EXHIBIT 10.2
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$1,250,000,000
CREDIT AGREEMENT
among
HCA INC.,
THE SEVERAL BANKS AND OTHER FINANCIAL INSTITUTIONS FROM TIME TO
TIME PARTIES HERETO,
J.P. MORGAN SECURITIES INC. and
MERRILL LYNCH & CO., MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
as Joint Lead Arrangers and Joint Bookrunners
MERRILL LYNCH CAPITAL CORPORATION,
as Syndication Agent,
and
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.......................................... 15
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS................................................. 16
2.1 Term Commitments....................................................... 16
2.2 Procedure for Term Loan Borrowing...................................... 16
2.3 Repayment of Term Loans................................................ 16
2.4 Optional Prepayments................................................... 16
2.5 Mandatory Prepayments.................................................. 17
2.6 Conversion and Continuation Options.................................... 17
2.7 Limitations on Eurodollar Tranches..................................... 18
2.8 Interest Rates and Payment Dates....................................... 18
2.9 Computation of Interest and Fees....................................... 18
2.10 Inability to Determine Interest Rate................................... 19
2.11 Pro Rata Treatment and Payments........................................ 19
2.12 Requirements of Law.................................................... 20
2.13 Taxes.................................................................. 21
2.14 Indemnity.............................................................. 23
2.15 Change of Lending Office............................................... 23
2.16 Replacement of Banks................................................... 23
SECTION 3. REPRESENTATIONS AND WARRANTIES.................................................. 24
3.1 Corporate Organization and Existence................................... 24
3.2 Subsidiaries........................................................... 24
3.3 Financial Information.................................................. 24
3.4 Changes in Condition................................................... 25
3.5 Assets................................................................. 25
3.6 Litigation............................................................. 25
3.7 Tax Returns............................................................ 26
3.8 Contracts, etc......................................................... 26
3.9 No Legal Obstacle to Agreement......................................... 26
3.10 Defaults............................................................... 26
3.11 Burdensome Obligations................................................. 27
3.12 Pension Plans.......................................................... 27
3.13 Disclosure............................................................. 27
3.14 Environmental and Public and Employee Health and Safety Matters........ 27
3.15 Federal Regulations.................................................... 28
3.16 Investment Company Act; Other Regulations.............................. 28
SECTION 4. CONDITIONS...................................................................... 28
4.1 Loan Documents......................................................... 28
4.2 Legal Opinions......................................................... 28
4.3 Company Officers' Certificate.......................................... 29
4.4 Legality, etc.......................................................... 29
4.5 Termination of Existing Credit Facilities.............................. 29
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4.6 Tender Offer........................................................... 29
4.7 Senior Credit Facilities............................................... 29
4.8 General................................................................ 29
4.9 Fees................................................................... 30
4.10 Rating................................................................. 30
SECTION 5. GENERAL COVENANTS............................................................... 30
5.1 Taxes, Indebtedness, etc............................................... 30
5.2 Maintenance of Properties; Compliance with Law......................... 30
5.3 Transactions with Affiliates........................................... 31
5.4 Insurance.............................................................. 31
5.5 Financial Statements................................................... 31
5.6 Ratio of Consolidated Total Debt to Consolidated Total Capitalization.. 34
5.7 Interest Coverage Ratio................................................ 34
5.8 Distributions.......................................................... 34
5.9 Merger or Consolidation................................................ 34
5.10 Sales of Assets........................................................ 34
5.11 Compliance with ERISA.................................................. 35
5.12 Negative Pledge........................................................ 35
5.13 Sale-and-Leaseback Transactions........................................ 36
5.14 Use of Proceeds........................................................ 36
SECTION 6. DEFAULTS........................................................................ 36
6.1 Events of Default...................................................... 36
6.2 Annulment of Defaults.................................................. 39
6.3 Waivers................................................................ 39
6.4 Course of Dealing...................................................... 39
SECTION 7. THE AGENT....................................................................... 39
7.1 Appointment............................................................ 39
7.2 Delegation of Duties................................................... 39
7.3 Exculpatory Provisions................................................. 40
7.4 Reliance by Agent...................................................... 40
7.5 Notice of Default...................................................... 40
7.6 Non-Reliance on Agent and Other Banks.................................. 41
7.7 Indemnification........................................................ 41
7.8 Agent in Its Individual Capacity....................................... 41
7.9 Successor Agent........................................................ 41
7.10 Agents Generally....................................................... 42
SECTION 8. MISCELLANEOUS................................................................... 42
8.1 Amendments and Waivers................................................. 42
8.2 Notices................................................................ 42
8.3 No Waiver; Cumulative Remedies......................................... 43
8.4 Survival of Representations and Warranties............................. 43
8.5 Payment of Expenses and Taxes; Indemnity............................... 43
8.6 Successors and Assigns; Participations; Purchasing Banks............... 44
8.7 Adjustments; Set-off................................................... 47
8.8 USA Patriot Act........................................................ 47
8.9 Counterparts........................................................... 48
8.10 GOVERNING LAW.......................................................... 48
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8.11 WAIVERS OF JURY TRIAL.................................................. 48
8.12 Submission To Jurisdiction; Waivers.................................... 48
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
Schedule V. Significant Litigation
EXHIBITS:
Exhibit A. Form of Term Note
Exhibit B. Form of Commitment Transfer Supplement
Exhibit C. 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, including but
not limited to MERRIL LYNCH BANK USA (the "Banks"), MERRILL LYNCH & CO. and
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, and J.P. MORGAN SECURITIES
INC., as Joint Lead Arrangers and Joint Bookrunners, MERRILL LYNCH CAPITAL
CORPORATION, as Syndication Agent, 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
Commitment at such time and (b) thereafter, the aggregate then unpaid principal
amount of such Bank's Term Loans.
"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.
"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
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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.
"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.
"Asset Sale": shall mean any sale or series of related sales of any
assets of the Company or any of its Subsidiaries; provided, however, that "Asset
Sale" shall not include (a) sales of personal property assets in the ordinary
course of business of the Company and its Subsidiaries, (b) the sale or other
disposition of obsolete or worn-out equipment or other property no longer
required by or useful to the Company or any of its Subsidiaries in connection
with the operation of their businesses, (c) the sale or transfer to the Company
or any of its Subsidiaries of any asset owned by the Company or any of its
Subsidiaries, (d) involuntary dispositions resulting from casualty or the
exercise of the power of eminent domain (or a transfer in lieu thereof), or (e)
any transaction permitted by subsection 5.9, subsection 5.10(b) or subsection
5.13.
"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.
"Bank Obligations": as defined in subsection 6.1.
"Banks": as defined in the preamble hereto.
"Benefitted Bank": as defined in subsection 8.7.
"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,
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.
"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.
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"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 4 shall have been satisfied and the proceeds of the Loans are
advanced pursuant to Section 2, which date is expected to occur on or about
November 17, 2004.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment": as to any Bank, the Term 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.
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"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.
"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
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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 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 the 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 6.1,
provided that any requirement for the giving of notice, the lapse of time, or
both, or any other condition, event or act has been satisfied.
"Facility": each of the Term Commitments and the Term Loans made
thereunder.
"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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"Funding Office": the office of the Administrative Agent specified
in subsection 8.2 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 5.1, 5.6, 5.7, 5.10 and 5.12, generally
accepted accounting principles in the United States of America consistent with
those utilized in preparing the audited financial statements referred to in
subsection 3.3 and (b) with respect to the financial statements referred to in
subsection 3.3 or the furnishing of financial statements pursuant to subsection
5.5 and otherwise, generally accepted accounting principles in the United States
of America from time to time in effect.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Granting Bank": as defined in subsection 8.6(h).
"Guarantee Obligation": any arrangement whereby credit is extended
to one party on the basis of any promise of another, whether that promise is
expressed in terms of an 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.
"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
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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 or three 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 or three 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 Term Maturity Date shall end on the Term Maturity
Date; and
(5) the Company shall select Interest Periods so as not to require a
payment or prepayment of any Eurodollar Loan during an Interest Period for
such Loan.
"JPMCB": JPMorgan Chase Bank.
"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.
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"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.
"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.
"Moody's": Moody's Investors Service, Inc., or any successor
thereto.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": shall mean (a) in connection with any Asset
Sale, the proceeds thereof in the form of cash and cash equivalents (including
any such proceeds received by way of deferred payment of principal pursuant to a
note or installment receivable or otherwise, but only as and when received) of
such Asset Sale, net of attorneys' fees, accountant's fees, investment banking
fees, amounts required to be applied to the repayment of Indebtedness secured by
a Lien on any asset that is the subject of such Asset Sale and other fees and
expenses, and net of taxes paid or reasonably estimated to be payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), and (b) in connection with any
issuance or sale of equity securities or debt securities or instruments, the
cash proceeds and any non-cash consideration received from such issuance or
incurrence, net of
12
attorneys' fees, accountant's fees, investment banking fees, underwriting
discounts and commissions and other related fees and expenses.
"Non-Excluded Taxes": as defined in subsection 2.13(a).
"Non-U.S. Banks": as defined in subsection 2.13(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 8.6(b).
"PBGC": the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Company or a Control Group Person
is (or, if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Principal Property": means each acute care hospital providing
general medical and surgical services (including real property but excluding
equipment, personal property and hospitals which primarily provide specialty
medical services, such as psychiatric and obstetrical and gynecological
services) at least 50% of which is owned by the Company and its Subsidiaries on
a consolidated basis and located in the United States of America.
"Purchasing Banks": as defined in subsection 8.6(c).
"Register": as defined in subsection 8.6(d).
"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System.
"Regulation X": Regulation X of the Board of Governors of the
Federal Reserve System.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of such term as
used in Section 4241 of ERISA.
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"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
aggregate unpaid principal amount of the Term Loans then outstanding.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer": the chief executive officer, the president,
any executive or senior vice president or vice president of the Company, the
chief financial officer, treasurer or controller of the Company.
"S&P": Standard & Poor's Ratings Service, or any successor thereto.
"Sale-and-Leaseback Transaction": any arrangement entered into by
the Company or any Significant Subsidiary with any person (other than the
Company or a Significant Subsidiary), or to which any such person is a party,
providing for the leasing to the Company or any Significant Subsidiary for a
period of more than three years of any Principal Property which has been or is
to be held or transferred by the Company or such Significant Subsidiary to such
Person or to any other Person (other than the Company or a Significant
Subsidiary), to which funds have been or are to be advanced by such Person on
the security of the leased property.
"Significant Subsidiary": 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 8.6(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.
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"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 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
$1,250,000,000.
"Term Loan": as defined in subsection 2.1.
"Term Maturity Date": May 17, 2005.
"Term Percentage": as to any 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).
"Transfer Effective Date": as defined in each Commitment Transfer
Supplement.
"Transferee": as defined in subsection 8.6(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.
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(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 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 2.6.
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 Banks make the Term 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 Bank thereof. Not later than 12:00
Noon, New York City time, on the Closing Date each 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 Banks in immediately available funds.
2.3 Repayment of Term Loans. The Term Loan of each Bank shall mature
and be payable in full on the Term Maturity Date.
2.4 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 2.14. 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 accrued interest to such date on the amount prepaid. Partial
prepayments of Term Loans shall be in an aggregate principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof.
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2.5 Mandatory Prepayments.
(a) Not later than 10 Business Days after the Company shall receive
Net Cash Proceeds from any issuance of debt or equity securities in a financing
transaction in the capital markets in an amount of not less than $100,000,000,
the Company shall apply 100% of the Net Cash Proceeds received with respect
thereto to prepay outstanding Term Loans in accordance with subsection 2.5(c).
(b) Not later than 20 Business Days following the consummation, by
the Company or any of its Subsidiaries, of any Asset Sale yielding Net Cash
Proceeds to the Company or any such Subsidiary in an aggregate amount of not
less than $50,000,000, the Company shall apply 100% of the Net Cash Proceeds
received with respect thereto to prepay outstanding Term Loans in accordance
with subsection 2.5(c).
(c) The Company shall give the Agent (which shall promptly notify
each Bank) at least three Business Days' prior notice in the case of Eurodollar
Loans and at least one Business Day prior notice in the case of Alternate Base
Rate Loans or, telephone notice promptly confirmed in writing of each prepayment
in whole or in part pursuant to this subsection 2.5 setting forth the date and
amount 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 2.14. Accrued and unpaid
interest on the amount of any principal of the Term Loans prepaid under this
subsection 2.5 shall be paid to and on the date of such prepayment.
2.6 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 may be converted into a Eurodollar
Loan when any Event of Default has occurred and is continuing and the Agent or
the Required Banks 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 may be continued as such when any
Event of Default has occurred and is continuing and the Agent has or the
Required Banks 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
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Interest Period. Upon receipt of any such notice the Agent shall promptly notify
each relevant Bank thereof.
2.7 Limitations on Eurodollar Tranches. Notwithstanding anything to
the contrary in this Agreement, all borrowings, conversions and continuations of
Eurodollar Loans under the 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 whole
multiple of $1,000,000 in excess thereof and (b) no more than 5 Eurodollar
Tranches shall be outstanding at any one time.
2.8 Interest Rates and Payment Dates. (a) Each Eurodollar Loan 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.
(b) Each Alternate Base Rate Loan shall bear interest at a rate per
annum equal to the Alternate Base Rate plus the Applicable Margin.
(c) (i) If all or a portion of the principal amount of any Loan
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 that would otherwise be applicable thereto pursuant to the foregoing
provisions of this subsection plus 2%, and (ii) if all or a portion of any
interest payable on any Loan 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 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.
2.9 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
18
statement showing the quotations used by the Agent in determining any interest
rate pursuant to subsection 2.8(a).
2.10 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 Required
Banks 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 Facility requested to be made on the first
day of such Interest Period shall be made as Alternate Base Rate Loans, (y) any
Loans 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 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 shall be
made or continued as such, nor shall the Company have the right to convert Loans
to Eurodollar Loans.
2.11 Pro Rata Treatment and Payments. (a) Each borrowing by the
Company from the Banks hereunder, 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 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 Banks. Amounts prepaid on account of the Term Loans may not be
reborrowed.
(c) 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 8.2, 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 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
19
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.
(d) 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 Facility, on demand, from the Company.
(e) 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.
2.12 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 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 2.13 and changes in the rate of
tax on the overall net income of such Bank);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
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;
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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 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 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.
2.13 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 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
21
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 C 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 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
22
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.
2.14 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 2.14, 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.
2.15 Change of Lending Office. Each Bank agrees that, upon the
occurrence of any event giving rise to the operation of subsection 2.12 or
2.13(a) with respect to such Bank, it will, if requested by the Company, use
reasonable efforts (subject to overall policy 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 2.12 or 2.13(a).
2.16 Replacement of Banks. The Company shall be permitted to replace
any Bank that (a) requests reimbursement for amounts owing pursuant to
subsection 2.12 or 2.13(a) or (b) defaults in its obligation to make Loans
hereunder, with a replacement financial
23
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 2.15 so as to eliminate the continued need for
payment of amounts owing pursuant to subsection 2.12 or 2.13(a), (iii) the
replacement financial institution shall purchase, at par, all Loans (and any
Notes evidencing such Loans) 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 2.14 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 8.6 (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 2.12 or 2.13(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. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Banks that:
3.1 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).
3.2 Subsidiaries. As of the date hereof, the Company has only the
Subsidiaries set forth in Schedule II. The capital stock and securities owned by
the Company and its Subsidiaries in each of the Company's Subsidiaries are owned
free and clear of any mortgage, pledge, lien, encumbrance, charge or restriction
on the transfer thereof other than restrictions on transfer imposed by
applicable securities laws and restrictions, liens and encumbrances outstanding
on the date hereof and listed in said Schedule II.
3.3 Financial Information. The Company has furnished to the Agent
and made available to each Bank copies of the following (the "SEC Reports"):
24
(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.
3.4 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.
3.5 Assets. The Company and each Subsidiary have good and marketable
title to all material assets carried on their books and reflected in the most
recent balance sheet referred to in subsection 3.3 or furnished pursuant to
subsection 5.5, except for assets held on Financing Leases or purchased subject
to security devices providing for retention of title in the vendor, and except
for assets disposed of as permitted by this Agreement.
3.6 Litigation. Except as disclosed in the Company's SEC Reports,
and except as set forth on Schedule V hereto, there is no litigation, at law or
in equity, or any proceeding before any federal, state, provincial or municipal
board or other governmental or administrative agency pending or to the knowledge
of the Company threatened which, after giving effect to any applicable
insurance, 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
25
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.
3.7 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.
3.8 Contracts, etc. Attached hereto as Schedule III is a statement
of outstanding Indebtedness of the Company and its Subsidiaries for borrowed
money as of the date set forth therein and a complete and correct list of all
agreements, contracts, indentures, instruments, documents and amendments thereto
to which the Company or any Subsidiary is a party or by which it is bound
pursuant to which any such Indebtedness of the Company and its Subsidiaries in
excess of $25,000,000 is outstanding on the date hereof. Said Schedule III also
includes a complete and correct list of all such Indebtedness of the Company and
its Subsidiaries outstanding on the date indicated in respect of Guarantee
Obligations in excess of $1,000,000 and letters of credit in excess of
$1,000,000, and there have been no increases in such Indebtedness since said
date other than as permitted by this Agreement.
3.9 No Legal Obstacle to Agreement. Neither the execution and
delivery of this Agreement or of any Notes, nor the making by the Company of any
borrowings hereunder, nor the consummation of any transaction herein or therein
referred to or contemplated hereby or thereby nor the fulfillment of the terms
hereof or thereof or of any agreement or instrument referred to in this
Agreement, has constituted or resulted in or will constitute or result in a
breach of the provisions of any contract to which the Company or any of its
Subsidiaries is a party or by which it is bound or of the 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
and performance of this Agreement or the transactions contemplated hereby, or
the making of any borrowing by the Company hereunder.
3.10 Defaults. Neither the Company nor any 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
26
provision of any agreement, lease or other instrument to which it is a party or
by which it is bound or of any Requirement of Law.
3.11 Burdensome Obligations. Neither the Company nor any Subsidiary
is a party to or bound by any agreement, deed, lease or other instrument, or
subject to any charter, by-law or other corporate restriction which, in the
opinion of the management thereof, is so unusual or burdensome as to in the
foreseeable future have a material adverse effect on the business or assets or
condition, financial or otherwise, of the Company and its Subsidiaries on a
consolidated basis. The Company does not presently anticipate that future
expenditures of the Company and its Subsidiaries needed to meet the provisions
of any federal or state statutes, orders, rules or regulations will be so
burdensome as to have a material adverse effect on the business or assets or
condition, financial or otherwise, of the Company and its Subsidiaries on a
consolidated basis.
3.12 Pension Plans. Each Plan maintained by the Company, any
Subsidiary or any Control Group Person or to which any of them makes or will
make contributions is in material compliance with the applicable provisions of
ERISA and the Code. The Company and its Subsidiaries have met all of the funding
standards applicable to all Plans, and there exists no event or condition which
would permit the institution of proceedings to terminate any Plan that is not a
Multiemployer Plan. The 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.
3.13 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.
3.14 Environmental and Public and Employee Health and Safety
Matters. The Company and each Subsidiary has complied with all applicable
Federal, state, and other laws, rules and regulations relating to environmental
pollution or to environmental regulation or control or to public or employee
health or safety, except to the extent that the failure to so comply would not
be reasonably likely to result in a material adverse effect on the business or
assets or on the condition, financial or otherwise, of the Company and its
Subsidiaries on a consolidated basis. The Company's and the Subsidiaries'
facilities do not contain, and have not previously contained, any hazardous
wastes, hazardous substances, hazardous materials, toxic substances or toxic
pollutants regulated under the Resource Conservation and Recovery Act, the
27
Comprehensive Environmental Response Compensation and Liability Act, the
Hazardous Materials Transportation Act, the Toxic Substance Control Act, the
Clean Air Act, the Clean Water Act or any other applicable law relating to
environmental pollution or public or employee health and safety, in violation of
any such law, or any rules or regulations promulgated pursuant thereto, except
for violations that would not be reasonably likely to result in a material
adverse effect on the business or assets or on the condition, financial or
otherwise, of the Company and its Subsidiaries on a consolidated basis. The
Company is aware of no events, conditions or circumstances involving
environmental pollution or contamination or public or employee health or safety,
in each case applicable to it or its Subsidiaries, that would be reasonably
likely to result in a material adverse effect on the business or assets or on
the condition, financial or otherwise, of the Company and its Subsidiaries on a
consolidated basis.
3.15 Federal Regulations. No part of the proceeds of any Loans will
be used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U as now and from time to
time hereafter in effect (except in a manner which is not in violation of
Regulation U or X) or for any purpose which violates the provisions of the
Regulations of the Board of Governors of the Federal Reserve System. If
requested by any Bank or the Agent, the Company will furnish to the Agent and
each Bank a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in said Regulation U.
3.16 Investment Company Act; Other Regulations. The Company is not
an "investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. The
Company is not subject to regulation under any Federal or State statute or
regulation which limits its ability to incur Indebtedness.
SECTION 4. CONDITIONS
The obligations of each Bank to make any Loan 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:
4.1 Loan Documents. The Agent shall have received (i) this
Agreement, executed and delivered by a duly authorized officer of the Company,
with a counterpart for each Bank, and (ii) for the account of each Bank, if
requested by such Bank, a Note conforming to the requirements hereof and
executed by a duly authorized officer of the Company.
4.2 Legal Opinions. On the Closing Date, 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.
28
4.3 Company Officers' Certificate. The representations and
warranties contained in Section 3 (as qualified by the disclosures in (i) the
Company's Annual Report on Form 10-K for its fiscal year ended December 31,
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.
4.4 Legality, etc. The making of the Loan to be made by such Bank on
each Borrowing Date shall not subject such Bank to any penalty or special tax,
shall not be prohibited by any Requirement of Law applicable to such Bank or the
Company, and all necessary consents, approvals and authorizations of any
Governmental Authority or any Person to or of any such Loan shall have been
obtained and shall be in full force and effect.
4.5 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 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).
4.6 Tender Offer. On or prior to the Closing Date, the Company shall
have accepted for purchase, shares that have been tendered to it pursuant to the
Company's share repurchase of up to $2,501,000,000 of its outstanding shares,
all substantially in accordance with the Offer to Purchase, dated October 13,
2004, as amended.
4.7 Senior Credit Facilities. On or prior to the Closing Date, the
Company shall have entered into a Credit Agreement, dated November 9, 2004 for
$2,500,000,000 of senior credit facilities.
4.8 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.
29
4.9 Fees. The Agent shall have received the fees to be received on
the Closing Date referred to in the Fee Letter, dated October 12, 2004.
4.10 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).
SECTION 5. GENERAL COVENANTS
On and after the date hereof, until all of the Loans and all other
amounts payable pursuant hereto shall have been paid in full and so long as the
Commitments shall remain in effect, the Company covenants that the Company will
comply, and will cause each of its Subsidiaries to comply, with such of the
provisions of this Section 5 and such other provisions of this Agreement as are
applicable to the Person in question.
5.1 Taxes, Indebtedness, etc. (a) Each of the Company and its
Subsidiaries will duly pay and discharge, or cause to be paid and discharged,
before the same shall become in arrears, all 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.
5.2 Maintenance of Properties; Compliance with Law. Each of the
Company and its Subsidiaries (a) will keep its material properties in good
repair, working order and condition and will from time to time make all
necessary and proper repairs, renewals, replacements, additions and improvements
thereto and will comply at all times with the provisions of all material leases
and other material agreements to which it is a party so as to prevent any loss
or forfeiture thereof or thereunder unless compliance therewith is being
currently contested in good faith by appropriate proceedings and (b) in the case
of the Company or any Subsidiary of the Company while such Person remains a
Subsidiary, will do all things reasonably necessary to preserve, renew and keep
in full force and effect and in good standing its corporate existence and
30
franchises necessary to continue such businesses. The Company and its
Subsidiaries will comply in all material respects with all valid and applicable
Requirements of Law (including any such laws, rules, regulations or governmental
orders relating to the protection of environmental or public or employee health
or safety) of the United States, of the States thereof and their counties,
municipalities and other subdivisions and of any other jurisdiction, applicable
to the Company and its Subsidiaries, except where compliance therewith shall be
contested in good faith by appropriate proceedings, the Company or the
Subsidiary in question shall have set aside on its books appropriate reserves in
conformity with GAAP with respect thereto, and the failure to comply therewith
could not reasonably be expected to, in the aggregate, have a material adverse
effect on the business or assets or on the condition, financial or otherwise, of
the Company and its Subsidiaries on a consolidated basis.
5.3 Transactions with Affiliates. Neither the Company nor any of its
Subsidiaries will enter into any transactions, including, without limitation,
the purchase, sale or exchange of property or the rendering of any service, with
any of their Affiliates (other than the Company and its Subsidiaries) unless
such transaction is 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.
5.4 Insurance. The Company will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained, with financially sound and
reputable insurers, including any Subsidiary which is engaged in the business of
providing insurance protection, insurance (including, without limitation,
professional liability insurance against claims for malpractice) with respect to
its properties and business and the properties and business of its Subsidiaries
against loss or damage of the kinds customarily insured against of such types
and such amounts as are customarily carried under similar circumstances by other
corporations. Such insurance may be subject to co-insurance, deductibility or
similar clauses which, in effect, result in self-insurance of certain losses,
and the Company may self-insure against such loss or damage, provided that
adequate insurance reserves are maintained in connection with such
self-insurance.
5.5 Financial Statements. The Company will and will cause each of
its Subsidiaries to maintain a standard 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
31
statement of such Auditor and of a Responsible Officer of the Company that
such Auditor and Responsible Officer have caused the provisions of this
Agreement to be reviewed and that nothing has come to their attention to
lead them to believe that any Default exists hereunder or, if such is not
the case, specifying such Default or possible Default and the nature
thereof. In addition, such financial statements shall be accompanied by a
certificate of a Responsible Officer of the Company containing
computations showing compliance with subsections 5.6, 5.7, 5.10 and 5.12.
(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 5.6, 5.7, 5.10 and 5.12, accompanied by a certificate of a
Responsible Officer of the Company that such statements and computations
have been properly prepared in accordance with GAAP for interim financial
information, consistently applied, and fairly present the financial
position of the Company and its Subsidiaries as at the end of such fiscal
quarter and the results of their operations and cash flows for such
quarter and for the portion of the fiscal year then ended (subject to
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
32
required by Sections 303 and 304 of ERISA or Section 412 of the Code
promptly after any such request is submitted by the Company to the
Department of Labor or the Internal Revenue Service, as the case may be.
Promptly after a Reportable Event occurs, or the Company or any of its
Subsidiaries receives notice that the PBGC or any Control Group Person has
instituted or intends to institute proceedings to terminate any pension or
other Plan that is a "defined benefit plan" as defined in ERISA, or prior
to the Plan administrator's terminating such Plan pursuant to Section 4041
of ERISA, the Company will notify the Agent and will furnish to the Agent
a copy of any notice of such Reportable Event which is required to be
filed with the PBGC, or any notice delivered by the PBGC evidencing its
institution of such proceedings or its intent to institute such
proceedings, or any notice to the PBGC that a Plan is to be terminated, as
the case may be. The Company will promptly notify each Bank upon learning
of the occurrence of any of the following events with respect to any Plan
which is a Multiemployer Plan: a partial or complete withdrawal from any
Plan which may result in the incurrence by the Company or any of 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 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 5.5 may be received by such Bank prior to the time it shall
have been made public, and each Bank agrees that it will keep all
information so furnished confidential and shall make no use of such
information until it shall have become public, except (i) in connection
with matters involving operations under or enforcement of this Agreement
or the Notes, (ii) in accordance with each Bank's obligations under law or
pursuant to subpoenas or other
33
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 5.5(g) or (iv) with the prior
consent of the Company.
5.6 Ratio of Consolidated Total Debt to Consolidated Total
Capitalization. The Company and its Subsidiaries will not at any time have
outstanding Consolidated Total Debt in an amount in excess of 75% of
Consolidated Total Capitalization from the Closing Date until March 30, 2006.
5.7 Interest Coverage Ratio. On the last day of each fiscal quarter
of the Company, the Consolidated Earnings Before Interest and Taxes of the
Company and its Subsidiaries for the four consecutive fiscal quarters of the
Company then ending will be an amount which equals or exceeds 200% of the
Consolidated Interest Expense of the Company and its Subsidiaries for the same
four consecutive fiscal quarters.
5.8 Distributions. The Company will not make any Distribution except
that, so long as no Event of Default exists or would exist after giving effect
thereto, the Company may make Distributions.
5.9 Merger or Consolidation. The Company will not become a
constituent corporation in any merger or consolidation unless the Company shall
be the surviving or resulting corporation and immediately before and after
giving effect to such merger or consolidation there shall exist no Default;
provided that the Company may merge into another Subsidiary owned by the Company
for the purposes of causing the Company to be incorporated in a different
jurisdiction in the United States or causing the Company to change its name.
5.10 Sales of Assets. The Company and its Subsidiaries may from time
to time sell or otherwise dispose of all or any part of their respective assets;
provided, however, that in any fiscal year, the Company and its Subsidiaries
will not (a) sell or dispose of (including, without limitation, any disposition
resulting from any merger or consolidation involving a Subsidiary of the
Company, and any Sale-and-Leaseback Transaction), outside of the ordinary course
of business, to Persons other than the Company and its Subsidiaries, assets
constituting in the aggregate more than 12% of Consolidated Assets of the
Company and its Subsidiaries as at the end of the immediately preceding fiscal
year 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 5.10(a) (including, without
limitation, any disposition resulting from any merger or consolidation involving
a Subsidiary of the Company, and any Sale-and-Leaseback Transaction) and (y) the
aggregate fair market value (as determined in good faith by the Board of
Directors of the
34
Company) of all assets of the Company and its Subsidiaries exchanged pursuant to
this subsection 5.10(b) does not exceed 20% of Consolidated Assets of the
Company and its Subsidiaries as at the end of the immediately preceding fiscal
year.
5.11 Compliance with ERISA. Each of the Company and its Subsidiaries
will meet, and will cause all Control Group Persons to meet, all minimum funding
requirements applicable to any Plan imposed by ERISA or the Code (without giving
effect to any waivers of such requirements or extensions of the related
amortization periods which may be granted), and will at all times comply, and
will cause all Control Group Persons to comply, in all material respects with
the provisions of ERISA and the Code which are applicable to the Plans, 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.
5.12 Negative Pledge. The Company will not and will ensure that no
Subsidiary will create or have outstanding any lien or security interest on or
over any Principal Property in respect of any Indebtedness and the Company will
not create or have outstanding any lien or security interest on or over the
capital stock of any of its Subsidiaries that own a Principal Property and will
ensure that no Subsidiary will create or have outstanding any lien or security
interest on or over the capital stock of any of its respective Subsidiaries that
own a Principal Property except in either case for:
(a) any security for the purchase price or cost of
construction of real property acquired by the Company or any of its
Subsidiaries (or additions, substantial repairs, alterations or
substantial improvements thereto) or equipment, provided that such
Indebtedness and such security are incurred within 18 months of the
acquisition or completion of construction (or alteration or repair) and
full operation;
(b) any security existing on property or on capital stock, as
the case may be, at the time of acquisition of such property or capital
stock, as the case 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
35
that owns a Principal Property, as the case may be, with an independent
appraised fair market value at least equal to the appraised fair market
value of the Principal Property or capital stock of a Subsidiary that owns
a Principal Property, as the case may be, secured by the new security; and
(f) any extension, renewal or replacement of any security
referred to in the foregoing clauses (a) through (e) provided that the
amount thereby secured is not increased and such security is not extended
to other property of the Company or its Subsidiaries;
unless any Loans made and/or to be made to and all other sums payable by the
Company under this Agreement shall be secured equally and ratably with (or prior
to) such Indebtedness so long as such Indebtedness shall be so secured.
Notwithstanding the foregoing, the Company and any one or more Subsidiaries may,
without securing the Loans made and/or to be made to and all other sums payable
by the Company under this Agreement, create, issue or assume Indebtedness which
would otherwise be subject to the foregoing restrictions in an aggregate
principal amount 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 5.13(b)), does not exceed 10% of
Consolidated Net Tangible Assets of the Company and its Subsidiaries.
5.13 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 5.12(a) through
(f) to incur Indebtedness secured by a security on the property to be leased
without equally and ratably securing the Loans made and/or to be made to and all
other sums payable by the Company under this Agreement, or (b) the Company
during or immediately after the expiration of 120 days after the effective date
of such transaction applies to the voluntary retirement of its Indebtedness
and/or the acquisition or construction of Principal Property an amount equal to
the greater of the net proceeds of the sale of the property leased in such
transaction or the fair value in the opinion of a Responsible Officer of the
Company of the leased property at the time such transaction was entered into.
5.14 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 6. DEFAULTS
6.1 Events of Default. Upon the occurrence of any of the following
events:
36
(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
(b) any default shall be made by either the Company or any
Subsidiary of the Company in the performance or observance of any of the
provisions of subsections 5.5(c), 5.6 through 5.10, 5.12, 5.13 and 5.14;
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
37
such a petition or seeking, consenting or acquiescing in the relief
therein provided;
(iii) by the entry of an order for relief in any involuntary
case commenced under said Title 11;
(iv) by its seeking relief as a debtor under any applicable
law, other than said Title 11, of any jurisdiction relating to the
liquidation or reorganization of debtors or to the modification or
alteration of the rights of creditors, or by its consenting to or
acquiescing in such relief;
(v) by the entry of an order by a court of competent
jurisdiction (i) finding it to be bankrupt or insolvent, (ii) ordering or
approving its liquidation, reorganization or any modification or
alteration of the rights of its creditors, or (iii) assuming custody of,
or appointing a receiver or other custodian for, all or a substantial part
of its property;
(vi) by its making an assignment for the benefit of, or
entering into a composition with, its creditors, or appointing or
consenting to the appointment of a receiver or other custodian for all or
a substantial part of its property; or
(g) a Change in Control of the Company shall occur;
then and in each and every such case, (x) the Agent may, with the consent of the
Required Banks, or shall, at the direction of the Required Banks, proceed to
protect and enforce the rights of the Banks by suit in equity, action at law
and/or other appropriate proceeding either for specific performance of any
covenant or condition contained in this Agreement or any Note or in any
instrument delivered to each Bank pursuant to this Agreement, or in aid of the
exercise of any power granted in this Agreement or any Note or any such
instrument or assignment, and (y) the Agent may, with the consent of the
Required Banks, or shall, at the direction of the Required Banks, by notice in
writing to the Company terminate the obligations of the Banks to make the Loans
hereunder, and thereupon such obligations shall terminate forthwith and (z)
(unless there shall have occurred an Event of Default under subsection 6.1(f),
in which case the obligations of the Banks to make the Loans hereunder shall
automatically terminate and the unpaid balance of the Indebtedness hereunder and
accrued interest thereon and all other amounts payable hereunder (the "Bank
Obligations") shall automatically become due and payable) the Agent may, with
the consent of the Required Banks, or shall, at the direction of the Required
Banks, by notice in writing to the Company declare all or any part of the unpaid
balance of the Bank Obligations then outstanding to be forthwith due and
payable, and thereupon such unpaid balance or part thereof shall become so due
and payable without presentment, protest or further demand or notice of any
kind, all of which are hereby expressly waived, the obligations of the Banks to
make further Loans hereunder shall terminate forthwith, and the Agent may, with
the consent of the Required Banks, or shall, at the direction of the Required
Banks, proceed to enforce payment of such balance or part thereof in such manner
as the Agent may elect, and each Bank may offset and apply toward the payment of
such balance or part thereof, and to the curing of any such Event of Default,
any Indebtedness from such Bank to the Company, including any Indebtedness
38
represented by deposits in any general or special account maintained with such
Bank, whether or not such Bank is fully secured.
6.2 Annulment of Defaults. An Event of Default shall not be deemed
to be in existence for any purpose of this Agreement if the Agent, with the
consent of or at the direction of the Required Banks, subject to subsections 6.1
and 8.1 shall have waived such event in writing or stated in writing that the
same has been cured to its reasonable satisfaction, but no such waiver shall
extend to or affect any subsequent Event of Default or impair any rights of the
Agent or the Banks upon the occurrence thereof.
6.3 Waivers. The Company hereby waives to the extent permitted by
applicable law (a) all presentments, demands for performance, notices of
nonperformance (except to the extent required by the provisions hereof),
protests, notices of protest and notices of dishonor in connection with any of
the Indebtedness hereunder or evidenced by the Notes, (b) any requirement of
diligence or promptness on the part of any Bank in the enforcement of its rights
under the provisions of this Agreement or any Note, and (c) any and all notices
of every kind and description which may be required to be given by any statute
or rule of law and any defense of any kind which the Company may now or
hereafter have with respect to its liability under this Agreement or any Note.
6.4 Course of Dealing. No course of dealing between the Company and
any Bank shall operate as a waiver of any of the Banks' rights under this
Agreement or any Note. No delay or omission on the part of any Bank in
exercising any right under this Agreement or any Note or with respect to any of
the Bank Obligations shall operate as a waiver of such right or any other right
hereunder. A waiver on any one occasion shall not be construed as a bar to or
waiver of any right or remedy on any future occasion. No waiver or consent shall
be binding upon any Bank unless it is in writing and signed by the Agent or such
of the Banks as may be required by the provisions of this Agreement. The making
of a Loan hereunder during the existence of a Default shall not constitute a
waiver thereof.
SECTION 7. THE AGENT
7.1 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.
7.2 Delegation of Duties. The Agent may execute any of its duties
under this Agreement by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel
39
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
7.3 Exculpatory Provisions. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(a) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement (except for its or such
Person's own gross negligence or willful misconduct), or (b) responsible in any
manner to any of the Banks for any recitals, statements, representations or
warranties made by the Company or any officer thereof contained in this
Agreement or in any certificate, report, statement or other document referred to
or provided for in, or received by the Agent under or in connection with, this
Agreement or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or the Notes or for any failure of the Company
to perform its obligations hereunder. The Agent shall not be under any
obligation to any Bank to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement, or to inspect the properties, books or records of the Company.
7.4 Reliance by Agent. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any Note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Company), independent accountants and other
experts selected by the Agent. The Agent may deem and treat the payee of any
Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Agent. The Agent shall be fully justified in failing or refusing to take any
action under this Agreement unless it shall first receive such advice or
concurrence of the Required Banks as it deems appropriate or it shall first be
indemnified to its satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Agent shall in all cases be fully protected in acting, or
in refraining from acting, under this Agreement and the Notes in accordance with
a request of the Required Banks, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Banks and all
future holders of the Notes.
7.5 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received notice from a Bank or the Company
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the Agent
receives such a notice, the Agent shall promptly give notice thereof to the
Banks. The Agent shall take such action with respect to such Default or Event of
Default as shall be reasonably directed by the Required Banks; provided that,
unless and until the Agent shall have received such directions, the Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Banks.
40
7.6 Non-Reliance on Agent and Other Banks. Each Bank expressly
acknowledges that neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representations
or warranties to it and that no act by the Agent hereinafter taken, including
any review of the affairs of the Company, shall be deemed to constitute any
representation or warranty by the Agent to any Bank. Each Bank represents to the
Agent that it has, independently and without reliance upon the Agent or any
other Bank, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Company and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Bank also represents that it will, independently and
without reliance upon the Agent or any other Bank, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Company. Except for notices, reports and
other documents expressly required to be furnished to the Banks by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the business, operations,
property, financial and other condition or creditworthiness of the Company which
may come into the possession of the Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
7.7 Indemnification. The Banks agree to indemnify the Agent in its
capacity as such (to the extent not reimbursed by the Company and without
limiting the obligation of the Company to do so), ratably according to the
respective amounts of their then 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.
7.8 Agent in Its Individual Capacity. The Agent and its Affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with the Company as though the Agent was not the Agent hereunder. With
respect to its Loans made or renewed by it and any Note issued to it, the Agent
shall have the same rights and powers under this Agreement as any Bank and may
exercise the same as though it were not the Agent, and the terms "Bank" and
"Banks" shall include the Agent in its individual capacity.
7.9 Successor Agent. The Agent may resign as Agent, as the case may
be, upon 10 days' notice to the Banks. If the Agent shall resign as Agent, under
this Agreement, then the Required Banks shall appoint from among the Banks a
successor agent for the Banks which successor agent shall be approved by the
Company, whereupon such successor agent shall
41
succeed to the rights, powers and duties of the Agent, and the term "Agent"
shall mean such successor agent effective upon its appointment, and the former
Agent's rights, powers and duties as Agent shall be terminated, without any
other or further act or deed on the part of such former Agent or any of the
parties to this Agreement or any holders of the Notes. After any retiring
Agent's resignation hereunder as Agent, the provisions of this subsection 7.9
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
7.10 Agents Generally. Anything herein to the contrary
notwithstanding, none of the Joint Lead Arrangers, Joint Bookrunners and
Syndication Agent 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 or a Bank
hereunder.
SECTION 8. MISCELLANEOUS
8.1 Amendments and Waivers. Neither this Agreement, any Note, nor
any terms hereof or thereof may be amended, supplemented or modified except in
accordance with the provisions of this subsection. With the written consent of
the Required Banks, the Agent and the Company may, from time to time, enter into
written amendments, supplements or modifications hereto for the purpose of
adding any provisions to this Agreement or the Notes or changing in any manner
the rights of the Banks or of the Company hereunder or thereunder or waiving, on
such terms and conditions as the Agent 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,
reduce the principal of any Loan 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, 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 8.1 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 7 without the
written consent of the Agent or (v) 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.
8.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
sent, confirmation of receipt received, addressed as follows in the case of the
Company and the Agent and as set forth in Schedule I in the case of the other
parties hereto, or to such other address as may be hereafter notified by the
respective parties hereto and any future holders of the Notes:
42
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.
8.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Agent or any Bank, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies, powers
and privileges provided by law.
8.4 Survival of Representations and Warranties. All representations
and warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement and the Notes.
8.5 Payment of Expenses and Taxes; Indemnity. (a) The Company agrees
(i) to pay or reimburse the Agent for all its reasonable out-of-pocket costs and
expenses incurred in connection with the development, preparation and execution
of, and any amendment, supplement or modification to, this Agreement and the
Notes and any other documents prepared in connection herewith, and the
consummation of the transactions contemplated hereby and thereby, including,
without limitation, the reasonable fees and disbursements of counsel to the
Agent, (ii) to pay or reimburse each Bank and the Agent for all their reasonable
costs and expenses incurred in connection with the enforcement, 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
43
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 the 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 8.5 shall survive repayment of
the Notes and all other amounts payable hereunder.
8.6 Successors and Assigns; Participations; Purchasing Banks. (a)
This Agreement shall be binding upon and inure to the benefit of the Company,
the Banks, the Agent, all future holders of the Notes and their respective
successors and assigns, except that the Company may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of each Bank.
(b) Any Bank may, in the ordinary course of its 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 8.7. The Company also
agrees that each Participant shall be entitled to the benefits of subsections
2.12, 2.13 and 2.14 with respect to its participation in the Commitments and the
44
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 8.1.
(c) Any Bank may, in the ordinary course of its 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 8.6(c), the transferor Bank, the Agent and the
Company shall make appropriate arrangements so that, if required, replacement
Notes are issued to such transferor Bank and new Notes or, as appropriate,
replacement Notes, are issued to such Purchasing Bank, in each case in principal
amounts reflecting their Commitment Percentages or, as appropriate, their
outstanding Loans as adjusted pursuant to such Commitment Transfer Supplement.
(d) The Agent shall maintain at its address referred to in
subsection 8.2 a copy of each Commitment Transfer Supplement delivered to it and
a register (the "Register") for the recordation of the names and addresses of
the Banks and the Commitment of, and principal amount of the Loans owing to,
each Bank from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Company, the Agent and the Banks may
treat each Person whose name is recorded in the Register as the owner of the
Loan recorded therein for all purposes of this Agreement. The Register shall be
available for inspection by the
45
Company or any Bank at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of a Commitment Transfer Supplement executed by
a transferor Bank and a Purchasing Bank (and, in the case of a Purchasing Bank
that is not then a Bank or an affiliate thereof, by the Company and the Agent)
together with payment to the Agent of a registration and processing fee of
$3,500, the Agent shall (i) promptly accept such Commitment Transfer Supplement
(ii) on the Transfer Effective Date determined pursuant thereto record the
information contained therein in the Register and give notice of such acceptance
and recordation to the Banks and the Company.
(f) Subject to subsection 5.5(g), the Company authorizes each Bank
to disclose to any Participant or Purchasing Bank (each, a "Transferee") and any
prospective Transferee any and all financial information in such Bank's
possession concerning the Company which has been delivered to such Bank by the
Company pursuant to this Agreement or which has been delivered to such Bank by
the Company in connection with such Bank's credit evaluation of the Company
prior to entering into this Agreement.
(g) If, pursuant to this subsection 8.6, any interest in this
Agreement or any Note is transferred to any Transferee which is organized under
the laws of any jurisdiction other than the United States or any State thereof,
the transferor Bank shall cause such Transferee, concurrently with the
effectiveness of such transfer (i) to represent to the transferor Bank (for the
benefit of the transferor Bank, the Agent and the Company) that under applicable
law and treaties no taxes will be required to be withheld by the Agent, the
Company or the transferor Bank with respect to any payments to be made to such
Transferee in respect of the Loans, (ii) to furnish to the transferor Bank (and,
in the case of any Purchasing Bank registered in the Register, the Agent and the
Company) either U.S. Internal Revenue Service Form 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
46
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 8.6, 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 8.6 concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including any pledge or
assignment by a Bank of any Loan or Note to any Federal Reserve Bank in
accordance with applicable law.
8.7 Adjustments; Set-off. If any Bank (a "Benefitted Bank") shall at
any time receive any payment of all or part of its Loans, or interest thereon,
or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by offset, pursuant to events or proceedings of the nature
referred to in subsection 6.1(f), or otherwise) in a greater proportion than any
such payment to and collateral received by any other Bank, if any, in respect of
such other Bank's Loans, or interest thereon, such Benefitted Bank shall
purchase for cash from the other Banks such portion of each such other Bank's
Loans, or shall provide such other Banks with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefitted Bank to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Banks; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
Benefitted Bank, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest. The
Company agrees that each Bank so purchasing a portion of another Bank's Loan may
exercise all rights of a payment (including, without limitation, rights of
offset) with respect to such portion as fully as if such Bank were the direct
holder of such portion.
8.8 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.
47
8.9 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 together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Company and the Agent.
8.10 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.
8.11 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.
8.12 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.
48
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
Joint Lead Arranger
By: /s/ Andrew T. Brode
------------------------------
Name: Andrew T. Brode
Title: Vice President
MERRILL LYNCH CAPITAL
CORPORATION, as Syndication Agent and
as a Bank
By: /s/ John C. Rowland
------------------------------
Name: John C. Rowland
Title: Vice President
MERRILL LYNCH & CO., MERRILL
LYNCH, PIERCE, FENNER & SMITH
INCORPORATED, as Joint Lead Arrangers
and Joint Bookrunners
By: /s/ Michael E. O'Brien
------------------------------
Name: Michael E. O'Brien
Title: Director
MERRILL LYNCH BANK USA,
as a Bank
By: /s/ Louis Alder
------------------------------
Name: Louis Alder
Title: Director
49
SCHEDULE I
COMMITMENT AMOUNTS;
LENDING OFFICES; ADDRESSES FOR NOTICE
A. COMMITMENT AMOUNTS.
Term
Name of Bank Commitment Total
- ------------ -----------------
JPMorgan Chase Bank $ 625,000,000
Merrill Lynch Bank USA 575,000,000
Merrill Lynch Capital Corporation 50,000,000
-----------------
TOTAL $ 1,250,000,000
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
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
MERRILL LYNCH CAPITAL CORPORATION
Domestic Lending Office: Merrill Lynch Capital Corporation
4 World Financial Center, Floor 16
New York, NY 10080
Eurodollar Lending Office: Merrill Lynch Capital Corporation
4 World Financial Center, Floor 16
New York, NY 10080
Address for Notices: Merrill Lynch Capital Corporation
4 World Financial Center, Floor 16
New York, NY 10080
Attention: Michael E. O'Brien
Telephone: (212) 449-0948
Fax: (212) 738-1186
SCHEDULE IV
APPLICABLE MARGIN
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.