected to have a material adverse effect. At no time shall the
aggregate actual liabilities of the Company under Sections 4062, 4063, 4064 and
other provisions of ERISA with respect to all Plans (and all other pension plans
to which the Company, any Subsidiary, or any Control Group Person made
contributions prior to such time) exceed, on an aggregate basis, $75,000,000.
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.
6.12 Negative Pledge. The Company will not and will ensure that no
Subsidiary will create or have outstanding any lien or security interest on or
over any Principal Property in respect of any Indebtedness and the Company will
not create or have outstanding any lien or security interest on or over the
capital stock of any of its Subsidiaries that own a Principal Property and will
ensure that no Subsidiary will create or have outstanding any lien or security
interest on or over the capital stock of any of its respective Subsidiaries that
own a Principal Property except in either case for:
(a) any security for the purchase price or cost of
construction of real property acquired by the Company or any of its
Subsidiaries (or additions, substantial repairs, alterations or
substantial improvements thereto) or equipment, provided that such
Indebtedness and such security are incurred within 18 months of the
acquisition or completion of construction (or alteration or repair) and
full operation;
(b) any security existing on property or on capital stock, as
the case may be, at the time of acquisition of such property or capital
stock, as the case may be, 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
46
increased and such security is not extended to other property of the
Company or its Subsidiaries;
unless any Loans made and/or to be made to and all other sums payable by the
Company under this Agreement shall be secured equally and ratably with (or prior
to) such Indebtedness so long as such Indebtedness shall be so secured.
Notwithstanding the foregoing, the Company and any one or more Subsidiaries may,
without securing the Loans made and/or to be made to and all other sums payable
by the Company under this Agreement, create, issue or assume Indebtedness which
would otherwise be subject to the foregoing restrictions in an aggregate
principal amount which, together with all other such Indebtedness of the Company
and its Subsidiaries (not including Indebtedness permitted to be secured
pursuant to the foregoing clauses (a) through (f) and the aggregate Attributable
Debt), including Indebtedness in respect of Sale-and-Leaseback Transactions
(other than those permitted by subsection 6.13(b)), does not exceed 10% of
Consolidated Net Tangible Assets of the Company and its Subsidiaries.
6.13 Sale-and-Leaseback Transactions. Neither the Company nor any
Significant Subsidiary will enter into any Sale-and-Leaseback 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 6.12(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 a Responsible Officer of the
Company of the leased property at the time such transaction was entered into.
6.14 Use of Proceeds. Subject to the provisions of the following
sentence, the Company may use the proceeds of the Loans for any lawful corporate
purpose. The Company will not, directly or indirectly, apply any part of the
proceeds of any such Loan for the purpose of "purchasing" or "carrying" any
"margin stock" within the respective meanings of each of the quoted terms under
Regulation U, or to refund any indebtedness incurred for such purpose, except in
a manner which is not in violation of Regulation U and X.
SECTION 7. DEFAULTS
7.1 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 or fees 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
47
(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 6.5(c), 6.6 through 6.10, 6.12, 6.13 and 6.14;
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
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;
48
(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 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 7.1(f),
in which case the obligations of the Banks to make the Loans hereunder shall
automatically terminate and the unpaid balance of the Indebtedness hereunder and
accrued interest thereon and all other amounts payable hereunder (the "Bank
Obligations") shall automatically become due and payable) the Agent may, with
the consent of the Required Banks, or shall, at the direction of the Required
Banks, by notice in writing to the Company declare all or any part of the unpaid
balance of the Bank Obligations then outstanding to be forthwith due and
payable, and thereupon such unpaid balance or part thereof shall become so due
and payable without presentment, protest or further demand or notice of any
kind, all of which are hereby expressly waived, the obligations of the Banks to
make further Loans hereunder shall terminate forthwith, and the Agent may, with
the consent of the Required Banks, or shall, at the direction of the Required
Banks, proceed to enforce payment of such balance or part thereof in such manner
as the Agent may elect, and each Bank may offset and apply toward the payment of
such balance or part thereof, and to the curing of any such Event of Default,
any Indebtedness from such Bank to the Company, including any Indebtedness
represented by deposits in any general or special account maintained with such
Bank, whether or not such Bank is fully secured.
7.2 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 subsections 7.1
and 9.1, 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
49
shall extend to or affect any subsequent Event of Default or impair any rights
of the Agent or the Banks upon the occurrence thereof.
7.3 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.
7.4 Course of Dealing. No course of dealing between the Company and
any Bank shall operate as a waiver of any of the Banks' rights under this
Agreement or any Note. No delay or omission on the part of any Bank in
exercising any right under this Agreement or any Note or with respect to any of
the Bank Obligations shall operate as a waiver of such right or any other right
hereunder. A waiver on any one occasion shall not be construed as a bar to or
waiver of any right or remedy on any future occasion. No waiver or consent shall
be binding upon any Bank unless it is in writing and signed by the Agent or such
of the Banks as may be required by the provisions of this Agreement. The making
of a Loan hereunder during the existence of a Default shall not constitute a
waiver thereof.
SECTION 8. THE AGENT
8.1 Appointment. Each Bank hereby irrevocably designates and
appoints JPMCB as the Agent of such Bank under this Agreement, and each such
Bank irrevocably authorizes JPMCB, 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.
8.2 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.
8.3 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
50
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.
8.4 Reliance by Agent. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any Note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Company), independent accountants and other
experts selected by the Agent. The Agent may deem and treat the payee of any
Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Agent. The Agent shall be fully justified in failing or refusing to take any
action under this Agreement unless it shall first receive such advice or
concurrence of the Required Banks as it deems appropriate or it shall first be
indemnified to its satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Agent shall in all cases be fully protected in acting, or
in refraining from acting, under this Agreement and the Notes in accordance with
a request of the Required Banks, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Banks and all
future holders of the Notes.
8.5 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.
8.6 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
51
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.
8.7 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 respective Aggregate Exposure Percentages, from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including without limitation at any time
following the payment of the Indebtedness hereunder or pursuant to the Notes) be
imposed on, incurred by or asserted against the Agent in any way relating to or
arising out of this Agreement, or any documents contemplated by or referred to
herein or the transactions contemplated hereby or any action taken or omitted by
the Agent under or in connection with any of the foregoing; provided that no
Bank shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from the Agent's gross negligence or
willful misconduct. The agreements in this subsection shall survive the payment
of the Notes and all other amounts payable hereunder.
8.8 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, any Letter of Credit issued or
participated in 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.
8.9 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 8.9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
8.10 Agents Generally. Anything herein to the contrary
notwithstanding, none of the Sole Advisor, Lead Arranger and Bookrunner,
Documentation Agent, Syndication Agents, Co-Arrangers, Senior Managing Agents,
Managing Agents, and Co-Agents listed on the cover page hereof shall have any
powers, duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent, a
Bank or the Issuing Bank hereunder.
52
SECTION 9. MISCELLANEOUS
9.1 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 and the Required Banks 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 (i) forgive
any principal amount or extend the final scheduled date of maturity of any Loan
or extend the expiry date of any Letter of Credit beyond the Revolving
Termination Date, reduce the principal of any Loan or L/C Obligation or the
stated rate of any interest or fee payable hereunder or any other Loan Document,
or extend the scheduled date of any payment thereof, or increase the amount or
extend the expiration date of any Bank's Revolving Commitment, in each case
without the written consent of each Bank directly affected thereby; (ii)
eliminate or reduce the voting rights of any Bank under this subsection 9.1
without the written consent of such Bank; (iii) reduce any percentage specified
in the definition of Required Banks, consent to the assignment or transfer by
the Company of any of its rights and obligations under this Agreement and the
other Loan Documents, without the written consent of all Banks; (iv) amend,
modify or waive any provision of Section 8 without the written consent of the
Agent; or (v) amend, modify or waive any provision of Section 3 without the
written consent of the Issuing Bank or (vi) modify a Bank's right to receive
pro-rata distribution of payments and proceeds without the written consent of
such Bank. 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.
9.2 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:
53
The Company: HCA Inc.
One Park Plaza
Nashville, Tennessee 37203
Attention: Keith Giger
Telecopy: (615) 344-5720
The Agent: JPMorgan Chase Bank
270 Park Avenue - 4th Floor
New York, New York 10017
Attention: Dawn Lee Lum
Telecopy: (212) 270-3279
with a copy to: JPMorgan Chase Bank
1111 Fannin
Houston, Texas 77002
Attention: Sheila G. King / Vikki Toler
Telecopy: (713) 750-2782
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.
9.3 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.
9.4 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.
9.5 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, attempted
enforcement or preservation of any rights or remedies 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
54
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 reasonable expenses (including
without limitation all reasonable fees and disbursements of counsel with whom an
Indemnified Person may consult in connection therewith and all reasonable
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 excluding (a) claims, damages, liabilities and expenses
resulting from gross negligence or willful misconduct of such Indemnified Person
and its directors, officers, employees and controlling persons, and (b)
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 9.5 shall survive repayment of
the Notes and all other amounts payable hereunder.
9.6 Successors and Assigns; Participations; Purchasing Banks. (a)
This Agreement shall be binding upon and inure to the benefit of the Company,
the Banks, the Agent, all future holders of the Notes and their respective
successors and assigns, except that the Company may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of each Bank.
(b) Any Bank may, in the ordinary course of its 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 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 9.7. The Company also
agrees that each Participant shall be entitled to the benefits of subsections
2.20, 2.21 and 2.22 with respect to its participation in the Commitments and the
55
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 (i) of the proviso
to subsection 9.1.
(c) Any Bank may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to any Bank,
any affiliate of any Bank or any Approved Fund, and, with the consent of the
Company (unless an Event of Default has occurred and is continuing) and the
Agent (which consent in each case shall not be unreasonably withheld or delayed)
to one or more additional banks or financial institutions ("Purchasing Banks")
all or any part of its rights and/or obligations under this Agreement and the
Notes pursuant to a Commitment Transfer Supplement, if any, executed by such
Purchasing Bank, such transferor Bank and the Agent (and, in the case of a
Purchasing Bank that is not then a Bank or an affiliate thereof, by the
Company); provided, however, that (i) the Commitments purchased by such
Purchasing Bank that is not then a Bank, an affiliate of any Bank or any
Approved Fund shall be equal to or greater than $2,500,000 or such lesser amount
as may be agreed to by the Company and the Agent and (ii) the transferor Bank
which has transferred part of its Loans and Commitments to any such Purchasing
Bank shall retain a minimum Commitment, after giving effect to such sale, equal
to or greater than $5,000,000 or such lesser amount as may be agreed to by the
Company and the Agent. For purposes of the proviso contained in the preceding
sentence, the amount described therein shall be aggregated in respect of each
Bank, its affiliates and its related Approved Funds, if any. Upon (i) such
execution of such Commitment Transfer Supplement, (ii) delivery of an executed
copy thereof to the Company and (iii) payment by such Purchasing Bank, such
Purchasing Bank shall for all purposes be a Bank party to this Agreement and
shall have all the rights and obligations of a Bank under this Agreement, to the
same extent as if it were an original party hereto with the Commitment
Percentage of the Commitments set forth in such Commitment Transfer Supplement.
Such Commitment Transfer Supplement shall be deemed to amend this Agreement to
the extent, and only to the extent, necessary to reflect the addition of such
Purchasing Bank and the resulting adjustment of Commitment Percentages arising
from the purchase by such Purchasing Bank of all or a portion of the rights and
obligations of such transferor Bank under this Agreement and the Notes. Upon the
consummation of any transfer to a Purchasing Bank, pursuant to this subsection
9.6(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 9.2 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
56
Company or any Bank at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of a Commitment Transfer Supplement executed by
a transferor Bank and a Purchasing Bank (and, in the case of a Purchasing Bank
that is not then a Bank or an affiliate thereof, by the Company and the Agent)
together with payment to the Agent of a registration and processing fee of
$3,500, the Agent shall (i) promptly accept such Commitment Transfer Supplement
(ii) on the Transfer Effective Date determined pursuant thereto record the
information contained therein in the Register and give notice of such acceptance
and recordation to the Banks and the Company.
(f) Subject to subsection 6.5(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 9.6, 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 W-8BEN or U.S. Internal
Revenue Service Form W-8ECI (wherein such Transferee claims entitlement to
complete exemption from U.S. federal withholding tax on all interest payments
hereunder) and (iii) to agree (for the benefit of the transferor Bank) to
provide the transferor Bank (and, in the case of any Purchasing Bank registered
in the Register, the Agent and the Company) a new Form W-8BEN or Form W-8ECI
upon the obsolescence of any previously delivered form and comparable statements
in accordance with applicable U.S. laws and regulations and amendments duly
executed and completed by such Transferee, and to comply from time to time with
all applicable U.S. laws and regulations with regard to such withholding tax
exemption.
(h) Notwithstanding anything to the contrary contained herein, any
Bank (a "Granting Bank") may grant to a special purpose funding vehicle that is
an Affiliate of such Bank (an "SPC"), identified as such in writing from time to
time by the Granting Bank to the Agent and the Company, the option to provide to
the Company all or any part of any Loan that such Granting Bank would otherwise
be obligated to make to the Company pursuant to this Agreement; provided that
(i) nothing herein shall constitute a commitment by any SPC to make any Loan and
(ii) if an SPC elects not to exercise such option or otherwise fails to provide
all or any part of such Loan, the Granting Bank shall be obligated to make such
Loan pursuant to the terms of this Agreement. The making of a Loan by an SPC
hereunder shall utilize the Commitment of the Granting Bank to the same extent
and as if, such Loan were made by such Granting Bank. The liability for any
indemnity of similar payment obligations under this
57
Agreement shall at all times remain with the Granting Bank. In furtherance of
the foregoing, each party hereto hereby agrees (which agreement shall survive
the termination of this Agreement) that, prior to the date that is one year and
one day after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPC, it will not institute against, or join any other
Person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United
States or any State thereof. In addition, notwithstanding anything to the
contrary contained in this subsection 9.6, any SPC may (i) with notice to, but
without the prior written consent of, the Company and the Agent and without
paying any processing fee thereof, assign all or a portion of its interests in
any Loans to its Granting Bank or to any other financial institutions (consented
to by the Company and the Agent) providing liquidity and/or credit support to or
for the account of such SPC to support the funding or maintenance of Loans and
(ii) disclose on a confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer of provider of any surety,
guarantee or credit or liquidity enhancement to such SPC.
(i) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection 9.6 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.
9.7 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 7.1(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.
9.8 USA Patriot Act. Each Bank which is subject to Section 326 of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Act"), hereby notifies the Company that, pursuant to the
requirements of the Act, it is required to obtain, verify and record information
that identifies the Company, which information includes the name and address of
the Company and other information that will allow such Bank to identify the
Company in accordance with the Act.
9.9 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
58
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.
9.10 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.
9.11 WAIVERS OF JURY TRIAL. THE COMPANY, THE AGENT AND THE BANKS
EACH HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, THE NOTES OR ANY OTHER DOCUMENT
AND FOR ANY COUNTERCLAIM THEREIN.
9.12 Submission To Jurisdiction; Waivers. The Company hereby
irrevocably and unconditionally:
(a) 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
(b) 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.
59
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.
HCA INC.
By: /s/ David G. Anderson
------------------------------
Name: David G. Anderson
Title: Senior Vice President -
Finance and Treasurer
JPMORGAN CHASE BANK,
as Agent and as a Bank
By: /s/ Dawn Lee Lum
------------------------------
Name: Dawn Lee Lum
Title: Vice President
J.P. MORGAN SECURITIES, INC., as
Lead Arranger
By: /s/ Andrew T. Brode
------------------------------
Name: Andrew T. Brode
Title: Vice President
60
BANK OF AMERICA, N.A.
By: /s/ Kevin Wagley
---------------------------
Name: Kevin Wagley
Title: Vice President
CITICORP NORTH AMERICA, INC.
By: /s/ Allen Fisher
---------------------------
Name: Allen Fisher
Title: Vice President
DEUTSCHE BANK AG NEW YORK BRANCH
By: /s/ Michael Spiege
---------------------------
Name: Michael Spiege
Title: Managing Director
By: /s/ Belinda Wheeler
---------------------------
Name: Belinda Wheeler
Title: Vice President
MIZUHO CORPORATE BANK, LTD.
By: /s/ Greg Botshon
---------------------------
Name: Greg Botshon
Title: Senior Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Thomas M. Harper
---------------------------
Name: Thomas M. Harper
Title: Managing Director
THE BANK OF NOVA SCOTIA
By: /s/ Carolyn A. Calloway
---------------------------
Name: Carolyn A. Calloway
Title: Managing Director
MERRILL LYNCH BANK USA
By: /s/ Louis Alder
---------------------------
Name: Louis Alder
Title: Director
SUNTRUST BANK
By: /s/ Gregory M. Ratliff
---------------------------
Name: Gregory M. Ratliff
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Thomas J. McCormack
---------------------------
Name: Thomas J. McCormack
Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ J.T. Taylor
---------------------------
Name: J.T. Taylor
Title: Senior Vice President
CALYON NEW YORK BRANCH
By: /s/ Charles Heidsieck
---------------------------
Name: Charles Heidsieck
Title: Managing Director
By: /s/ Yannick Ergas
---------------------------
Name: Yannick Ergas
Title: Vice President
AMSOUTH BANK
By: /s/ William H. Barrell
---------------------------
Name: William H. Barrell
Title: Vice President
FIFTH THIRD BANK, N.A.
By: /s/ Vice President
---------------------------
Name:
Title: Vice President
THE NORTHERN TRUST COMPANY
By: /s/ Tom Bernhardt
---------------------------
Name: Tom Bernhardt
Title: Vice President
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ Edward McColly
---------------------------
Name: Edward McColly
Title: Vice President &
Department Head
US BANK, NA
By: /s/ S.W. Choppin
---------------------------
Name: S.W. Choppin
Title: Senior Vice President
UNION PLANTERS BANK, N.A.
By: /s/ Craig E. Gardella
---------------------------
Name: Craig E. Gardella
Title: Senior Vice President
BNP PARIBAS
By: /s/ PJ de Filippis
---------------------------
Name: PJ de Filippis
Title: Managing Director
By: /s/ Mark F. Darrel
---------------------------
Name: Mark F. Darrel
Title: Director
UFJ BANK LIMITED
By: /s/ Russell Bohner
---------------------------
Name: Russell Bohner
Title: Vice President
BANK OF COMMUNICATIONS, NEW YORK
BRANCH
By: /s/ Hong Tu
---------------------------
Name: Hong Tu
Title: General Manager
BANK OF TAIWAN, NEW YORK AGENCY
By: /s/ Eunice S. J. Yeh
----------------------------
Name: Eunice S. J. Yeh
Title: SVP & GM
HUA NAN COMMERICAL BANK, LTD.,
NEW YORK AGENCY
By: /s/ Jeng-Fang Geeng
---------------------------
Name: Jeng-Fang Geeng
Title: General Manager
FIRST COMMERCIAL BANK, NEW YORK
AGENCY
By: /s/ Bruce M. J. Ju
---------------------------
Name: Bruce M. J. Ju
Title: General Manager
SCHEDULE I
COMMITMENT AMOUNTS;
LENDING OFFICES; ADDRESSES FOR NOTICE
A. COMMITMENT AMOUNTS.
Name of Bank Revolving Commitment Term Commitment Commitment Total
- ------------ -------------------- --------------- ----------------
JPMorgan Chase Bank $206,500,000 $88,500,000 $295,000,000
Bank of America, N.A. 147,000,000 63,000,000 210,000,000
Citicorp North America, Inc. 147,000,000 63,000,000 210,000,000
Deutsche Bank, AG New York Branch 147,000,000 63,000,000 210,000,000
Mizuho Corporate Bank, Ltd. 147,000,000 63,000,000 210,000,000
Wachovia Bank, N.A. 147,000,000 63,000,000 210,000,000
The Bank of Nova Scotia 105,000,000 45,000,000 150,000,000
Merrill Lynch Bank USA 105,000,000 45,000,000 150,000,000
SunTrust Bank 105,000,000 45,000,000 150,000,000
The Bank of New York 70,000,000 30,000,000 100,000,000
KeyBank National Association 70,000,000 30,000,000 100,000,000
CALYON New York Branch 70,000,000 30,000,000 100,000,000
AmSouth Bank 35,000,000 15,000,000 50,000,000
Fifth Third Bank, N.A. 35,000,000 15,000,000 50,000,000
The Northern Trust Company 35,000,000 15,000,000 50,000,000
Sumitomo Mitsui Banking Corporation 35,000,000 15,000,000 50,000,000
US Bank, NA 35,000,000 15,000,000 50,000,000
Union Planters Bank, N.A. 35,000,000 15,000,000 50,000,000
BNP Paribas 24,500,000 10,500,000 35,000,000
UFJ Bank Limited 14,000,000 6,000,000 20,000,000
Bank of Communications, New York Branch 10,500,000 4,500,000 15,000,000
Bank of Taiwan, New York Agency 10,500,000 4,500,000 15,000,000
Hua Nan Commercial Bank, Ltd., New York 7,000,000 3,000,000 10,000,000
Agency
First Commercial Bank, New York Agency 7,000,000 3,000,000 10,000,000
-------------- ------------ --------------
TOTAL $1,750,000,000 $750,000,000 $2,500,000,000
B. LENDING OFFICES; ADDRESSES FOR NOTICE.
JPMORGAN CHASE BANK
Domestic Lending Office: JPMorgan Chase Bank
270 Park Avenue
New York, NY 10017
Eurodollar Lending Office: JPMorgan Chase Bank
270 Park Avenue
New York, NY 10017
Address for Notices: JPMorgan Loan & Agency Services
1111 Fannin, 10th Floor
Houston, TX 77002
Attention: Sheila King
Fax: (713) 750-2782
With a copy to: The Chase Manhattan Bank
270 Park Avenue
New York, NY 10017
Attention: Dawn Lee Lum
Fax: (212) 270-3279
BANK OF AMERICA, N.A.
Domestic Lending Office: Bank of America, N.A.
Corporate Credit Services
101 N. Tryon Street, 15th Floor
Charlotte, NC 28255
Eurodollar Lending Office: Bank of America, N.A.
Corporate Credit Services
101 N. Tryon Street, 15th Floor
Charlotte, NC 28255
Address for Notices: Bank of America, N.A.
1850 Gateway Blvd.
Concord, CA 94520-3282
Attention: Lynne Famularcano
Telephone: (925) 675-7659
Fax: (888) 969-9230
CITICORP NORTH AMERICA, INC.
Domestic Lending Office: Citicorp USA
399 Park Avenue
New York, NY 10013
Eurodollar Lending Office: Citicorp USA
399 Park Avenue
New York, NY 10013
Address for Notices: Citicorp USA
Two Penns Way, Suite 110
New Castle, DE 19720
Attention: Dana Fuski Dugan
Telephone: (302) 894-6003
Fax: (212) 994-0849
DEUTSCHE BANK, AG NEW YORK BRANCH
Domestic Lending Office: Deutsche Bank AG
90 Hudson Street
Mailstop JCY05-0511
Jersey City, NJ 07302
Eurodollar Lending Office: Deutsche Bank AG
90 Hudson Street
Mailstop JCY05-0511
Jersey City, NJ 07302
Address for Notices: Deutsche Bank AG
90 Hudson Street
Mailstop JCY05-0199
Jersey City, NJ 07302
Attention: Cheryl Mandelbaum
Telephone: (201) 593-2231
Fax: (201) 593-2313 or 2314
MIZUHO CORPORATE BANK, LTD.
Domestic Lending Office: Mizuho Corporate Bank, Ltd.
1251 Avenue of the Americas
New York, NY 10020
Eurodollar Lending Office: Mizuho Corporate Bank, Ltd.
1251 Avenue of the Americas
New York, NY 10020
Address for Notices: Mizuho Corporate Bank, Ltd.
1800 Plaza Ten
Jersey City, NJ 07311
Attention: Hyunsook (Sophia) Hwang
Telephone: (201) 626-9416
Fax: (201) 626-9941/9942
WACHOVIA BANK, N.A.
Domestic Lending Office: Wachovia Bank, N.A.
1339 Chestnut Street, PA 4152
Philadelphia, PA 19107
Eurodollar Lending Office: Wachovia Bank, N.A.
1339 Chestnut Street, PA 4152
Philadelphia, PA 19107
Address for Notices: Wachovia Bank, N.A.
201 S. College St., NC 1183
Charlotte, NC 28288
Attention: Lisa White
Telephone: (704) 374-4426
Fax: (704) 715-0094
THE BANK OF NOVA SCOTIA
Domestic Lending Office: The Bank of Nova Scotia
Atlanta Agency
600 Peachtree Street, Suite 2700
Atlanta, GA 30308
Eurodollar Lending Office: The Bank of Nova Scotia
Atlanta Agency
600 Peachtree Street, Suite 2700
Atlanta, GA 30308
Address for Notices: The Bank of Nova Scotia
Atlanta Agency
600 Peachtree Street, Suite 2700
Atlanta, GA 30308
Attention: Mark Francois
Telephone: (404) 877-1577
Fax: (404) 888-8998
MERRILL LYNCH BANK USA
Domestic Lending Office: Merrill Lynch Bank USA
15 W. South Temple, Suite 300
Salt Lake City, UT 84101
Eurodollar Lending Office: Merrill Lynch Bank USA
15 W. South Temple, Suite 300
Salt Lake City, UT 84101
Address for Notices: Merrill Lynch Bank USA
15 W. South Temple, Suite 300
Salt Lake City, UT 84101
Attention: Derek Befus
Telephone: (801) 526-6814
Fax: (801) 531-7470
SUNTRUST BANK
Domestic Lending Office: SunTrust Bank
201 Fourth Avenue North
Nashville, TN 37219
Eurodollar Lending Office: SunTrust Bank
201 Fourth Avenue North
Nashville, TN 37219
Address for Notices: SunTrust Bank
200 South Orange Avenue
MC: FL-OR2-1108
Orlando, FL 32801
Attention: Arnette Delaine
Telephone: (407) 237-2439
Fax: (407) 237-5342
THE BANK OF NEW YORK
Domestic Lending Office: The Bank of New York
One Wall Street, 8th Floor
New York, NY 10286
Eurodollar Lending Office: The Bank of New York
One Wall Street, 8th Floor
New York, NY 10286
Address for Notices: The Bank of New York
One Wall Street, 8th Floor
New York, NY 10286
Attention: Laina Chan
Telephone: (212) 635-1366
Fax: (212) 635-1481
KEYBANK NATIONAL ASSOCIATION
Domestic Lending Office: Keybank National Association
127 Public Square
Cleveland, OH 44114
Eurodollar Lending Office: Keybank National Association
127 Public Square
Cleveland, OH 44114
Address for Notices: Keybank National Association
127 Public Square, 8th Floor
Cleveland, OH 44114
Attention: Lisa Borders-Lathan
Telephone: (216) 689-5094
Fax: (216) 689-5962
CALYON NEW YORK BRANCH
Domestic Lending Office: Calyon New York Branch
1301 Avenue of the Americas
New York, NY 10019
Eurodollar Lending Office: Calyon New York Branch
1301 Avenue of the Americas
New York, NY 10019
Address for Notices: Calyon New York Branch
Client Bank Services
1301 Avenue of the Americas
New York, NY 10019
Attention: Mykelle Williams
Telephone: (212) 261-7636
Fax: (917) 849-5457
AMSOUTH BANK
Domestic Lending Office: AmSouth Bank
315 Deaderick Street, 2nd Fl.
Nashville, TN 37237
Eurodollar Lending Office: AmSouth Bank
315 Deaderick Street, 2nd Fl.
Nashville, TN 37237
Address for Notices: AmSouth Bank
250 Riverchase Pkwy
RCS 6th Floor - East
Birmingham, AL 37237-0075
Attention: Valencia Jackson
Telephone: (205) 560-5201
Fax: (205) 560-6856
FIFTH THIRD BANK, N.A.
Domestic Lending Office: Fifth Third Bank, N.A.
424 Church Street, Suite 600
Nashville, TN 37219
Eurodollar Lending Office: Fifth Third Bank, N.A.
424 Church Street, Suite 600
Nashville, TN 37219
Address for Notices: Fifth Third Bank, N.A.
424 Church Street, Suite 600
Nashville, TN 37219
Attention: Chris Hatch
Telephone: (615) 687-3041
Fax: (615) 687-3089
THE NORTHERN TRUST COMPANY
Domestic Lending Office: Northern Trust Company (Chicago)
50 South LaSalle Street, 9th Floor
Chicago, IL 60675
Eurodollar Lending Office: Northern Trust Company (Chicago)
50 South LaSalle Street, 9th Floor
Chicago, IL 60675
Address for Notices: Northern Trust Company (Chicago)
50 South LaSalle Street, 9th Floor
Chicago, IL 60675
Attention: Del Tolliver
Telephone: (312) 557-3234
Fax: (312) 630-1566
SUMITOMO MITSUI BANKING CORPORATION
Domestic Lending Office: Sumitomo Mitsui Banking Corporation
277 Park Avenue
New York, NY 10172
Eurodollar Lending Office: Sumitomo Mitsui Banking Corporation
277 Park Avenue
New York, NY 10172
Address for Notices: Sumitomo Mitsui Banking Corporation
277 Park Avenue
New York, NY 10172
Attention: Kristen Myung Hee Lee
Telephone: (212) 224-4314
Fax: (212) 224-5197
US BANK, NA
Domestic Lending Office: US Bank, NA
150 4th Ave. North, 3rd Floor
Nashville, TN 37219
Eurodollar Lending Office: US Bank, NA
150 4th Ave. North, 3rd Floor
Nashville, TN 37219
Address for Notices: US Bank, N.A.
150 4th Ave. North, 3rd Floor
Nashville, TN 37219
Attention: Connie Sweeney
Telephone: (920) 237-7604
Fax: (920) 237-7993
UNION PLANTERS BANK, N.A.
Domestic Lending Office: Union Planters Bank, N.A.
401 Union Street
Nashville, TN 37219
Eurodollar Lending Office: Union Planters Bank, N.A.
401 Union Street
Nashville, TN 37219
Address for Notices: Union Planters Bank, N.A.
401 Union Street
Nashville, TN 37219
Attention: Amy Taylor
Telephone: (615) 726-4343
Fax: (615) 726-4273
BNP PARIBAS
Domestic Lending Office: BNP PARIBAS
787 Seventh Avenue
New York, NY 10019
Eurodollar Lending Office: BNP PARIBAS
787 Seventh Avenue
New York, NY 10019
Address for Notices: BNP PARIBAS
919 Third Avenue
New York, NY 10022
Attention: Maria Rodriquez
Telephone: (212) 471-6637
Fax: (212) 471-6697
UFJ BANK LIMITED
Domestic Lending Office: UFJ Bank Limited
55 East 52nd Street
New York, NY 10055
Eurodollar Lending Office: UFJ Bank Limited
55 East 52nd Street
New York, NY 10055
Address for Notices: UFJ Bank Limited
55 East 52nd Street
New York, NY 10055
Attention: Marlin Chin
Telephone: (212) 339-8382
Fax: (212) 754-2368
BANK OF COMMUNICATIONS, NEW YORK BRANCH
Domestic Lending Office: Bank of Communications, New York Branch
One Exchange Plaza
55 Broadway, 31st Floor
New York, NY 10006-3008
Eurodollar Lending Office: Bank of Communications, New York Branch
One Exchange Plaza
55 Broadway, 31st Floor
New York, NY 10006-3008
Address for Notices: Bank of Communications, New York Branch
One Exchange Plaza
55 Broadway, 31st Floor
New York, NY 10006-3008
Attention: Anders Lai
Telephone: (212) 376-8030 x119
Fax: (212) 376-8089
BANK OF TAIWAN, NEW YORK AGENCY
Domestic Lending Office: Bank of Taiwan, New York Agency
100 Wall Street, 11th Floor
New York, NY 10005
Eurodollar Lending Office: Bank of Taiwan, New York Agency
100 Wall Street, 11th Floor
New York, NY 10005
Address for Notices: Bank of Taiwan, New York Agency
100 Wall Street, 11th Floor
New York, NY 10005
Attention: Isen Tarn
Telephone: (212) 968-8128 x26
Fax: (212) 968-8370
HUA NAN COMMERCIAL BANK, LTD., NEW YORK AGENCY
Domestic Lending Office: Hua Nan Commercial Bank,
New York Agency
330 Madison Ave. 38th Fl.
New York, NY 10017
Eurodollar Lending Office: Hua Nan Commercial Bank,
New York Agency
330 Madison Ave. 38th Fl.
New York, NY 10017
Address for Notices: Hua Nan Commercial Bank,
New York Agency
330 Madison Ave. 38th Fl.
New York, NY 10017
Attention: Henry Hsieh
Telephone: (212) 286-1999
Fax: (212) 286-1212
FIRST COMMERCIAL BANK, NEW YORK AGENCY
Domestic Lending Office: First Commercial Bank, New York Agency
750 Third Avenue, 34th Floor
New York, NY 10017
Eurodollar Lending Office: First Commercial Bank, New York Agency
750 Third Avenue, 34th Floor
New York, NY 10017
Address for Notices: First Commercial Bank, New York Agency
750 Third Avenue, 34th Floor
New York, NY 10017
Attention: Kuang Yu Chin
Telephone: (212) 599-6868 x220
Fax: (212) 599-6133
SCHEDULE IV
APPLICABLE MARGIN AND FACILITY FEE RATE
Revolving Facility
Level I Level II Level III Level IV Level V
------- -------- --------- -------- -------
Applicable Margin:
ABR Loans 0.000% 0.000% 0.000% 0.000% 0.000%
Eurodollar Loans 0.400% 0.500% 0.600% 0.800% 1.000%
Facility Fee Rate: 0.100% 0.125% 0.150% 0.200% 0.250%
Term Loan Facility
Level I Level II Level III Level IV Level V
------- -------- --------- -------- -------
Applicable Margin:
ABR Loans 0.000% 0.000% 0.000% 0.000% 0.250%
Eurodollar Loans 0.500% 0.625% 0.750% 1.000% 1.250%
SCHEDULE V
SIGNIFICANT LITIGATION
None.