1
EXHIBIT 10(a)
EXECUTION COPY
==================================================================
$1,000,000,000 CREDIT AGREEMENT
among
COLUMBIA/HCA HEALTHCARE CORPORATION,
THE SEVERAL BANKS AND OTHER FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTIES HERETO,
CHASE SECURITIES INC.,
as Lead Arranger and Sole Book Manager,
NATIONSBANK, N.A.,
as Documentation Agent,
THE BANK OF NEW YORK,
THE BANK OF NOVA SCOTIA, and
TORONTO-DOMINION (TEXAS), INC.,
as Co-Syndication Agents,
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH and
FLEET NATIONAL BANK,
as Co-Agents,
SUNTRUST BANK, NASHVILLE, N.A.
and WACHOVIA BANK, N.A.,
as Lead Managers,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of March 30, 1999
==================================================================
2
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS .....................................................1
1.1 Defined Terms ...................................................1
1.2 Other Definitional Provisions ..................................12
SECTION 2. AMOUNT AND TERMS OF LOANS ......................................12
2.1 Loans and Notes ................................................12
2.2 Fees ...........................................................14
2.3 Termination or Reduction of Commitments ........................14
2.4 Optional Prepayments............................................14
2.5 Mandatory Prepayments and Commitment Reductions ................14
2.6 Conversion Options; Minimum Amount of Loans ....................15
2.7 Interest Rate and Payment Dates for Loans ......................15
2.8 Computation of Interest and Fees ...............................16
2.9 Inability to Determine Interest Rate ...........................17
2.10 Pro Rata Borrowings and Payments ...............................17
2.11 Illegality .....................................................18
2.12 Requirements of Law ............................................18
2.13 Capital Adequacy ...............................................19
2.14 Taxes ..........................................................19
2.15 Indemnity ......................................................20
2.16 Application of Proceeds of Loans ...............................21
2.17 Notice of Certain Circumstances; Assignment of Commitments
Under Certain Circumstances ....................................21
SECTION 3. REPRESENTATIONS AND WARRANTIES .................................22
3.1 Corporate Organization and Existence ...........................22
3.2 Subsidiaries ...................................................22
3.3 Financial Information ..........................................22
3.4 Changes in Condition ...........................................23
3.5 Assets .........................................................23
3.6 Litigation .....................................................23
3.7 Tax Returns ....................................................24
3.8 Contracts, etc. ................................................24
3.9 No Legal Obstacle to Agreement ................................ 24
3.10 Defaults .......................................................24
3.11 Burdensome Obligations .........................................24
3.12 Pension Plans ..................................................25
3.13 Disclosure .....................................................25
3.14 Environmental and Public and Employee Health and
Safety Matters .................................................25
3.15 Federal Regulations ............................................25
3.16 Investment Company Act; Other Regulations ......................26
3
Page
----
3.17 Year 2000 Matters ..............................................26
SECTION 4. CONDITIONS .....................................................26
4.1 Loan Documents .................................................26
4.2 Legal Opinions .................................................26
4.3 Company Officers' Certificate ..................................27
4.4 Legality, etc. .................................................27
4.5 General ........................................................27
4.6 Fees ...........................................................27
4.7 Amendments to Existing Agreements ..............................27
SECTION 5. GENERAL COVENANTS ..............................................28
5.1 Taxes, Indebtedness, etc. ......................................28
5.2 Maintenance of Properties; Compliance with Law .................28
5.3 Transactions with Affiliates ...................................29
5.4 Insurance ......................................................29
5.5 Financial Statements ...........................................29
5.6 Ratio of Consolidated Total Debt to Consolidated Total
Capitalization .................................................32
5.7 Interest Coverage Ratio ........................................32
5.8 Distributions ..................................................32
5.9 Merger or Consolidation ........................................32
5.10 Sales of Assets ................................................32
5.11 Compliance with ERISA ..........................................33
5.12 Negative Pledge ................................................33
5.13 Sale-and-Lease-back Transactions ...............................34
SECTION 6. DEFAULTS .......................................................34
6.1 Events of Default ..............................................34
6.2 Annulment of Defaults ..........................................37
6.3 Waivers ........................................................37
6.4 Course of Dealing ..............................................37
7.1 Appointment ....................................................37
7.2 Delegation of Duties ...........................................37
7.3 Exculpatory Provisions .........................................38
7.4 Reliance by Agent ..............................................38
7.5 Notice of Default ..............................................38
7.6 Non-Reliance on Agent and Other Banks ..........................39
7.7 Indemnification ................................................39
7.8 Agent in Its Individual Capacity ...............................39
7.9 Successor Agent ................................................39
SECTION 8. MISCELLANEOUS .................................................40
8.1 Amendments and Waivers .........................................40
ii
4
Page
----
8.2 Notices .........................................................40
8.3 No Waiver; Cumulative Remedies ..................................41
8.4 Survival of Representations and Warranties ......................41
8.5 Payment of Expenses and Taxes; Indemnity ........................41
8.6 Successors and Assigns; Participations; Purchasing Banks ........42
8.7 Adjustments; Set-off ............................................44
8.8 Counterparts ....................................................45
8.9 GOVERNING LAW ..................................................45
8.10 WAIVERS OF JURY TRIAL ...........................................45
8.11 Submission To Jurisdiction; Waivers .............................45
SCHEDULES
SCHEDULE I Commitment Amounts and Percentages; Lending Offices; Addresses for
Notice
SCHEDULE II Subsidiaries of the Company
SCHEDULE III Indebtedness
SCHEDULE IV Applicable Margins
SCHEDULE V Significant Litigation
EXHIBITS
EXHIBIT A Form of Tranche 1 Note
EXHIBIT B Form of Tranche 2 Note
EXHIBIT C Form of Commitment Transfer Supplement
iii
5
CREDIT AGREEMENT, dated as of March 30, 1999 (this
"Agreement"), among COLUMBIA/HCA HEALTHCARE CORPORATION, a Delaware corporation
(the "Company"), the several banks and other financial institutions from time to
time parties hereto (the "Banks"), CHASE SECURITIES INC., as Lead Arranger and
Sole Book Manager, NATIONSBANK, N.A., as Documentation Agent, THE BANK OF NEW
YORK, THE BANK OF NOVA SCOTIA, and TORONTO-DOMINION (TEXAS), INC., as
Co-Syndication Agents, DEUTSCHE BANK AG NEW YORK BRANCH AND/OR CAYMAN ISLANDS
BRANCH and FLEET NATIONAL BANK, as Co-Agents, SUNTRUST BANK, NASHVILLE, N.A. and
WACHOVIA BANK, N.A., as Lead Managers, and THE CHASE MANHATTAN BANK, a New York
banking corporation, as agent for the Banks hereunder (in such capacity, the
"Agent").
In consideration of the promises and mutual agreements herein
contained and for other good and valuable consideration, the parties hereto
hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms have the following meanings:
"Affiliate": (a) any director or officer of any corporation or
partner or joint venturer or Person holding a similar position in
another Person or members of their families, whether or not living
under the same roof, or any Person owning beneficially more than 5% of
the outstanding common stock or other evidences of beneficial interest
of the Person in question, (b) any Person of which any one or more of
the Persons described in clause (a) above is an officer, director or
beneficial owner of more than 5% of the shares or other beneficial
interest and (c) any Person controlled by, controlling or under common
control with the Person in question.
"Alternate Base Rate": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and (c) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. For purposes hereof: "Prime Rate"
shall mean the rate of interest per annum publicly announced from time
to time by the Agent as its prime rate in effect at its principal
office in New York City (each change in the Prime Rate to be effective
on the date such change is publicly announced); "Base CD Rate" shall
mean the sum of (a) the product of (i) the Three-Month Secondary CD
Rate and (ii) a fraction, the numerator of which is one and the
denominator of which is one minus the C/D Reserve Percentage and (b)
the C/D Assessment Rate; "Three-Month Secondary CD Rate" shall mean,
for any day, the secondary market rate for three-month certificates of
deposit reported as being in effect on such day (or, if such day shall
not be a Business Day, the next preceding Business Day) by the Board of
Governors of the Federal Reserve System (the "Board") through the
public information telephone line of the Federal Reserve Bank of New
York (which rate will, under the current practices of the Board, be
published in Federal Reserve Statistical Release H.15(519) during the
week following such day), or, if such rate shall not be so reported on
such day or such next preceding Business Day, the average of the
secondary market quotations for three-month certificates of deposit of
major money center banks in New York
6
2
City received at approximately 10:00 A.M., New York City time, on such
day (or, if such day shall not be a Business Day, on the next
preceding Business Day) by the Agent from three New York City
negotiable certificate of deposit dealers of recognized standing
selected by it; "C/D Reserve Percentage" shall mean, for any day, that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board (or any successor), for determining the
maximum reserve requirement for a member bank of the Federal Reserve
System in New York City with deposits exceeding one billion Dollars in
respect of new non-personal three-month certificates of deposit in the
secondary market in Dollars in New York City and in an amount of
$100,000 or more; "C/D Assessment Rate" shall mean, for any day, the
net annual assessment rate (rounded upward to the nearest 1/100 of 1%)
determined by Chase to be payable on such day to the Federal Deposit
Insurance Corporation or any successor (the "FDIC") for FDIC's
insuring time deposits made in Dollars at offices of Chase in the
United States; and "Federal Funds Effective Rate" shall mean, for any
day, the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Agent from
three federal funds brokers of recognized standing selected by it. If
for any reason the Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to
ascertain the Base CD Rate or the Federal Funds Effective Rate, or
both, for any reason, including the inability or failure of the Agent
to obtain sufficient quotations in accordance with the terms thereof,
the Alternate Base Rate shall be determined without regard to clause
(b) or (c), or both, of the first sentence of this definition, as
appropriate, until the circumstances giving rise to such inability no
longer exist. Any change in the Alternate Base Rate due to a change in
the Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate shall be effective on the effective day of such change
in the Prime Rate, the Three-Month Secondary CD Rate or the Federal
Funds Effective Rate, respectively.
"Alternate Base Rate Loans": Loans hereunder at such time as
they are made and/or being maintained at a rate of interest based upon
the Alternate Base Rate.
"Applicable Margin": for each Type of Loan during a Level I
Period or Level II Period, the rate per annum set forth under the
relevant column heading in Schedule IV. Increases or decreases in the
Applicable Margin shall become effective on the first day of the Level
I Period or Level II Period, as the case may be, to which such
Applicable Margin relates.
"Attributable Debt": means (i) as to any capitalized lease
obligations, the Indebtedness carried on the balance sheet in respect
thereof in accordance with GAAP and (ii) as to any operating leases,
the total net amount of rent required to be paid under such leases
during the remaining term thereof.
"Auditor": any independent certified public accountant of
nationally recognized standing and reputation selected by the Company.
7
3
"Available Commitments": at a particular time, an amount equal
to the difference between (a) the amount of the Commitments at such
time and (b) the aggregate unpaid principal amount at such time of all
Loans.
"Bank Obligations": as defined in subsection 6.1.
"Benefitted Bank": as defined in subsection 8.7.
"Borrowing Date": any Business Day specified in a notice
pursuant to subsection 2.1(c) as a date on which the Company requests
the Banks to make Loans hereunder.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants, rights or options
to purchase any of the foregoing.
"Change in Control": of any corporation, (a) any Person or
"group" (as defined in Section 13(d)(3) of the Securities Exchange Act
of 1934, as amended), other than the Company, that shall acquire more
than 50% of the Voting Stock of such corporation or (b) any Person or
group (as defined in preceding clause (a)), other than the Company,
that shall acquire more than 20% of the Voting Stock of such
corporation and, at any time following an acquisition described in this
clause (b), the Continuing Directors shall not constitute a majority of
the board of directors of such corporation.
"Chase": The Chase Manhattan Bank, a New York banking
corporation.
"Closing Date": the date on which all of the conditions
precedent for the Closing Date set forth in Section 4 are satisfied.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment": as to any Bank, its obligation to make a
Tranche 1 Loan and a Tranche 2 Loan in the respective amounts not to
exceed the amount set forth opposite such Bank's name in Schedule I,
as such amount may be reduced from time to time as provided herein.
"Commitment Percentage": as to any Bank, the percentage of
the aggregate Commitments constituted by such Bank's Commitment.
"Commitment Period": the period from and including the Closing
Date to but not including the relevant Tranche 1 or Tranche 2
Termination Date, as the case may be, or such earlier date on which
the Commitments shall terminate as provided herein.
8
4
"Commitment Transfer Supplement": a Commitment Transfer
Supplement, substantially in the form of Exhibit B.
"Consolidated Assets": the consolidated assets of the Company
and its Subsidiaries, determined in accordance with GAAP.
"Consolidated Earnings Before Interest and Taxes": for any
period for which the amount thereof is to be determined, Consolidated
Net Income for such period plus all amounts deducted in computing such
Consolidated Net Income in respect of interest expense on Indebtedness
and income taxes.
"Consolidated Interest Expense": for any period for which the
amount thereof is to be determined, all amounts deducted in computing
Consolidated Net Income for such period in respect of interest expense
on Indebtedness determined in accordance with GAAP.
"Consolidated Net Income": for any period, the consolidated
net income, if any, after taxes, of the Company and its Subsidiaries
for such period determined in accordance with GAAP; provided, however,
that Consolidated Net Income shall not include any gain or loss
attributable to extraordinary items, any sale of assets not in the
ordinary course of business or any taxes or tax savings as a result
thereof.
"Consolidated Net Tangible Assets": means the total amount of
assets (less applicable reserves and other properly deductible items)
after deducting therefrom (i) all current liabilities as disclosed on
the consolidated balance sheet of the Company (excluding any thereof
which are by their terms extendable or renewable at the option of the
obligor thereon to a time more than 12 months after the time as of
which the amount thereof is being computed and excluding any deferred
income taxes that are included in current liabilities), and (ii) all
goodwill, trade names, trademarks, patents, unamortized debt discount
and expense and other like intangible assets, all as set forth on the
most recent consolidated balance sheet of the Company and computed in
accordance with GAAP.
"Consolidated Net Worth": as of the date of determination, all
items which in conformity with GAAP would be included under
shareholders' equity on a consolidated balance sheet of the Company
and its Subsidiaries at such date.
"Consolidated Total Capitalization": for any period for which
the amount thereof is to be determined, the sum of Consolidated Net
Worth at such date and Consolidated Total Debt at such date.
"Consolidated Total Debt": the aggregate of all Indebtedness
(including the current portion thereof) of the Company and its
Subsidiaries on a consolidated basis.
"Continuing Director": any member of the Board of Directors of
the Company who is a member of such Board on the date of this
Agreement, and any Person who is a member
9
5
of such Board and whose nomination as a director was approved by a
majority of the Continuing Directors then on such Board.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of
its property is bound.
"Control Group Person": any Person which is a member of the
controlled group or is under common control with the Company within
the meaning of Section 414(b) or 414(c) of the Code or Section
4001(b)(1) of ERISA.
"Default": any of the events specified in subsection 6.1,
whether or not any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Distribution": (a) the declaration or payment of any dividend
on or in respect of any shares of any class of capital stock of the
Company other than dividends payable solely in shares of common stock
of the Company; (b) the purchase, redemption or other acquisition of
any shares of any class of capital stock of the Company directly or
indirectly through a Subsidiary or otherwise; and (c) any other
distribution on or in respect of any shares of any class of capital
stock of the Company.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Domestic Lending Office": the office of each Bank designated
as such in Schedule I.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to
a Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal
and emergency reserves under any regulations of the Board of Governors
of the Federal Reserve System or other Governmental Authority having
jurisdiction with respect thereto), dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of such Board) maintained by
a member bank of such System.
"Eurodollar Lending Office": the office of each Bank
designated as such in Schedule I.
"Eurodollar Loans": Loans hereunder at such time as they are
made and/or are being maintained at a rate of interest based upon the
Eurodollar Rate.
10
6
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
equal to the average (rounded upwards to the nearest whole multiple of
one sixteenth of one percent) of the respective rates notified to the
Agent by the Reference Banks as the rate at which each of their
Eurodollar Lending Offices is offered Dollar deposits two Business Days
prior to the beginning of such Interest Period in the interbank
eurodollar market where the eurodollar and foreign currency and
exchange operations of such Eurodollar Lending Office are then being
conducted at or about 10:00 A.M., New York City time, for delivery on
the first day of such Interest Period for the number of days comprised
therein and in an amount comparable to the amount of the Eurodollar
Loan of such Reference Bank to be outstanding during such Interest
Period.
"Eurodollar Tranche": the collective reference to Eurodollar
Loans having the same Interest Period (whether or not originally made
on the same day).
"Event of Default": any of the events specified in subsection
6.1, provided that any requirement for the giving of notice, the lapse
of time, or both, or any other condition, event or act has been
satisfied.
"Facility": each of (a) the Tranche 1 Commitments and the
Tranche 1 Loans made thereunder (the "Tranche 1 Facility") and (b) the
Tranche 2 Commitments and the Tranche 2 Loans made thereunder (the
"Tranche 2 Facility").
"February 1997 Five-Year Agreement and Amendment": the
Agreement and Amendment, dated as of February 26, 1997 (as amended,
modified or supplemented), among the Company, the Co-Agents (as defined
therein), Chase, as Agent and as CAF Loan Agent (as defined therein),
and the several banks and other financial institutions parties thereto,
which adopts and incorporates by reference to the extent provided
therein the Five-Year Composite Credit Agreement dated as of February
28, 1996.
"Financing Lease": any lease of property, real or personal, if
the then present value of the minimum rental commitment thereunder
should, in accordance with GAAP, be capitalized on a balance sheet of
the lessee.
"GAAP": (a) with respect to determining compliance by the
Company with the provisions of subsections 5.6, 5.7 and 5.10, generally
accepted accounting principles in the United States of America
consistent with those utilized in preparing the audited financial
statements referred to in subsection 3.3 and (b) with respect to the
financial 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.
11
7
"Guarantee Obligation": any arrangement whereby credit is
extended to one party on the basis of any promise of another, whether
that promise is expressed in terms of an obligation to pay the
Indebtedness of another, or to purchase an obligation owed by that
other, to purchase assets or to provide funds in the form of lease or
other types of payments under circumstances that would enable that
other to discharge one or more of its obligations, whether or not such
arrangement is listed in the balance sheet of the obligor or referred
to in a footnote thereto, but shall not include endorsements of items
for collection in the ordinary course of business.
"Indebtedness": of a Person, at a particular date, the sum
(without duplication) at such date of (a) all indebtedness of such
Person for borrowed money or for the deferred purchase price of
property or services or which is evidenced by a note, bond, debenture
or similar instrument, (b) all obligations of such Person under
Financing Leases, (c) all obligations of such Person in respect of
letters of credit, acceptances, or similar obligations issued or
created for the account of such Person in excess of $1,000,000, (d) all
liabilities secured by any Lien on any property owned by the Company or
any Subsidiary even though such Person has not assumed or otherwise
become liable for the payment thereof and (e) all Guarantee Obligations
relating to any of the foregoing in excess of $1,000,000.
"Insolvency" or "Insolvent": at any particular time, a
Multiemployer Plan which is insolvent within the meaning of Section
4245 of ERISA.
"Interest Payment Date": (a) as to any Alternate Base Rate
Loan, the last day of each March, June, September and December,
commencing on the first of such days to occur after Alternate Base Rate
Loans are made or Eurodollar Loans are converted to Alternate Base Rate
Loans, (b) as to any Eurodollar Loan in respect of which the Company
has selected an Interest Period of one, two or three months, the last
day of such Interest Period and (c) as to any Eurodollar Loan in
respect of which the Company has selected a longer Interest Period than
the periods described in clause (b), the last day of each March, June,
September and December falling within such Interest Period and the last
day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loans:
(i) initially, the period commencing on the
borrowing or conversion date, as the case may be, with respect
to such Eurodollar Loans and ending one, two, three or six
months thereafter (or, in the case of the Tranche 2 Loans,
with the consent of all the Banks, nine or twelve months
thereafter), as selected by the Company in its notice of
borrowing as provided in subsection 2.2 or its notice of
conversion as provided in subsection 2.8, as the case may be;
and
(ii) thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to
such Eurodollar Loans and ending one, two, three or six
months thereafter (or, in the case of the Tranche 2 Loans,
with the consent of all the Banks, nine or twelve months
thereafter), as selected by the Company by irrevocable
notice to the Agent not less than three Business Days prior
12
8
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 relevant Tranche 1 or
Tranche 2 Termination Date, as the case may be, shall end on
such Tranche 1 or Tranche 2 Termination Date; and
(5) the Company shall select Interest Periods so as
not to require a payment or prepayment of any Eurodollar
Loan during an Interest Period for such Loan.
"July 1998 Term Loan Agreement": the $1,000,000,000 Agreement,
dated as of July 10, 1998, among the Company, the several banks and
other financial institutions from time to time parties thereto, the
co-agents, documentation agent and syndication agents named therein and
The Chase Manhattan Bank, as Agent and as CAF Loan Agent therein, as
the same has been and may be amended, supplemented or otherwise
modified or replaced or extended from time to time.
"Level I Period": any period during which the lower of the
publicly announced ratings by S&P and Moody's of the then current
senior unsecured, non-credit enhanced, long-term Indebtedness of the
Company that has been publicly issued are BB or better or Ba2 or
better, respectively.
"Level II Period": any period during which either of the
publicly announced ratings by S&P or Moody's of the then current senior
unsecured, non-credit enhanced, long-term Indebtedness of the Company
that has been publicly issued are equal to or below BB- or unrated or
equal to or below Ba3 or unrated, as the case may be.
13
9
"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).
"LifePoint": LifePoint Hospitals, Inc., a Delaware corporation
to be formed after the Closing Date.
"Loans": the collective reference to the Tranche 1 Loans and
the Tranche 2 Loans.
"Loan Documents": this Agreement and the Notes.
"Moody's": Moody's Investors Service, Inc., or any successor
thereto.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": means, with respect to any issuance or
sale of Capital Stock or debt securities by the Company or any of its
Subsidiaries, the cash proceeds received by the Company or such
Subsidiaries net of attorneys' fees, investment banking fees,
accountants' fees, underwriting discounts and commissions, and other
customary fees and expenses incurred in connection with such issuance
or sale.
"Notes": as defined in subsection 2.1(b).
"Participants": as defined in subsection 8.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Company or a Control
Group Person is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined
in Section 3(5) of ERISA.
"Principal Property": means each acute care hospital providing
general medical and surgical services (including real property but
excluding equipment, personal property and hospitals which primarily
provide specialty medical services, such as psychiatric and obstetrical
and gynecological services) at least 50% of which is owned by the
Company and its Subsidiaries on a consolidated basis and located in the
United States of America.
14
10
"Purchasing Banks": as defined in subsection 8.6(c).
"Reference Banks": Chase and Citibank, N.A.
"Register": as defined in subsection 8.6(d).
"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System.
"Regulation X": Regulation X of the Board of Governors of the
Federal Reserve System.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
such term as used in Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .13,.14,.16,.18,.19 or .20
of PBGC Reg. ss. 2615.
"Required Banks": (i) during the Commitment Period, Banks
whose Commitment Percentages aggregate at least 51% and (ii) after the
Commitments have expired or been terminated, Banks whose outstanding
Loans represent in the aggregate 51% of the aggregate unpaid principal
amount of all outstanding Loans.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Responsible Officer": the chief executive officer, the
president, any executive or senior vice president or vice president of
the Company, the chief financial officer, treasurer or controller of
the Company.
"S&P": Standard & Poor's Ratings Service, or any successor
thereto.
"Sale-and-Leaseback Transaction": means any arrangement
entered into by the Company or any Significant Subsidiary with any
person (other than the Company or a Significant Subsidiary), or to
which any such person is a party, providing for the leasing to the
Company or any Significant Subsidiary for a period of more than three
years of any Principal Property which has been or is to be held or
transferred by the Company or such Significant Subsidiary to such
Person or to any other Person (other than the Company or a Significant
Subsidiary), to which funds have been or are to be advanced by such
Person on the security of the leased property.
15
11
"Significant Subsidiary": means, at any particular time, any
Subsidiary of the Company having total assets of $15,000,000 or more at
that time.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Spin-Cos": LifePoint and Triad.
"Spin-Offs": the proposed tax-free spin-off distributions of
the common stock of the Spin-Cos to the shareholders of the Borrower.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned directly or indirectly through one or more intermediaries,
by such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Company.
"Taxes": as defined in subsection 2.13.
"Tranche 1 Commitment": as to any Bank, the obligation of such
Bank, if any, to make a Tranche 1 Loan to the Borrower hereunder in a
principal amount not to exceed the amount set forth under the heading
"Tranche 1 Commitment" opposite such Bank's name on Schedule I. The
original aggregate amount of the Tranche 1 Commitments is $500,000,000.
"Tranche 1 Loan": as defined in Section 2.1(a).
"Tranche 1 Note": as defined in Section 2.1(b).
"Tranche 1 Percentage": as to any Bank at any time, the
percentage which such Bank's Tranche 1 Commitment then constitutes of
the aggregate Tranche 1 Commitments (or, at any time after the Closing
Date, the percentage which the aggregate principal amount of such
Bank's Tranche 1 Loans then outstanding constitutes of the aggregate
principal amount of the Tranche 1 Loans then outstanding).
"Tranche 1 Termination Date": September 30, 1999.
"Tranche 2 Commitment": as to any Bank, the obligation of such
Bank, if any, to make a Tranche 2 Loan to the Borrower hereunder in a
principal amount not to exceed the amount set forth under the heading
"Tranche 2 Commitment" opposite such Bank's name on Schedule I. The
original aggregate amount of the Tranche 2 Commitments is $500,000,000.
"Tranche 2 Loan": as defined in Section 2.1(a).
16
12
"Tranche 2 Note": as defined in Section 2.1(c).
"Tranche 2 Percentage": as to any Bank at any time, the
percentage which such Bank's Tranche 2 Commitment then constitutes of
the aggregate Tranche 2 Commitments (or, at any time after the Closing
Date, the percentage which the aggregate principal amount of such
Bank's Tranche 2 Loans then outstanding constitutes of the aggregate
principal amount of the Tranche 2 Loans then outstanding).
"Tranche 2 Termination Date": September 30, 2000.
"Transfer Effective Date": as defined in each Commitment
Transfer Supplement.
"Transferee": as defined in subsection 8.6(f).
"Triad": Triad Hospitals, Inc., a Delaware corporation to be
formed after the Closing Date.
"Type": as to any Loan, its nature as an Alternate Base Rate
Loan or Eurodollar Loan.
"Voting Stock": of any corporation, shares of capital stock or
other securities of such corporation entitled to vote generally in the
election of directors of such corporation.
"Working Day": any Business Day on which dealings in foreign
currencies and exchange between banks may be carried on in London,
England.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the Notes or any certificate or other document made or
delivered pursuant hereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Company and its Subsidiaries not defined in
subsection 1.1 and accounting terms partly defined in subsection 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
17
13
SECTION 2. AMOUNT AND TERMS OF LOANS
2.1 Loans and Notes. (a) Subject to the terms and conditions
hereof, each Bank severally agrees to make two loans (a "Tranche 1 Loan" and a
"Tranche 2 Loan", respectively) to the Company on the Closing Date in an
aggregate principal amount not to exceed the Commitment of such Bank in the
respective amounts set forth opposite such Bank's name under the first and third
columns on Schedule I. The Loans may be (i) Eurodollar Loans, (ii) Alternate
Base Rate Loans or (iii) a combination thereof, as determined by the Company and
notified to the Agent in accordance with subsection 2.1(d).
(b) Upon the request by any Bank, the Tranche 1 Loan made by
such Bank shall be evidenced by a promissory note of the Company, substantially
in the form of Exhibit A with appropriate insertions as to payee, date and
principal amount (a "Tranche 1 Note"), payable to the order of such Bank and
evidencing the obligation of the Company to pay a principal amount equal to the
amount of the initial Tranche 1 Commitment of such Bank. Each Bank is hereby
authorized to record the date, Type and amount of each Tranche 1 Loan made or
converted by such Bank, and the date and amount of each payment or prepayment of
principal thereof, and, in the case of Eurodollar Loans, the Interest Period
with respect thereto, on the schedule annexed to and constituting a part of such
Tranche 1 Note, and any such recordation shall constitute prima facie evidence
of the accuracy of the information so recorded; provided, however, that the
failure of such Bank to make any such recordation shall not affect the
obligations of the Company hereunder or under any Tranche 1 Note. Each such
Tranche 1 Note shall (x) be dated the Closing Date, (y) be stated to mature on
the Tranche 1 Termination Date, and (z) bear interest on the unpaid principal
amount thereof from time to time outstanding at the applicable interest rate per
annum determined as provided in subsection 2.7.
(c) Upon the request by any Bank, the Tranche 2 Loan made by
such Bank shall be evidenced by a promissory note of the Company, substantially
in the form of Exhibit B with appropriate insertions as to payee, date and
principal amount (a "Tranche 2 Note"), payable to the order of such Bank and
evidencing the obligation of the Company to pay a principal amount equal to the
amount of the initial Tranche 2 Commitment of such Bank. Each Bank is hereby
authorized to record the date, Type and amount of each Tranche 2 Loan made or
converted by such Bank, and the date and amount of each payment or prepayment of
principal thereof, and, in the case of Eurodollar Loans, the Interest Period
with respect thereto, on the schedule annexed to and constituting a part of such
Tranche 2 Note, and any such recordation shall constitute prima facie evidence
of the accuracy of the information so recorded; provided, however, that the
failure of such Bank to make any such recordation shall not affect the
obligations of the Company hereunder or under any Tranche 2 Note. Each such
Tranche 2 Note shall (x) be dated the Closing Date, (y) be stated to mature on
the Tranche 2 Termination Date, and (z) bear interest on the unpaid principal
amount thereof from time to time outstanding at the applicable interest rate per
annum determined as provided in subsection 2.7.
(d) The Company may borrow under the Commitments on the
Closing Date; provided that the Company shall give the Agent irrevocable notice
(which notice must be received by the Agent (i) prior to 11:30 A.M., New York
City time, three Business Days prior to the Closing Date, in the case of
Eurodollar Loans, and (ii) prior to 10:00 A.M., New York City time, one Business
Day prior to the Closing Date, in the case of Alternate Base Rate Loans),
specifying (A)
18
14
the amount to be borrowed, (B) whether the borrowing is to be of Eurodollar
Loans, Alternate Base Rate Loans, or a combination thereof, and (C) if the
borrowing is to be entirely or partly of Eurodollar Loans, the length of the
Interest Period therefor. Upon receipt of such notice from the Company, the
Agent shall promptly notify each Bank thereof. Each Bank will make the amount of
its pro rata share of each borrowing available to the Agent for the account of
the Company at the office of the Agent set forth in subsection 8.2 prior to
12:00 P.M., New York City time, on the Closing Date in funds immediately
available to the Agent. The proceeds of all such Loans will then be made
available to the Company by the Agent at such office of the Agent by crediting
the account of the Company on the books of such office with the aggregate of the
amounts made available to the Agent by the Banks.
2.2 Fees. The Company agrees to pay to the Agent the other
fees in the amounts, and on the date, agreed to by the Company and the Agent in
the fee letter, dated February 25, 1999, between the Agent and the Company.
2.3 Termination or Reduction of Commitments. The Company shall
have the right, upon not less than five Business Days' notice to the Agent, to
terminate the Commitments or, from time to time, to reduce ratably the amount of
the Commitments, provided that no such termination or reduction shall be
permitted if, after giving effect thereto and to any prepayments of the Loans
made on the effective date thereof, the then outstanding principal amount of the
Loans would exceed the amount of the Commitments then in effect. In the case of
any reduction, such notice shall specify whether such reduction is of Tranche 1
Commitments or Tranche 2 Commitments or a combination thereof. Any such
reduction shall be in an amount of $10,000,000 or a whole multiple of $1,000,000
in excess thereof, and shall reduce permanently the amount of the Commitments
then in effect.
2.4 Optional Prepayments. The Company may on the last day of
the relevant Interest Period if the Loans to be prepaid are in whole or in part
Eurodollar Loans, or at any time and from time to time if the Loans to be
prepaid are Alternate Base Rate Loans, prepay the Loans, in whole or in part,
without premium or penalty, upon at least three Business Days' irrevocable
notice to the Agent, specifying the date and amount of prepayment and whether
the prepayment is of Eurodollar Loans or Alternate Base Rate Loans or a
combination thereof and whether the prepayment is of Tranche 1 Loans or Tranche
2 Loans or a combination thereof, and if of a combination thereof, the amount of
prepayment allocable to each. Upon receipt of such notice the Agent shall
promptly notify each Bank thereof. If such notice is given, the payment amount
specified in such notice shall be due and payable on the date specified therein,
together with accrued interest to such date on the amount prepaid. Partial
prepayments shall be in an aggregate principal amount of $5,000,000, or a whole
multiple of $1,000,000 in excess thereof, and may only be made if, after giving
effect thereto, subsection 2.6(c) shall not have been contravened.
2.5 Mandatory Prepayments and Commitment Reductions. (a) The
Company shall prepay the Loans and reduce the Commitments in the amount of 100%
of the Net Cash Proceeds of any sale or issuance of Capital Stock (excluding any
stock issued pursuant to employee and/or director stock option or stock purchase
plans) or incurrence of Indebtedness for borrowed money in excess of an
aggregate principal amount of $25,000,000 (excluding transactions under
$2,000,000) by the Borrower or any of its Subsidiaries after the Closing Date
(excluding any Indebtedness
19
15
incurred by the Spin-Cos in connection with the Spin-Offs) within five Business
Days following the date of any such sale, issuance or incurrence.
(b) Amounts to be applied in connection with prepayments made
pursuant to subsection 2.4 and 2.5 shall be applied, first, to the prepayment of
the Tranche 1 Loans in their entirety and, second, to the Tranche 2 Loans. The
application of any prepayment pursuant to this subsection 2.5 shall be made,
first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the
Loans under this subsection 2.5 shall be accompanied by accrued interest to the
date of such prepayment on the amount prepaid.
2.6 Conversion Options; Minimum Amount of Loans. (a) The
Company may elect from time to time to convert Eurodollar Loans to Alternate
Base Rate Loans by giving the Agent at least two Business Days' prior
irrevocable notice of such election (given before 10:00 A.M., New York City
time, on the date on which such notice is required), provided that any such
conversion of Eurodollar Loans shall, subject to the fourth following sentence,
only be made on the last day of an Interest Period with respect thereto. The
Company may elect from time to time to convert Alternate Base Rate Loans to
Eurodollar Loans by giving the Agent at least three Business Days' prior
irrevocable notice of such election (given before 11:30 A.M., New York City
time, on the date on which such notice is required). Upon receipt of such
notice, the Agent shall promptly notify each Bank thereof. Promptly following
the date on which such conversion is being made each Bank shall take such action
as is necessary to transfer its portion of such Loans to its Domestic Lending
Office or its Eurodollar Lending Office, as the case may be. All or any part of
outstanding Eurodollar Loans and Alternate Base Rate Loans may be converted as
provided herein, provided that, unless the Required Banks otherwise agree, (i)
no Loan may be converted into a Eurodollar Loan when any Event of Default has
occurred and is continuing, (ii) partial conversions shall be in an aggregate
principal amount of $5,000,000 or a whole multiple thereof, and (iii) any such
conversion may only be made if, after giving effect thereto, subsection 2.6(c)
shall not have been contravened.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of an Interest Period with respect thereto by compliance by the
Company with the notice provisions contained in subsection 2.6(a); provided
that, unless the Required Banks otherwise agree, no Eurodollar Loan may be
continued as such when any Event of Default has occurred and is continuing, but
shall be automatically converted to an Alternate Base Rate Loan on the last day
of the then current Interest Period with respect thereto. The Agent shall notify
the Banks promptly that such automatic conversion contemplated by this
subsection 2.6(b) will occur.
(c) All borrowings, conversions, payments, prepayments and
selection of Interest Periods hereunder shall be in such amounts and be made
pursuant to such elections so that, after giving effect thereto, the aggregate
principal amount of the Loans comprising any Eurodollar Tranche shall not be
less than $10,000,000. At no time shall there be more than 10 Eurodollar
Tranches.
2.7 Interest Rate and Payment Dates for Loans. (a) The
Eurodollar Loans comprising each Eurodollar Tranche shall bear interest for each
day during each Interest Period with
20
16
respect thereto on the unpaid principal amount thereof at a rate per annum equal
to the Eurodollar Rate plus the Applicable Margin.
(b) Alternate Base Rate Loans shall bear interest for each
day from and including the date thereof on the unpaid principal amount thereof
at a rate per annum equal to the Alternate Base Rate plus the Applicable Margin.
(c) If all or a portion of the principal amount of any Loans
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), each Eurodollar Loan shall, unless the Required Banks otherwise
agree, be converted to an Alternate Base Rate Loan at the end of the last
Interest Period with respect thereto. Any such overdue principal amount shall
bear interest at a rate per annum which is 2% above the rate which would
otherwise be applicable pursuant to subsection 2.7(a) or (b), and any overdue
interest or other amount payable hereunder shall bear interest at a rate per
annum which is 2% above the Alternate Base Rate, in each case from the date of
such non-payment until paid in full (after as well as before judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date.
(e) The Company shall pay the entire principal amount of (i)
the Tranche 1 Loans on the Tranche 1 Termination Date and (ii) the Tranche 2
Loans on the Tranche 2 Termination Date.
2.8 Computation of Interest and Fees. (a) Interest in respect
of Alternate Base Rate Loans shall be calculated on the basis of a (i) 365-day
(or 366-day, as the case may be) year for the actual days elapsed when such
Alternate Base Rate Loans are based on the Prime Rate, and (ii) a 360-day year
for the actual days elapsed when based on the Base CD Rate or the Federal Funds
Effective Rate. Interest in respect of Eurodollar Loans shall be calculated on
the basis of a 360-day year for the actual days elapsed. The Agent shall as soon
as practicable notify the Company and the Banks of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the Alternate Base Rate or the Applicable Margin or the Eurocurrency
Reserve Requirements shall become effective as of the opening of business on the
day on which such change in the Alternate Base Rate is announced, such
Applicable Margin changes as provided herein or such change in or the
Eurocurrency Reserve Requirements shall become effective, as the case may be.
The Agent shall as soon as practicable notify the Company and the Banks of the
effective date and the amount of each such change.
(b) Each determination of an interest rate by the Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Company and the Banks in the absence of manifest error. The Agent shall, at
the request of the Company, deliver to the Company a statement showing the
quotations used by the Agent in determining any interest rate pursuant to
subsection 2.7(a) or (c).
(c) If any Reference Bank's Commitment shall terminate
(otherwise than on termination of all the commitments), or its Loan shall be
assigned for any reason whatsoever, such Reference Bank shall thereupon cease to
be a Reference Bank, and if, as a result of the foregoing, there shall only be
one Reference Bank remaining, then the Agent (after consultation with the
21
17
Company) shall, by notice to the Company and the Banks, designate another Bank
as a Reference Bank so that there shall at all times be at least two Reference
Banks.
(d) Each Reference Bank shall use its best efforts to
furnished quotations of rates to the Agent as contemplated hereby. If any of the
Reference Banks shall be unable or otherwise fails to supply such rates to the
Agent upon its request, the rate of interest shall be determined on the basis of
the quotations of the remaining Reference Banks or Reference Bank.
2.9 Inability to Determine Interest Rate. In the event that:
(i) the Agent shall have determined (which determination
shall be conclusive and binding upon the Company) that, by reason of
circumstances affecting the interbank eurodollar market generally,
adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for any requested Interest Period;
(ii) only one of the Reference Banks is able to obtain
bids for its Dollar deposits for such Interest Period in the manner
contemplated by the term "Eurodollar Rate"; or
(iii) the Agent shall have received notice prior to the
first day of such Interest Period from Banks constituting the Required
Banks that the interest rate determined pursuant to subsection 2.8(a)
for such Interest Period does not accurately reflect the cost to such
Banks (as conclusively certified by such Banks) of making or
maintaining their affected Loans during such Interest Period;
with respect to (A) proposed Loans that the Company has requested be made as
Eurodollar Loans, (B) Eurodollar Loans that will result from the requested
conversion of Alternate Base Rate Loans into Eurodollar Loans or (C) the
continuation of Eurodollar Loans beyond the expiration of the then current
Interest Period with respect thereto, the Agent shall forthwith give facsimile
or telephonic notice of such determination to the Company and the Banks at least
one day prior to, as the case may be, the requested Borrowing Date for such
Eurodollar Loans, the conversion date of such Loans or the last day of such
Interest Period. If such notice is given (x) any requested Eurodollar Loans
shall be made as Alternate Base Rate Loans, (y) any Alternate Base Rate Loans
that were to have been converted to Eurodollar Loans shall be continued as
Alternate Base Rate Loans and (z) any outstanding Eurodollar Loans shall be
converted, on the last day of the then current Interest Period with respect
thereto, to Alternate Base Rate Loans. Until such notice has been withdrawn by
the Agent, no further Eurodollar Loans shall be made, nor shall the Company have
the right to convert Alternate Base Rate Loans to Eurodollar Loans.
2.10 Pro Rata Borrowings and Payments. (a) Borrowing by the
Company of Loans shall be made ratably from the Banks in accordance with their
Commitment Percentages.
(b) All payments (including prepayments) to be made by the
Company on account of principal, interest and fees shall be made without
set-off, counterclaim or deduction of any kind and shall be made to the Agent,
for the account of the Banks, at the Agent's office set forth in subsection 8.2,
in lawful money of the United States of America and in immediately available
funds.
22
18
The Agent shall distribute such payments to the Banks promptly upon receipt in
like funds as received. If any payment hereunder (other than payments on the
Eurodollar Loans) becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day, and, with
respect to payments of principal, interest thereon shall be payable at the then
applicable rate during such extension. If any payment on a Eurodollar Loan
becomes due and payable on a day other than a Business Day, the maturity thereof
shall be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month in which
event such payment shall be made on the immediately preceding Business Day.
2.11 Illegality. Notwithstanding any other provisions herein,
if after the date hereof the adoption of or any change in any Requirement of Law
or in the interpretation or application thereof shall make it unlawful for any
Bank to make or maintain Eurodollar Loans as contemplated by this Agreement, (a)
the Bank shall, within 30 Business Days after it becomes aware of such fact,
notify the Company, through the Agent, of such fact, (b) the commitment of such
Bank hereunder to make Eurodollar Loans or convert Alternate Base Rate Loans to
Eurodollar Loans shall forthwith be cancelled and (c) such Bank's Loans then
outstanding as Eurodollar Loans, if any, shall be converted automatically to
Alternate Base Rate Loans on the respective last days of the then current
Interest Periods for such Loans or within such earlier period as required by
law. Each Bank shall take such action as may be reasonably available to it
without legal or financial disadvantage (including changing its Eurodollar
Lending Office) to prevent the adoption of or any change in any such Requirement
of Law from becoming applicable to it.
2.12 Requirements of Law. (a) If after the date hereof the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof or compliance by any Bank with any request or directive
(whether or not having the force of law) after the date hereof from any central
bank or other Governmental Authority:
(i) shall subject any Bank to any tax of any kind
whatsoever with respect to this Agreement, any Note or any Eurodollar
Loans made by it, or change the basis of taxation of payments to such
Bank of principal, facility fee, interest or any other amount payable
hereunder in respect of Loans (except for changes in the rate of tax
on the overall net income of such Bank);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, or deposits or other liabilities in or for the account of,
advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Bank which are not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank, by
any amount which such Bank deems to be material, of making, renewing or
maintaining advances or extensions of credit or to reduce any amount receivable
hereunder, in each case, in respect of its Eurodollar Loans, then,
23
19
in any such case, the Company shall promptly pay such Bank, upon its demand, any
additional amounts necessary to compensate such Bank for such additional cost or
reduced amount receivable. If a Bank becomes entitled to claim any additional
amounts pursuant to this subsection 2.12(a), it shall, within 30 Business Days
after it becomes aware of such fact, notify the Company, through the Agent, of
the event by reason of which it has become so entitled. A certificate as to any
additional amounts payable pursuant to the foregoing sentence submitted by such
Bank, through the Agent, to the Company shall be conclusive in the absence of
manifest error. Each Bank shall take such action as may be reasonably available
to it without legal or financial disadvantage (including changing its Eurodollar
Lending Office) to prevent any such Requirement of Law or change from becoming
applicable to it. This covenant shall survive the termination of this Agreement
and payment of the outstanding Indebtedness hereunder or pursuant to the Notes.
(b) In the event that after the date hereof a Bank is required
to maintain reserves of the type contemplated by the definition of "Eurocurrency
Reserve Requirements", such Bank may require the Company to pay, promptly after
receiving notice of the amount due, additional interest on the related
Eurodollar Loan of such Bank at a rate per annum determined by such Bank up to
but not exceeding the excess of (i) (A) the applicable Eurodollar Rate divided
by (B) one minus the Eurocurrency Reserve Requirements over (ii) the applicable
Eurodollar Rate. Any Bank wishing to require payment of any such additional
interest on account of any of its Eurodollar Loans shall notify the Company no
more than 30 Business Days after each date on which interest is payable on such
Eurodollar Loan of the amount then due it under this subsection 2.12(b), in
which case such additional interest on such Eurodollar Loan shall be payable to
such Bank at the place indicated in such notice. Each such notification shall be
accompanied by such information as the Company may reasonably request.
2.13 Capital Adequacy. If any Bank shall have determined that
after the date hereof the adoption of or any change in any Requirement of Law
regarding capital adequacy or in the interpretation or application thereof or
compliance by such Bank or any corporation controlling such Bank with any
request or directive after the date hereof regarding capital adequacy (whether
or not having the force of law) from any central bank or Governmental Authority,
does or shall have the effect of reducing the rate of return on such Bank's or
such corporation's capital as a consequence of its obligations hereunder to a
level below that which such Bank or such corporation could have achieved but for
such adoption, change or compliance (taking into consideration such Bank's or
such corporation's policies with respect to capital adequacy) by an amount which
is reasonably deemed by such Bank to be material, then from time to time,
promptly after submission by such Bank, through the Agent, to the Company of a
written request therefor (such request shall include details reasonably
sufficient to establish the basis for such additional amounts payable and shall
be submitted to the Company within 30 Business Days after it becomes aware of
such fact), the Company shall promptly pay to such Bank such additional amount
or amounts as will compensate such Bank for such reduction. The agreements in
this subsection 2.13 shall survive the termination of this Agreement and payment
of the Loans and the Notes and all other amounts payable hereunder.
2.14 Taxes. (a) All payments made by the Company under this
Agreement shall be made free and clear of, and without reduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or
24
20
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority excluding, in the case of the Agent and each Bank,
net income and franchise taxes imposed on the Agent or such Bank by the
jurisdiction under the laws of which the Agent or such Bank is organized or any
political subdivision or taxing authority thereof or therein, or by any
jurisdiction in which such Bank's Domestic Lending Office or Eurodollar Lending
Office, as the case may be, is located or any political subdivision or taxing
authority thereof or therein (all such non-excluded taxes, levies, imposts,
deductions, charges or withholdings being hereinafter called "Taxes"). If any
Taxes are required to be withheld from any amounts payable to the Agent or any
Bank hereunder or under the Notes, the amounts so payable to the Agent or such
Bank shall be increased to the extent necessary to yield to the Agent or such
Bank (after payment of all Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement and the
Notes. Whenever any Taxes are payable by the Company, as promptly as possible
thereafter, the Company shall send to the Agent for its own account or for the
account of such Bank, as the case may be, a certified copy of an original
official receipt received by the Company showing payment thereof. If the Company
fails to pay any Taxes when due to the appropriate taxing authority or fails to
remit to the Agent the required receipts or other required documentary evidence,
the Company shall indemnify the Agent and the Banks for any incremental taxes,
interest or penalties that may become payable by the Agent or any Bank as a
result of any such failure.
(b) Each Bank that is not incorporated under the laws of the
United States of America or a state thereof agrees that it will deliver to the
Company and the Agent (i) two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224 or successor applicable form, as the case may
be, certifying in each case that such Bank is entitled to receive payments under
this Agreement and the Notes payable to it, without deduction or withholding of
any United States federal income taxes, and (ii) an Internal Revenue Service
Form W-8 or W-9 or successor applicable form, as the case may be, to establish
an exemption from United States backup withholding tax. Each Bank which delivers
to the Company and the Agent a Form 1001 or 4224 and Form W-8 or W-9 pursuant to
the next preceding sentence further undertakes to deliver to the Company and the
Agent two further copies of the said letter and Form 1001 or 4224 and Form W-8
or W-9, or successor applicable forms, or other manner of certification, as the
case may be, on or before the date that any such letter or form expires or
becomes obsolete or after the occurrence of any event requiring a change in the
most recent letter and form previously delivered by it to the Company, and such
extensions or renewals thereof as may reasonably be requested by the Company,
certifying in the case of a Form 1001 or 4224 that such Bank is entitled to
receive payments under this Agreement without deduction or withholding of any
United States federal income taxes, unless in any such cases an event (including
without limitation any change in treaty, law or regulation) has occurred prior
to the date on which any such delivery would otherwise be required which renders
all such forms inapplicable or which would prevent such Bank from duly
completing and delivering any such letter or form with respect to it and such
Bank advises the Company that it is not capable of receiving payments without
any deduction or withholding of United States federal income tax, and in the
case of a Form W-8 or W-9, establishing an exemption from United States backup
withholding tax.
(c) The agreements in subsection 2.14 shall survive the
termination of this Agreement and the payment of the Notes and all other amounts
payable hereunder.
25
21
2.15 Indemnity. The Company agrees to indemnify each Bank and
to hold each Bank harmless from any loss or expense (other than any loss of
anticipated margin or profit) which such Bank may sustain or incur as a
consequence of (a) default by the Company in payment when due of the principal
amount of or interest on any Eurodollar Loans of such Bank, (b) default by the
Company in making a borrowing or conversion after the Company has given a notice
of borrowing in accordance with subsection 2.1(d) or a notice of continuation or
conversion pursuant to subsection 2.6(a), (c) default by the Company in making
any prepayment after the Company has given a notice in accordance with
subsection 2.4 or 2.5 or (d) the making of a prepayment of a Eurodollar Loan on
a day which is not the last day of an Interest Period with respect thereto,
including, without limitation, in each case, any such loss or expense arising
from the reemployment of funds obtained by it to maintain its Eurodollar Loans
hereunder or from fees payable to terminate the deposits from which such funds
were obtained. Any Bank claiming any amount under this subsection 2.15 shall
provide calculations, in reasonable detail, of the amount of its loss or
expense. This covenant shall survive termination of this Agreement and payment
of the outstanding Indebtedness hereunder or pursuant to the Notes.
2.16 Application of Proceeds of Loans. Subject to the
provisions of the following sentence, the Company may use the proceeds of the
Loans for any lawful corporate purpose, including for the repurchase of shares
of common stock of the Company and the repayment of loans under the February
1997 Five-Year Agreement and Amendment. The Company will not, directly or
indirectly, apply any part of the proceeds of any such Loan for the purpose of
"purchasing" or "carrying" any "margin stock" within the respective meanings of
each of the quoted terms under Regulation U, or to refund any indebtedness
incurred for such purpose, except in a manner which is not in violation of
Regulations U and X.
2.17 Notice of Certain Circumstances; Assignment of
Commitments Under Certain Circumstances. (a) Any Bank claiming any additional
amounts payable pursuant to subsections 2.12, 2.13 or 2.14 or exercising its
rights under subsection 2.11, shall, in accordance with the respective
provisions thereof, provide notice to the Company and the Agent. Such notice to
the Company and the Agent shall include details reasonably sufficient to
establish the basis for such additional amounts payable or the rights to be
exercised by the Bank.
(b) Any Bank claiming any additional amounts payable pursuant
to subsections 2.12, 2.13 or 2.14 or exercising its rights under subsection
2.11, shall use reasonable efforts (consistent with legal and regulatory
restrictions) to file any certificate or document requested by the Company or to
change the jurisdiction of its applicable lending office if the making of such
filing or change would avoid the need for or reduce the amount of any such
additional amounts which may thereafter accrue or avoid the circumstances giving
rise to such exercise and would not, in the sole determination of such Bank, be
otherwise disadvantageous to such Bank.
(c) In the event that the Company shall be required to make
any additional payments to any Bank pursuant to subsections 2.12, 2.13 or 2.14
or any Bank shall exercise its rights under subsection 2.11, the Company shall
have the right at its own expense, upon notice to such Bank and the Agent, to
require such Bank to transfer and to assign without recourse (in accordance with
and subject to the terms of subsection 8.6) all its interest, rights and
obligations under this Agreement
26
22
to another financial institution (including any Bank) acceptable to the Agent
(which approval shall not be unreasonably withheld) which shall assume such
obligations; provided that (i) no such assignment shall conflict with any
Requirement of Law and (ii) such assuming financial institution shall pay to
such Bank in immediately available funds on the date of such assignment the
outstanding principal amount of such Bank's Loans hereunder together with
accrued interest thereon and all other amounts accrued for its account or owed
to it hereunder, including, but not limited to additional amounts payable under
subsections 2.2, 2.11, 2.12, 2.13, 2.14 and 2.15.
SECTION 3. REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants that:
3.1 Corporate Organization and Existence. Each of the Company
and each Subsidiary is a corporation, partnership or other entity duly organized
and validly existing and in good standing under the laws of the jurisdiction in
which it is organized (except, in the case of Subsidiaries, where the failure to
be in good standing would not be material to the Company and its Subsidiaries on
a consolidated basis) and has all necessary power to carry on the business now
conducted by it. The Company has all necessary corporate power and has taken all
corporate action required to make all the provisions of this Agreement and the
Notes and all other agreements and instruments executed in connection herewith
and therewith, the valid and enforceable obligations they purport to be. Each of
the Company and each Subsidiary is duly qualified and in good standing in all
jurisdictions other than that of its organization in which the physical
properties owned, leased or operated by it are located (except, in the case of
Subsidiaries, where the failure to be in good standing would not be material to
the Company and its Subsidiaries on a consolidated basis), and is duly
authorized, qualified and licensed under all laws, regulations, ordinances or
orders of Governmental Authorities, or otherwise, to carry on its business in
the places and in the manner presently conducted.
3.2 Subsidiaries. As of the date hereof, the Company has only
the Subsidiaries set forth in Schedule II. Schedule II indicates all
Subsidiaries of the Company which are not wholly-owned Subsidiaries. The capital
stock and securities owned by the Company and its Subsidiaries in each of the
Company's Subsidiaries are owned free and clear of any mortgage, pledge, lien,
encumbrance, charge or restriction on the transfer thereof other than
restrictions on transfer imposed by applicable securities laws and restrictions,
liens and encumbrances outstanding on the date hereof and listed in said
Schedule II.
3.3 Financial Information. The Company has furnished to the
Agent and made available to each Bank copies of the following (the "SEC
Reports"):
(a) the Annual Report of the Company for the fiscal year ended
December 31, 1997, containing the consolidated balance sheet of the
Company and its Subsidiaries as at said date and the related
consolidated statements of income, common stockholders' equity and
changes in financial position for the fiscal year then ended,
accompanied by the opinion of Ernst-Young LLP;
27
23
(b) the Annual Report of the Company on Form 10-K for the
fiscal year ended December 31, 1997;
(c) Quarterly Report of the Company on Form 10-Q for the
fiscal quarter ended March 31, 1998, June 30, 1998 and September 30,
1998;
(d) Current Reports on Form 8-K filed with the Securities and
Exchange Commission dated February 6, 1998, February 13, 1998, March 6,
1998, May 27, 1998, July 30, 1998, October 28, 1998, December 15, 1998
and February 24, 1999, respectively, and Schedule V attached hereto;
and
(e) the Annual Report of the Company on Form 10-K for the
fiscal year ended December 31, 1998.
Such financial statements (including any notes thereto) have been prepared in
accordance with GAAP and fairly present the financial conditions of the
corporations covered thereby at the dates thereof and the results of their
operations for the periods covered thereby, subject to normal year-end
adjustments in the case of interim statements. As of the date hereof and except
as disclosed in the above-referenced reports, neither the Company nor any of its
Subsidiaries has any known contingent liabilities of any significant amount
which are not referred to in said financial statements or in the notes thereto
which could reasonably be expected to have a material adverse effect on the
business or assets or on the condition, financial or otherwise, of the Company
and its Subsidiaries, on a consolidated basis.
3.4 Changes in Condition. Since December 31, 1998 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, may involve any material risk of a material adverse effect on the
business or assets or on the condition, financial or otherwise, of the Company
and its Subsidiaries on a consolidated basis or which seeks to enjoin the
consummation of any of the transactions contemplated by this Agreement or any
other Loan Document and involves any material risk that any such injunction will
be issued, and no judgment, decree, or order of any federal, state, provincial
or municipal court, board or other governmental or administrative agency has
been issued against the Company or any Subsidiary which has, or may involve, a
material risk of a
28
24
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 tax returns which are required to be filed and have paid, or made
adequate provision for the payment of, all taxes which have or may become due
pursuant to said returns or to assessments received. The Company knows of no
material additional assessments since said date for which adequate reserves
appearing in the said balance sheet have not been established.
3.8 Contracts, etc. Attached hereto as Schedule III is a
statement of outstanding Indebtedness of the Company and its Subsidiaries for
borrowed money as of the date set forth therein and a complete and correct list
of all agreements, contracts, indentures, instruments, documents and amendments
thereto to which the Company or any Subsidiary is a party or by which it is
bound pursuant to which any such Indebtedness of the Company and its
Subsidiaries in excess of $25,000,000 is outstanding on the date hereof. Said
Schedule III also includes a complete and correct list of all such Indebtedness
of the Company and its Subsidiaries outstanding on the date indicated in respect
of Guarantee Obligations in excess of $1,000,000 and letters of credit in excess
of $1,000,000, and there have been no increases in such Indebtedness since said
date other than as permitted by this Agreement.
3.9 No Legal Obstacle to Agreement. Neither the execution and
delivery of this Agreement or of any Notes, nor the making by the Company of any
borrowings hereunder, nor the consummation of any transaction herein or therein
referred to or contemplated hereby or thereby nor the fulfillment of the terms
hereof or thereof or of any agreement or instrument referred to in this
Agreement, has constituted or resulted in or will constitute or result in a
breach of the provisions of any contract to which the Company or any of its
Subsidiaries is a party or by which it is bound or of the charter or by-laws of
the Company, or the violation of any law, judgment, decree or governmental
order, rule or regulation applicable to the Company or any of its Subsidiaries,
or result in the creation under any agreement or instrument of any security
interest, lien, charge or encumbrance upon any of the assets of the Company or
any of its Subsidiaries. Other than those which have already been obtained, no
approval, authorization or other action by any governmental authority or any
other Person is required to be obtained by the Company or any of its
Subsidiaries in connection with the execution, delivery and performance of this
Agreement or the transactions contemplated hereby, or the making of any
borrowing by the Company hereunder.
3.10 Defaults. Neither the Company nor any Subsidiary is in
default under any provision of its charter or by-laws or, so as to affect
adversely in any material manner the business or assets or the condition,
financial or otherwise, of the Company and its Subsidiaries on a consolidated
basis, under any provision of any agreement, lease or other instrument to which
it is a party or by which it is bound or of any Requirement of Law.
29
25
3.11 Burdensome Obligations. Neither the Company nor any
Subsidiary is a party to or bound by any agreement, deed, lease or other
instrument, or subject to any charter, by-law or other corporate restriction
which, in the opinion of the management thereof, is so unusual or burdensome as
to in the foreseeable future have a material adverse effect on the business or
assets or condition, financial or otherwise, of the Company and its Subsidiaries
on a consolidated basis. The Company does not presently anticipate that future
expenditures of the Company and its Subsidiaries needed to meet the provisions
of any federal or state statutes, orders, rules or regulations will be so
burdensome as to have a material adverse effect on the business or assets or
condition, financial or otherwise, of the Company and its Subsidiaries on a
consolidated basis.
3.12 Pension Plans. Each Plan maintained by the Company, any
Subsidiary or any Control Group Person or to which any of them makes or will
make contributions is in material compliance with the applicable provisions of
ERISA and the Code. Neither the Company nor any Subsidiary nor any Control Group
Person maintains, contributes to or participates in any Plan that is a "defined
benefit plan" as defined in ERISA. The Company and its Subsidiaries have met all
of the funding standards applicable to all Plans that are not Multiemployer
Plans, and there exists no event or condition which would permit the institution
of proceedings to terminate any Plan that is not a Multiemployer Plan. The
current value of the benefits guaranteed under Title IV of ERISA of each Plan
that is not a Multiemployer Plan does not exceed the current value of such
Plan's assets allocable to such benefits.
3.13 Disclosure. Neither this Agreement nor any agreement,
document, certificate or statement furnished to the Banks by the Company in
connection herewith contains any untrue statement of material fact or omits to
state a material fact necessary in order to make the statements contained herein
or therein not misleading.
3.14 Environmental and Public and Employee Health and Safety
Matters. The Company and each Subsidiary has complied with all applicable
Federal, state, and other laws, rules and regulations relating to environmental
pollution or to environmental regulation or control or to public or employee
health or safety, except to the extent that the failure to so comply would not
be reasonably likely to result in a material adverse effect on the business or
assets or on the condition, financial or otherwise, of the Company and its
Subsidiaries on a consolidated basis. The Company's and the Subsidiaries'
facilities do not contain, and have not previously contained, any hazardous
wastes, hazardous substances, hazardous materials, toxic substances or toxic
pollutants regulated under the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response Compensation and Liability Act, the
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
30
26
in a material adverse effect on the business or assets or on the condition,
financial or otherwise, of the Company and its Subsidiaries on a consolidated
basis.
3.15 Federal Regulations. No part of the proceeds of any Loans
will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U as now and
from time to time hereafter in effect (except in a manner which is not in
violation of Regulation U or X) or for any purpose which violates the provisions
of the Regulations of the Board of Governors of the Federal Reserve System. If
requested by any Bank or the Agent, the Company will furnish to the Agent and
each Bank a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in said Regulation U.
3.16 Investment Company Act; Other Regulations. The Company is
not an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
The Company is not subject to regulation under any Federal or State statute or
regulation which limits its ability to incur Indebtedness.
3.17 Year 2000 Matters. Any reprogramming required to permit
the proper functioning (but only to the extent that such proper functioning
would otherwise be materially impaired by the occurrence of the year 2000) in
the year 2000 of computer systems and other equipment containing embedded
microchips, in either case owned or operated by the Company or any of its
Subsidiaries or used or relied upon in the conduct of their business (including
any such systems and other equipment supplied by others or with which the
computer systems of the Company or any of its Subsidiaries interface), and the
testing of all material systems and other equipment as so reprogrammed, will be
completed by September 30, 1999, except where the failure to do so could not
reasonably be expected to result in a material adverse change in the business or
assets or in the condition, financial or otherwise, of the Company and its
Subsidiaries on a consolidated basis. The costs to the Company and its
Subsidiaries that have not been incurred as of the date hereof for such
reprogramming and testing and for the other reasonably foreseeable consequences
to them of any improper functioning of other computer systems and equipment
containing embedded microchips due to the occurrence of the year 2000 could not
reasonably be expected to result in a Default or Event of Default or to have a
material adverse change in the business or assets or in the condition, financial
or otherwise, of the Company and its Subsidiaries on a consolidated basis.
SECTION 4. CONDITIONS
The obligations of each Bank to make the Loans contemplated by
subsection 2.1 shall be subject to the compliance by the Company with its
agreements herein contained and to the satisfaction on or before the Closing
Date and each Borrowing Date of such of the following further conditions as are
applicable on the Closing Date or such Borrowing Date, as the case may be:
31
27
4.1 Loan Documents. The Agent shall have received (i) this
Agreement, executed and delivered by a duly authorized officer of the Company,
with a counterpart for each Bank, and (ii) for the account of each Bank, if
requested by such Bank, a Note conforming to the requirements hereof and
executed by a duly authorized officer of the Company.
4.2 Legal Opinions. On the Closing Date and on any Borrowing
Date as the Agent shall request, each Bank shall have received from any general,
associate, or assistant general counsel to the Company, such opinions as the
Agent shall have reasonably requested with respect to the transactions
contemplated by this Agreement.
4.3 Company Officers' Certificate. The representations and
warranties contained in Section 3 (as qualified by the disclosures in (i) the
Company's Annual Report on Form 10-K for its fiscal year ended December 31,
1997, (ii) the Company's Quarterly Reports on Form 10-Q for its fiscal quarters
ended March 31, 1998, June 30, 1998 and September 30, 1998, (iii) the Company's
Reports on Form 8-K dated February 6, 1998, February 13, 1998, March 6, 1998,
May 27, 1998, July 30, 1998, October 28, 1998, December 15, 1998 and February
24, 1999, (iv) the Company's Annual Report on Form 10-K for its fiscal year
ended December 31, 1998, in the case of each of the items referred to in clauses
(i), (ii), (iii) and (iv), as filed with the Securities and Exchange Commission
and previously distributed to the Agent and made available to each Bank and (v)
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; no Default shall have occurred
(except a Default which shall have been waived in writing or which shall have
been cured) and no Default shall exist after giving effect to the Loan to be
made; between December 31, 1998 and such Borrowing Date, neither the business
nor assets, nor the condition, financial or otherwise, of the Company and its
Subsidiaries on a consolidated basis shall have been adversely affected in any
material manner as a result of any fire, flood, explosion, accident, drought,
strike, lockout, riot, sabotage, confiscation, condemnation, or any purchase of
any property by Governmental Authority, activities of armed forces, acts of God
or the public enemy, new or amended legislation, regulatory order, judicial
decision or any other event or development whether or not related to those
enumerated above (all subject to the disclosures referred to above); and the
Agent shall have received a certificate containing a representation to these
effects dated such Borrowing Date and signed by a Responsible Officer.
4.4 Legality, etc. The making of the Loan to be made by such
Bank on each Borrowing Date shall not subject such Bank to any penalty or
special tax, shall not be prohibited by any Requirement of Law applicable to
such Bank or the Company, and all necessary consents, approvals and
authorizations of any Governmental Authority or any Person to or of any such
Loan shall have been obtained and shall be in full force and effect.
4.5 General. All instruments and legal and corporate
proceedings in connection with the Loans contemplated by this Agreement shall be
satisfactory in form and substance to the Agent, and the Agent shall have
received copies of all documents, and favorable legal opinions and records of
corporate proceedings, which the Agent may have reasonably requested in
connection with the Loans and other transactions contemplated by this Agreement.
32
28
4.6 Fees. The Agent shall have received the fees to be
received on the Closing Date referred to in subsection 2.2.
4.7 Amendments to Existing Agreements. The conditions to the
effectiveness of the Fifth Amendment to the February 1997 Five-Year Agreement
and Amendment and the First Amendment to the July 1998 Term Loan Agreement shall
have been satisfied.
SECTION 5. GENERAL COVENANTS
On and after the date hereof, until all of the Notes and all
other amounts payable pursuant hereto shall have been paid in full and so long
as the Commitments shall remain in effect, the Company covenants that the
Company will comply, and will cause each of its Subsidiaries to comply, with
such of the provisions of this Section 5 and such other provisions of this
Agreement as are applicable to the Person in question.
5.1 Taxes, Indebtedness, etc. (a) Each of the Company and its
Subsidiaries will duly pay and discharge, or cause to be paid and discharged,
before the same shall become in arrears, all taxes, assessments, levies and
other governmental charges imposed upon such corporation and its properties,
sales and activities, or any part thereof, or upon the income or profits
therefrom; provided, however, that any such tax, assessment, charge or levy need
not be paid if the validity or amount thereof shall currently be contested in
good faith by appropriate proceedings and if the Company or the Subsidiary in
question shall have set aside on its books appropriate reserves with respect
thereto.
(b) Each of the Company and its Subsidiaries will promptly pay
when due, or in conformance with customary trade terms, all other Indebtedness
and liabilities incident to its operations; provided, however, that any such
Indebtedness or liability need not be paid if the validity or amount thereof
shall currently be contested in good faith and if the Company or the Subsidiary
in question shall have set aside on its books appropriate reserves with respect
thereto. The Subsidiaries will not create, incur, assume or suffer to exist any
Indebtedness, except: Indebtedness outstanding on the date hereof and listed on
Schedule III; Indebtedness that is owing to the Company or any other Subsidiary;
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 necessary to preserve, renew and keep in full
force and effect and in good standing its corporate existence and franchises
33
29
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) (excluding the Spin-Offs and the transitional services agreements
to be entered into with LifePoint and Triad in connection therewith) unless such
transaction is otherwise permitted under this Agreement, is in the ordinary
course of the Company's or such Subsidiary's business and is upon fair and
reasonable terms no less favorable to the Company or such Subsidiary, as the
case may be, than it would obtain in an arm's-length transaction.
5.4 Insurance. The Company will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained, with financially sound and
reputable insurers including any Subsidiary which is engaged in the business of
providing insurance protection, insurance (including, without limitation,
professional liability insurance against claims for malpractice) with respect to
its properties and business and the properties and business of its Subsidiaries
against loss or damage of the kinds customarily insured against of such types
and such amounts as are customarily carried under similar circumstances by other
corporations. Such insurance may be subject to co-insurance, deductibility or
similar clauses which, in effect, result in self-insurance of certain losses,
and the Company may self-insure against such loss or damage, provided that
adequate insurance reserves are maintained in connection with such
self-insurance.
5.5 Financial Statements. The Company will and will cause each
of its Subsidiaries to maintain a standard modern system of accounting in which
full, true and correct entries will be made of all dealings or transactions in
relation to its business and affairs in accordance with GAAP consistently
applied, and will furnish the following to each Bank (in duplicate if so
requested):
(a) Annual Statements. As soon as available, and in any event
within 120 days after the end of each fiscal year, the consolidated
balance sheet as at the end of each fiscal year and consolidated
statements of profit and loss and of retained earnings for such fiscal
year of the Company and its Subsidiaries, together with comparative
consolidated figures for the next preceding fiscal year, accompanied
by reports or certificates of an Auditor, to the effect that such
balance sheet and statements were prepared in accordance with GAAP
consistently applied and fairly present the financial position of the
Company and its
34
30
Subsidiaries as at the end of such fiscal year and the results of
their operations and changes in financial position for the year then
ended and the statement of such Auditor and of a Responsible Officer
of the Company that such Auditor and Responsible Officer have caused
the provisions of this Agreement to be reviewed and that nothing has
come to their attention to lead them to believe that any Default
exists hereunder or, if such is not the case, specifying such Default
or possible Default and the nature thereof. In addition, such
financial statements shall be accompanied by a certificate of a
Responsible Officer of the Company containing computations showing
compliance with subsections 5.6 through 5.8, 5.10 and 5.12.
(b) Quarterly Statements. As soon as available, and in any
event within 60 days after the close of each of the first three fiscal
quarters of the Company and its Subsidiaries in each year,
consolidated balance sheets as at the end of such fiscal quarter and
consolidated profit and loss and retained earnings statements for the
portion of the fiscal year then ended, of the Company and its
Subsidiaries, together with computations showing compliance with
subsections 5.6 through 5.8, 5.10 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, consistently applied, and fairly present the financial
position of the Company and its Subsidiaries as at the end of such
fiscal quarter and the results of their operations and changes in
financial position for such quarter and for the portion of the fiscal
year then ended, subject to normal audit and year-end adjustments, and
to the further effect that he has caused the provisions of this
Agreement and all other agreements to which the Company or any of its
Subsidiaries is a party and which relate to Indebtedness to be
reviewed, and has no knowledge that any Default has occurred under
this Agreement or under any such other agreement, or, if said
Responsible Officer has such knowledge, specifying such Default and
the nature thereof.
(c) Notice of Material Litigation; Defaults. The Company will
promptly notify each Bank in writing, by delivery of the Company's
Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and Current
Reports on Form 8-K filed with the Securities and Exchange Commission
or otherwise, as to any litigation or administrative proceeding to
which it or any of its Subsidiaries may hereafter be a party which,
after giving effect to any applicable insurance, may involve any
material risk of any material judgment or liability or which may
otherwise result in any material adverse change in the business or
assets or in the condition, financial or otherwise, of the Company and
its Subsidiaries on a consolidated basis. Promptly upon acquiring
knowledge thereof, the Company will notify each Bank of the existence
of any Default, including, without limitation, any default in the
payment of any Indebtedness for money borrowed of the Company or any
Subsidiary or under the terms of any agreement relating to such
Indebtedness, 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.
35
31
(d) ERISA Reports. The Company will furnish the Agent with
copies of any request for waiver of the funding standards or extension
of the amortization periods required by Sections 303 and 304 of ERISA
or Section 412 of the Code promptly after any such request is
submitted by the Company to the Department of Labor or the Internal
Revenue Service, as the case may be. Promptly after a Reportable Event
occurs, or the Company or any of its Subsidiaries receives notice that
the PBGC or any Control Group Person has instituted or intends to
institute proceedings to terminate any pension or other Plan that is a
"defined benefit plan" as defined in ERISA, or prior to the Plan
administrator's terminating such Plan pursuant to Section 4041 of
ERISA, the Company will notify the Agent and will furnish to the Agent
a copy of any notice of such Reportable Event which is required to be
filed with the PBGC, or any notice delivered by the PBGC evidencing
its institution of such proceedings or its intent to institute such
proceedings, or any notice to the PBGC that a Plan is to be
terminated, as the case may be. The Company will promptly notify each
Bank upon learning of the occurrence of any of the following events
with respect to any Plan which is a Multiemployer Plan: a partial or
complete withdrawal from any Plan which may result in the incurrence
by the Company or any of is Subsidiaries of withdrawal liability in
excess of $1,000,000 under Subtitle E of Title IV of ERISA, or of the
termination, insolvency or reorganization status of any Plan under
such Subtitle E which may result in liability to the Company or any of
its Subsidiaries in excess of $1,000,000. In the event of such a
withdrawal, upon the request of the Agent or any Bank, the Company
will promptly provide information with respect to the scope and extent
of such liability, to the best of the Company's knowledge.
(e) Reports to Stockholders, etc. Promptly after the sending,
making available or filing of the same, copies of all reports and
financial statements which the Company shall send or make available to
its stockholders including, without limitation, all reports on Form
8-K, 10-Q or 10-K or any similar form hereafter in use which the
Company shall file with the Securities and Exchange Commission.
(f) Other Information. From time to time upon request of the
Agent or any Bank, the Company will furnish information regarding the
business affairs and condition, financial or otherwise, of the Company
and its Subsidiaries. The Company agrees that any authorized officers
and representatives of any Bank shall have the right during reasonable
business hours to examine the books and records of the Company and its
Subsidiaries, and to make notes and abstracts therefrom, to make an
independent examination of its books and records for the purpose of
verifying the accuracy of the reports delivered by the Company and its
Subsidiaries pursuant to this Agreement or otherwise, and ascertaining
compliance with this Agreement.
(g) Confidentiality of Information. Each Bank acknowledges
that some of the information furnished to such Bank pursuant to this
subsection 5.5 may be received by such Bank prior to the time it shall
have been made public, and each Bank agrees that it will keep all
information so furnished confidential and shall make no use of such
information until it shall have become public, except (i) in
connection with matters involving operations under or enforcement of
this Agreement or the Notes, (ii) in
36
32
accordance with each Bank's obligations under law or pursuant to
subpoenas or other process to make information available to
governmental agencies and examiners or to others, (iii) to each Bank's
corporate Affiliates and Transferees and prospective Transferees so
long as such Persons agree to be bound by this subsection 5.5(g) or
(iv) with the prior consent of the Company.
5.6 Ratio of Consolidated Total Debt to Consolidated Total
Capitalization. The Company and its Subsidiaries will not at any time have
outstanding Consolidated Total Debt in an amount in excess of 65% of
Consolidated Total Capitalization.
5.7 Interest Coverage Ratio. On the last day of each fiscal
quarter of the Company, the Consolidated Earnings Before Interest and Taxes of
the Company and its Subsidiaries for the four consecutive fiscal quarters of the
Company then ending will be an amount which equals or exceeds 200% of the
Consolidated Interest Expense of the Company and its Subsidiaries for the same
four consecutive fiscal quarters.
5.8 Distributions. The Company will not make any Distribution
except that, so long as no Event of Default exists or would exist after giving
effect thereto, the Company may make a Distribution.
5.9 Merger or Consolidation. The Company will not become a
constituent corporation in any merger or consolidation unless the Company shall
be the surviving or resulting corporation and immediately before and after
giving effect to such merger or consolidation there shall exist no Default;
provided that the Company may merge into another Subsidiary owned by the Company
for the 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 (calculated after giving pro forma effect thereto to the
Spin-Offs) (excluding the Spin-Offs) and (b) exchange with any Persons other
than the Company and its Subsidiaries any asset or group of assets for another
asset or group of assets unless (i) such asset or group of assets are exchanged
for an asset or group of assets of a substantially similar type or nature, (ii)
on a pro forma basis both before and after giving effect to such exchange, no
Default or Event of Default shall have occurred and be continuing, (iii) the
aggregate fair market value (as determined in good faith by the Board of
Directors of the Company) of the asset or group of assets being transferred by
the Company or such Subsidiary and the asset or group of assets being acquired
by the Company or such Subsidiary are substantially equal and (iv) the aggregate
of (x) all assets of the Company and its Subsidiaries sold pursuant to
subsection 5.10(a) (including, without limitation, any disposition resulting
from
37
33
any merger or consolidation involving a Subsidiary of the Company, and any
Sale-and-Leaseback Transaction) (excluding the Spin-Offs) and (y) the aggregate
fair market value (as determined in good faith by the Board of Directors of the
Company) of all assets of the Company and its Subsidiaries exchanged pursuant to
this subsection 5.10(b) does not exceed 20% of Consolidated Assets of the
Company and its Subsidiaries as at the end of the immediately preceding fiscal
year (calculated after giving pro forma effect thereto to the Spin-Offs).
5.11 Compliance with ERISA. Each of the Company and its
Subsidiaries will meet, and will cause all Control Group Persons to meet, all
minimum funding requirements applicable to any Plan imposed by ERISA or the Code
(without giving effect to any waivers of such requirements or extensions of the
related amortization periods which may be granted), and will at all times
comply, and will cause all Control Group Persons to comply, in all material
respects with the provisions of ERISA and the Code which are applicable to the
Plans. At no time shall the aggregate actual and contingent liabilities of the
Company under Sections 4062, 4063, 4064 and other provisions of ERISA with
respect to all Plans (and all other pension plans to which the Company, any
Subsidiary, or any Control Group Person made contributions prior to such time)
exceed $7,500,000. Neither the Company nor its Subsidiaries will permit any
event or condition to exist which could permit any Plan which is not a
Multiemployer Plan to be terminated under circumstances which would cause the
lien provided for in Section 4068 of ERISA to attach to the assets of the
Company or any of its Subsidiaries.
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 maybe, by the Company or a Subsidiary or on
the property or capital stock, as the case may be, of a corporation at
the time of the acquisition of such corporation by the Company or a
Subsidiary (including acquisitions through merger or consolidation);
(c) any security created in favor of the Company or a
Subsidiary;
(d) any security created by operation of law in favor of
government agencies of the United States of America or any State
thereof;
38
34
(e) any security created in connection with the borrowing of
funds if within 120 days such funds are used to repay Indebtedness in
at least the same principal amount as secured by other security of
Principal Property or capital stock of a Subsidiary that owns a
Principal Property, as the case may be, with an independent appraised
fair market value at least equal to the appraised fair market value of
the Principal Property or capital stock of a Subsidiary that owns a
Principal Property, as the case may be, secured by the new security;
and
(f) any extension, renewal or replacement of any security
referred to in the foregoing clauses (a) through (e) provided that the
amount thereby secured is not increased 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 (i) Indebtedness permitted to be secured
pursuant to the foregoing clauses (a) through (f) and the aggregate Attributable
Debt or (ii) Indebtedness incurred by one or more Subsidiaries of the Company
and thereafter assumed by LifePoint and/or Triad (and/or their respective
subsidiaries) in connection with the Spin-Offs and in respect of which such
Subsidiaries of the Company are thereupon released), including Indebtedness in
respect of Sale-and-Lease-back Transactions (other than those permitted by
subsection 5.13(b)), does not exceed 10% of Consolidated Net Tangible Assets of
the Company and its Subsidiaries (calculated after giving pro forma effect
thereto as if the Spin-Offs occurred on the first day of the testing period
thereof).
5.13 Sale-and-Lease-back Transactions. Neither the Company
nor any Significant Subsidiary will enter into any Sale-and-Lease-back
Transaction with respect to any Principal Property with any Person (other than
the Company or a Subsidiary) unless either (a) the Company or such Significant
Subsidiary would be entitled, pursuant to the provisions described in subsection
5.12(a) through (f) to incur Indebtedness secured by a security on the property
to be leased without equally and ratably securing the Loans made and/or to be
made to and all other sums payable by the Company under this Agreement, or (b)
the Company during or immediately after the expiration of 120 days after the
effective date of such transaction applies to the voluntary retirement of its
Indebtedness and/or the acquisition or construction of Principal Property an
amount equal to the greater of the net proceeds of the sale of the property
leased in such transaction or the fair value in the opinion of the chief
financial officer of the Company of the leased property at the time such
transaction was entered into.
39
35
SECTION 6. DEFAULTS
6.1 Events of Default. Upon the occurrence of any of the
following events:
(a) any default shall be made by the Company in any payment in
respect of: (i) interest payable hereunder as the same shall become
due and such default shall continue for a period of five days; or (ii)
principal of any of the Indebtedness hereunder or evidenced by the
Notes as the same shall become due, whether at maturity, by
prepayment, by acceleration or otherwise; or
(b) any default shall be made by either the Company or any
Subsidiary of the Company in the performance or observance of any of
the provisions of subsections 5.6 through 5.10, 5.12 and 5.13; or
(c) any default shall be made in the due performance or
observance of any other covenant, agreement or provision to be
performed or observed by either the Company or any Subsidiary under
this Agreement, and such default shall not be rectified or cured to
the satisfaction of the Required 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;
40
36
(ii) by the filing against it of a petition commencing
an involuntary case under said Title 11 which shall not have
been dismissed within 60 days after the date on which said
petition is filed or by its filing an answer or other
pleading within said 60-day period admitting or failing to
deny the material allegations of such a petition or seeking,
consenting or acquiescing in the relief therein provided;
(iii) by the entry of an order for relief in any
involuntary case commenced under said Title 11;
(iv) by its seeking relief as a debtor under any
applicable law, other than said Title 11, of any jurisdiction
relating to the liquidation or reorganization of debtors or
to the modification or alteration of the rights of creditors,
or by its consenting to or acquiescing in such relief;
(v) by the entry of an order by a court of competent
jurisdiction (i) finding it to be bankrupt or insolvent,
(ii) ordering or approving its liquidation, reorganization
or any modification or alteration of the rights of its
creditors, or (iii) assuming custody of, or appointing a
receiver or other custodian for, all or a substantial part
of its property;
(vi) by its making an assignment for the benefit of, or
entering into a composition with, its creditors, or appointing
or consenting to the appointment of a receiver or other
custodian for all or a substantial part of its property; or
(g) a Change in Control of the Company shall occur;
then and in each and every such case, (x) the Agent may, with the consent of the
Required Banks, or shall, at the direction of the Required Banks, proceed to
protect and enforce the rights of the Banks by suit in equity, action at law
and/or other appropriate proceeding either for specific performance of any
covenant or condition contained in this Agreement or any Note or in any
instrument delivered to each Bank pursuant to this Agreement, or in aid of the
exercise of any power granted in this Agreement or any Note or any such
instrument or assignment, and (y) the Agent may, with the consent of the
Required Banks, or shall, at the direction of the Required Banks, by notice in
writing to the Company terminate the 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
41
37
Banks, or shall, at the direction of the Required Banks, proceed to enforce
payment of such balance or part thereof in such manner as the Agent may elect,
and each Bank may offset and apply toward the payment of such balance or part
thereof, and to the curing of any such Event of Default, any Indebtedness from
such Bank to the Company, including any Indebtedness represented by deposits in
any general or special account maintained with such Bank.
6.2 Annulment of Defaults. An Event of Default shall not be
deemed to be in existence for any purpose of this Agreement if the Agent, with
the consent of or at the direction of the Required Banks, subject to subsection
8.1, shall have waived such event in writing or stated in writing that the same
has been cured to its reasonable satisfaction, but no such waiver shall extend
to or affect any subsequent Event of Default or impair any rights of the Agent
or the Banks upon the occurrence thereof.
6.3 Waivers. The Company hereby waives to the extent permitted
by applicable law (a) all presentments, demands for performance, notices of
nonperformance (except to the extent required by the provisions hereof),
protests, notices of protest and notices of dishonor in connection with any of
the Indebtedness hereunder or evidenced by the Notes, (b) any requirement of
diligence or promptness on the part of any Bank in the enforcement of its rights
under the provisions of this Agreement or any Note, and (c) any and all notices
of every kind and description which may be required to be given by any statute
or rule of law and any defense of any kind which the Company may now or
hereafter have with respect to its liability under this Agreement or any Note.
6.4 Course of Dealing. No course of dealing between the
Company and any Bank shall operate as a waiver of any of the Banks' rights under
this Agreement or any Note. No delay or omission on the part of any Bank in
exercising any right under this Agreement or any Note or with respect to any of
the Bank Obligations shall operate as a waiver of such right or any other right
hereunder. A waiver on any one occasion shall not be construed as a bar to or
waiver of any right or remedy on any future occasion. No waiver or consent shall
be binding upon any Bank unless it is in writing and signed by the Agent or such
of the Banks as may be required by the provisions of this Agreement. The making
of a Loan hereunder during the existence of a Default shall not constitute a
waiver thereof.
SECTION 7. THE AGENT
7.1 Appointment. Each Bank hereby irrevocably designates and
appoints Chase as the Agent of such Bank under this Agreement, and each such
Bank irrevocably authorizes Chase, as the Agent for such Bank, to take such
action on its behalf under the provisions of this Agreement and to exercise such
powers and perform such duties as are expressly delegated to the Agent, by the
terms of this Agreement, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Agent shall not have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with any Bank,
and no implied covenants, functions, responsibilities,
42
38
duties, obligations or liabilities shall be read into this Agreement or
otherwise exist against the Agent.
7.2 Delegation of Duties. The Agent may execute any of its
duties under this Agreement by or through agents or attorneys-in-fact and shall
be entitled to advice of counsel concerning all matters pertaining to such
duties. The Agent shall not be responsible for the negligence or misconduct of
any agents or attorneys-in-fact selected by it with reasonable care.
7.3 Exculpatory Provisions. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(a) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement (except for its or such
Person's own gross negligence or willful misconduct), or (b) responsible in any
manner to any of the Banks for any recitals, statements, representations or
warranties made by the Company or any officer thereof contained in this
Agreement or in any certificate, report, statement or other document referred to
or provided for in, or received by the Agent under or in connection with, this
Agreement or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or the Notes or for any failure of the Company
to perform its obligations hereunder. The Agent shall not be under any
obligation to any Bank to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement, or to inspect the properties, books or records of the Company.
7.4 Reliance by Agent. The Agent shall be entitled to rely,
and shall be fully protected in relying, upon any Note, writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Company), independent accountants
and other experts selected by the Agent. The Agent may deem and treat the payee
of any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Agent. The Agent shall be fully justified in failing or refusing to take any
action under this Agreement unless it shall first receive such advice or
concurrence of the Required Banks as it deems appropriate or it shall first be
indemnified to its satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Agent 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
43
39
received such directions, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the Banks.
7.6 Non-Reliance on Agent and Other Banks. Each Bank expressly
acknowledges that neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representations
or warranties to it and that no act by the Agent hereinafter taken, including
any review of the affairs of the Company, shall be deemed to constitute any
representation or warranty by the Agent to any Bank. Each Bank represents to the
Agent that it has, independently and without reliance upon the Agent or any
other Bank, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Company and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Bank also represents that it will, independently and
without reliance upon the Agent or any other Bank, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Company. Except for notices, reports and
other documents expressly required to be furnished to the Banks by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the business, operations,
property, financial and other condition or creditworthiness of the Company which
may come into the possession of the Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
7.7 Indemnification. The Banks agree to indemnify the Agent
in its capacity as such (to the extent not reimbursed by the Company and without
limiting the obligation of the Company to do so), ratably according to the
respective amounts of their then existing Loans hereunder, from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time (including without limitation at any time following the payment
of the Indebtedness hereunder or pursuant to the Notes) be imposed on, incurred
by or asserted against the Agent in any way relating to or arising out of this
Agreement, or any documents 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
44
40
as any Bank and may exercise the same as though it were not the Agent, and the
terms "Bank" and "Banks" shall include the Agent in its individual capacity.
7.9 Successor Agent. The Agent may resign as Agent, as the
case may be, upon 10 days' notice to the Banks. If the Agent shall resign as
Agent, under this Agreement, then the Required Banks shall appoint from among
the Banks a successor agent for the Banks which successor agent shall be
approved by the Company, whereupon such successor agent shall succeed to the
rights, powers and duties of the Agent, and the term "Agent" shall mean such
successor agent effective upon its appointment, and the former Agent's rights,
powers and duties as Agent shall be terminated, without any other or further act
or deed on the part of such former Agent or any of the parties to this Agreement
or any holders of the Notes. After any retiring Agent's resignation hereunder as
Agent, the provisions of this subsection 7.9 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent under this
Agreement.
SECTION 8. MISCELLANEOUS
8.1 Amendments and Waivers. Neither this Agreement, any Note,
nor any terms hereof or thereof may be amended, supplemented or modified except
in accordance with the provisions of this subsection. With the written consent
of the Required Banks, the Agent and the Company may, from time to time, enter
into written amendments, supplements or modifications hereto for the purpose of
adding any provisions to this Agreement or the Notes or changing in any manner
the rights of the Banks or of the Company hereunder or thereunder or waiving, on
such terms and conditions as the Agent may specify in such instrument, any of
the requirements of this Agreement or the Notes or any Default or Event of
Default and its consequences; provided, however, that no such waiver and no such
amendment, supplement or modification shall (a) extend the maturity (whether as
stated, by acceleration or otherwise) of any Indebtedness hereunder, or reduce
the rate or extend the time of payment of interest thereon, or reduce any fee
payable to the Banks hereunder, or reduce the principal amount thereof, or
change the amount of any Bank's Commitment or amend, modify or waive any
provision of this subsection 8.1 or reduce the percentage specified in the
definition of Required Banks, or consent to the assignment or transfer by the
Company of any of its rights and obligations under this Agreement, in each case
without the written consent of each Bank directly affected thereby, or (b)
amend, modify or waive any provision of Section 7 without the written consent of
the then Agent. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Banks and shall be binding upon
the Company, the Banks, the Agent and all future holders of the Notes. In the
case of any waiver, the Company, the Banks and the Agent shall be restored to
their former position and rights hereunder and under the outstanding Notes, and
any Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
8.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or
45
41
three days after being deposited in the mail, postage prepaid, or, in the case
of telecopy notice, when sent, confirmation of receipt received, addressed as
follows in the case of the Company and the Agent and as set forth in Schedule I
in the case of the other parties hereto, or to such other address as may be
hereafter notified by the respective parties hereto and any future holders of
the Notes:
The Company: Columbia/HCA Healthcare Corporation
One Park Plaza
Nashville, Tennessee 37203
Attention: David Anderson
Telecopy: (615) 344-2015
The Agent: The Chase Manhattan Bank
270 Park Avenue - 48th Floor
New York, New York 10017
Attention: Dawn Lee Lum
Telecopy: (212) 270-3279
with a copy to: Chase Agent Bank Services
1 Chase Manhattan Plaza - 8th Floor
New York, New York 10081
Attention: Janet Belden
Telecopy: (212) 552-5658
provided that any notice, request or demand to or upon the Agent or the Banks
pursuant to Section 2 shall not be effective until received.
8.3 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Agent or any Bank, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies, powers
and privileges provided by law.
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,
46
42
including, without limitation, the reasonable fees and disbursements of counsel
to the Agent, (ii) to pay or reimburse each Bank and the Agent for all their
reasonable costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the Notes and any such other
documents, including, without limitation, reasonable fees and disbursements of
counsel to the Agent and to each of the Banks and (iii) to pay, indemnify, and
hold each Bank and the Agent harmless from, any and all recording and filing
fees and any and all liabilities with respect to, or resulting from any delay in
paying, stamp, excise and other taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the Notes and any such other documents.
(b) The Company will indemnify each of the Agent and the Banks
and the directors, officers and employees thereof and each Person, if any, who
controls each one of the Agent and the Banks (any of the foregoing, an
"Indemnified Person") and hold each Indemnified Person harmless from and against
any and all claims, damages, liabilities and expenses (including without
limitation all fees and disbursements of counsel with whom an Indemnified Person
may consult in connection therewith and all expenses of litigation or
preparation therefor) which an Indemnified Person may incur or which may be
asserted against it in connection with any litigation or investigation involving
this Agreement, the use of any proceeds of any Loans under this Agreement by the
Company or any Subsidiary, any officer, director or employee thereof other than
litigation commenced by the Company against any of the Agent or the Banks which
(i) seeks enforcement of any of the Company's rights hereunder and (ii) is
determined adversely to any of the Agent or the Banks.
(c) The agreements in this subsection 8.5 shall survive
repayment of the Notes and all other amounts payable hereunder.
8.6 Successors and Assigns; Participations; Purchasing Banks.
(a) This Agreement shall be binding upon and inure to the benefit of the
Company, the Banks, the Agent, all future holders of the Notes and their
respective successors and assigns, except that the Company may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Bank.
(b) Any Bank may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to one
or more banks or other entities ("Participants") participating interests in any
Loans owing to such Bank, any Notes held by such Bank, any Commitments of such
Bank or any other interests of such Bank hereunder. In the event of any such
sale by a Bank of a participating interest to a Participant, such Bank's
obligations under this Agreement to the other parties under this Agreement shall
remain unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Notes for all purposes
under this Agreement, and the Company and the Agent shall continue to deal
solely and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement. The Company agrees that if amounts outstanding
under this Agreement and the Notes are due or unpaid, or shall have been
47
43
declared or shall have become due and payable upon the occurrence of an Event of
Default, each Participant shall be deemed to have the right of offset in respect
of its participating interest in amounts owing under this Agreement and any
Notes to the same extent as if the amount of its participating interest were
owing directly to it as a Bank under this Agreement or any Notes, provided that
such right of offset shall be subject to the obligation of such Participant to
share with the Banks, and the Banks agree to share with such Participant, as
provided in subsection 8.7. The Company also agrees that each Participant shall
be entitled to the benefits of subsections 2.11, 2.12, 2.13 and 2.15 with
respect to its participation in the Commitments and the Eurodollar Loans
outstanding from time to time; provided that no Participant shall be entitled to
receive any greater amount pursuant to such subsections than the transferor Bank
would have been entitled to receive in respect of the amount of the
participation transferred by such transferor Bank to such Participant had no
such transfer occurred. No Participant shall be entitled to consent to any
amendment, supplement, modification or waiver of or to this Agreement or any
Note, unless the same is subject to clause (a) of the proviso to subsection 8.1.
(c) Any Bank may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to any
Bank or any affiliate thereof, and, with the consent of the Company and the
Agent (which in each case shall not be unreasonably withheld) to one or more
additional banks or financial institutions ("Purchasing Banks") all or any part
of its rights and obligations under this Agreement and the Notes pursuant to a
Commitment Transfer Supplement, executed by such Purchasing Bank, such
transferor Bank and the Agent (and, in the case of a Purchasing Bank that is not
then a Bank or an affiliate thereof, by the Company); provided, however, that
(i) the Commitments purchased by such Purchasing Bank that is not then a Bank
shall be equal to or greater than $10,000,000 and (ii) the transferor Bank which
has transferred part of its Loans and Commitments to any such Purchasing Bank
shall retain a minimum Commitment, after giving effect to such sale, equal to or
greater than $10,000,000. Upon (i) such execution of such Commitment Transfer
Supplement, (ii) delivery of an executed copy thereof to the Company and (iii)
payment by such Purchasing Bank, such Purchasing Bank shall for all purposes be
a Bank party to this Agreement and shall have all the rights and obligations of
a Bank under this Agreement, to the same extent as if it were an original party
hereto with the Commitment Percentage of the Commitments set forth in such
Commitment Transfer Supplement. Such Commitment Transfer Supplement shall be
deemed to amend this Agreement to the extent, and only to the extent, necessary
to reflect the addition of such Purchasing Bank and the 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
48
44
recordation of the names and addresses of the Banks and the Commitment of, and
principal amount of the Loans owing to, each Bank from time to time. The entries
in the Register shall be conclusive, in the absence of manifest error, and the
Company, the Agent and the Banks may treat each Person whose name is recorded in
the Register as the owner of the Loan recorded therein for all purposes of this
Agreement. The Register shall be available for inspection by the Company or any
Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a Commitment Transfer Supplement
executed by a transferor Bank and a Purchasing Bank (and, in the case of a
Purchasing Bank that is not then a Bank or an affiliate thereof, by the Company
and the Agent) together with payment to the Agent of a registration and
processing fee of $2,500, the Agent shall (i) promptly accept such Commitment
Transfer Supplement (ii) on the Transfer Effective Date determined pursuant
thereto record the information contained therein in the Register and give notice
of such acceptance and recordation to the Banks and the Company.
(f) Subject to subsection 5.5(g), the Company authorizes each
Bank to disclose to any Participant or Purchasing Bank (each, a "Transferee")
and any prospective Transferee any and all financial information in such Bank's
possession concerning the Company which has been delivered to such Bank by the
Company pursuant to this Agreement or which has been delivered to such Bank by
the Company in connection with such Bank's credit evaluation of the Company
prior to entering into this Agreement.
(g) If, pursuant to this subsection 8.6, any interest in this
Agreement or any Note is transferred to any Transferee which is organized under
the laws of any jurisdiction other than the United States or any State thereof,
the transferor Bank shall cause such Transferee, concurrently with the
effectiveness of such transfer, (i) to represent to the transferor Bank (for the
benefit of the transferor Bank, the Agent and the Company) that under applicable
law and treaties no taxes will be required to be withheld by the Agent, the
Company or the transferor Bank with respect to any payments to be made to such
Transferee in respect of the Loans, (ii) to furnish to the transferor Bank (and,
in the case of any Purchasing Bank registered in the Register, the Agent and the
Company) either U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue
Service Form 1001 (wherein such Transferee claims entitlement to complete
exemption from U.S. federal withholding tax on all interest payments hereunder)
and (iii) to agree (for the benefit of the transferor Bank, to provide the
transferor Bank (and, in the case of any Purchasing Bank registered in the
Register, the Agent and the Company) a new form 4224 or Form 1001 upon the
obsolescence of any previously delivered form and comparable statements in
accordance with applicable U.S. laws and regulations and amendments duly
executed and completed by such Transferee, and to comply from time to time with
all applicable U.S. laws and regulations with regard to such withholding tax
exemption.
(h) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection 8.6 concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including any pledge or
assignment by a Bank of any Loan or Note to any Federal Reserve Bank in
accordance with applicable law.
49
45
8.7 Adjustments; Set-off. If any Bank (a "Benefitted Bank")
shall at any time receive any payment of all or part of its Loans, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by offset, pursuant to events or proceedings of the nature
referred to in subsection 6.1(f), or otherwise) in a greater proportion than any
such payment to and collateral received by any other Bank, if any, in respect of
such other Bank's Loans, or interest thereon, such Benefitted Bank shall
purchase for cash from the other Banks such portion of each such other Bank's
Loans, or shall provide such other Banks with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefitted Bank to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Banks; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
Benefitted Bank, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest. The
Company agrees that each Bank so purchasing a portion of another Bank's Loan may
exercise all rights of a payment (including, without limitation, rights of
offset) with respect to such portion as fully as if such Bank were the direct
holder of such portion.
8.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Company and the Agent.
8.9 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
8.10 WAIVERS OF JURY TRIAL. THE COMPANY, THE AGENT AND THE
BANKS EACH HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, THE NOTES OR ANY OTHER
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
8.11 Submission To Jurisdiction; Waivers. The Company hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any legal
action or proceeding relating to this Agreement, or for recognition
and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the Courts of the State of New
York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof; and
(ii) consents that any such action or proceeding may be
brought in such courts, and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same.
50
46
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
COLUMBIA/HCA HEALTHCARE CORPORATION
By: /s/ David G. Anderson
----------------------------------------------
Name: David G. Anderson
Title: Vice President-Finance & Treasurer
THE CHASE MANHATTAN BANK, as Agent and as a Bank
By: /s/ Dawn Lee Lum
----------------------------------------------
Name: Dawn Lee Lum
Title: Vice President
51
47
THE BANK OF NEW YORK
By: /s/ Ann Marie Hughes
------------------------------------------
Name: Ann Marie Hughes
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By:
------------------------------------------
Name:
Title:
DEN DANSKE BANK AKTIESELSKAB
By:
------------------------------------------
Name:
Title:
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By: /s/ Susan L. Pearson
------------------------------------------
Name: Susan L. Pearson
Title: Director
By: /s/ Stephan A. Wiedemann
------------------------------------------
Name: Stephan A. Wiedemann
Title: Director
FIRST AMERICAN NATIONAL BANK
By: /s/ Sandy Hamrick
------------------------------------------
Name: Sandy Hamrick
Title: Senior Vice President
52
48
FIRST COMMERCIAL BANK
By:
------------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ L. Richard Schiller
------------------------------------------
Name: L. Richard Schiller
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Maryann S. Smith
------------------------------------------
Name: Maryann S. Smith
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
ATLANTA AGENCY
By: /s/ Koichi Hasegawa
------------------------------------------
Name: Koichi Hasegawa
Title: Senior Vice President and
Deputy General Manager
NATIONSBANK, N.A.
By: /s/ Kevin Wagley
------------------------------------------
Name: Kevin Wagley
Title: Vice President
53
49
THE NORTHERN TRUST COMPANY
By: /s/ Stephen B. Bowman
------------------------------------------
Name: Stephen B. Bowman
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ W.J. Brown
------------------------------------------
Name: W.J. Brown
Title: Vice President
SOCIETE GENERALE
By: /s/ J. Staley Stewart
------------------------------------------
Name: J. Staley Stewart
Title: Director
THE SUMITOMO BANK, LIMITED
By:
------------------------------------------
Name:
Title:
SUNTRUST BANK, NASHVILLE, N.A.
By: /s/ Mark D. Mattson
------------------------------------------
Name: Mark D. Mattson
Title: Vice President
54
50
TORONTO-DOMINION (TEXAS), INC.
By: /s/ Alva J. Jones
------------------------------------------
Name:
Title:
WACHOVIA BANK, N.A.
By: /s/ Kenneth Washington
------------------------------------------
Name: Kenneth Washington
Title: Vice President
55
SCHEDULE I
Commitment Amounts and Percentages;
Lending Offices; Addresses for Notice
A. COMMITMENT AMOUNTS AND PERCENTAGES.
TRANCHE 1 PERCENTAGE OF TRANCHE 2 PERCENTAGE OF
COMMITMENT TRANCHE 1 COMMITMENT TRANCHE 2
NAME OF BANK AMOUNT TOTAL AMOUNT TOTAL
------------ ------ ------ ------- ------
The Chase Manhattan Bank $ 92,500,000 18.5000% $ 92,500,000 12.2500%
NationsBank, N.A. 61,250,000 12.2500% 61,250,000 12.2500%
The Bank of New York 61,250,000 12.2500% 61,250,000 12.2500%
The Bank of Nova Scotia 61,250,000 12.2500% 61,250,000 12.2500%
Toronto-Dominion (Texas) Inc. 61,250,000 12.2500% 61,250,000 12.2500%
Deutsche Bank AG New York Branch 32,500,000 6.5000% 32,500,000 6.5000%
and/or Cayman Islands Branch
Fleet National Bank 32,500,000 6.5000% 32,500,000 6.5000%
SunTrust Bank, Nashville, N.A. 22,500,000 4.5000% 22,500,000 4.5000%
Wachovia Bank, N.A. 22,500,000 4.5000% 22,500,000 4.5000%
The First National Bank of Chicago 12,500,000 2.5000% 12,500,000 2.5000%
The Industrial Bank of Japan, Limited, 12,500,000 2.5000% 12,500,000 2.5000%
Atlanta Agency
The Northern Trust Company 12,500,000 2.5000% 12,500,000 2.5000%
Societe Generale 12,500,000 2.5000% 12,500,000 2.5000%
First American National Bank 2,500,000 0.5000% 2,500,000 2.5000%
TOTAL $500,000,000 100.0% $500,000,000 100.0%
- -----
56
B. LENDING OFFICES; ADDRESSES FOR NOTICE.
THE CHASE MANHATTAN BANK
Domestic Lending Office: The Chase Manhattan Bank
270 Park Avenue
New York, NY 10017
Eurodollar Lending Office: The Chase Manhattan Bank
270 Park Avenue
New York, NY 10017
Address for Notices: The Chase Manhattan Bank
270 Park Avenue
New York, NY 10017
Attention: Dawn Lee Lum
Telephone: (212) 270-2472
Telecopy: (212) 270-3279
With a copy to: Chase Agent Bank Services
1 Chase Manhattan Plaza
New York, NY 10081
Attention: Janet Belden
Telecopy: (212) 552-5658
NATIONSBANK, N.A.
Domestic Lending Office: Nationsbank (Charlotte)
414 Union Street, 7th Floor
Nashville, TN 37239-1697
Eurodollar Lending Office: Nationsbank (Charlotte)
414 Union Street, 7th Floor
Nashville, TN 37239-1697
Address for Notices: Nationsbank (Charlotte)
414 Union Street, 7th Floor
Nashville, TN 37239-1697
Attention: Kevin Wagley
Telephone: (615) 749-3802
Telecopy: (615) 749-4640
57
THE BANK OF NEW YORK
Domestic Lending Office: Bank of New York
One Wall Street, 22nd Floor
New York, NY 10286
Eurodollar Lending Office: Bank of New York
One Wall Street, 22nd Floor
New York, NY 10286
Address for Notices: Bank of New York
One Wall Street, 22nd Floor
New York, NY 10286
Attention: Anne Marie Hughes
Telephone: (212) 635-1339
Telecopy: (212) 635-6434
THE BANK OF NOVA SCOTIA
Domestic Lending Office: Bank of Nova Scotia (Atlanta)
600 Peachtree Street N.E., Suite 2700
Atlanta, GA 30308
Eurodollar Lending Office: Bank of Nova Scotia (Atlanta)
600 Peachtree Street N.E., Suite 2700
Atlanta, GA 30308
Address for Notices: Bank of Nova Scotia (Atlanta)
600 Peachtree Street N.E., Suite 2700
Atlanta, GA 30308
Attention: Carolyn Calloway
Telephone: (404) 877-1507
Telecopy: (404) 888-8998
TORONTO-DOMINION (TEXAS), INC.
Domestic Lending Office: Toronto-Dominion (Texas), Inc.
909 Fannin Street, 17th Floor
Houston, TX 77010
Eurodollar Lending Office: Toronto-Dominion (Texas), Inc.
909 Fannin Street, 17th Floor
Houston, TX 77010
58
Address for Notices: Toronto Dominion
Corporate Banking
31 West 52nd Street
New York, NY 10019-6101
Attention: Darlene Haut
Telephone: (212) 827-7746
Telecopy: (212) 262-1926
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
Domestic Lending Office: Deutsche Bank AG
31 West 52nd Street
New York, NY 10019
Eurodollar Lending Office: Deutsche Bank AG
31 West 52nd Street
New York, NY 10019
Address for Notices: Deutsche Bank AG
31 West 52nd Street
New York, NY 10019
Attention: Sue Pearson
Telephone: (212) 469-7140
Telecopy: (212) 469-8701
FLEET NATIONAL BANK
Domestic Lending Office: Fleet Bank (Boston-State Street)
1 Federal Street - MA0FD07B
Boston, MA 02110
Eurodollar Lending Office: Fleet Bank (Boston-State Street)
1 Federal Street - MA0FD07B
Boston, MA 02110
Address for Notices: Fleet Bank (Boston-State Street)
1 Federal Street - MA0FD07B
Boston, MA 02110
Attention: Mary Ann Smith
59
Telephone: (617) 346-4613
Telecopy: (617) 346-4666
SUNTRUST BANK, NASHVILLE, N.A.
Domestic Lending Office: SunTrust Bank
201 4th Avenue North, 3rd Floor
Nashville, TN 37219
Eurodollar Lending Office: SunTrust Bank
201 4th Avenue North, 3rd Floor
Nashville, TN 37219
Address for Notices: SunTrust Bank
201 4th Avenue North, 3rd Floor
Nashville, TN 37219
Attention: Mark D. Mattson
Telephone: (615) 748-4831
Telecopy: (615) 748-5269
WACHOVIA BANK, N.A.
Domestic Lending Office: Wachovia Bank (Atlanta)
191 Peachtree Street N.E.,
Mail Code 3940
Atlanta, GA 30303
Eurodollar Lending Office: Wachovia Bank (Atlanta)
191 Peachtree Street N.E.,
Mail Code 3940
Atlanta, GA 30303
Address for Notices: Wachovia Bank (Atlanta)
191 Peachtree Street N.E.,
Mail Code 3940
Atlanta, GA 30303
Attention: Kenneth Washington
Telephone: (404) 332-1044
Telecopy: (404) 332-5016
THE FIRST NATIONAL BANK OF CHICAGO
Domestic Lending Office: First Chicago NBD Corp. (Chicago)
One First National Plaza, 8th Floor
Chicago, IL 60670
60
Eurodollar Lending Office: First Chicago NBD Corp. (Chicago)
One First National Plaza, 8th Floor
Chicago, IL 60670
Address for Notices: First Chicago NBD Corp. (Chicago)
One First National Plaza, 8th Floor
Chicago, IL 60670
Attention: Richard Schiller
Telephone: (312) 732-5932
Telecopy: (312) 732-2016
THE INDUSTRIAL BANK OF JAPAN, LIMITED
ATLANTA AGENCY
Domestic Lending Office: Industrial Bank of Japan (Atlanta)
191 Peachtree Street N.E., Suite 3600
Atlanta, GA 30303-1757
Eurodollar Lending Office: Industrial Bank of Japan (Atlanta)
191 Peachtree Street N.E., Suite 3600
Atlanta, GA 30303-1757
Address for Notices: Industrial Bank of Japan (Atlanta)
191 Peachtree Street N.E., Suite 3600
Atlanta, GA 30303-1757
Attention: James Masters
Telephone: (404) 420-3327
Telecopy: (404) 524-8509
THE NORTHERN TRUST COMPANY
Domestic Lending Office: Northern Trust Company (Chicago)
50 South LaSalle Street - B-0
Chicago, IL 60675
Eurodollar Lending Office: Northern Trust Company (Chicago)
50 South LaSalle Street - B-0
Chicago, IL 60675
Address for Notices: Northern Trust Company (Chicago)
50 South LaSalle Street - B-0
Chicago, IL 60675
Attention: Stephen B. Bowman
61
Telephone: (312) 444-7946
Telecopy: (312) 630-6082
SOCIETE GENERALE
Domestic Lending Office: SG Cowen (Los Angeles)
2029 Century Park East, Suite 2900
Los Angeles, CA 90067
Eurodollar Lending Office: SG Cowen (Los Angeles)
2029 Century Park East, Suite 2900
Los Angeles, CA 90067
Address for Notices: SG Cowen (Los Angeles)
2029 Century Park East, Suite 2900
Los Angeles, CA 90067
Attention: J. Staley Stewart
Telephone: (310) 788-7103
Telecopy: (310) 551-1537
FIRST AMERICAN NATIONAL BANK
Domestic Lending Office: First American National Bank
(Nashville)
First American Center, 2nd Floor
Nashville, TN 37237-0203
Eurodollar Lending Office: First American National Bank
(Nashville)
First American Center, 2nd Floor
Nashville, TN 37237-0203
Address for Notices: First American National Bank
(Nashville)
First American Center, 2nd Floor
Nashville, TN 37237-0203
Attention: Sandy Hamrick
Telephone: (615) 748-2191
Telecopy: (615) 748-8480
62
SCHEDULE IV
Applicable Margins
================================================================================
LOANS
- --------------------------------------------------------------------------------
ALTERNATE BASE RATE LOANS EURODOLLAR LOANS
- --------------------------------------------------------------------------------
LEVEL I PERIOD .7500% 1.750%
- --------------------------------------------------------------------------------
LEVEL II PERIOD 1.500% 2.500%
================================================================================