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EXHIBIT 10.1
LOAN AGREEMENT
AMONG
HCA INC.
(formerly HCA - THE HEALTHCARE COMPANY),
AS BORROWER,
THE LENDERS PARTY HERETO,
AND
TORONTO DOMINION (TEXAS) INC.,
as Administrative Agent
Dated as of June 28, 2001
and Amended and Restated as of July 31, 2001
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TABLE OF CONTENTS
Definitions.......................................................................1
ARTICLE II
Loans............................................................................19
Section 2.1 Loans.................................................19
Section 2.2 Manner of Borrowing and Disbursement..................20
Section 2.3 Interest..............................................22
Section 2.4 Fees..................................................23
Section 2.5 Reduction of Commitment...............................24
Section 2.6 Prepayment............................................24
Section 2.7 Repayment.............................................24
Section 2.8 Notes; Loan Accounts..................................25
Section 2.9 Manner of Payment.....................................25
Section 2.10 Reimbursement.........................................29
Section 2.11 Sharing of Payments...................................30
Section 2.12 Capital Adequacy......................................30
Section 2.13 Mitigation Obligations; Replacement of Lenders........31
ARTICLE III
Conditions Precedent.............................................................32
Section 3.1 Conditions Precedent to Effectiveness of Agreement....32
Section 3.2 Conditions Precedent to Effectiveness of Amendment....34
Section 3.3 Conditions Precedent to Each Advance..................35
ARTICLE IV
Representations and Warranties...................................................36
Section 4.1 Corporate Organization and Existence..................36
Section 4.2 Subsidiaries..........................................37
Section 4.3 Financial Information.................................37
Section 4.4 Changes in Condition..................................38
Section 4.5 Assets................................................38
Section 4.6 Litigation............................................38
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Section 4.7 Tax Returns...........................................39
Section 4.8 Contracts, etc........................................39
Section 4.9 No Legal Obstacle to Agreement........................39
Section 4.10 Defaults..............................................40
Section 4.11 Burdensome Obligations................................40
Section 4.12 Pension Plans.........................................40
Section 4.13 Disclosure............................................40
Section 4.14 Environmental and Public and Employee Health and
Safety Matters.....................................................41
Section 4.15 Federal Regulations...................................41
Section 4.16 Investment Company Act; Other Regulations.............42
Section 4.17 Securities Act Representations........................42
Section 4.18 Additional Securities Law Representations.............42
Section 4.19 Survival of Representations and Warranties, etc.......43
ARTICLE V
General Covenants................................................................43
Section 5.1 Taxes, Indebtedness, etc..............................43
Section 5.2 Maintenance of Properties; Compliance with Law........44
Section 5.3 Transactions with Affiliates..........................44
Section 5.4 Insurance.............................................45
Section 5.5 Financial Statements..................................45
Section 5.6 Ratio of Consolidated Total Debt to Consolidated
Total Capitalization...............................................48
Section 5.7 Interest Coverage Ratio...............................48
Section 5.8 Distributions.........................................48
Section 5.9 Merger or Consolidation...............................49
Section 5.10 Sales of Assets.......................................49
Section 5.11 Compliance with ERISA.................................49
Section 5.12 Negative Pledge.......................................50
Section 5.13 Sale-and-Lease-back Transactions......................51
Section 5.14 [Reserved]............................................52
Section 5.15 Use of Proceeds.......................................52
Section 5.16 Indemnity.............................................52
Section 5.17 Collateral Maintenance................................53
Section 5.18 Securities Law Covenants..............................55
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ARTICLE VI
Default..........................................................................56
Section 6.1 Events of Default.....................................56
Section 6.2 Annulment of Defaults.................................60
Section 6.3 Waivers...............................................60
ARTICLE VII
The Administrative Agent.........................................................61
Section 7.1 Appointment and Authorization.........................61
Section 7.2 Delegation of Duties..................................61
Section 7.3 Interest Holders......................................61
Section 7.4 Consultation with Counsel.............................62
Section 7.5 Documents.............................................62
Section 7.6 Agents and Affiliates.................................62
Section 7.7 Responsibility of the Administrative Agent............62
Section 7.8 Action by Administrative Agent........................63
Section 7.9 Notice of Default.....................................63
Section 7.10 Responsibility Disclaimed.............................64
Section 7.11 Indemnification.......................................64
Section 7.12 Credit Decision.......................................65
Section 7.13 Successor Administrative Agent........................65
ARTICLE VIII
Change in Circumstances Affecting LIBOR Advances.................................66
Section 8.1 LIBOR Basis Determination Inadequate..................66
Section 8.2 Illegality............................................66
Section 8.3 Increased Costs.......................................67
Section 8.4 Effect On Other Advances..............................68
ARTICLE IX
Miscellaneous....................................................................69
Section 9.1 Notices...............................................69
Section 9.2 Expenses..............................................70
Section 9.3 Waivers...............................................71
Section 9.4 Set-Off...............................................71
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Section 9.5 Assignment............................................72
Section 9.6 Tax Treatment.........................................75
Section 9.7 Counterparts..........................................76
Section 9.8 Governing Law.........................................76
Section 9.9 Severability..........................................76
Section 9.10 Headings..............................................76
Section 9.11 Interest..............................................77
Section 9.12 Entire Agreement......................................77
Section 9.13 Amendment and Waiver..................................77
Section 9.14 Other Relationships...................................78
Section 9.15 Confidentiality.......................................78
Section 9.16 Survival of Various Provisions........................78
ARTICLE X
Waiver of Jury Trial.............................................................79
Section 10.1 Waiver of Jury Trial..................................79
Exhibits
Exhibit A - Form of Assignment and Assumption Agreement
Exhibit B - Form of Request for Advance
Exhibit C - Form of Promissory Note
Exhibit D - Form of Borrower's Loan Certificate
Exhibit E-1 - Form of Opinion of Borrower's Counsel
Exhibit E-2 - Form of Opinion of Borrower's In-House Counsel
Schedules
Schedule 1 - Subsidiaries
Schedule 2 - Litigation
Schedule 3 - Indebtedness
Schedule 4 - Address for Notices
Schedule 5 - Applicable Margins and Facility Fee Rate
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LOAN AGREEMENT
AMONG
HCA INC.
(formerly HCA - THE HEALTHCARE COMPANY),
THE LENDERS PARTY HERETO,
AND
TORONTO DOMINION (TEXAS) INC.,
as Administrative Agent
Dated as of June 28, 2001
and Amended and Restated as of July 31, 2001
WHEREAS, the Borrower (as defined below) has requested and the Lenders
(as defined below) have agreed, subject to the terms and conditions set forth
herein, to make available to the Borrower a credit facility;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto, the
parties hereby agree as follows:
ARTICLE I
Definitions
For the purposes of this Agreement:
"Acceleration Event" shall mean that on any Valuation Date while the
Number of Shares under the Master Agreement is greater than zero, (i) the
Closing Price (determined without regard to the proviso to the definition
thereof) is less than $18.00; (ii) the Borrower shall fail to perform any
agreement or obligation under the
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Registration Rights Agreement, after any applicable grace period has elapsed; or
(iii) any representation made by the Borrower therein shall prove to be
incorrect in any material respect, and, in the case of (i) (ii) or (iii), the
Majority Lenders, within ten (10) Business Days, elect to accelerate the Loans
by delivery of written notice of such election to Borrower.
"Administrative Agent" shall mean Toronto Dominion (Texas) Inc., in its
capacity as Administrative Agent for the Lenders or any successor Administrative
Agent appointed pursuant to Section 7.13 hereof.
"Administrative Agent's Office" shall mean the office of the
Administrative Agent located at the address set forth in Section 9.1 hereof, or
such other office as may be designated pursuant to the provisions of Section 9.1
hereof.
"Advance" shall mean, with respect to a Lender, any amount advanced by
such Lender to the Borrower pursuant to a Request for Advance under Article 2
hereof on the occasion of any borrowing; and Advances shall mean more than one
Advance by one or more Lenders, as the context shall require.
"Affiliate" shall mean (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.
"Agreement" shall mean this Loan Agreement, as amended, supplemented,
restated or otherwise modified from time to time.
"Agreement Date" shall be June 28, 2001.
"Amendment Date" shall be July 31, 2001.
"Applicable Law" shall mean, in respect of any Person, all provisions of
constitutions, statutes, rules, regulations, and orders of governmental bodies
or regulatory agencies applicable to such Person, including, without limitation,
all
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orders and decrees of all courts and arbitrators in proceedings or actions
to which the Person in question is a party or by which it is bound.
"Applicable Margin" shall mean during a Level I Period, Level II Period,
Level III Period or Level IV Period the rate per annum set forth in Schedule 5.
The Applicable Margin shall be fixed at Level II for the period beginning on the
Agreement Date and ending on October 31, 2001. Increases or decreases in the
Applicable Margin shall become effective on the first day of the Level I Period,
Level II Period, Level III Period or Level IV Period as the case may be, to
which such Applicable Margin relates.
"Assignment and Assumption Agreement" shall mean any Assignment and
Assumption Agreement in substantially the form of Exhibit A attached hereto,
pursuant to which a Lender may, as further provided in Section 9.5 hereof, sell
all or a portion of its Loans or Commitment.
"Attributable Debt": (i) as to any capitalized lease obligations, the
Indebtedness carried on the balance sheet in respect thereof in accordance with
GAAP and (ii) as to any operating leases, the total net amount of rent required
to be paid under such leases during the remaining term thereof.
"Auditor" shall mean any independent certified public accountant of
nationally recognized standing and reputation selected by the Borrower.
"Authorized Signatory" shall mean, with respect to the Borrower, the
president, any vice president, the chief financial officer, the treasurer or
the controller of such Person or any other duly authorized representative of
such Person designated in writing by such Person to execute documents,
agreements, and instruments on behalf of such Person.
"Available Commitment" shall mean, as of any particular time, (a) the
Commitment minus (b) the sum of the Loans then outstanding.
"Borrower" shall mean HCA Inc. (formerly HCA - The Healthcare Company)
("HCA").
"Borrowing" shall mean all the Advances initially made to the Borrower
on the same day pursuant to a Request for Advance or a notice by telephone
permitted by Section 2.2 hereof.
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"Business Day" shall mean a day on which banks and foreign exchange
markets are open for the transaction of business required for or contemplated by
this Agreement in London, England and New York, New York, as relevant to the
determination to be made or the action to be taken, in each case as determined
by the Administrative Agent.
"Change in Control" shall mean that with respect to 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 Borrower, 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 Borrower, shall acquire more
than 20% of the Voting Stock of such corporation and, at any time following an
acquisition described in this clause (b), the Continuing Directors shall not
constitute a majority of the board of directors of such corporation.
"Closing Price" on any Valuation Date is the closing price of the Shares
on the Exchange as reported by the Exchange on the Exchange Business Day
immediately preceding such Valuation Date; provided, that if after 90 days
following the date of filing of the Registration Statement pursuant to the
Registration Rights Agreement, (i) the Registration Statement is not effective
or (ii) the Borrower has notified the Administrative Agent that the Registration
Statement contains an untrue statement of a material fact or omits to state any
material fact required to be state therein or necessary to make the statements
therein not misleading, the Closing Price solely for purposes of determining the
Collateral Value shall be the price per share determined by the Administrative
Agent using the following formula:
Closing Price = P * (1 - (X/100) )
where
P equals the closing price of the Shares on the Exchange as reported by the
Exchange on the Exchange Business Day immediately preceding the relevant
Valuation Date, and
X equals the number of New York Business Days from, but excluding, the Start
Date (as defined below) to, and including, the Valuation Date, but in no case
shall this number be greater than 20.
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For this purpose, "Start Date" means, in a case referred in clause (i), the 91st
day following the date of filing of the Registration Statement, and (ii) in a
case referred to in clause (ii), the day on which the Borrower gives notice of
the relevant untrue statement or omission of a material fact pursuant to the
Registration Rights Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean the Borrower's rights under and interests in the
Master Agreement, any Eligible Collateral deposited or required to be deposited
pursuant to Section 5.17 hereof and all other property at any time subject to or
intended to be subject to the Lien created by the Security Agreement.
"Collateral Payment Date" shall mean, in relation to any Valuation Date,
the next day following such Valuation Date that is both a New York Business Day
and a Local Business Day; provided that if the Borrower shall be required to
deliver Eligible Collateral for such Valuation Date, the Collateral Payment Date
shall be the first New York Business Day and Local Business Day on which the
Administrative Agent shall have provided notice of the Collateral Value and the
Collateral Requirement by 12:00 p.m., New York time (it being understood that
if the Administrative Agent delivers such notice after 12:00 p.m., New York
time, on any day, it shall be deemed to be delivered the next New York Business
Day and Local Business Day).
"Collateral Requirement" shall mean, on any date, the outstanding
principal of the Loans.
"Collateral Value" on any date is an amount equal to the sum of: (i) the
Closing Price for such date multiplied by the aggregate Number of Shares under
the Master Agreement, (ii) the value of the Eligible Collateral on deposit with
the Administrative Agent on such date, determined in accordance with Section
5.17 and (iii) the face amount of any LOC posted by the Borrower that meets the
LOC Criteria.
"Commitment" shall mean the obligation of the Lenders, in accordance
with their respective Commitment Ratios, to advance to the Borrower the sum of
up to (i) for the period from and including the Agreement Date to but excluding
the Amendment Date, $300,000,000 and (ii) for the period from and including the
Amendment Date to but excluding the Maturity Date, $500,000,000 under the
Revolving
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Commitment and the Term Commitment pursuant to the terms and subject to the
conditions hereof, as such obligation may be reduced from time to time pursuant
to the terms hereof.
"Commitment Ratio" shall mean, with respect to any Lender, the
percentage as of the date of determination in which a Lender is severally bound
to satisfy the Commitment to make Advances to the Borrower pursuant to the terms
hereof, which as of the Agreement Date is as set forth below (and which will be
deemed modified to give effect to any assignment by a Lender under Section 9.5
hereof):
Lenders Percentage
------- ----------
Canadian Investments LLC 100%
"Consolidated Assets" shall mean: the consolidated assets of the
Borrower and its Subsidiaries, determined in accordance with GAAP.
"Consolidated Earnings Before Interest and Taxes" shall mean for any
period for which the amount thereof is to be determined, Consolidated Net Income
for such period plus (i) all amounts deducted in computing such Consolidated Net
Income in respect of interest expense on Indebtedness and income taxes and (ii)
non-recurring charges incurred or made as of or for the fiscal quarters ending
on or after June 30, 2000, related to the Borrower's partial settlement with the
Department of Justice not exceeding in the aggregate $745,000,000 on a pre-tax
basis.
"Consolidated Interest Expense" shall mean 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" shall mean for any period, the consolidated
net income, if any, after taxes, of the Borrower 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" shall mean the total amount of assets
(less applicable reserves and other properly deductible items) after deducting
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therefrom (i) all current liabilities as disclosed on the consolidated balance
sheet of the Borrower (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 Borrower and computed in accordance with GAAP.
"Consolidated Net Worth" shall mean, as of the date of determination,
all items which in conformity with GAAP would be included under shareholders'
equity and Temporary Equity on a consolidated balance sheet of the Borrower and
its Subsidiaries at such date.
"Consolidated Total Capitalization" shall mean 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" shall mean the aggregate of all Indebtedness
(including the current portion thereof) of the Borrower and its Subsidiaries in
conformity with GAAP on a consolidated basis.
"Continuing Director" shall mean any member of the Board of Directors of
the Borrower who is a member of such Board on the date of this Agreement, and
any Person who is a member of such Board and whose nomination as a director was
approved by a majority of the Continuing Directors then on such Board.
"Control Group Person" shall mean any Person which is a member of the
controlled group or is under common control with the Borrower within the meaning
of Section 414(b) or 414(c) of the Code or Section 4001(b)(1) of ERISA.
"Default" shall mean any Event of Default, and any other event specified
in Section 6.1 hereof which with any passage of time or giving of notice (or
both) would constitute such event an Event of Default.
"Default Rate" shall mean a simple per annum interest rate equal to the
sum of (a) LIBOR plus (b) the Applicable Margin plus (c) two percent (2%).
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"Distribution" shall mean (a) the declaration or payment of any dividend
on or in respect of any shares of any class of capital stock of the Borrower
other than dividends payable solely in shares of common stock of the Borrower;
(b) the pur chase, redemption or other acquisition of any shares of any class of
capital stock of the Borrower 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 Borrower.
"Dollars" or "$": dollars in lawful currency of the United States of
America.
"Effective Date" has the meaning ascribed to it in the Master Agreement.
"Eligible Assignee" shall mean (i) a commercial bank organized under the
laws of the United States, or any State thereof, and having total assets in
excess of $5,000,000,000 (or such lesser amount as shall be satisfactory to the
Borrower); (ii) a commercial bank organized under the laws of any other country,
or a political subdivision of any such country, having total assets in excess of
$5,000,000,000 (or such lesser amount as shall be satisfactory to the Borrower)
or the equivalent thereof; or (iii) any other financial institution which is
engaged in making, purchasing, or otherwise investing in commercial loans for
its own account in the ordinary course of business.
"Eligible Collateral" shall mean cash and U.S. Treasury Bills having a
maturity not later than three (3) months after the Collateral Payment Date on
which they are delivered to the Administrative Agent.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Event of Default" shall mean any of the events specified in Section 6.1
hereof, provided that any requirement for the giving of notice or lapse of time,
or both, has been satisfied.
"Exchange" has the meaning ascribed to it in the Master Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
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"Exchange Business Day" shall mean a Business Day on which the Exchange
is open for normal business.
"Facility Fee" has the meaning ascribed to it in Section 2.4(b).
"Facility Fee Rate" shall mean, during a Level I Period, Level II
Period, Level III Period or Level IV Period, the rate per annum set forth under
the relevant column heading on Schedule 5. The Facility Fee Rate shall be fixed
at Level II for the period beginning on the Agreement Date and ending on October
31, 2001. Increases or decreases in the Facility Fee Rate shall become effective
on the first day of the Level I Period, Level II Period, Level III Period or
Level IV Period, as the case may be, to which such Facility Fee Rate relates.
"Federal Funds Rate" shall mean, as of any date, 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 for such day (or,
if such day is not a New York Business Day, for the next preceding New York
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a New York Business Day, the average of the
quotations for such day on such transactions received by the Administrative
Agent from three federal funds brokers of recognized standing selected by the
Administrative Agent.
"Fee Agreement" shall mean any and all agreements by and between the
Borrower on the one hand and the Administrative Agent on the other hand or the
Borrower on the one hand and the Lenders (or any of them) on the other hand,
setting forth the applicable fees relating to this Agreement.
"Financing Lease" shall mean 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 Borrower with
the provisions of subsections 5.6, 5.7, 5.10 and 5.12, generally accepted
accounting principles in the United States of America consistent with those
utilized in preparing the audited financial statements referred to in subsection
4.3 and (b) with respect to the financial statements referred to in subsection
4.3 or the furnishing of financial statements pursuant to subsection 5.5 and
otherwise, generally accepted accounting principles in the United States of
America from time to time in effect.
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"Governmental Authority" shall mean any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guarantee Obligation" shall mean 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" shall mean, with respect to 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
Borrower 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.
"Initial Price" has the meaning ascribed to it in the Master Agreement.
"Insolvency" or "Insolvent": at any particular time, a Multiemployer
Plan which is insolvent within the meaning of Section 4245 of ERISA.
"Interest Period" for an Advance shall mean, in the case of the initial
Interest Period, the period commencing on the date that Advance is made and
ending on the numerically corresponding day in the third month thereafter, and,
in the case of each subsequent Interest Period for such Advance shall mean each
successive three month period thereafter beginning on the last day of the
preceding Interest Period for such Advance and ending on the numerically
corresponding day in the third month thereafter. Notwithstanding the foregoing,
however, (i) any applicable Interest Period which would otherwise end on a day
which is not a Business Day shall be extended to the next succeeding Business
Day unless such Business Day falls in
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another calendar month, in which case such Interest Period shall end on the next
preceding Business Day; (ii) any applicable Interest Period which begins on a
day for which there is no numerically corresponding day in the calendar month
during which such Interest Period is to end shall (subject to clause (i) above)
end on the last day of such calendar month; and (iii) no Interest Period shall
extend beyond the Maturity Date or such earlier date as is necessary so as not
to interfere with the repayment obligations of the Borrower under Section 2.7
hereof. Interest shall be due and payable with respect to any Advance as
provided in Section 2.3 hereof.
"Interest Rate Basis" shall mean the LIBOR Basis.
"Lender" shall mean any lender whose name is set forth on the signature
pages hereof in such capacity and any assignees of the Lenders which hereafter
become parties hereto pursuant to and in accordance with Section 9.5 hereof; and
"Lenders" shall mean some or all of such Persons.
"Level I Period" shall mean any period during which the publicly
announced ratings by S&P and Xxxxx'x of the then current senior unsecured,
non-credit enhanced, long-term Indebtedness of the Borrower that has been
publicly issued are BBB- or better or Baa3 or better, respectively.
"Level II Period" shall mean any period during which the publicly
announced ratings by S&P and Xxxxx'x of the then current senior unsecured,
non-credit enhanced, long-term Indebtedness of the Borrower that has been
publicly issued are BB+ or Ba1, respectively.
"Level III Period" shall mean any period during which the publicly
announced ratings by S&P and Xxxxx'x of the then current senior unsecured,
non-credit enhanced, long-term Indebtedness of the Borrower that has been
publicly issued are BB or Ba2, respectively.
"Level IV Period" shall mean any period during which the publicly
announced ratings by S&P or Xxxxx'x of the then current senior unsecured,
non-credit enhanced, long-term Indebtedness of the Borrower 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.
provided, that if on any day the ratings by S&P and Xxxxx'x do not coincide for
any rating category and the Level differential is (x) one level, then the higher
rating will
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be the applicable Level; (y) two levels, the Level at the midpoint will be the
applicable Level; and (z) more than two levels, the lower of the intermediate
Levels will be the applicable Level.
"LIBOR" shall mean, for any Interest Period, the interest rate per annum
determined on the basis of the rate for deposits in Dollars for a period equal
to such Interest Period commencing on the first day of such Interest Period
appearing on Page 3750 of the Telerate screen as of 11:00 a.m., London time, on
the first day of such Interest Period. In the event that such rate does not
appear on Page 3750 of the Telerate screen (or otherwise on such screen),
"LIBOR" shall be determined by reference to such other comparable publicly
available service for displaying eurodollar rates as may be selected by the
Administrative Agent or, in the absence of such availability, by reference to
the rate at which the Reference Bank is offered Dollar deposits at or about
11:00 a.m., New York City time, on the first day of such Interest Period in the
interbank eurodollar market where its eurodollar and foreign currency and
exchange operations are then being conducted for delivery on the first day of
such Interest Period for the number of days comprised therein.
"LIBOR Advance" shall mean an Advance which bears interest at the LIBOR
Basis which the Borrower requests to be made in accordance with the provisions
of Section 2.2 hereof, and which shall be in a principal amount of at least
$500,000 and in an integral multiple of $250,000, except for a LIBOR Advance
which is in an amount equal to the unused amount of the Commitment, which
Advance may be in such amount (but in no event less than $500,000).
"LIBOR Basis" shall mean a simple per annum interest rate equal to the
sum of (a) LIBOR plus (b) the Applicable Margin. The LIBOR Basis shall be
rounded upward, if necessary to the nearest one hundredth of one percent
(1/100%), and, once determined, shall be subject to Article 8 hereof and shall
remain unchanged during the applicable Interest Period.
"LIBOR Reserve Percentage" shall mean the percentage which is in effect
from time to time under Regulation D of the Board of Governors of the Federal
Reserve System, as such regulation may be amended from time to time, as the
actual reserve requirement applicable with respect to Eurocurrency Liabilities
(as that term is defined in Regulation D), to the extent each Lender has any
Eurocurrency Liabilities subject to such reserve requirement at that time.
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"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, any conditional sale or other
title retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing).
"Loan Documents" shall mean this Agreement, the Notes, the Fee
Agreement, the Registration Rights Agreement, the Security Agreement, the Master
Agreement and each Request for Advance and all other documents and agreements
executed or delivered in connection with or contemplated by this Agreement.
"Loans" shall mean amounts advanced by the Lenders to the Borrower under
the Commitment, not to exceed the Commitment, and evidenced by the Notes.
"LOC" has the meaning ascribed to it in Section 5.17(c).
"Local Business Day" shall mean, in relation to the Borrower, a day on
which banks are not required or authorized by law to close in Nashville,
Tennessee, and, in relation to any other Person, a day on which banks are not
required or authorized by law to close in the place specified in this Agreement
in relation to that Person.
"LOC Criteria" has the meaning ascribed to it in Section 5.17(c).
"London Banking Day" shall mean a day, other than a Saturday or a
Sunday, on which banks and foreign exchange markets are scheduled to be open for
the transaction of business in the London interbank deposit market.
"Majority Lenders" shall mean (x) those Lenders holding at least 51% of
the outstanding Loans (or, if no Loans are outstanding, 51% of the Commitments)
and (y) so long as it is a Lender, Canadian Investments LLC.
"Master Agreement" shall mean, collectively, the Amended and Restated
Master Agreement dated as of June 28, 2001 between the Borrower and Canadian
Investments LLC as supplemented by the Confirmations dated June 28, 2001 and
July 31, 2001 entered into thereunder between the Borrower and Canadian
Investments LLC, as the same may be amended from time to time.
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"Maturity Date" shall mean the earliest of (i) April 30, 2003 (provided
that with ten (10) Business Days' notice prior to April 30, 2003, the Borrower
may request the Lenders to extend the scheduled Maturity Date by not more than
two years, and if Canadian Investments LLC so agrees, the scheduled Maturity
Date will be so extended) or (ii) the date of termination of Lenders' obligation
to make Advances and permit existing Loans to remain outstanding pursuant
either to Section 6.1 or the occurrence of an Acceleration Event.
"Xxxxx'x" shall mean Xxxxx'x 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.
"New York Business Day" shall mean a day, other than a Saturday or a
Sunday, on which banks and foreign exchange markets are open for the transaction
of business required for or contemplated by this Agreement in New York, New
York, in each case as determined by the Administrative Agent.
"Note" shall mean each promissory note issued to any Lender pursuant to
the terms of this Agreement substantially in the form of Exhibit C attached
hereto, and any extensions, renewals, replacements, or amendments to the
foregoing; and "Notes" shall mean more than one of such Notes.
"Notional Amount" has the meaning ascribed to it in the Master
Agreement.
"Number of Shares" has the meaning ascribed to it in the Master
Agreement.
"Obligations" shall mean all payment and performance obligations of
every kind, nature, and description of the Borrower to any Lender or the
Administrative Agent under this Agreement and the other Loan Documents
(including any interest, fees, and other charges on the Loans or otherwise under
the Loan Documents that would accrue but for the filing of a bankruptcy action
with respect to the Borrower, whether or not a claim for such amounts is allowed
in such bankruptcy action and including any obligation to any Lender pursuant to
Section 5.16 hereof), as they may be amended from time to time, or as a result
of making the Loans, whether direct or indirect, absolute or contingent, due or
not due, contractual or tortious, liquidated or unliquidated, arising by
operation of law or otherwise, now existing or hereafter arising.
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"Payment Date" shall mean the last day of each Interest Period.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Person" shall mean an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan" shall mean at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Borrower 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" shall mean 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 Borrower and its Subsidiaries on
a consolidated basis and located in the United States of America.
"Reference Bank" shall mean The Toronto Dominion Bank.
"Registration Rights Agreement" shall mean the Registration Rights Agree
ment dated as of June 28, 2001 between the Borrower and Canadian Investments
LLC, as amended, supplemented, restated or otherwise modified from time to time.
"Registration Statement" has the meaning ascribed to it in the
Registration Rights Agreement.
"Regulatory Change" shall mean, with respect to any Lender or Affiliate
thereof, any change on or after the date of this Agreement in United States
Federal, state, or foreign laws or regulations (including Regulation D) or the
adoption or making on or after such date of any interpretations, directives, or
requests applying to a class of banks including such Lender or Affiliate of or
under any United States Federal or state, or any foreign, laws or regulations
(whether or not having the force
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of law) by any court or governmental or monetary authority charged with the
interpretation or administration thereof.
"Reportable Event" shall mean any of the events set forth in Section
4043(b) of ERISA for which reporting is required under such Section, other than
those events as to which the thirty day notice period is waived under
subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. ss. 2615.
"Request for Advance" shall mean any certificate signed by an Authorized
Signatory of the Borrower requesting an Advance hereunder which will increase
the aggregate amount of the Loans outstanding, which certificate shall be
denominated a "Facility Status Advice," and shall be in substantially the form
of Exhibit B attached hereto. Each Request for Advance shall, among other
things, (a) specify the date of the requested Advance, which shall be a Business
Day, the amount of the Advance, and (b) state that the requirements of Section
3.3 hereof have been satisfied.
"Requirement of Law" shall mean 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" shall mean the chief executive officer, the
president, any executive or senior vice president or vice president of the
Borrower, the chief financial officer, treasurer or controller of the Borrower.
"Revolving Commitment" shall mean the obligation of the Lenders, in
accordance with their respective Commitment Ratios, to make one or more
Revolving Loans to the Borrower on or after the Agreement Date and before the
Maturity Date in an aggregate principal amount not to exceed thirty percent
(30%) of the Commitment as of the Amendment Date pursuant to the terms and
subject to the conditions hereof, as such obligation may be reduced from time to
time pursuant to the terms hereof.
"Revolving Commitment Period" shall mean the period from and including
the Agreement Date to the Maturity Date.
"Revolving Loan" has the meaning ascribed to it in Section 2.1(b).
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"S&P" shall mean Standard & Poor's Ratings Service, or any successor
thereto.
"Sale-and-Leaseback Transaction" shall mean any arrangement entered into
by the Borrower or any Significant Subsidiary with any person (other than the
Borrower or a Significant Subsidiary), or to which any such person is a party,
providing for the leasing to the Borrower 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 Borrower or such Significant Subsidiary to such
Person or to any other Person (other than the Borrower or a Significant
Subsidiary), to which funds have been or are to be advanced by such Person on
the security of the leased property.
"Secured Obligations" shall mean the obligations of the Borrower to
repay the principal of the Loans.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Security Agreement" shall mean the Borrower Security Agreement dated as
of June 28, 2001 between the Borrower and Toronto Dominion (Texas), Inc. as
Administrative Agent and on behalf of the Lenders, as amended, supplemented,
restated or otherwise modified from time to time.
"Shares" has the meaning ascribed to it in the Master Agreement.
"Significant Subsidiary" shall mean, at any particular time, any
Subsidiary of the Borrower having total assets of $25,000,000 or more at that
time.
"Single Employer Plan": any Plan which is covered by Title IV of ERISA,
but which is not a Multiemployer Plan.
"Subsidiary" shall mean, as applied to any Person, a corporation,
partnership or other entity (i) of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned directly or
indirectly through one or more intermediaries, by such Person or (ii) which
otherwise is consolidated with the Borrower for financial statement purposes as
determined in accordance with GAAP. Unless otherwise
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qualified, all references to a "Subsidiary" or to "Subsidiaries" in this
Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.
"Temporary Equity" shall mean any amount included on the consolidated
balance sheet of the Borrower and its Subsidiaries at such date as it pertains
to (i) the repurchase of the Borrower's common stock using derivative financial
instruments indexed to, and potentially settled, in the Borrower's own stock and
(ii) amounts attributed to the consolidation of special purpose vehicle(s) that
are created for the sole purpose of engaging in transactions to effect the
Borrower's repurchase of its own stock.
"Term Commitment" shall mean the obligation of the Lenders, in
accordance with their respective Commitment Ratios, to make a Term Loan on the
Agreement Date to the Borrower in the principal amount of seventy percent (70%)
of the Commitment as of the Agreement Date and a Term Loan on the Amendment Date
to the Borrower in the principal amount of seventy percent (70%) of the
difference between the Commitment as of the Amendment Date and the Commitment as
of the Agreement Date, in each case pursuant to the terms and subject to the
conditions hereof.
"Term Loan" has the meaning ascribed to it in Section 2.1(a).
"Termination Date" has the meaning ascribed to it in the Master
Agreement.
"Valuation Date" is every Exchange Business Day after the Effective Date
and through the Termination Date inclusive of the Termination Date.
"Voting Stock" shall mean 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.
Each definition of an agreement in this Article 1 shall include such
agreement as modified, amended, or supplemented from time to time with the prior
written consent of the Majority Lenders, except as otherwise provided in Section
9.13 hereof, and, except where the context otherwise requires, definitions
imparting the singular shall include the plural and vice versa. Except where
otherwise specifically restricted, reference to a party to a Loan Document
includes that party and its successors and assigns. All terms used herein which
are defined in Articles 8 or 9 of the Uniform Commercial Code in effect in the
State of New York on the date hereof
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and which are not otherwise defined herein shall have the same meanings herein
as set forth therein.
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 Borrower and its Subsidiaries not defined in this Article I and
accounting terms partly defined in this Article I, to the extent not defined,
shall have the respective meanings given to them under GAAP.
All accounting terms used herein without definition shall be used as
defined under GAAP.
ARTICLE II
Loans
Section 2.1 Loans. Each Lender severally agrees, upon the terms
and subject to the conditions of this Agreement, (a) to make an Advance in the
amount of its Commitment Ratio of the Term Commitment to the Borrower on the
Agreement Date, (b) to make an Advance in the amount of its Commitment Ratio of
the difference between the Term Commitment as of the Amendment Date and the Term
Commitment as of the Agreement Date (together with the Advance in clause (a),
the "Term Loan") to the Borrower on the Amendment Date, and (c) to make one or
more Advances on its Revolving Commitment (the "Revolving Loan") to the Borrower
at any time or from time to time on or after the Agreement Date and before the
Maturity Date in an aggregate outstanding amount not to exceed at any time the
Revolving Commitment (as it may be reduced from time to time pursuant to the
terms hereof). The principal amount of each Lender's Advances made on any date
shall not exceed, in the aggregate, such Lender's Commitment Ratio of the
aggregate Advances to be made on such date by all Lenders. The Borrower agrees
to be liable for the Obligations hereunder. Neither the Administrative Agent nor
any Lender shall be responsible for the obligations of any other Lender
hereunder, nor will the failure of any Lender to comply with this Agreement
relieve any other Lender or the Borrower of its obligations hereunder or under
the other Loan Documents.
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Section 2.2 Manner of Borrowing and Disbursement.
(a) Choice of Interest Rate, etc. Each Advance shall be
made as a LIBOR Advance which shall in all cases be subject to Sections 2.3(a),
2.3(c) and Article 8 hereof.
(b) LIBOR Advances.
(i) Advances. The Borrower shall give the
Administrative Agent at least three (3) Business Days' irrevocable
written notice in the form of a written Request for Advance (one (1)
Business Day's irrevocable notice in the case of the Advances to be
made on the Agreement Date and the Amendment Date) or notice by
telephone provided any such telephonic notice shall be followed
immediately by a Request for Advance; provided further, however, that
the failure of the Borrower to confirm any notice by telephone or
telecopy with a Request for Advance shall not invalidate any notice so
given. Upon receipt of such notice from the Borrower, the
Administrative Agent shall promptly notify each Lender by telephone or
telecopy of the contents thereof.
(ii) Repayments. In the event Borrower
intends to repay all or any portion of a LIBOR Advance on the Payment
Date for such LIBOR Advance, then, at least three (3) Business Days
prior to such Payment Date, the Borrower shall give the Administrative
Agent written notice specifying the portion of such LIBOR Advance
outstanding on such Payment Date, subject to Section 2.6 hereof, to be
repaid. Upon such Payment Date the portion of such LIBOR Advance
specified in such notice will, subject to the provisions hereof, be so
repaid and the remaining portion of such LIBOR Advance shall remain
outstanding with an Interest Period commencing on such Payment Date.
Except as set forth in the preceding sentence, and subject to Section
2.6, on the Payment Date for any LIBOR Advance, such LIBOR Advance shall
be continued as a LIBOR Advance having an Interest Period commencing on
such Payment Date, and such continuation shall not be considered a
Borrowing hereunder and shall not require the delivery by the Borrower
to the Administrative Agent of a Request for Advance.
(c) Determination and Notice of LIBOR Basis. The
Administrative Agent, whose determination shall be conclusive absent manifest
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error, shall determine the applicable LIBOR Basis for each Advance and shall
notify the Borrower and the Lenders of such LIBOR Basis.
(d) Notification of Lenders. Upon receipt of a Request
for Advance or a written notice under this Section 2.2 from the Borrower with
respect to a repayment of any then outstanding Advance on the Payment Date for
such Advance, the Administrative Agent shall promptly notify each Lender by
telephone or telecopy of the contents thereof and the amount of such Lender's
portion of the applicable Advance. Each Lender shall, not later than 2:00 p.m.
(New York City time) on the date specified in such notice, make available to the
Administrative Agent at the Administrative Agent's Office, or at such account as
the Administrative Agent shall designate, the amount of its portion of the
applicable Advance (if such Advance will increase the principal amount of the
Loans) in immediately available funds.
(e) Disbursement.
(i) Prior to 2:00 p.m. (New York City time)
on the date of an Advance hereunder (if such Advance will increase
the principal amount of the Loans), the Administrative Agent shall,
subject to the satisfaction of the conditions set forth in this Section
2.2 and in Article 3, disburse the amounts made available to the
Administrative Agent by the Lenders in immediately available funds by
(i) transferring such amounts by wire transfer pursuant to the
instructions of the Borrower, or (ii) in the absence of such
instructions, crediting such amounts to the account of the Borrower
maintained with the Administrative Agent or an affiliate of the
Administrative Agent
(ii) In the case of any Advance which
would (after giving effect to the repayment of outstanding Advances
from the proceeds of such Advance) increase the aggregate principal
balance of the Loans, unless the Administrative Agent shall have
received notice from a Lender prior to the date of any Advance that
such Lender will not make available to the Administrative Agent such
Lender's ratable portion of such Advance, and so long as notice has
been given as provided in Section 2.2(d) hereof, the Administrative
Agent may assume that such Lender has made such portion available to
the Administrative Agent on the date of such Advance and the
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Administrative Agent may, in its sole discretion and in reliance upon
such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent such Lender shall not have
so made such ratable portion available to the Administrative Agent,
such Lender agrees to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for
each day from the date such amount is made available to the Borrower
until the date such amount is repaid to the Administrative Agent, at
the Federal Funds Rate.
(iii) If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid
shall constitute such Lender's portion of the applicable Advance for
purposes of this Agreement. The failure of any Lender to fund its
portion of any Advance shall not relieve any other Lender of its
obligation, if any, hereunder to fund its respective portion of the
Advance on the date of such borrowing, but no Lender shall be
responsible for any such failure of any other Lender.
(iv) In the event that, at any time when the
Borrower is not in Default, a Lender for any reason fails or refuses to
fund its portion of an Advance, then, until such time as such Lender has
funded its portion of such Advance, or all other Lenders have received
payment in full (whether by repayment or prepayment) of the principal
and interest due in respect of such Advance, such non-funding Lender
shall (A) have no right to vote regarding any issue (other than an issue
which requires the consent or approval of all Lenders) on which voting
is required or advisable under this Agree ment or any other Loan
Document and (B) not be entitled to receive payments of principal,
interest, or fees from the Borrower in respect of such Loans which such
Lender failed to make.
Section 2.3 Interest.
(a) On LIBOR Advances. Interest on each LIBOR Advance
shall be computed on the basis of a 360-day year for the actual number of days
elapsed from and including the first day and to but excluding the last day of
each applicable Interest Period and shall be payable at the LIBOR Basis for such
Advance in arrears on the applicable Payment Date. Interest on LIBOR Advances
then
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outstanding shall also be due and payable on the Maturity Date (accrued in
respect of the period ending on but excluding the Maturity Date), at the
applicable LIBOR Basis. In addition, if any portion of the principal of any
Advance is repaid on any day that is not a Payment Date for that Advance or the
Maturity Date, interest on that Advance, or the relevant portion thereof, shall
also be due and payable, at the applicable LIBOR Basis, on the date of that
repayment (accrued in respect of the period ending on but excluding that date).
(b) Defaulted Payments. If all or a portion of the
principal amount of any Loan, or any interest payable on any Loan, shall not be
paid when due, the Majority Lenders shall have the option (which option shall
not require any Lender to give prior notice thereof to the Borrower, or require
acceleration of the maturity of the Loans, or the exercise of any other rights
or remedies hereunder in connection with the exercise of such option), to charge
interest on such overdue amount at the Default Rate from the date of such
nonpayment. Such interest shall be payable on the earlier of demand or the
Maturity Date and shall accrue until the earlier of (i) the payment in full of
such overdue amount, (ii) agreement by the Majority Lenders to rescind the
charging of interest on such overdue amount at the Default Rate, or (iii)
payment in full of the Obligations owing under this Agreement and the Notes.
(c) LIBOR Advances Maximum. At no time may the number of
outstanding LIBOR Advances exceed twenty-four (24).
Section 2.4 Fees.
(a) The Borrower agrees to pay to the Administrative
Agent for the account of the Lenders the fees in the amounts and on the dates
set forth in the fee letter dated as of June 28, 2001.
(b) The Borrower agrees to pay to the Administrative
Agent for the account of the Lenders a facility fee (the "Facility Fee") for the
period from and including the Agreement Date to the earlier of the last day of
the Revolving Commitment Period and the date upon which this Agreement is
otherwise terminated or the Revolving Commitment is otherwise reduced to zero,
computed at the Facility Fee Rate on the average daily amount of the undrawn
Revolving Commitment during the period for which payment is required to be made,
payable quarterly in arrears on the last day of each March, June, September and
December and on the earlier of the
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Maturity Date and the date upon which this Agreement is otherwise terminated,
commencing on September 30, 2001.
Section 2.5 Reduction of Commitment.
(a) Optional. The Borrower shall have the right, at any
time and from time to time after the Agreement Date and prior to the Maturity
Date, upon at least three (3) Business Days' prior written notice to the
Administrative Agent, without premium or penalty (but subject to reimbursement
for expenses pursuant to Section 2.10(a)), to cancel or reduce permanently all
or a portion of the Revolving Commitment, provided that any such partial
reduction shall be made in an amount not less than $5,000,000. As of the date of
cancellation or reduction set forth in such notice, the Revolving Commitment
shall be permanently reduced to the amount stated in the Borrower's notice for
all purposes herein, and the Borrower shall, subject to Section 2.10 hereof, pay
to the Administrative Agent the amount necessary to reduce the principal amount
of the Loans then outstanding under the Revolving Commitment to not more than
the amount of the Revolving Commitment as so reduced, together with accrued
interest on the amount so prepaid.
Section 2.6 Prepayment. LIBOR Advances may be prepaid prior to
the applicable Payment Date, upon one (1) Business Day's prior written notice to
the Administrative Agent, provided that the Borrower shall reimburse each
Lender, on the earlier of demand or the Maturity Date, for any loss or out of
pocket expense incurred by such Lender in connection with such prepayment, as
set forth in Section 2.10 hereof. Each notice of prepayment shall be
irrevocable, and all amounts prepaid on the Loans shall be applied first to
interest and fees and other amounts due and payable hereunder as of such date,
and then to principal. All prepayments of principal shall be treated first as
prepayments of the Revolving Loan and second as prepayments of the Term Loan
unless the Borrower specifies in the notice of prepayment that all principal
shall be treated first as a prepayment of the Term Loan and second as a
prepayment of the Revolving Loan. Term Loan prepayments cannot be reborrowed.
Partial prepayments shall be in a principal amount of not less than $1,000,000
and in an integral multiple of $1,000,000. Upon receipt of any notice of
prepayment, the Administrative Agent shall promptly notify each Lender.
Section 2.7 Repayment.
(a) Loans Exceeding Commitment. If, at any time, the
amount of the Loans then outstanding shall exceed the Commitment, the Borrower
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shall on such date make a repayment of the principal amount of the Loans in an
amount equal to such excess.
(b) Maturity. In addition to the foregoing, a final
payment of all Obligations then outstanding under this Agreement and the Notes
shall be due and payable on the earlier of the Maturity Date and the occurrence
of an Acceleration Event.
Section 2.8 Notes; Loan Accounts.
(a) The Term Loan and the Revolving Loan shall be
repayable in accordance with the terms and provisions set forth herein and, in
each case, shall be evidenced by the Notes. The Notes shall be issued by the
Borrower to the Lenders and shall be duly executed and delivered by an
Authorized Signatory of the Borrower.
(b) Each Lender may open and maintain on its books in the
name of the Borrower a loan account to which it shall credit the proceeds of the
Term Loan and Revolving Loan made by it and interest thereon. If such Lender
opens such loan account, it shall debit the applicable loan account for the
principal amount of each Advance made by it and accrued interest thereon and
shall credit such loan account for each payment on account of principal of or
interest on the Loans made by it. The records of such Lender with respect to the
loan accounts maintained by it shall, subject to Section 9.5(k), be, absent
manifest error, prima facie evidence of the Loans made by it and accrued
interest thereon, but the failure to maintain such records shall not impair the
obligations of the Borrower to pay all Obligations.
Section 2.9 Manner of Payment.
(a) Each payment (including any prepayment) by the
Borrower on account of the principal of or interest on the Loans and all fees,
shall be made not later than 2:00 p.m. (New York City time) on the date
specified for payment under this Agreement or any other applicable Loan Document
to the Administrative Agent to an account designated by the Administrative
Agent, for the account of the Lenders or the Administrative Agent, in lawful
money of the United States of America in immediately available funds, and shall
be remitted promptly by the Administrative Agent to the Lenders (i) pro rata
based on the outstanding principal amount of the Loans in the case of principal
and interest and (ii) pro rata according to the Commitment Ratio of such Lender
in the case of fees. The failure
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of the Borrower to make any such payment by such time shall not constitute a
Default hereunder, provided that such payment is received by the Administrative
Agent in immediately available funds by 4:00 p.m. (New York City time) on such
due date, but any such payment received by the Administrative Agent after 2:00
p.m. (New York City time) on such due date shall be deemed to have been made on
the next Business Day for the purpose of calculating interest on amounts
outstanding on the Loans, unless the Administrative Agent, in fact, was able to
remit to such Lender its pro rata share of such payment by 4:00 p.m. (New York
City time) on such due date. In the case of a payment for the account of a
Lender, the Administrative Agent will promptly thereafter distribute the amount
so received in like funds to such Lender. If the Administrative Agent shall not
have received any payment from the Borrower as and when due, the Administrative
Agent will promptly notify the Lenders accordingly.
(b) If any payment under this Agreement or the Notes
shall be specified to be made upon a day which is not a Business Day, it shall
(except as otherwise provided in clause (i) of the definition of "Interest
Period" in Article I hereof) be made on the next day which is a Business Day,
and such extension of time shall in such case be included in computing interest
and fees, if any, in connection with such payment.
(c) Borrower agrees to make any and all payments by the
Borrower hereunder, under the Notes, or under the other Loan Documents, (subject
to the remainder of this Section 2.9) without set-off or counterclaim (including
without limitation any set-off or counterclaim with respect to any right arising
under the Master Agreement) or any deduction whatsoever and free and clear of
any and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding in the case of
each Lender and the Administrative Agent or any other party entitled to receive
a payment hereunder, any taxes (including franchise taxes and taxes imposed on
or measured by net income or profits) imposed with respect to the Administrative
Agent or any Lender or any other party entitled to receive a payment hereunder
by reason of the Administrative Agent, the Lender or by reason of any connection
between, as applicable, the Administrative Agent or such Lender or any other
party entitled to receive a payment hereunder and the relevant taxing
jurisdiction, including, without limitation, a connection arising from such
Person being or having been a citizen, domiciliary, or resident of such
jurisdiction, being organized in such jurisdiction, or having or having had a
permanent establishment or fixed place of business therein, but not including a
connection arising solely from such Person having executed, delivered, performed
its
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obligations or received any payment under this Agreement (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings, and liabilities in
respect of payments hereunder, under the Notes, or under the other Loan
Documents being hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under the other Loan Documents (subject to the remainder of this
Section 2.9) to any Lender or the Administrative Agent, (1) the sum payable
shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.9(c)) such Lender or the Administrative Agent (as the case may
be) receives an amount equal to the sum it would have received had no such
deductions been made, (2) the Borrower shall make such deductions and (3) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law; provided, however, that
the Borrower shall not be required to increase any amounts payable to any such
Person that are United States withholding taxes imposed on such Person at the
time such Person becomes a party to this Agreement.
(d) In addition, the Borrower shall (subject to the
remainder of this Section 2.9) pay any present or future stamp, documentary,
excise, property or similar taxes, charges or levies that arise from any payment
made hereunder or under the other Loan Documents or from the execution, delivery
or registration of, per forming under, or otherwise with respect to, this
Agreement, the Notes, or the other Loan Documents (hereinafter referred to as
"Other Taxes").
(e) The Borrower shall (subject to the remainder of this
Section 2.9) indemnify each Lender and the Administrative Agent for the full
amount of Taxes and Other Taxes, and for the full amount of taxes imposed by any
jurisdiction on amounts payable under Section 2.9(c), imposed on or paid by
such Lender or the Administrative Agent (as the case may be) and any liability
(including penalties, additions to tax, interest and expenses) arising therefrom
or with respect thereto. This indemnification shall be made within thirty (30)
days from the date such Lender or the Administrative Agent (as the case may be)
makes written demand therefor.
(f) Within 30 days after the date of any payment of
Taxes, the Borrower shall furnish to the Administrative Agent, at its address
referred to in Section 9.1, the original receipt of payment thereof or a
certified copy of such receipt or other evidence of such payment reasonably
satisfactory to the Administrative Agent. In the case of any payment hereunder
or under the other Loan Documents by
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or on behalf of the Borrower through an account or branch outside the United
States or by or on behalf of the Borrower by a payor that is not a United States
person, if the Borrower determines that no Taxes are payable in respect thereof
as a result of such payment being made by a non-United States person or through
an account or branch located outside the United States, the Borrower shall, upon
the request of the Administrative Agent, furnish, or shall cause such payor to
furnish, to the Administrative Agent, at such address, an opinion of counsel
acceptable to the Administrative Agent stating that such payment is exempt from
Taxes. For purposes of this subsection 2.9(f) and subsection 2.9(g), the terms
"United States" and "United States person" shall have the meanings specified in
Section 7701 of the Internal Revenue Code.
(g) Each Lender that is not a United States person
(a "non-U.S. Lender") shall, on or prior to the date of its execution and
delivery of this Agreement in the case of the Lenders as of the Agreement Date,
and on the date of the Assignment and Assumption Agreement pursuant to which it
became a Lender in the case of each other Lender, provide each of the
Administrative Agent and the Borrower with two duly completed original Internal
Revenue Service Forms W-8BEN or W-8ECI (or applicable successor forms), and, to
the extent applicable, an Internal Revenue Service form W-9 (or applicable
successor form), or in the case of a non-U.S. Lender that is not a bank, two
duly completed original Internal Revenue Service Forms W-8BEN (or applicable
successor forms) and a Certificate in the form of Exhibit H (a "Non-Bank Tax
Certificate"). Each non-U.S. Lender further agrees (i) to deliver to the
Administrative Agent and the Borrower two further duly completed and signed
original copies of such Forms W-8BEN or W-8ECI and W-9, as applicable, or
successor forms, on or before the date that any such form expires or becomes
obsolete and promptly after the occurrence of any event requiring a change from
the most recent forms previously delivered by it to the Borrower or
Administrative Agent in accordance with applicable U.S. law and regulations or,
if no such form was previously delivered, promptly after the occurrence of any
change in law or other event giving rise to the Borrower's need for such form to
enable it to make payments hereunder or under any other Loan Document without
withholding Taxes or subject to withholding at a reduced rate, and (ii) in the
case of a non-U.S. Lender that is not a bank that delivers a statement in the
form of Exhibit H, to deliver such statement on an annual basis on the
anniversary of the date on which such Person became a party to this Agreement,
and any such additional statements and forms as are reasonably requested by the
Borrower or Administrative Agent, and (iii) to notify promptly the Borrower or
Administrative Agent if it is no longer able to deliver, or if it is required to
withdraw or cancel any form or statement previously
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delivered by it pursuant to this Section 2.9(g). If the forms provided by a
Lender at the time such Lender first becomes a party to this Agreement indicates
a United States interest withholding tax rate in excess of zero, withholding tax
at such rate shall be considered excluded from Taxes unless and until such
Lender provides the appropriate form certifying that a lesser rate applies,
whereupon withholding tax at such lesser rate only shall be considered excluded
from Taxes for periods governed by such form; provided, however, that, if at the
date of the Assignment and Assumption Agreement pursuant to which a Lender
becomes a party to this Agreement, the Lender assignor was entitled to payments
under subsection 2.9(c) in respect of United States withholding tax with respect
to interest paid at such date, then, to such extent, the term Taxes shall
include (in addition to withholding taxes that may be imposed in the future or
other amounts otherwise includable in Taxes) United States withholding tax, if
any, applicable with respect to the Lender assignee on such date.
(h) For any period with respect to which a Lender has
failed to provide the Borrower with the appropriate form described in subsection
2.9(g) (other than if such failure is due to a change in law occurring after the
date on which a form originally was required to be provided or if such form
otherwise is not required under subsection 2.9(g)), such Lender shall not be
entitled to indemnification under Section 2.9(c) or Section 2.9(e) with respect
to Taxes imposed by the United States by reason of such failure; provided,
however, that should a Lender become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall, at the expense of such
Lender, take such steps as such Lender shall reasonably request to assist such
Lender to recover such Taxes.
(i) For purposes of this Section 2.9, the phrase "Loan
Documents" shall not include the Master Agreement.
Section 2.10 Reimbursement.
(a) Whenever any Lender or the Administrative Agent shall
incur any losses or reasonable out-of-pocket expenses (other than losses of the
Applicable Margin) in connection with (i) failure by the Borrower to borrow any
LIBOR Advance after having made a Request for Advance therefor in accordance
with Section 2.2 hereof (whether by reason of the election of the Borrower not
to proceed or the nonfulfillment of any of the conditions set forth in Article
III) other than a failure to borrow resulting from an unavailability which
occurs after notice from the Administrative Agent to the Borrower pursuant to
Section 8.1 or 8.2 hereof,
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or (ii) repayment or prepayment of any LIBOR Advance in whole or in part
(including a repayment or prepayment pursuant to Sections 8.2 and 8.3(b) hereof)
on a day other than a Payment Date for the Advance, the Borrower agrees to pay
to such Lender, upon the earlier of three Business Days following such Lender's
demand or the Maturity Date, an amount sufficient to compensate such Lender or
the Administrative Agent for all such losses and reasonable out of pocket
expenses. Such Lender's or the Administrative Agent good faith determination of
the amount of such losses and reasonable out-of-pocket expenses, absent manifest
error, shall be binding and conclusive. Upon request of the Borrower, such
Lender or the Administrative Agent, when seeking reimbursement under this
Section 2.10, shall provide a certificate setting forth the amount to be paid to
it by the Borrower hereunder and calculations therefor.
(b) Losses subject to reimbursement hereunder shall
include, without limiting the generality of the foregoing, but without
duplication, expenses incurred by the Administrative Agent or such Lender or any
participant of such Lender permitted hereunder in connection with the
re-employment of funds prepaid, paid, repaid, not borrowed, not converted, or
not paid, as the case may be (other than losses of the Applicable Margin), and
will be payable regardless of whether the Maturity Date is changed by virtue of
an amendment hereto (unless such amendment expressly waives such payment) or as
a result of acceleration of the Obligations and regardless of whether such
Lender has a "matched funding" of such Advance.
Section 2.11 Sharing of Payments. If any Lender shall obtain any
payment (whether involuntary or otherwise) on account of the Loans made by it in
excess of its ratable share of the Loans then outstanding, such Lender shall
forthwith purchase a participation in the Loans from the other Lenders as shall
be necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery. The Borrower agrees
that any Lender so purchasing a participation from another Lender pursuant to
this Section may, to the fullest extent permitted by law, exercise all its
rights of payment with respect to such participation as fully as if such Lender
were the direct creditor of the Borrower in the amount of such participation so
long as the Borrower's Obligations are not increased.
Section 2.12 Capital Adequacy. In the event that a Regulatory
Change regarding capital adequacy does or shall have the effect of reducing the
rate
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of return on any Lender's (for purposes of this Section 2.12, the term "Lender"
shall include any parent or holding company of such Lender) capital as a
consequence of its obligations hereunder to a level below that which such Lender
could have achieved but for such adoption, change, or compliance (taking into
consideration such Lender's policies with respect to capital adequacy) by an
amount deemed by such Lender to be material, then from time to time, ten (10)
days after submission by such Lender to the Borrower of a written request
therefor, together with a certificate (which shall be conclusive absent manifest
error), setting forth the calculations evidencing such requested additional
amount, and the law or regulation with respect thereto and certifying that such
request is consistent with such Lender's treatment of other similar customers
having similar provisions generally in their agreements with such Lender, and
that such request is being made on the basis of a reasonable allocation of the
costs resulting from such law or regulation, the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction. Notwithstanding the foregoing, the Borrower shall only be obligated
to compensate a Lender for any amount under this section arising or occurring
during (i) in the case of each such request for compensation, any time or period
commencing not more than sixty (60) days prior to the date on which such Lender
submits such request and (ii) any other time or period during which, because of
the unannounced retroactive application of such law, regulation, interpretation,
request, or directive, such Lender could not have known that the resulting
reduction in return might arise. A Lender will notify the Borrower (with a copy
of such notice to the Administrative Agent) that it is entitled to compensation
pursuant to this section as promptly as practicable after such Lender determines
to request such compensation; provided, however, that the failure to provide
such notice shall not restrict the ability of a Lender to be reimbursed under
this Section 2.12 except as provided in clause (i) above.
Section 2.13 Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section
2.12, hereof, or if the Borrower is required to pay an additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.9(c) hereof, then such Lender shall use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to designate a
different lending office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the sole judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section
2.12 or 2.9(c) hereof, as the case may be, in the future
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and (ii) would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section
2.12 or 8.3 hereof, or if the Borrower is required to pay any additional amount
to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.9(c) hereof, or if any Lender defaults in its obligation
to fund Loans hereunder, then the Borrower may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse, representation or warranty (in accordance
with and subject to the restrictions contained in Section 9.5 hereof), all its
interests, rights and obligations hereunder to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, and (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans, accrued interest (and
premium, if any) thereon, accrued fees and all other amounts payable to it
hereunder and under the other Loan Documents, from the assignee (to the extent
of such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts). A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
ARTICLE III
Conditions Precedent
Section 3.1 Conditions Precedent to Effectiveness of Agreement
The obligation of each Lender to undertake its Commitment Ratio of the
Commitment as of the Agreement Date and to make its initial Advance hereunder is
subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of
the following, in form and substance satisfactory to the Administrative Agent:
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(i) duly executed Notes;
(ii) the loan certificate of the Borrower
dated as of the Agreement Date, including a certificate of incumbency
with respect to the signature of each Authorized Signatory, which loan
certificate shall be in substantially the form of Exhibit D attached
hereto, together with appropriate attachments thereto;
(iii) legal opinion of Xxxxx Xxxxxxxxxx
LLP, special New York counsel to the Borrower, and in-house counsel to
the Borrower, each dated as of the Agreement Date addressed to each
Lender and the Administrative Agent substantially in the form of
Exhibits E1 and E2, respectively, attached hereto;
(iv) receipt by the Administrative Agent
and each Lender of all appropriate fees to be paid to them by the
Borrower on or prior to the Agreement Date;
(v) any required consents to the closing of
this Agreement or to the execution, delivery, and performance of this
Agreement and the other Loan Documents, each of which shall be in form
and substance satisfactory to the Administrative Agent and the Lenders;
(vi) duly executed Security Agreement;
(vii) duly executed Master Agreement;
(viii) duly executed Registration Rights
Agreement; and
(ix) all such other documents as the
Administrative Agent may reasonably request, certified by an
appropriate governmental official or Authorized Signatory if so
requested.
(b) The Borrower shall certify to the Administrative
Agent and the Lenders that each of the representations and warranties in Article
IV hereof is
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true and correct in all material respects as of the Agreement Date and that no
Default then exists or is continuing.
(c) There shall have been, as of the Agreement Date, no
material adverse change in the financial condition, business or operations of
the Borrower and its Subsidiaries taken as a whole, as reflected in the audited
financial statements as of December 31, 2000 of the Borrower.
Section 3.2 Conditions Precedent to Effectiveness of Amendment
The obligation of each Lender to undertake its Commitment Ratio of the increase
in Commitment on the Amendment Date and to make its Advance hereunder on the
Amendment Date is subject to the prior fulfillment of each of the following
conditions:
(a) The Administrative Agent shall have received each of
the following, in form and substance satisfactory to the Administrative Agent:
(i) duly executed Notes in exchange for
the cancelled Notes executed by Borrower on the Agreement;
(ii) the loan certificate of the Borrower
dated as of the Amendment Date, including a certificate of incumbency
with respect to the signature of each Authorized Signatory, which loan
certificate shall be in substantially the form of Exhibit D attached
hereto, together with appropriate attachments thereto;
(iii) legal opinion of Xxxxx Xxxxxxxxxx
LLP, special New York counsel to the Borrower, and in-house counsel to
the Borrower, each dated as of the Amendment Date addressed to each
Lender and the Administrative Agent substantially in the form of
Exhibits E1 and E2, respectively, attached hereto;
(iv) receipt by the Administrative Agent
and each Lender of all appropriate fees to be paid to them by the
Borrower on or prior to the Amendment Date;
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(v) any required consents to the closing of
the amendment to this Agreement on the Amendment Date or to the
execution, delivery, and performance of the amended Agreement and the
other Loan Documents, each of which shall be in form and substance
satisfactory to the Administrative Agent and the Lenders;
(vi) duly executed Security Agreement;
(vii) duly executed Master Agreement;
(viii) all such other documents as the
Administrative Agent may reasonably request, certified by an
appropriate governmental official or Authorized Signatory if so
requested.
(b) The Borrower shall certify to the Administrative
Agent and the Lenders that each of the representations and warranties in Article
IV hereof is true and correct in all material respects as of the Amendment Date
and that no Default then exists or is continuing.
(c) There shall have been, as of the Amendment Date, no
material adverse change in the financial condition, business or operations of
the Borrower and its Subsidiaries taken as a whole, as reflected in the audited
financial statements as of December 31, 2000 of the Borrower.
Section 3.3 Conditions Precedent to Each Advance The obligation
of any Lender to make any Advance, including the initial Advance hereunder,
other than an Advance which (after a giving effect to the repayment of
outstanding Advances from the proceeds of such Advance) does not increase the
aggregate principal amount of the Loans outstanding hereunder, is subject to the
fulfillment of each of the following conditions immediately prior to or
contemporaneously with such Advance:
(a) The representations and warranties contained in
Article 4 (as qualified by the disclosures in (i) the Borrower's Annual Report
on Form 10-K for its fiscal year ended December 31, 2000, (ii) the Borrower's
Quarterly Report on Form 10-Q for its fiscal quarter ending Xxxxx 00, 0000,
(xxx) the Borrower's Reports on Form 8-K filed with the Securities and Exchange
Commission on January 31,
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2001, February 20, 2001, April 24, 2001, May 23, 2001, July 2, 2001 and July 24,
2001 respectively, in the case of each of the items referred to in clauses (i)
and (ii), as filed with the Securities and Exchange Commission and previously
distributed to the Administrative Agent and made available to the Lenders and
(iii) Schedule 2 attached hereto) shall be true and correct in all material
respects on and as of the date of such Advance with the same force and effect as
though made on and as of such date (except for representations and warranties
made as of a specified date, which shall be true and correct as of such date);
(b) There shall not exist, on the date of the making of
the Advance and after giving effect thereto, a Default hereunder, and the
Administrative Agent and each of the Lenders shall have received a Request for
Advance so certifying; and
(c) The aggregate Number of Shares subject to
transactions under the Master Agreement shall not exceed, on the date of the
making of the Advance, 4.95% of the number of outstanding Shares of the Borrower
(including such Number of Shares).
The acceptance of the proceeds of any Loans which (after giving
effect to the repayment of outstanding Loans from the proceeds of such Loans)
would increase the aggregate United States Dollar amount of the Loans
outstanding shall be deemed to be a representation and warranty by the Borrower
as to compliance with this Section 3.3 on the date any such Loan is made.
ARTICLE IV
Representations and Warranties
The Borrower hereby represents and warrants that:
Section 4.1 Corporate Organization and Existence. Each of the
Borrower 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 Borrower
and its Subsidiaries on a consolidated basis) and has all necessary power to
carry on the business now conducted by it. The Borrower has all necessary
corporate power and has taken all
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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 Borrower 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 Borrower and its Subsidiaries on a consolidated basis), and is duly
authorized, qualified and licensed under all laws, regulations, ordinances or
orders of Governmental Authorities, or otherwise, to carry on its business in
the places and in the manner presently conducted (except where failure would not
be material to the Borrower and its Subsidiaries on a consolidated basis).
Section 4.2 Subsidiaries. As of the date hereof, the Borrower has
only the Subsidiaries set forth in Schedule 1. The capital stock and securities
owned by the Borrower and its Subsidiaries in each of the Borrower'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 1.
Section 4.3 Financial Information. The Borrower has made
available to the Administrative Agent and each Lender copies of the following
(the "SEC Reports"):
(a) the Annual Report of the Borrower for the fiscal year
ended December 31, 2000, containing the consolidated balance sheet of the
Borrower and its Subsidiaries as at said date and the related consolidated
statements of operations, stockholders' equity and cash flows for the fiscal
year then ended, accompanied by the opinion of Ernst & Young LLP;
(b) the Annual Report of the Borrower on Form 10-K for
the fiscal year ended December 31, 2000;
(c) the Quarterly Report of the Borrower on Form 10-Q for
the fiscal quarter ended March 31, 2001; and
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(d) Reports of the Borrower on Form 8-K filed with the
Securities and Exchange Commission on January 31, 2001, February 20, 2001, April
24, 2001, May 23, 2001, July 2, 2001 and July 24, 2001.
Such financial statements (including any notes thereto) have been
prepared in accordance with GAAP and fairly present the financial condition of
the corporations covered thereby at the dates thereof and the results of their
operations for the periods covered thereby, 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 Borrower 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 Borrower
and its Subsidiaries, on a consolidated basis.
Section 4.4 Changes in Condition. Since December 31, 2000 there
has been no material adverse change in the business or assets or in the
condition, financial or otherwise, of the Borrower and its Subsidiaries, on a
consolidated basis.
Section 4.5 Assets. The Borrower and each Subsidiary have good
and marketable title to all material assets carried on their books and reflected
in the most recent balance sheet referred to in subsection 4.3 or furnished
pursuant to subsection 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.
Section 4.6 Litigation. Except as disclosed in the Borrower's SEC
Reports, and except as set forth on Schedule 2 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 Borrower threatened which, after giving effect to any
applicable insurance, could reasonably be expected to have a material adverse
effect on the business or assets or on the condition, financial or otherwise, of
the Borrower 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 Borrower or any Subsidiary
which could reasonably be expected to have a material risk of a material
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adverse effect on the business or assets or on the condition, financial or
otherwise, of the Borrower and its Subsidiaries on a consolidated basis. With
respect to the matters disclosed in the Borrower's SEC Reports and the matters
set forth on Schedule 2 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 Borrower and its Subsidiaries
on a consolidated basis.
Section 4.7 Tax Returns. The Borrower 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 Borrower
knows of no material additional assessments for which adequate reserves have not
been established.
Section 4.8 Contracts, etc. Attached hereto as Schedule 3 is a
statement of outstanding Indebtedness of the Borrower 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 Borrower or any Subsidiary is a party or by which it is
bound pursuant to which any such Indebtedness of the Borrower and its
Subsidiaries in excess of $25,000,000 is outstanding on the date hereof. Said
Schedule 3 also includes a complete and correct list of all such Indebtedness of
the Borrower 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.
Section 4.9 No Legal Obstacle to Agreement. Neither the execution
and delivery of this Agreement or of any Notes, nor the making by the Borrower
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 Borrower or any of its
Subsidiaries is a party or by which it is bound or of the charter or by-laws of
the Borrower, or the violation of any law, judgment, decree or governmental
order, rule or regulation applicable to the Borrower 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
Borrower or any of its Subsidiaries. Other than those which have
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already been obtained, no approval, authorization or other action by any
governmental authority or any other Person is required to be obtained by the
Borrower 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 Borrower hereunder.
Section 4.10 Defaults. Neither the Borrower 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 Borrower 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.
Section 4.11 Burdensome Obligations. Neither the Borrower 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 Borrower and its
Subsidiaries on a consolidated basis. The Borrower does not presently anticipate
that future expenditures of the Borrower 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 Borrower and its Subsidiaries on a
consolidated basis.
Section 4.12 Pension Plans. Each Plan maintained by the Borrower,
any Subsidiary or any Control Group Person or to which any of them makes or will
make contributions is in material compliance with the applicable provisions of
ERISA and the Code. The Borrower and its Subsidiaries have met all of the
funding standards applicable to all Plans, and there exists no event or
condition which would permit the institution of proceedings to terminate any
Plan that is not a Multiemployer Plan. The aggregate current value of the vested
liabilities under the Plans that are subject to Title IV of ERISA and that are
not Multiemployer Plans does not exceed the aggregate current value of such
Plans' assets.
Section 4.13 Disclosure. No statement or information contained in
this Agreement, any other Loan Document, or any other document, certificate or
written statement furnished by or on behalf of the Borrower to the
Administrative Agent or the Lenders, or any of them, for use in connection with
the transactions
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contemplated by this Agreement, or the other Loan Documents, contained, as of
the date such statement, information or certificate was so furnished, any untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements contained herein or therein not misleading. The projections
and pro forma financial information (if any) contained in the materials
referenced above are based upon good faith estimates and assumptions believed by
management of the Borrower to be reasonable at the time made, it being
recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount.
Section 4.14 Environmental and Public and Employee Health and
Safety Matters. The Borrower 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 Borrower
and its Subsidiaries on a consolidated basis. The Borrower'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 Borrower and its Subsidiaries on a consolidated basis. The
Borrower is aware of no events, conditions or circumstances involving
environmental pollution or contamination or public or employee health or safety,
in each case applicable to it or its Subsidiaries, that would be reasonably
likely to result in a material adverse effect on the business or assets or on
the condition, financial or otherwise, of the Borrower and its Subsidiaries on a
consolidated basis.
Section 4.15 Federal Regulations. None of the proceeds of the
Loans will be used, directly or indirectly, for the purpose of purchasing or
carrying any margin stock or for the purpose of reducing or retiring any
Indebtedness which was originally incurred to purchase or carry margin stock in
violation of Regulations U
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and X. Neither the Borrower nor any bank acting on its behalf has taken or will
take any action which might cause this Agreement or any Note to violate
Regulation U or X or any other regulation of the Board of Governors of the
Federal Reserve System or to violate the Securities Exchange Act of 1934, in
each case as now in effect or as the same may hereafter be in effect. If so
requested by a Lender or the Administrative Agent the Borrower will furnish
such Lender or the Administrative Agent with a statement or statements in
conformity with the requirements of Federal Reserve Form U-1 or G-3 referred to
in Regulation U of said Board of Governors. Neither the making of the Loans nor
the use of proceeds thereof will violate or be inconsistent with the provisions
of Regulation U or X of said Board of Governors.
Section 4.16 Investment Company Act; Other Regulations. The
Borrower 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 Borrower is not subject to regulation under any Federal or State
statute or regulation which limits its ability to incur Indebtedness.
Section 4.17 Securities Act Representations. Unless and until
the Number of Shares under the Master Agreement has been reduced to zero, the
Borrower shall be deemed to represent to each Lender with respect to each
Transaction it enters into under the Master Agreement, as of the date it enters
into such Transaction, that (1) it is entering into such Transaction for its own
account and not with a view to transfer, resale or distribution, (2) it is an
"accredited investor" within the meaning of Rule 510(a) of Regulation D under
the Securities Act and has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of such
Transaction, and (3) it understands and acknowledges that such Transaction may
involve the purchase or sale of a "security" as defined in the Securities Act
and the securities laws of any state and, therefore, may not be sold, pledged,
hypothecated, transferred or otherwise disposed of unless such security is
registered under the Securities Act and any applicable state securities law, or
an exemption from registration is available.
Section 4.18 Additional Securities Law Representations. Unless
and until the Number of Shares under the Master Agreement has been reduced to
zero, the Borrower shall be deemed to represent to each Lender as of each date
it enters into a Transaction under the Master Agreement that (1) as of such
date, it is not in possession of any material non-public information with
respect to itself, (2) as of such date, it is not entering into such Transaction
for the purpose of manipulating the market price or value of the Shares, (3) as
of such date, no "restricted period" for
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purposes of Rule 102 of Regulation M under the Exchange Act and no tender offer
for Shares (whether by the Borrower or any other third party) is in effect or
(in the case of a tender offer by the Borrower) has been in effect within the
preceding ten Business Days, and (4) it is entering into such Transaction in
connection with its Share repurchase program which was approved by the executive
committee of its board of directors in October 1999 and March 2000 and publicly
announced in November 1999 and March 2000, respectively, solely for the purposes
stated in such executive committee resolutions and public disclosures.
Section 4.19 Survival of Representations and Warranties, etc. All
representations and warranties made under this Agreement shall survive, and not
be waived by, the execution hereof by any Lender or the Administrative Agent,
any investigation or inquiry by any Lender or the Administrative Agent, or the
making of any Advance under this Agreement.
ARTICLE V
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 Borrower covenants that the
Borrower 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.
Section 5.1 Taxes, Indebtedness, etc. Each of the Borrower 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 Borrower or the
Subsidiary in question shall have set aside on its books appropriate reserves
with respect thereto.
(a) Each of the Borrower and its Subsidiaries will
promptly pay when due, or in conformance with customary trade terms, all other
Indebtedness
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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 Borrower or the Subsidiary
in question shall have set aside on its books appropriate reserves with respect
thereto. The Subsidiaries will not create, incur, assume or suffer to exist any
Indebtedness, except: (i) Indebtedness outstanding on the date hereof and listed
on Schedule 3; (ii) Indebtedness that is owing to the Borrower or any other
Subsidiary; (iii) Indebtedness incurred pursuant to an accounts receivable
program; and (iv) additional Indebtedness at any time outstanding in an
aggregate principal amount not to exceed 10% of Consolidated Assets.
Section 5.2 Maintenance of Properties; Compliance with Law. Each
of the Borrower 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 Borrower or any Subsidiary of the Borrower while such Person remains a
Subsidiary, will do all things necessary to preserve, renew and keep in full
force and effect and in good standing its corporate existence and franchises
necessary to continue such businesses. The Borrower 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 Borrower and
its Subsidiaries, except where compliance therewith shall be contested in good
faith by appropriate proceedings, the Borrower 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 Borrower and its
Subsidiaries on a consolidated basis.
Section 5.3 Transactions with Affiliates. Neither the Borrower
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 Borrower and its
Subsidiaries) unless such
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transaction is not material to the Borrower and its Subsidiaries on a
consolidated basis or is otherwise permitted under this Agreement, is in the
ordinary course of the Borrower's or such Subsidiary's business and is upon fair
and reasonable terms no less favorable to the Borrower or such Subsidiary, as
the case may be, than it would obtain in an arm's-length transaction.
Section 5.4 Insurance. The Borrower 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 Borrower may self-insure against such loss or damage, provided that
adequate insurance reserves are maintained in connection with such
self-insurance.
Section 5.5 Financial Statements. The Borrower will and will
cause each of its Subsidiaries to maintain a standard system of accounting in
which full, true and correct entries will be made of all dealings or
transactions in relation to its business and affairs in accordance with GAAP
consistently applied, and will furnish the following to each Lender (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
operations and cash flow and of stockholders' equity for such fiscal year of the
Borrower 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 Borrower and its Subsidiaries as at the end of such fiscal year
and the results of their operations and cash flows for the year then ended and
the statement of such Auditor and of a Responsible Officer of the Borrower 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
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addition, such financial statements shall be accompanied by a certificate of a
Responsible Officer of the Borrower containing computations showing compliance
with subsections 5.6, 5.7, 5.10 and 5.12.
(b) Quarterly Statements. As soon as available, and in
any event within 60 days after the close of each of the first three fiscal
quarters of the Borrower and its Subsidiaries in each year, condensed
consolidated balance sheets as at the end of such fiscal quarter and condensed
consolidated statements of operations and cash flows for the portion of the
fiscal year then ended, of the Borrower and its Subsidiaries, together with
computations showing compliance with subsections 5.6, 5.7, 5.10 and 5.12,
accompanied by a certificate of a Responsible Officer of the Borrower that such
statements and computations have been properly prepared in accordance with GAAP
for interim financial information, consistently applied, and fairly present the
financial position of the Borrower and its Subsidiaries as at the end of such
fiscal quarter and the results of their operations and cash flows for such
quarter and for the portion of the fiscal year then ended, subject to 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 Borrower 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 Borrower
will promptly notify each Lender in writing, by delivery of the Borrower'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 Borrower
and its Subsidiaries on a consolidated basis and which litigation or proceeding
is otherwise required to be disclosed in such reports. Promptly upon acquiring
knowledge thereof, the Borrower will notify each Lender of the existence of any
Default, including, without limitation, any default in the payment of any
Indebtedness for money borrowed of the Borrower or any Subsidiary or under the
terms of any agreement relating to such Indebtedness, specifying the nature of
such Default and what action the Borrower has taken or is taking or proposes to
take with respect thereto. Promptly upon acquiring knowledge
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thereof, the Borrower will notify each Lender of a change in the publicly
announced ratings by S&P and Xxxxx'x of the then current senior unsecured,
non-credit enhanced, long-term Indebtedness of the Borrower.
(d) ERISA Reports. The Borrower will furnish the
Administrative 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 Borrower to the Department of Labor or the Internal Revenue
Service, as the case may be. Promptly after a Reportable Event occurs, or the
Borrower 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
by ERISA, or prior to the Plan administrator's terminating such Plan pursuant to
Section 4041 of ERISA, the Borrower will notify the Administrative Agent and
will furnish to the Administrative 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 Borrower will promptly notify each Lender
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 Borrower or any of its
Subsidiaries of withdrawal liability in excess of $1,000,000 under Subtitle E of
Title IV of ERISA, or of the termination, insolvency or reorganization status of
any Plan under such Subtitle E which may result in liability to the Borrower or
any of its Subsidiaries in excess of $1,000,000. In the event of such a
withdrawal, upon the request of the Administrative Agent or any Lender, the
Borrower will promptly provide information with respect to the scope and extent
of such liability, to the best of the Borrower'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 Borrower 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 Borrower shall file with the
Securities and Exchange Commission.
(f) Other Information. From time to time upon request of
the Administrative Agent or any Lender, the Borrower will furnish information
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regarding the business affairs and condition, financial or otherwise, of the
Borrower and its Subsidiaries. The Borrower agrees that any authorized officers
and representatives of any Lender shall have the right during reasonable
business hours to examine the books and records of the Borrower 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 Borrower and its Subsidiaries pursuant to this
Agreement or otherwise, and ascertaining compliance with this Agreement.
(g) Confidentiality of Information. Each Lender
acknowledges that some of the information furnished to such Lender pursuant to
this subsection 5.5 may be received by such Lender prior to the time it shall
have been made public, and each Lender agrees that it will keep all information
so furnished confidential and shall make no use of such information until it
shall have become public, except (i) in connection with matters involving
operations under or enforcement of this Agreement or the Notes, (ii) in
accordance with each Lender'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 Lender'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 Borrower.
Section 5.6 Ratio of Consolidated Total Debt to Consolidated
Total Capitalization. The Borrower and its Subsidiaries will not at any time
have outstanding Consolidated Total Debt in an amount in excess of 65% of
Consolidated Total Capitalization.
Section 5.7 Interest Coverage Ratio. On the last day of each
fiscal quarter of the Borrower, commencing with the fiscal quarter ending June
30, 2001, the Consolidated Earnings Before Interest and Taxes of the Borrower
and its Subsidiaries for the four consecutive fiscal quarters of the Borrower
then ending will be an amount which equals or exceeds 200% of the Consolidated
Interest Expense of the Borrower and its Subsidiaries for the same four
consecutive fiscal quarters.
Section 5.8 Distributions. The Borrower will not make any
Distribution except that, so long as no Event of Default exists or would exist
after giving effect thereto, the Borrower may make Distributions.
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Section 5.9 Merger or Consolidation. The Borrower will not become
a constituent corporation in any merger or consolidation unless the Borrower
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 Borrower may merge into another Subsidiary owned by the
Borrower for the purpose of causing the Borrower to be incorporated in a
different jurisdiction in the United States or causing the Borrower to change
its name.
Section 5.10 Sales of Assets. The Borrower 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 Borrower 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 Borrower, and any Sale-and-Leaseback Transaction), outside of
the ordinary course of business, to Persons other than the Borrower and its
Subsidiaries, assets constituting in the aggregate more than 12% of Consolidated
Assets of the Borrower and its Subsidiaries as at the end of the immediately
preceding fiscal year and (b) exchange with any Persons other than the Borrower
and its Subsidiaries any asset or group of assets for another asset or group of
assets unless (i) such asset or group of assets are exchanged for an asset or
group of assets of a substantially similar type or nature, (ii) on a pro forma
basis both before and after giving effect to such exchange, no Default or Event
of Default shall have occurred and be continuing, (iii) the aggregate fair
market value (in the case of any exchange of any material assets or group of
assets, as determined in good faith by the Board of Directors of the Borrower)
of the asset or group of assets being transferred by the Borrower or such
Subsidiary and the asset or group of assets being acquired by the Borrower or
such Subsidiary are substantially equal and (iv) the aggregate of (x) all assets
of the Borrower and its Subsidiaries sold pursuant to subsection 5.10(a)
(including, without limitation, any disposition resulting from any merger or
consolidation involving a Subsidiary of the Borrower, and any
Sale-and-Leaseback Transaction) and (y) the aggregate fair market value (as
determined in good faith by the Board of Directors of the Borrower) of all
assets of the Borrower and its Subsidiaries exchanged pursuant to this
subsection 5.10(b) does not exceed 20% of Consolidated Assets of the Borrower
and its Subsidiaries as at the end of the immediately preceding fiscal year.
Section 5.11 Compliance with ERISA. Each of the Borrower 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
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related amortization periods which may be granted), and will at all times
comply, and will cause all Control Group Persons to comply, in all material
respects with the provisions of ERISA and the Code which are applicable to the
Plans, except where the failure to do so could not reasonably be expected to
have a material adverse effect. At no time shall the aggregate actual and
contingent liabilities of the Borrower under Sections 4062, 4063, 4064 and
other provisions of ERISA with respect to all Plans (and all other pension plans
to which the Borrower, any Subsidiary, or any Control Group Person made
contributions prior to such time) exceed $10,000,000. Neither the Borrower 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 Borrower or any of its Subsidiaries.
Section 5.12 Negative Pledge. The Borrower 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 Borrower 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 Borrower 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 eighteen (18) months of the acquisition or
completion of construction (or alteration or repair) and full operation;
(b) any security existing on property or on capital
stock, as the case may be, at the time of acquisition of such property or
capital stock, as the case may be, by the Borrower 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 Borrower or a Subsidiary (including
acquisitions through merger or consolidation);
(c) any security created in favor of the Borrower or a
Subsidiary;
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(d) any security created by operation of law in favor of
government agencies of the United States of America or any State thereof;
(e) any security created in connection with the borrowing
of funds if within 120 days such funds are used to repay Indebtedness in at
least the same principal amount as secured by other security of Principal
Property or capital stock of a Subsidiary that owns a Principal Property, as the
case may be, with an independent appraised fair market value at least equal to
the appraised fair market value of the Principal Property or capital stock of a
Subsidiary that owns a Principal Property, as the case may be, secured by the
new security; and
(f) any extension, renewal or replacement of any security
referred to in the foregoing clauses (a) through (e) provided that the amount
thereby secured is not increased;
unless any Loans made and/or to be made to and all other sums payable by the
Borrower 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 Borrower 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 Borrower 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 Borrower and its Subsidiaries (not including Indebtedness permitted to be
secured pursuant to the foregoing clauses (a) through (f) and the aggregate
Attributable Debt), including Indebtedness in respect of Sale-and-Lease-back
Transactions (other than those permitted by subsection 5.13(b)), does not exceed
10% of Consolidated Net Tangible Assets of the Borrower and its Subsidiaries.
Section 5.13 Sale-and-Lease-back Transactions. Neither the
Borrower 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 Borrower or a Subsidiary) unless either (a) the Borrower 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 Borrower under this Agreement, or (b)
the Borrower during or immediately after the expiration of 120 days after the
effective date of such
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transaction applies to the voluntary retirement of its Indebtedness and/or the
acquisition or construction of Principal Property an amount equal to the greater
of the net proceeds of the sale of the property leased in such transaction or
the fair value in the opinion of a Responsible Officer of the Borrower of the
leased property at the time such transaction was entered into.
Section 5.14 [Reserved]
Section 5.15 Use of Proceeds. The Borrower will not use any part
of the proceeds of the Loans to purchase or carry Margin Stock in violation of
Regulation U or to extend credit for the purpose of purchasing or carrying any
Margin Stock in violation of Regulation U. Each Lender shall be responsible for
its compliance with, and the administration of its Loans for purposes of,
Regulation U.
Section 5.16 Indemnity. The Borrower agrees to indemnify and hold
harmless each Lender and the Administrative Agent and each of their respective
affiliates, employees, representatives, shareholders, officers, and directors
(any of the foregoing shall be an "Indemnitee") from and against any and all
claims, liabilities, losses, damages, actions, reasonable attorneys' fees, and
expenses (as such fees and expenses are incurred) and demands by any party
(other than the Borrower), including the costs of investigating and defending
such claims, whether or not the Borrower or the Person seeking indemnification
is the prevailing party (a) resulting from any breach or alleged breach by the
Borrower of any representation or warranty made hereunder; or (b) otherwise
arising out of (i) the Commitment or this Agreement which relates to (i) any
breach or alleged breach by the Borrower of any covenant made hereunder, any
Loan Document, or any transaction contemplated hereby or thereby, including,
without limitation, the use of the proceeds of Loans hereunder, (ii) allegations
of any participation by the Lenders or the Administrative Agent, or any of them,
in the affairs of the Borrower, (iii) any claims against the Lenders or the
Administrative Agent, or any of them, by any shareholder or other investor in or
lender to the Borrower by any brokers or finders or investment advisers or
investment bankers retained by the Borrower or by any other third party,
arising out of the Commitment or otherwise under this Agreement or any other
Loan Document; except to the extent that the Person seeking indemnification
hereunder is determined in such case to have acted with gross negligence or
willful misconduct, in any case, by a final, non-appealable judicial order. The
obligations of the Borrower under this Section 5.16 are in addition to, and
shall not otherwise limit, any liabilities which the Borrower might otherwise
have in connection with any warranties or similar obligations of the Borrower
in any other Loan Document.
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Section 5.17 Collateral Maintenance.
(a) The Borrower will pledge all of its rights under the
Master Agreement as collateral security for its Secured Obligations to the
Lenders under this Loan Agreement and the Notes. Although the parties intend for
all purposes other than tax purposes that each Lender shall own any Shares that
constitute the Number of Shares for purposes of the Master Agreement unless and
until they are delivered to the Borrower pursuant to the Master Agreement, in
the event any such Shares are deemed owned by the Borrower prior to such
delivery, the Borrower shall be deemed to have pledged, and does hereby pledge,
a number of Shares equal to the Number of Shares and all proceeds thereof to the
Administrative Agent on behalf of the Lenders as security for the performance by
the Borrower of its Secured Obligations under the Loan Agreement, and shall be
deemed to have granted, and does hereby grant, to the Administrative Agent on
behalf of the Lenders a security interest in such Shares and all proceeds
thereof. The Borrower shall cooperate with the Administrative Agent in
connection with the execution, delivery, filing and recordation, at Borrower's
expense, of a financing statement and shall take any other action that may be
necessary or desirable and reasonably requested by the Administrative Agent to
create, preserve, perfect or validate such security interest.
(b) If on any Valuation Date the Collateral Value is less
than the Collateral Requirement on such date, then the Borrower will deliver to
the Administrative Agent by the close of business on the related Collateral
Payment Date Eligible Collateral with an aggregate value at least equal to such
difference. For this and all other purposes of this Section 5.17, the value of
cash shall be the amount thereof and the value of other Eligible Collateral on
any date shall be the closing bid price for such Eligible Collateral on the
Business Day immediately preceding such date as determined by the Administrative
Agent based on a commercially recognized price source. If on any Valuation Date
the Collateral Requirement is less than the Collateral Value on such date, the
Borrower shall be entitled to withdraw on the related Collateral Payment Date
Eligible Collateral with an aggregate value up to such difference. Any Eligible
Collateral consisting of cash shall be delivered to the Administrative Agent by
wire transfer of immediately available funds to the following account of the
Administrative Agent maintained by the Administrative Agent at Bank of America
N.T. & S.A. New York, ABA #000000000, Acct #655-011-3535, favour the Toronto
Dominion Bank New York, Re: Canadian Investments LLC. It is understood and
agreed that such account shall be an account of the Administrative Agent, in its
capacity as such and for the sole benefit of the Lenders,
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and shall be under the sole dominion and control of the Administrative Agent in
that capacity. Any Eligible Collateral consisting of treasury securities shall
be delivered to the Administrative Agent by causing such treasury securities (or
a securities entitlement in respect thereof) to be credited to the following
account of the Administrative Agent maintained by the Administrative Agent at
Bank of New York, Bank of NYC/TD Bank, ABA: 000000000. It is understood and
agreed that such account shall be an account of the Administrative Agent, in its
capacity as such and for the sole benefit of the Lenders, and the Administrative
Agent, in that capacity, shall be the entitlement holder with respect thereto.
The Administrative Agent may notify the Borrower of different delivery
instructions in writing, so long as the instructions involve an account of a
Person acting as secured party as agent of and for the sole benefit of the
Lenders under the Security Agreement. The Administrative Agent hereby
irrevocably waives any right it would otherwise have to apply any of the
Collateral to any obligations of any Person other than the Borrower's Secured
Obligations to the Lenders under this Agreement, the Security Agreement and the
Notes.
(c) Use of Letter of Credit: On any Collateral Payment
Date, upon at least 5 Exchange Business Days' prior notice to the Administrative
Agent, the Borrower may obtain a letter of credit meeting the conditions set
forth below (the "LOC") in order to satisfy its obligations to deposit
additional Collateral in respect of the Collateral Requirement due on such
Collateral Payment Date.
The LOC must (A) be issued by a commercial bank whose long-term
unsubordinated, unsecured debt is rated at least A+ by S&P and at least A1 by
Xxxxx'x, (B) be irrevocable and in form and substance reasonably satisfactory to
the Administrative Agent, (C) name the Administrative Agent, in its capacity as
such, as beneficiary for the benefit of the Lenders, (D) have an expiry date not
earlier than six months after the Maturity Date (taking into account automatic
renewal periods provided for in such LOC) and (E) be delivered to the
Administrative Agent in executed form, at the address for the Administrative
Agent herein (collectively the "LOC Criteria").
If the Borrower posted an LOC meeting the LOC Criteria on or
prior to a Collateral Payment Date or has otherwise deposited Eligible
Collateral with the Administrative Agent, then the Borrower may either (i)
substitute a new LOC meeting the LOC Criteria for such LOC or Eligible
Collateral, or (ii) have the LOC surrendered by the Administrative Agent;
provided, however, that such substitution
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or surrender shall only be permitted to the extent the Collateral Value after
effecting such substitution or surrender will not be less than the Collateral
Requirement.
The Administrative Agent may, with the consent of the Majority
Lenders or at their direction, draw on an LOC posted by the Borrower upon
occurrence of any Event of Default to satisfy the Borrower's Secured Obligations
under this Agreement.
(d) Notwithstanding the foregoing provisions, the
Administrative Agent's obligation to return Eligible Collateral or an LOC shall
be subject to the condition that no Default shall be continuing.
(e) For purposes of the calculation of the value of
Collateral posted and to be released pursuant to this Section 5.17, the
Administrative Agent shall credit the Borrower with interest accrued on cash
Collateral, from and including the date the cash Collateral was posted hereunder
by the Borrower or was received as a distribution on other Eligible Collateral
posted by the Borrower, through and including the date of the calculation (but
disregarding cash Collateral already released on or before that date). Such
interest on cash Collateral shall be compounded daily and shall accrue for each
day to but excluding the date it is released to the Borrower or applied to the
Borrower's Secured Obligations under this Agreement or the Notes in accordance
with the terms of the Security Agreement at the rate per annum, for that day,
equal to the Federal Funds Rate. Interest on cash Collateral accruing as
provided in this subsection 5.17(e) shall for all purposes be treated hereunder
and under the Security Agreement as Collateral and, to the extent not previously
released to the Borrower, shall be paid to it by the Administrative Agent when
all the Borrower's Secured Obligations to the Lenders under this Agreement and
the Notes have been paid in full. The Administrative Agent shall be solely
responsible to the Borrower and the Lenders for making such arrangements as are
necessary with The Toronto Dominion Bank or any other depositary at which cash
Collateral delivered hereunder is held so as to provide for the crediting of
this interest daily to the cash Collateral account maintained pursuant to this
subsection 5.17.
Section 5.18 Securities Law Covenants.
(a) The Borrower covenants to each Lender that (1) the
Borrower shall not commence a "distribution" (as defined in Regulation M under
the Exchange Act) of Shares or a tender offer for Shares on the Effective Date
of any
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Transaction under the Master Agreement, (2) to the extent that the Borrower
determines pursuant to a Confirmation under the Master Agreement when such
Lender will be required to deliver Shares to the Borrower thereunder, no
"restricted period" for purposes of Rule 102 of Regulation M under the Exchange
Act will be in effect on any day on which such Lender is required, pursuant to
the terms thereof, to deliver Shares to the Borrower (any such day being, for
purposes of this paragraph, a "Settlement Date"), and no tender offer for Shares
by the Borrower will be in effect on any Settlement Date or within the preceding
ten Business Days, (3) the Borrower shall not, and shall cause its affiliated
purchasers (as defined in Rule 10b-18 under the Exchange Act) not to, purchase
Shares on the Effective Date of such Transaction, (4) the Borrower shall not
disclose any material non-public information with respect to itself to any
Lender without such Lender's consent, unless such non-disclosure would breach an
obligation of the Borrower under this Agreement or the other Loan Documents, (5)
if at any time during the X (as defined in the "Notice" provisions of any
Confirmation under the Master Agreement) Exchange Business Days prior to an
Optional Termination Date or the Termination Date (each as defined in such
Confirmation) the Borrower comes to have possession of material non-public
information with respect to itself, the Borrower will notify each Lender that a
blackout period is in effect, and when the Borrower ceases to be in possession
of material non-public information, the Borrower will notify each Lender that
the blackout period has ended.
(b) The Borrower agrees that it will comply, in
connection with each Transaction entered into under the Master Agreement and all
related or contemporaneous sales and purchases of Shares, with the applicable
provisions of the Securities Act, the Exchange Act, and the rules and
regulations thereunder, including without limitation, Rule 10b-5 under the
Exchange Act, provided that each party shall be entitled to rely conclusively on
any information communicated by the other party concerning such other party's
market activities.
ARTICLE VI
Default
Section 6.1 Events of Default. Upon the occurrence of any of the
following events:
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(a) any default shall be made by the Borrower in any
payment in respect of: (i) interest payable hereunder or any indemnity payable
under Section 5.16 hereof, in either case 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 Borrower or
any Subsidiary of the Borrower in the performance or observance of any of the
provisions of subsections 5.6 through 5.10 and 5.12, 5.13 and 5.15; or
(c) any default shall be made in the due performance or
observance of any other covenant, agreement or provision to be performed or
observed by either the Borrower or any Subsidiary under this Agreement (in the
case of a covenant, agreement or provision of Section 5.18, only if the
Administrative Agent has not released its security interest in Borrower's rights
under the Master Agreement), and such default shall not be rectified or cured to
the satisfaction of the Majority Lenders within a period expiring thirty (30)
days after written notice thereof by the Administrative Agent to the Borrower;
or
(d) any representation or warranty of or with respect to
the Borrower or any subsidiary of the Borrower to the Lenders 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 Borrower 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 Borrower 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 Majority Lenders for a period of
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thirty (30) days after written notice thereof by the Administrative Agent to the
Borrower; or
(f) either the Borrower or any Significant Subsidiary
shall be involved in financial difficulties as evidenced:
(i) by its commencement of a voluntary
case under Title 11 of the United States Code as from time to time in
effect, or by its authorizing, by appropriate proceedings of its board
of directors or other governing body, the commencement of such a
voluntary case;
(ii) by the filing against it of a petition
commencing an involuntary case under said Title 11 which shall not have
been dismissed within sixty (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; or
(vi) by its making an assignment for the
benefit of, or entering into a composition with, its creditors, or
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appointing or consenting to the appointment of a receiver or other
custodian for all or a substantial part of its property;
(g) a Change in Control of the Borrower shall occur;
(h) All or any portion of any Loan Document shall at any
time and for any reason be declared by a court of competent jurisdiction in a
suit with respect to such Loan Document to be null and void, or a proceeding
shall be commenced by any governmental authority having jurisdiction over the
Borrower or by the Borrower seeking to establish the invalidity or
unenforceability thereof (exclusive of questions of interpretation of any
provision thereof); or
(i) The Security Agreement shall for any reason other
than negligence by any Lender or the Administrative Agent cease to create a
valid and perfected first priority lien on the Collateral purported to be
covered thereby;
(j) (i) the Borrower shall fail to perform its
obligations to post Eligible Collateral or an LOC of an LOC issuer meeting the
LOC Criteria as required in Section 5.17 and shall fail to remedy the failure by
the close of business on the next day that is a New York Business Day and Local
Business Day after notice from the Administrative Agent, or (ii) an LOC or the
issuer of an LOC delivered by the Borrower pursuant to Section 5.17 ceases to
meet any of the LOC Criteria, or the issuer of such an LOC fails to honor a
drawing made under the LOC strictly in accordance with its terms (in any such
case, an "LOC Event") and, in any case referred to in clause (ii), on or before
the next day that is a New York Business Day and Local Business Day after notice
of the circumstances from the Administrative Agent, the Borrower has not
delivered to the relevant account specified in Section 5.17 hereof, or to the
Administrative Agent, any combination of Eligible Collateral and an LOC of
another LOC issuer each meeting the LOC Criteria such that after the delivery
the requirements of Section 5.17 would be satisfied if the LOC involved in the
LOC Event were treated on that New York Business Day and Local Business Day as
having a face amount of zero;
then and in each and every such case, (x) the Administrative Agent may, with the
consent of the Majority Lenders, or shall, at the direction of the Majority
Lenders, proceed to protect and enforce the rights of the Lenders 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 Lender pursuant to this Agreement, or in
aid of the exercise of any
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power granted in this Agreement or any Note or any such instrument or
assignment, and (y) the Administrative Agent may, with the consent of the
Majority Lenders, or shall, at the direction of the Majority Lenders, by notice
in writing to the Borrower terminate the obligations of the Lenders 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 Lenders 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 "Lender Obligations") shall automatically become due and payable) the
Administrative Agent may, with the consent of the Majority Lenders, or shall, at
the direction of the Majority Lenders, by notice in writing to the Borrower
declare all or any part of the unpaid balance of the Lender 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 Lenders to make further Loans hereunder shall terminate
forthwith, and the Administrative Agent may, with the consent of the Majority
Lenders, or shall, at the direction of the Majority Lenders, proceed to enforce
payment of such balance or part thereof in such manner as the Administrative
Agent may elect, and each Lender 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 Lender to the Borrower, including any Indebtedness
represented by deposits in any general account maintained with such Lender or
any obligations of such Lender under the Master Agreement.
Section 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
Administrative Agent, with the consent of or at the direction of the Majority
Lenders, subject to Section 6.1, 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 Administrative Agent or the Lenders upon the occurrence
thereof.
Section 6.3 Waivers. The Borrower 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 Lender in the enforcement of its
rights under the provisions of this
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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 Borrower may now or hereafter have with respect to its
liability under this Agreement or any Note, except for any such notice required
by statute which cannot be waived prior to default and any defense relating to
any such notice or any notice required by this Agreement or any Note.
ARTICLE VII
The Administrative Agent
Section 7.1 Appointment and Authorization. Each Lender hereby
irrevocably appoints and authorizes, and hereby agrees that it will require any
transferee of any of its interest in its Loans and in its Notes irrevocably to
appoint and authorize, the Administrative Agent to take such actions as its
agent on its behalf and to exercise such powers hereunder as are delegated by
the terms hereof, together with such powers as are reasonably incidental
thereto. Neither the Administrative Agent nor any of its directors, officers,
employees, or agents shall be liable for any action taken or omitted to be taken
by it or them hereunder or in connection herewith, except to the extent
resulting from its or their own gross negligence or willful misconduct as
determined by a final non-appealable judicial order of a court of competent
jurisdiction.
Section 7.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under the Loan Documents by or through agents or
attorneys selected by it using reasonable care and shall be entitled to advice
of counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible to any Lender for the negligence or misconduct of
any agents or attorneys selected by it with reasonable care.
Section 7.3 Interest Holders. The Administrative Agent may treat
each Lender, or the Person designated in the last notice filed with the
Administrative Agent under this Section 7.3, as the holder of all of the
interests of such Lender in its Loans and in its Notes until written notice of
transfer, signed by such Lender (or the Person designated in the last notice
filed with the Administrative Agent) and by the Person designated in such
written notice of transfer, in form and substance satisfactory to the
Administrative Agent, shall have been filed with the Administrative Agent.
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Section 7.4 Consultation with Counsel. The Administrative Agent
may consult with legal counsel selected by it and shall not be liable for any
action taken or suffered by it in good faith in reliance on such advice of
counsel.
Section 7.5 Documents. The Administrative Agent shall not be
under any duty to examine, inquire into, or pass upon the validity,
effectiveness, or genuineness of this Agreement, any Note, or any instrument,
document, or communication furnished pursuant hereto or in connection herewith,
and the Administrative Agent shall be entitled to assume that they are valid,
effective, and genuine, have been signed or sent by the proper parties and are
what they purport to be.
Section 7.6 Agents and Affiliates. With respect to the Commitment
and the Loans, any Lender which is an Affiliate of the Administrative Agent
shall have the same rights and powers hereunder as any other Lender, and the
Administrative Agent and its other Affiliates may accept deposits from, lend
money to and generally engage in any kind of business with the Borrower or any
Affiliates of, or Persons doing business with, the Borrower, including the
transactions contemplated in the Master Agreement, as if it were not affiliated
with the Administrative Agent and without any obligation to account therefor.
Section 7.7 Responsibility of the Administrative Agent. The
duties and obligations of the Administrative Agent under this Agreement and the
Security Agreement are only those expressly set forth in this Agreement and in
the Security Agreement. The Administrative Agent shall be entitled to assume
that no Default or Event of Default has occurred and is continuing unless it has
been notified in writing by the Borrower of such fact, or has been notified by a
Lender in writing that such Lender considers that a Default or an Event of
Default has occurred and is continuing, and such Lender shall specify in detail
the nature thereof. The Administrative Agent shall not be liable hereunder or
under the Security Agreement to any Lender for any action taken or omitted to be
taken except to the extent resulting from its own gross negligence or willful
misconduct as determined by a final, non-appealable judicial order of a court of
competent jurisdiction. The Administrative Agent shall provide each Lender with
copies of such documents received from the Borrower as such Lender may
reasonably request.
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Section 7.8 Action by Administrative Agent.
(a) The Administrative Agent shall be entitled to use its
discretion with respect to exercising or refraining from exercising any rights
which may be vested in it by, and with respect to taking or refraining from
taking any action or actions which it may be able to take under or in respect
of, this Agreement and the Security Agreement, unless the Administrative Agent
shall have been instructed by the Majority Lenders (or where expressly required
hereunder, all Lenders) to exercise or refrain from exercising such rights or to
take or refrain from taking such action, provided that the Administrative Agent
shall not exercise any rights under Section 6.2(a) of this Agreement without the
request of the Majority Lenders unless time is of the essence, in which case
such action shall be taken as and to the extent that the Administrative Agent
shall, in its sole discretion, determine to be appropriate. The Administrative
Agent shall incur no liability to the Lenders under or in respect of this
Agreement or the Security Agreement with respect to anything which it may do or
refrain from doing in the reasonable exercise of its judgment or which may seem
to it to be necessary or desirable in the circumstances, except for its gross
negligence or willful misconduct as determined by a final, non-appealable
judicial order of a court of competent jurisdiction. The Administrative Agent
may seek indemnification from the Lenders before taking any action and may
refrain from taking such action if there is no indemnification.
(b) The Administrative Agent shall not be liable to the
Lenders or to any Lender in acting or refraining from acting under this
Agreement or the Security Agreement in accordance with the instructions of the
Majority Lenders (or where expressly required hereunder, all Lenders), and any
action taken or failure to act pursuant to such instructions shall be binding on
all Lenders. The Administrative Agent shall not be obligated to take any action
which is contrary to law or which would in its reasonable opinion subject it to
liability.
Section 7.9 Notice of Default. In the event that the
Administrative Agent or a Lender shall have been notified in writing of any
Default, the Administrative Agent or such Lender shall promptly notify the
Lenders and the Administrative Agent (provided failure to give such notice shall
not result in any liability on the part of such Lender or Administrative Agent),
and the Administrative Agent shall take such action and assert such rights under
this Agreement and the Security Agreement as the Majority Lenders shall request
in writing, and the Administrative Agent shall not be subject to any liability
by reason of its acting pursuant to any such request. If the Majority Lenders
shall fail to request the Administrative Agent to take action or to assert
rights under this Agreement or the Security Agreement in respect of any Default
or Event of Default within ten (10)
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days after their receipt of the notice of any Default or Event of Default from
the Administrative Agent, or shall request inconsistent action with respect to
such Default or Event of Default, the Administrative Agent may, but shall not be
required to, take such action and assert such rights (other than rights under
Article 6 hereof) as it deems in its discretion to be advisable for the
protection of the Lenders, except that, if the Majority Lenders have instructed
the Administrative Agent not to take such action or assert such right, in no
event shall the Administrative Agent act contrary to such instructions unless
time is of the essence, in which case the Administrative Agent may act in
accordance with its reasonable discretion.
Section 7.10 Responsibility Disclaimed. The Administrative Agent
shall not have any liability or responsibility whatsoever in its capacity as
Administrative Agent:
(a) To the Borrower or any other Person or entity as a
consequence of any failure or delay in performance by or any breach by, any
Lender or Lenders of any of its or their obligations under this Agreement;
(b) To any Lender or Lenders, as a consequence of any
failure or delay in performance by, or any breach by, (i) the Borrower of any of
its obligations under this Agreement or any Note, or any other Loan Document or
(ii) any other obligor under any other Loan Document;
(c) To any Lender or Lenders for any statements,
representations, or warranties in this Agreement, or any other document
contemplated by this Agreement or any information provided pursuant to this
Agreement, any other Loan Document, or any other document contemplated by this
Agreement, or for the validity, effectiveness, enforceability, or sufficiency of
this Agreement, the Notes, any other Loan Document, or any other document
contemplated by this Agreement; or
(d) To any Person for any act or omission other than to
the extent arising from gross negligence or willful misconduct of the
Administrative Agent or, in the case of the Borrower, breach of the duties
imposed on the Administrative Agent as secured party by applicable law, in any
case as determined by a final, non-appealable judicial order of a court of
competent jurisdiction.
Section 7.11 Indemnification. Each Lender agrees to indemnify the
Administrative Agent (to the extent not promptly reimbursed by the Borrower) pro
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rata according to such Lender's respective Commitment Ratio, from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including fees and expenses of experts,
agents, consultants, and counsel), or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against the
Administrative Agent in any way relating to or arising out of this Agreement,
any other Loan Document, or any other document contemplated by this Agreement or
any action taken or omitted by the Administrative Agent under this Agreement,
any other Loan Document, or any other document contemplated by this Agreement,
except that no Lender shall be liable to the Administrative Agent for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses, or disbursements to the extent resulting from
the gross negligence or willful misconduct of the Administrative Agent, as the
case may be, as determined by a final, non-appealable judicial order of a court
of competent jurisdiction. The provisions of this Section 7.11 shall survive the
termination of this Agreement.
Section 7.12 Credit Decision. Each Lender represents and warrants
to each other and to the Administrative Agent that:
(a) In making its decision to enter into this Agreement
and to make Advances it has independently taken whatever steps it considers
necessary to evaluate the financial condition and affairs of the Borrower and
that it has made an independent credit judgment, and that it has not relied upon
information provided by the Administrative Agent; and
(b) So long as any portion of the Commitment or Loans
remains outstanding, it will continue to make its own independent evaluation of
the financial condition and affairs of the Borrower.
Section 7.13 Successor Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving ten (10) days'
prior written notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Majority Lenders shall have the right to appoint a successor
Administrative Agent, which successor agent shall be approved by the Borrower.
If no successor Administrative Agent shall have been so appointed by the
Majority Lenders, and shall have accepted such appointment within thirty (30)
days after the retiring Administrative Agent's giving of notice of resignation,
then the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor
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Administrative Agent from among the Lenders, which shall be reasonably
acceptable to the Borrower. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges, duties, and obligations of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of this
Section 7.13 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as the Administrative
Agent.
ARTICLE VIII
Change in Circumstances Affecting LIBOR Advances
Section 8.1 LIBOR Basis Determination Inadequate. Notwithstanding
anything contained herein which may be construed to the contrary, if with
respect to any proposed LIBOR Advance for any Interest Period, the
Administrative Agent determines after consultation with the Lenders that
deposits in United States Dollars (in the applicable amount) are not being
offered to each of the Lenders (for purposes of this Section 8.1, the term
"Lender" shall include any parent or holding company of any of such Lenders) in
the London interbank deposit market for such Interest Period or if any Lender
gives the Administrative Agent notice that such Lender has determined that LIBOR
would not adequately and fairly reflect the cost to such Lender of making or
maintaining an applicable LIBOR Advance proposed to be subject to such Interest
Period, the Administrative Agent shall forthwith give notice thereof to the
Borrower, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such situation no longer exist (at which time a
new Interest Period shall commence), such LIBOR Advance shall bear interest at
rate per annum equal to the sum of the Federal Funds Rate plus .50% (50 basis
points) plus the Applicable Margin. Such interest shall be payable in arrears
quarterly and on the Local Business Day following the commencement of a new
Interest Period.
Section 8.2 Illegality. If after the date hereof, the adoption of
any Applicable Law, or any change in any Applicable Law, or any change in
interpretation or administration thereof by any governmental authority, central
bank, or comparable agency charged with the interpretation or administration
thereof, or
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compliance by any Lender with any request or directive (whether or not having
the force of law) of any such authority, central bank, or comparable agency,
shall make it unlawful or impossible for any Lender to make, maintain, or fund
its LIBOR Advances, such Lender shall so notify the Administrative Agent, and
the Administrative Agent shall forthwith give notice thereof to the other
Lenders and the Borrower. Before giving any notice to the Administrative Agent
pursuant to this Section 8.2, such Lender shall designate a different lending
office and shall take such alternative courses of action if such designation or
courses of action will avoid the need for giving such notice and will not, in
the good faith judgment of such Lender, be otherwise disadvantageous to the
Lender. Upon receipt of such notice, notwithstanding anything contained in
Article 2 hereof, the Borrower shall repay in full the then outstanding
principal amount of each affected LIBOR Advance of the Lender so affected,
together with accrued interest thereon, either (a) on the last day of the then
current Interest Period applicable to such Advance if the Lender may lawfully
continue to maintain and fund such Advance to such day or (b) immediately if the
Lender may not lawfully continue to fund and maintain such Advance to such day.
Section 8.3 Increased Costs.
(a) If any Regulatory Change:
(i) Shall subject any Lender (for purposes
of this Section 8.3 (a) and (b), the term "Lender" shall include any
parent or holding company of such Lender) to any tax, duty, or other
charge with respect to its obligation to make LIBOR Advances, or its
LIBOR Advances, or shall change the basis of taxation of payments to
such Lender of the principal of or interest on its LIBOR Advances or in
respect of any other amounts due under this Agreement in respect of its
LIBOR Advances or its obligation to make LIBOR Advances (except for
changes in the rate of tax on the overall net income of such Lender); or
(ii) Shall impose, modify, or deem applicable
any reserve (including, without limitation the LIBOR Reserve Percentage
or any other reserve imposed by the Board of Governors of the Federal
Reserve System), special deposit, capital adequacy, assessment, or other
requirement or condition against assets of, deposits with or for the
account of, or commitments or credit
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extended by any Lender, or shall impose on any Lender or the eurodollar
interbank borrowing market any other condition affecting its obligation
to make such LIBOR Advances or its LIBOR Advances;
and the result of any of the foregoing is to increase the cost to any Lender of
making or maintaining any such LIBOR Advances, or to reduce the amount of any
sum received or receivable by any Lender under this Agreement or under its Note
with respect thereto, then, on the earlier of three Business Days following
written demand by such Lender or the Maturity Date, the Borrower agrees to pay
to such Lender such additional amount or amounts as will compensate such Lender
for such increased costs. Each Lender will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Lender to compensation pursuant to this
Section 8.3 and will designate a different lending office and shall take
alternative courses of action if such designation or courses of action will
avoid the need for, or reduce the amount of, such compensation and will not, in
the good faith judgment of such Lender, be otherwise disadvantageous to the
Lender.
(b) A certificate of any Lender claiming compensation
under this Section 8.3 and setting forth the additional amount or amounts to be
paid to it hereunder and calculations therefor shall be conclusive in the
absence of manifest error. In determining such amount, such Lender may use any
reasonable averaging and attribution methods. If such Lender demands
compensation under this Section 8.3, the Borrower may at any time, upon at least
five (5) Business Days' prior written notice to such Lender and the
Administrative Agent, prepay in full the then outstanding affected LIBOR
Advances of the Lender, together with accrued interest thereon to the date of
prepayment, along with any reimbursement required under Section 2.10 hereof.
Section 8.4 Effect On Other Advances. If notice has been given
pursuant to Section 8.1, 8.2, or 8.3 hereof suspending the obligation of a
Lender to make any type of LIBOR Advance, or requiring LIBOR Advances of such
Lender to be repaid or prepaid, then the Borrower and such Lender shall
negotiate in good faith with a view to establishing an alternate basis for
determining the interest rate basis to be applicable to the Loans of such
Lender; provided that all Lenders similarly affected shall be treated the same.
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ARTICLE IX
Miscellaneous
Section 9.1 Notices.
(a) All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been given three (3)
days after deposit in the mail, designated as certified mail, return receipt
requested, postprepaid, one (1) day after being entrusted to a reputable
commercial overnight delivery service, or upon confirmation of receipt after
transmission by facsimile addressed to the party to which such notice is
directed at its address determined as provided in this Section 9.1, provided
that all notices and other communication given to the Administrative Agent under
Article 2 shall not be deemed received by the Administrative Agent until the
Administrative Agent actually receives such notice or communication. All notices
and other communications under this Agreement shall be given to the parties
hereto at the following addresses:
(i) If to the Borrower, to it at:
HCA Inc.
Xxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Telecopy: 000-000-0000
(ii) If to the Administrative Agent, to it at:
Toronto Dominion (Texas) Inc.
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxx
Telecopy: (000) 000-0000
With copy sent to:
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TD Securities (USA) Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: P. Xxxxxx Xxxxxxx, Xx.
Telecopy: (000) 000-0000
(b) If to the Lenders, to each at the addresses set forth
beside its name on Schedule 4 hereof or, if applicable, on the Assignment and
Assumption Agreement executed by such Lender.
Copies shall be provided to Persons other than parties hereto only in the case
of notices under Article 6 hereof and failure to provide such copies shall not
affect the validity of the notice given to the primary recipient.
(c) Any party hereto may change the address to which
notices shall be directed under this Section 9.1 by giving ten (10) days'
written notice of such change to the other parties.
Section 9.2 Expenses.
(a) Each of the parties shall pay its own expenses in
connection with the preparation, negotiation, execution, and delivery of this
Agreement and the other Loan Documents executed on the Agreement Date and the
Amendment Date, the transactions contemplated hereunder and thereunder, and the
making of the Advances in the initial Borrowing.
(b) The Borrower shall pay all reasonable out of pocket
expenses of the Administrative Agent and the Lenders in connection with the
preparation, negotiation, execution and delivery of any waiver, amendment, or
consent by the Administrative Agent and Lenders, or any of them, relating to
this Agreement or the other Loan Documents whether or not executed, including,
but not limited to, the reasonable fees and disbursements of counsel for the
Administrative Agent but only if the relevant waiver or amendment or consent is
requested in writing by the Borrower, and excluding an amendment to extend the
Maturity Date, unless reimbursement of such expenses by the Borrower is provided
for in a related Fee Agreement.
(c) The Borrower shall pay all reasonable out-of-pocket
costs and expenses of enforcement of rights and collection against the Borrower
or
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the Collateral if an Event of Default occurs, which in each case shall include
reasonable fees and out of pocket expenses of counsel (including the allocated
cost of in-house counsel) for the Administrative Agent and each Lender, and the
reasonable fees and out of pocket expenses of counsel and of any experts,
agents, or consultants of the Administrative Agent and each Lender.
Section 9.3 Waivers. The rights and remedies of the
Administrative Agent and the Lenders under this Agreement and the other Loan
Documents shall be cumulative and not exclusive of any rights or remedies which
they would otherwise have. No failure or delay by the Administrative Agent, the
Majority Lenders or the Lenders in exercising any right shall operate as a
waiver of such right. The Administrative Agent and the Lenders expressly reserve
the right to require strict compliance with the terms of this Agreement in
connection with any funding of a request for an Advance. In the event any Lender
decides to fund a request for an Advance at a time when the Borrower is not in
strict compliance with the terms of this Agreement, such decision by such Lender
shall not be deemed to constitute an undertaking by such Lender or the
Administrative Agent to fund any further requests for Advances or preclude the
Lenders from exercising any rights available to the Administrative Agent or the
Lenders under the Loan Documents or at law or equity. Any waiver or indulgence
granted by the Lenders or the Majority Lenders shall not constitute a
modification of this Agreement, except to the extent expressly provided, in
writing, in such waiver or indulgence, or constitute a course of dealing by any
Lender at variance with the terms of this Agreement such as to require further
notice by any Lender of such Lender's intent to require strict adherence to the
terms of this Agreement in the future.
Section 9.4 Set-Off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
after the Maturity Date (whether by acceleration or otherwise), the Lenders (and
the Administrative Agent on their behalf) are hereby authorized by the Borrower
at any time or from time to time, upon direction by the Administrative Agent,
with the consent of the Majority Lenders, without notice to the Borrower or to
any other Person, any such notice being hereby expressly waived, to set-off and
to appropriate and apply any and all deposits (general, time or demand,
including, but not limited to, Indebtedness evidenced by certificates of
deposit, in each case whether matured or unmatured) and any other Indebtedness
or any obligation of the Lender under the Master Agreement at any time held or
owing by any Lender to or for the credit or the account of the Borrower, against
and on account of the Obligations of the Borrower, to any Lender or such holder
under this Agreement or any Note, including, but not
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limited to, all Obligations arising out of or connected with this Agreement or
any Note, irrespective of whether or not (a) the Administrative Agent and the
Lenders shall have made any demand hereunder or (b) the Administrative Agent and
the Lenders shall have declared the principal of and interest on the Loans and
Notes and other amounts due hereunder to be due and payable as permitted by
Section 6.2 hereof and although said obligations and liabilities, or any of
them, shall be contingent or unmatured. Any sums obtained by the Administrative
Agent or any Lender shall be subject to the application of payments provisions
of Article II hereof. Upon direction by the Administrative Agent, with the
consent of the Majority Lenders, after the Maturity Date (whether by reason of
acceleration or otherwise) each Lender holding deposits of the Borrower shall
exercise its set-off rights as so directed.
Section 9.5 Assignment.
(a) The Loan Documents shall be binding upon and inure to
the benefit of the Borrower, the Administrative Agent, the Lenders, and their
respective successors and assigns, except that the Borrower may not assign any
of its rights or transfer any of its duties thereunder without the prior written
consent of each of the Lenders. Any attempted or purported assignment or
transfer by the Borrower in contravention of this Section 9.5(a) shall be null
and void.
(b) Any Lender may assign to one or more Eligible
Assignees any or all of its rights, title, and interest hereunder and under any
Note, the Loans, and the Commitment, provided that no such assignment shall be
made without the consent of the Administrative Agent, and, except during the
continuance of an Event of Default, the Borrower, which consent shall not be
unreasonably withheld or delayed.
(c) Any assignment by any Lender of such interest
hereunder and under any Note, the Loans, and the Commitment shall be in a
minimum aggregate principal amount of $10,000,000 (or, if less, the remaining
balance of such interest hereunder and under such Note, the Loans, and the
Commitment), unless the Borrower shall have consented otherwise, and (i) shall
be of a constant, and not a varying, percentage of such Lender's rights and
obligations being assigned under this Agreement, (ii) the parties to such
assignment shall execute and deliver to the Administrative Agent, for its
recording in the Register (as defined below), an Assignment and Acceptance,
together with any Note subject to such assignment and a processing and
recordation fee payable to the Administrative Agent
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in the amount of $3,500, and (iii) the Borrower shall issue a new Note to each
Lender party to such assignment against receipt of the existing Note of the
assignor Lender in accordance with Section 2.8. Upon such execution, delivery,
and recording, from and after the Effective Date, as defined in the Assignment
and Acceptance, the assignee thereunder shall be a party hereto and, to the
extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder.
(d) Any Lender may participate any of its rights
hereunder and under any Note, the Loans, or the Commitment with the written
consent of the Borrower, provided that any grant of rights to a participant with
respect to the Loans by such Lender shall state that such rights exist only as a
result of the agreement between the participant and such Lender. The holder of
any such participation shall not be entitled to require such Lender to take or
omit to take any action under this Agreement except any action that would extend
the maturity of such Note or the mandatory reductions of the Commitment, reduce
the interest rate payable on such Note or the commitment fee, increase the
Commitment, forgive the payment of principal or interest on such Note, or extend
any payment date with respect thereto, in each case solely to the extent that it
participates in such Note, Commitment, or commitment fee.
(e) [Reserved]
(f) In connection with each assignment or participation
hereunder, the assigning or granting Lender shall deliver to the assignee or
participant Lender a copy of each Federal Reserve Form delivered to it
hereunder.
(g) Any Lender that proposes to assign or participate any
of its rights hereunder and under any Note, the Loans, or the Commitment
hereunder shall provide at least three (3) Business Days' written prior notice
of such transaction to the Borrower and the Administrative Agent. No Lender
shall, as between the Borrower and such Lender, be relieved of any of its
obligations hereunder as a result of any assignment or granting of
participations in all or any part of the Loans, such Note, or the Commitment, or
other obligations owed to such Lender, except that such Lender shall be relieved
of its obligations hereunder to the extent of any assignment of all or any part
of the Loans, such Note, or the Commitment made pursuant to Section 9.5(b) to
the extent these obligations are assumed by the relevant assignee. All amounts
payable to any Lender under this Section 9.5 shall be determined as if such
Lender had not (a) sold any participations and (b) made any pledges or
assignments pursuant to Section 9.5(h).
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(h) Nothing contained in this Section 9.5 shall prevent
or prohibit any Lender from assigning or pledging all or any portion of the
Loans and any Note to any Federal Reserve Bank as collateral security pursuant
to Regulation A and any Operating Circular issued by the Board of Governors of
the Federal Reserve System of the United States; provided that no such
assignment or pledge shall relieve such Lender from its obligations hereunder.
(i) Whenever in this Agreement any of the parties hereto
is referred to, such reference shall be deemed to include the successors and
assigns of such party and all covenants, promises, and agreements by or on
behalf of the Borrower which are contained in this Agreement shall inure to the
benefit of the successors and assigns of the Lenders.
(j) By executing and delivering an Assignment and
Acceptance, the assigning Lender thereunder and the assignee thereunder confirm
to and agree with each other and the other parties hereto as follows: (i) other
than the representation and warranty that it is the legal and beneficial owner
of the interest being assigned thereby free and clear of any adverse claim and
the representations and warranties expressly set forth in the applicable
Assignment and Acceptance, the assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties, or representations made in or in connection with any of the Loan
Documents or any other instrument or document furnished pursuant thereto; (ii)
the assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Loan Documents; (iii) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 5.5 (or if no such financial statements shall have
then been delivered, then copies of the financial statements referred to in
Section 4.3) and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the assigning Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement; and (v) such
assignee appoints and authorizes the Administrative Agent as its agent pursuant
to, and in accordance with, Article 7 hereof.
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(k) The Borrower hereby designates the Administrative
Agent to serve as the Borrower's agent, solely for purposes of this Section
9.5(k), to maintain at its address at which notices are to be given to it
pursuant to Section 9.1 a copy of each Assignment and Acceptance and a register
for the recordation of the names and addresses of the Lenders and the
Commitments of, and principal amount of the Loans owing to, each Lender from
time to time (the "Register"). The entries in the Register shall be conclusive,
in the absence of manifest error, and the Borrower, the Administrative Agent,
and the Lenders may treat each person whose name is so recorded in the Register
as a Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(l) Notwithstanding any other provision set forth in this
Agreement, the obligations of the Borrower to any assignee under the Loan
Documents shall be no greater than they would be in the absence of any transfer.
Section 9.6 Tax Treatment.
(a) Each of the Lenders (which for purposes of this
Section 9.6 shall include any member of Canadian Investments LLC) and the
Borrower each agree that, solely for U.S. tax purposes, it (i) will treat the
transaction contemplated by the Loan Documents (the "Transaction") as a series
of purchases of Shares by the Borrower on the dates on which Shares are acquired
by or on behalf of such Lender, which Shares are pledged by the Borrower to such
Lender and held by a custodian for such Lender to secure the Borrower's
obligations under a loan from such Lender to the Borrower, (ii) will treat such
Lender as entitled to repayment of the Loan and all payments of interest with
respect to the Loan in cash by the Borrower to such Lender, regardless of
whether such cash is derived directly from the Borrower or any other source, and
(iii) will not take any action (including filing any tax return or form or
taking any position in any tax proceeding) that is inconsistent with such
treatment, unless such action or position is required by a change in statutory
law or regulation or by a judicial or other authoritative interpretation of the
law enacted, promulgated or published after the date of this Agreement. Nothing
in the preceding sentence, however, shall affect the rights granted or
obligations imposed upon the parties in the Loan Documents.
(b) Each of the Lenders agrees to use reasonable efforts
to notify the Borrower in writing of any written request for information from,
audit by, proposed adjustment from or other inquiry by or dispute with any
applicable taxing
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authority that concerns the treatment of the Transaction for U.S. tax purposes
within thirty business days of the receipt of the relevant communication from
such taxing authority.
Section 9.7 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
such separate counterparts shall together constitute but one and the same
instrument.
Section 9.8 Governing Law. This Agreement, the Notes and the Loan
Documents shall be construed in accordance with and governed by the internal
laws of the State of New York applicable to agreements made and to be performed
in New York. If any action or proceeding shall be brought by the Administrative
Agent or any Lender hereunder or under any other Loan Document in order to
enforce any right or remedy under this Agreement or under any Note or any other
Loan Document, the Borrower hereby consents to and will submit to the
jurisdiction of any state or federal court of competent jurisdiction sitting
within the area comprising the Southern District of New York on the date of this
Agreement. The Borrower, for itself and on behalf of its Subsidiaries, hereby
agrees that service of the summons and complaint and all other process which may
be served in any such suit, action or proceeding may be effected by mailing by
registered mail a copy of such process to the offices of the Borrower at the
addresses given in Section 9.1 hereof and that personal service of process shall
not be required. Nothing herein shall be construed to prohibit service of
process by any other method permitted by law, or the bringing of any suit,
action or proceeding in any other jurisdiction. The Borrower agrees that final
judgment in such suit, action or proceeding shall be conclusive and may be
enforced in any other jurisdiction by suit on the judgment or in any other
manner provided by Applicable Law.
Section 9.9 Severability. Any provision of this Agreement which
is prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof in that jurisdiction or affecting the validity or enforceability of such
provision in any other jurisdiction.
Section 9.10 Headings. Headings used in this Agreement are for
convenience only and shall not be used in connection with the interpretation of
any provision hereof.
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Section 9.11 Interest.
(a) In no event shall the amount of interest due or
payable hereunder or under the Notes exceed the maximum rate of interest allowed
by Applicable Law, and in the event any such payment in excess of such maximum
rate is made by the Borrower or is received by any Lender, then the amount of
the excess shall be credited as a payment of principal, unless the Borrower
shall notify the Administrative Agent and such Lender to refund such excess sum
forthwith. It is the express intent hereof that the Borrower not pay and the
Lenders not receive, directly or indirectly in any manner whatsoever, interest
in excess of that which may legally be paid by the Borrower under Applicable
Law.
(b) Notwithstanding the use by the Lenders of LIBOR as a
reference rate for the determination of interest on the Loans, no Lender shall
be under any obligation to obtain funds from any particular source in order to
charge interest to the Borrower at interest rates tied to such reference rate.
Section 9.12 Entire Agreement. Except as otherwise expressly
provided herein, this Agreement, the Notes, and the Loan Documents to which the
Borrower is a party embody the entire Agreement and understanding among the
parties hereto and thereto and supersede all prior agreements, understandings,
and conversations relating to the subject matter hereof and thereof.
Section 9.13 Amendment and Waiver. Neither this Agreement nor any
term hereof nor any Loan Document may be amended orally, nor may any provision
hereof be waived orally, but only by an instrument in writing signed by the
Majority Lenders or the Borrower, as the case may be, and, in the case of an
amendment, by the Borrower and the Majority Lenders, except that any amendment
or waiver that would (a) increase or decrease (other than a pro rata decrease)
in the amount of the Commitment or any Lender's Commitment Ratio, (b) change the
timing of, or reduce the amount of, payments of principal, interest, and fees
due hereunder, (c) release or impair any guaranty issued in favor of the
Administrative Agent and the Lenders, (d) waive any Event of Default due to the
failure by the Borrower to pay any sum due hereunder, (e) amend this Section
9.13, Section 9.5(a) or the definition of Majority Lenders, or (f) waive any
condition precedent specified in Section 3.1 to the initial Advance hereunder,
may be made only by an instrument in writing signed by all of the Lenders and,
in the case of an amendment, also by the Borrower. Any amendment to any
provision hereunder governing the rights, obligations, or liabilities of the
Administrative Agent in its capacity as such may be made only by an instrument
in writing signed by the Administrative Agent.
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Section 9.14 Other Relationships. No relationship created
hereunder or under any other Loan Document shall in any way affect the ability
of the Administrative Agent and each Lender to enter into or maintain business
relationships with the Borrower or any of its Affiliates beyond the
relationships specifically contemplated by this Agreement and the other Loan
Documents.
Section 9.15 Confidentiality. Each Lender and the Administrative
Agent agrees (on behalf of itself and each of its affiliates, directors,
officers, employees and representatives) to use reasonable precautions to keep
confidential, in accordance with their customary procedures for handling
confidential information of the same nature and in accordance with safe and
sound banking practices, any non-public information supplied to it by the
Borrower pursuant to this Agreement that is identified by the Borrower as being
confidential at the time the same is delivered to such Lender or the
Administrative Agent, provided that (a) nothing herein shall limit the
disclosure of any such information (i) to the extent required by statute, rule,
regulation, or judicial process, (ii) to counsel for such Lender or the
Administrative Agent, (iii) to bank examiners, auditors, or accountants, (iv) to
any Affiliate of the Administrative Agent or any other Lender who shall have
agreed to keep such information confidential as set forth herein, (v) in
connection with any litigation to which any one or more of the Lenders or the
Administrative Agent is a party, or (vi) to any assignee or participant (or
prospective assignee or participant) so long as such assignee or participant (or
prospective assignee or participant) shall have agreed to keep such information
confidential as set forth herein, and (b) in no event shall any Lender or the
Administrative Agent be obligated or required to return any materials furnished
by the Borrower.
Section 9.16 Survival of Various Provisions. Notwithstanding
anything herein which may be construed to the contrary, rights and obligations
pursuant to Sections 2.9(c), 2.10, 5.16 and 9.6 hereof shall survive the
termination of this Agreement and the payment and performance of all other
Obligations, and obligations of a party under Section 9.6 shall also survive
that party's transfer of its other rights and obligations hereunder insofar as
those obligations relate to the period prior to the effective date of such
transfer.
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ARTICLE X
Waiver of Jury Trial
Section 10.1 Waiver of Jury Trial. THE BORROWER, THE
ADMINISTRATIVE AGENT, AND EACH LENDER HEREBY AGREE TO WAIVE AND HEREBY WAIVES
THE RIGHT TO A TRIAL BY JURY IN ANY COURT AND IN ANY ACTION OR PROCEEDING OF ANY
TYPE IN WHICH THE BORROWER, ANY OF THE LENDERS, THE ADMINISTRATIVE AGENT, OR ANY
OF THEIR RESPECTIVE SUCCESSORS OR ASSIGNS IS A PARTY, AS TO ALL MATTERS AND
THINGS ARISING DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT, THE NOTES, OR THE
OTHER LOAN DOCUMENTS AND THE RELATIONS AMONG THE PARTIES LISTED IN THIS SECTION
10.1. EXCEPT AS PROHIBITED BY LAW, THE BORROWER WAIVES ANY RIGHTS IT MAY HAVE TO
CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THIS SECTION, ANY SPECIAL,
EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES. THE BORROWER CERTIFIES THAT NEITHER ANY
REPRESENTATIVE, AGENT, OR ATTORNEY OF THE ADMINISTRATIVE AGENT OR ANY LENDER HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR ANY LENDER
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS.
EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION. THE PROVISIONS OF THIS SECTION HAVE
BEEN FULLY DISCLOSED BY AND TO THE PARTIES AND THE PROVISIONS SHALL BE SUBJECT
TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY
OTHER PARTY THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN
ALL INSTANCES.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused it to be executed by their duly authorized officers, all as of the day
and year first above written.
BORROWER: HCA INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Title: V.P., Investments
------------------------
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS) INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------
Title: Vice President
------------------------
LENDER: CANADIAN INVESTMENTS LLC
By: /s/ Xxxxx Xxxxxx
--------------------------------
Title: Attorney-in-Fact
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