$2,500,000,000
CREDIT AGREEMENT
among
HCA - THE HEALTHCARE COMPANY,
THE SEVERAL BANKS AND OTHER FINANCIAL INSTITUTIONS FROM TIME
TO TIME PARTIES HERETO,
JPMORGAN, a division of Chase Securities Inc.,
as Sole Advisor, Lead Arranger and Bookrunner,
BANK OF AMERICA, N.A.,
as Documentation Agent and Co-Arranger,
CITICORP USA, INC.,
DEUTSCHE BANK AG NEW YORK BRANCH, and
SUNTRUST BANK
as Syndication Agents and Co-Arrangers,
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
as Co-Arranger,
FLEET NATIONAL BANK and
THE BANK OF NOVA SCOTIA,
as Senior Managing Agents,
THE BANK OF NEW YORK and
WACHOVIA BANK, N.A.,
as Managing Agents,
TORONTO DOMINION BANK and
SUMITOMO BANK, as Co-Agents,
AMSOUTH BANK,
CREDIT SUISSE FIRST BOSTON,
MERRILL LYNCH,
THE NORTHERN TRUST COMPANY and
KEY BANK,
as Lead Managers
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of April 30, 2001
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
Page
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SECTION 1. DEFINITIONS ............................................................... 4
1.1 Defined Terms ....................................................... 4
1.2 Other Definitional Provisions ....................................... 18
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS ........................................... 18
2.1 Term Commitments .................................................... 18
2.2 Procedure for Term Loan Borrowing ................................... 18
2.3 Repayment of Term Loans ............................................. 19
2.4 Revolving Commitments ............................................... 19
2.5 Procedure for Revolving Loan Borrowing .............................. 19
2.6 CAF Advances ........................................................ 20
2.7 Procedure for CAF Advance Borrowing ................................. 20
2.8 CAF Advance Payments ................................................ 23
2.9 Evidence of Debt .................................................... 23
2.10 Certain Restrictions ................................................ 24
2.11 Facility Fees, etc .................................................. 24
2.12 Termination or Reduction of Revolving Commitments ................... 24
2.13 Optional Prepayments ................................................ 24
2.14 Conversion and Continuation Options ................................. 25
2.15 Limitations on Eurodollar Tranches .................................. 25
2.16 Interest Rates and Payment Dates .................................... 25
2.17 Computation of Interest and Fees .................................... 26
2.18 Inability to Determine Interest Rate ................................ 26
2.19 Pro Rata Treatment and Payments ..................................... 27
2.20 Requirements of Law ................................................. 28
2.21 Taxes ............................................................... 29
2.22 Indemnity ........................................................... 31
2.23 Change of Lending Office ............................................ 31
2.24 Replacement of Banks ................................................ 31
SECTION 3. LETTERS OF CREDIT ......................................................... 32
3.1 L/C Commitment ...................................................... 32
3.2 Procedure for Issuance of Letter of Credit .......................... 32
3.3 Fees and Other Charges .............................................. 33
3.4 L/C Participations .................................................. 33
3.5 Reimbursement Obligation of the Company ............................. 34
3.6 Obligations Absolute ................................................ 34
3.7 Letter of Credit Payments ........................................... 34
3.8 Applications ........................................................ 35
SECTION 4. REPRESENTATIONS AND WARRANTIES ............................................ 35
4.1 Corporate Organization and Existence ................................ 35
4.2 Subsidiaries ........................................................ 35
</TABLE>
<PAGE> 3
<TABLE>
Page
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4.3 Financial Information ............................................... 35
4.4 Changes in Condition ................................................ 36
4.5 Assets .............................................................. 36
4.6 Litigation .......................................................... 36
4.7 Tax Returns ......................................................... 36
4.8 Contracts, etc ...................................................... 37
4.9 No Legal Obstacle to Agreement ...................................... 37
4.10 Defaults ............................................................ 37
4.11 Burdensome Obligations .............................................. 37
4.12 Pension Plans ....................................................... 37
4.13 Disclosure .......................................................... 38
4.14 Environmental and Public and Employee Health and Safety Matters ..... 38
4.15 Federal Regulations ................................................. 38
4.16 Investment Company Act; Other Regulations ........................... 39
SECTION 5. CONDITIONS ................................................................ 39
5.1 Loan Documents ...................................................... 39
5.2 Legal Opinions ...................................................... 39
5.3 Company Officers' Certificate ....................................... 39
5.4 Legality, etc ....................................................... 39
5.5 Termination of Existing Credit Facilities ........................... 40
5.6 General ............................................................. 40
5.7 Fees ................................................................ 40
SECTION 6. GENERAL COVENANTS ......................................................... 40
6.1 Taxes, Indebtedness, etc ............................................ 40
6.2 Maintenance of Properties; Compliance with Law ...................... 41
6.3 Transactions with Affiliates ........................................ 41
6.4 Insurance ........................................................... 41
6.5 Financial Statements ................................................ 41
6.6 Ratio of Consolidated Total Debt to Consolidated Total
Capitalization .................................................... 44
6.7 Interest Coverage Ratio ............................................. 44
6.8 Distributions ....................................................... 44
6.9 Merger or Consolidation ............................................. 44
6.10 Sales of Assets ..................................................... 44
6.11 Compliance with ERISA ............................................... 45
6.12 Negative Pledge ..................................................... 45
6.13 Sale-and-Leaseback Transactions ..................................... 46
6.14 Use of Proceeds ..................................................... 46
SECTION 7. DEFAULTS .................................................................. 47
7.1 Events of Default ................................................... 47
7.2 Annulment of Defaults ............................................... 49
7.3 Waivers ............................................................. 49
7.4 Course of Dealing ................................................... 49
</TABLE>
ii
<PAGE> 4
<TABLE>
Page
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SECTION 8. THE AGENT ................................................................. 49
8.1 Appointment ......................................................... 49
8.2 Delegation of Duties ................................................ 50
8.3 Exculpatory Provisions .............................................. 50
8.4 Reliance by Agent ................................................... 50
8.5 Notice of Default ................................................... 50
8.6 Non-Reliance on Agent and Other Banks ............................... 51
8.7 Indemnification ..................................................... 51
8.8 Agent in Its Individual Capacity .................................... 51
8.9 Successor Agent ..................................................... 51
SECTION 9. MISCELLANEOUS ............................................................. 52
9.1 Amendments and Waivers .............................................. 52
9.2 Notices ............................................................. 52
9.3 No Waiver; Cumulative Remedies ...................................... 53
9.4 Survival of Representations and Warranties .......................... 53
9.5 Payment of Expenses and Taxes; Indemnity ............................ 53
9.6 Successors and Assigns; Participations; Purchasing Banks ............ 54
9.7 Adjustments; Set-off ................................................ 57
9.8 Counterparts ........................................................ 57
9.9 GOVERNING LAW ....................................................... 57
9.10 WAIVERS OF JURY TRIAL ............................................... 58
9.11 Submission To Jurisdiction; Waivers ................................. 58
</TABLE>
<TABLE>
SCHEDULES:
Schedule I. Commitment Amounts; Lending Offices; Addresses for Notice
Schedule II. Subsidiaries of the Company
Schedule III. Indebtedness of the Company and its Subsidiaries
Schedule IV. Applicable Margin and Facility Fee Rate
Schedule V. Significant Litigation
Schedule VI. Credit Agreements to be Terminated
EXHIBITS:
Exhibit A-1. Form of Revolving Note
Exhibit A-2. Form of Term Note
Exhibit A-3. Form of Competitive Loan Note
Exhibit B. Form of Commitment Transfer Supplement
Exhibit C-1. Form of CAF Advance Request
Exhibit C-2. Form of CAF Advance Offer
Exhibit C-3. Form of CAF Advance Confirmation
Exhibit D. Form of Exemption Certificate
</TABLE>
iii
<PAGE> 5
CREDIT AGREEMENT (this "Agreement"), dated as of April 30,
2001, among HCA - THE HEALTHCARE COMPANY, a Delaware corporation (the
"Company"), the several banks and other financial institutions from time to time
parties hereto (the "Banks"), BANK OF AMERICA, N.A., as Documentation Agent and
Co-Arranger, CITICORP USA, INC., DEUTSCHE BANK AG NEW YORK BRANCH and SUNTRUST
BANK and as Syndication Agents and Co-Arrangers, THE INDUSTRIAL BANK OF JAPAN,
LIMITED, as Co-Arranger, FLEET NATIONAL BANK and THE BANK OF NOVA SCOTIA, as
Senior Managing Agents, THE BANK OF NEW YORK and WACHOVIA BANK, N.A., as
Managing Agents, TORONTO DOMINION BANK and SUMITOMO BANK, as Co-Agents, AMSOUTH
BANK, CREDIT SUISSE FIRST BOSTON, MERRILL LYNCH, THE NORTHERN TRUST COMPANY and
KEY BANK, as Lead Managers, JPMORGAN, a division of Chase Securities Inc., as
Sole Advisor, Lead Arranger and Bookrunner, and THE CHASE MANHATTAN BANK, as
agent (the "Agent").
In consideration of the promises and mutual agreements herein
contained and for good and valuable consideration the parties hereto agree as
follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Agent.
"Affiliate": (a) any director or officer of any corporation or
partner or joint venturer or Person holding a similar position in another Person
or members of their families, whether or not living under the same roof, or any
Person owning beneficially more than 5% of the outstanding common stock or other
evidences of beneficial interest of the Person in question, (b) any Person of
which any one or more of the Persons described in clause (a) above is an
officer, director or beneficial owner of more than 5% of the shares or other
beneficial interest and (c) any Person controlled by, controlling or under
common control with the Person in question.
"Agent" means The Chase Manhattan Bank, in its capacity as
administrative agent for the Banks hereunder.
"Aggregate Exposure": with respect to any Bank at any time, an
amount equal to (a) until the Closing Date, the aggregate amount of such Bank's
Commitments at such time and (b) thereafter, the sum of (i) the aggregate then
unpaid principal amount of such Bank's Term Loans and (ii) the amount of such
Bank's Revolving Commitment then in effect or, if the Revolving Commitments have
been terminated, the amount of such Bank's Revolving Extensions of Credit then
outstanding.
<PAGE> 6
5
"Aggregate Exposure Percentage": with respect to any Bank at
any time, the ratio (expressed as a percentage) of such Bank's Aggregate
Exposure at such time to the Aggregate Exposure of all Banks at such time.
"Agreement": as defined in the preamble hereto.
"Alternate Base Rate": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/100 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on such day
plus 1% and (c) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. For purposes hereof: "Prime Rate" shall mean the rate of interest per
annum publicly announced from time to time by the Agent as its prime rate in
effect at its principal office in New York City (each change in the Prime Rate
to be effective on the date such change is publicly announced); "Base CD Rate"
shall mean the sum of (a) the product of (i) the Three-Month Secondary CD Rate
and (ii) a fraction, the numerator of which is one and the denominator of which
is one minus the C/D Reserve Percentage and (b) the C/D Assessment Rate;
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary market
rate for three-month certificates of deposit reported as being in effect on such
day (or, if such day shall not be a Business Day, the next preceding Business
Day) by the Board of Governors of the Federal Reserve System (the "Board")
through the public information telephone line of the Federal Reserve Bank of New
York (which rate will, under the current practices of the Board, be published in
Federal Reserve Statistical Release H.15(519) during the week following such
day), or, if such rate shall not be so reported on such day or such next
preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 10:00 A.M., New York City time, on such day (or, if
such day shall not be a Business Day, on the next preceding Business Day) by the
Agent from three New York City negotiable certificate of deposit dealers of
recognized standing selected by it; "C/D Reserve Percentage" shall mean, for any
day, that percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board (or any successor), for determining the maximum reserve
requirement for a member bank of the Federal Reserve System in New York City
with deposits exceeding one billion Dollars in respect of new non-personal
three-month certificates of deposit in the secondary market in Dollars in New
York City and in an amount of $100,000 or more; "C/D Assessment Rate" shall
mean, for any day, the net annual assessment rate (rounded upward to the nearest
1/100 of 1%) determined by Chase to be payable on such day to the Federal
Deposit Insurance Corporation or any successor (the "FDIC") for FDIC's insuring
time deposits made in Dollars at offices of Chase in the United States; and
"Federal Funds Effective Rate" shall mean, for any day, the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Agent from three
federal funds brokers of recognized standing selected by it. If for any reason
the Agent shall have determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Base CD Rate or the Federal
Funds Effective Rate, or both, for any reason, including the inability or
failure of the Agent to obtain sufficient quotations in accordance with the
terms thereof, the Alternate Base Rate shall be determined without regard to
clause (b) or (c), or both, of the first sentence of this definition, as
appropriate, until the circumstances giving rise to such inability no longer
exist. Any change
<PAGE> 7
6
in the Alternate Base Rate due to a change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate shall be effective on the
effective day of such change in the Prime Rate, the Three-Month Secondary CD
Rate or the Federal Funds Effective Rate, respectively.
"Alternate Base Rate Loans": Loans hereunder at such time as
they are made and/or being maintained at a rate of interest based upon the
Alternate Base Rate.
"Applicable Margin": for each Type of Loan during a Level I
Period, Level II Period, Level III Period or Level IV Period the rate per annum
set forth under the relevant column heading in Schedule IV. The Applicable
Margin shall be fixed at Level II for the period beginning on the Closing Date
and ending on the date that is six months after the Closing Date. Increases or
decreases in the Applicable Margin shall become effective on the first day of
the Level I Period, Level II Period, Level III Period or Level IV Period as the
case may be, to which such Applicable Margin relates.
"Application": an application, in such form as the Issuing
Bank may specify from time to time, requesting the Issuing Bank to open a Letter
of Credit.
"Approved Fund": with respect to any Bank that is a fund that
invests in commercial loans, any other fund that invests in commercial loans and
is managed or advised by the same investment advisor as such Bank or by an
Affiliate of such investment advisor.
"Attributable Debt": (i) as to any capitalized lease
obligations, the Indebtedness carried on the balance sheet in respect thereof in
accordance with GAAP and (ii) as to any operating leases, the total net amount
of rent required to be paid under such leases during the remaining term thereof.
"Auditor": any independent certified public accountant of
nationally recognized standing and reputation selected by the Company.
"Available Revolving Commitments": as to any Revolving Bank at
any time, an amount equal to the excess, if any, of (a) such Bank's Revolving
Commitment then in effect over (b) the sum of (i) such Bank's Revolving
Extensions of Credit then outstanding plus (ii) such Bank's Revolving Percentage
of the aggregate principal amount of the CAF Advances then outstanding,
calculated as if such outstanding CAF Advances were pro rata among the Revolving
Banks.
"Bank Obligations": as defined in subsection 7.1.
"Banks": as defined in the preamble hereto.
"Benefitted Bank": as defined in subsection 9.7.
"Business Day": any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, when used in connection with a
Eurodollar Loan or LIBO Rate CAF Advances,
<PAGE> 8
7
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"CAF Advance": each CAF Advance made pursuant to subsection
2.6.
"CAF Advance Agent": Chase, in its capacity as CAF Advance
Agent.
"CAF Advance Availability Period": the period from and
including the Closing Date to and including the date which is 14 days prior to
the Revolving Termination Date.
"CAF Advance Confirmation": each confirmation by the Company
of its acceptance of CAF Advance Offers, which confirmation shall be
substantially in the form of Exhibit C-3 and shall be delivered to the CAF
Advance Agent by facsimile transmission.
"CAF Advance Interest Payment Date": as to each CAF Advance,
each interest payment date specified by the Company for such CAF Advance in the
related CAF Advance Request.
"CAF Advance Maturity Date": as to any CAF Advance, the date
specified by the Company pursuant to subsection 2.7(d)(ii) in its acceptance of
the related CAF Advance Offer.
"CAF Advance Offer": each offer by a Bank to make CAF Advances
pursuant to a CAF Advance Request, which offer shall contain the information
specified in Exhibit C-2 and shall be delivered to the CAF Advance Agent by
telephone, immediately confirmed by facsimile transmission.
"CAF Advance Request": each request by the Company for Banks
to submit bids to make CAF Advances, which request shall contain the information
in respect of such requested CAF Advances specified in Exhibit C-1 and shall be
delivered to the CAF Advance Agent in writing, by facsimile transmission, or by
telephone, immediately confirmed by facsimile transmission.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Change in Control": of any corporation, (a) any Person or
"group" (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended), other than the Company, that shall acquire more than 50% of the
Voting Stock of such corporation or (b) any Person or group (as defined in
preceding clause (a)), other than the Company, that shall acquire more than 20%
of the Voting Stock of such corporation and, at any time following an
acquisition described in this clause (b), the Continuing Directors shall not
constitute a majority of the board of directors of such corporation.
"Chase": The Chase Manhattan Bank.
<PAGE> 9
8
"Closing Date": the date on which the conditions precedent set
forth in subsection 5.1 shall have been satisfied, which date is April 30, 2001.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment": as to any Bank, the sum of the Term Commitment
and Revolving Commitment of such Bank.
"Commitment Transfer Supplement": a Commitment Transfer
Supplement, substantially in the form of Exhibit B.
"Company": HCA - The Healthcare Company, a Delaware
corporation.
"Confidential Information Memorandum": the Confidential
Information Memorandum dated March 2001 and/or April 2001 and furnished to
certain Banks.
"Consolidated Assets": the consolidated assets of the Company
and its Subsidiaries, determined in accordance with GAAP.
"Consolidated Earnings Before Interest and Taxes": for any
period for which the amount thereof is to be determined, Consolidated Net Income
for such period plus (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 fiscal quarters ending on or
after June 30, 2000 related to the Company's partial settlement with the
Department of Justice not exceeding in the aggregate $745,000,000 on a pre-tax
basis.
"Consolidated Interest Expense": for any period for which the
amount thereof is to be determined, all amounts deducted in computing
Consolidated Net Income for such period in respect of interest expense on
Indebtedness determined in accordance with GAAP.
"Consolidated Net Income": for any period, the consolidated
net income, if any, after taxes, of the Company and its Subsidiaries for such
period determined in accordance with GAAP; provided, however, that Consolidated
Net Income shall not include any gain or loss attributable to extraordinary
items, any sale of assets not in the ordinary course of business or any taxes or
tax savings as a result thereof.
"Consolidated Net Tangible Assets": the total amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities as disclosed on the consolidated balance
sheet of the Company (excluding any thereof which are by their terms extendable
or renewable at the option of the obligor thereon to a time more than 12 months
after the time as of which the amount thereof is being computed and excluding
any deferred income taxes that are included in current liabilities), and (ii)
all goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangible assets, all as set forth on the most recent
consolidated balance sheet of the Company and computed in accordance with GAAP.
<PAGE> 10
9
"Consolidated Net Worth": 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 Company and its
Subsidiaries at such date.
"Consolidated Total Capitalization": for any period for which
the amount thereof is to be determined, the sum of Consolidated Net Worth at
such date and Consolidated Total Debt at such date.
"Consolidated Total Debt": the aggregate of all Indebtedness
(including the current portion thereof) of the Company and its Subsidiaries in
conformity with GAAP on a consolidated basis.
"Continuing Director": any member of the Board of Directors of
the Company who is a member of such Board on the date of this Agreement, and any
Person who is a member of such Board and whose nomination as a director was
approved by a majority of the Continuing Directors then on such Board.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control Group Person": any Person which is a member of the
controlled group or is under common control with the Company within the meaning
of Section 414(b) or 414(c) of the Code or Section 4001(b)(1) of ERISA.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Distribution": (a) the declaration or payment of any dividend
on or in respect of any shares of any class of capital stock of the Company
other than dividends payable solely in shares of common stock of the Company;
(b) the purchase, redemption or other acquisition of any shares of any class of
capital stock of the Company directly or indirectly through a Subsidiary or
otherwise; and (c) any other distribution on or in respect of any shares of any
class of capital stock of the Company.
"Dollars" or "$": dollars in lawful currency of the United
States of America.
"Domestic Lending Office": the office of each Bank designated
as such in Schedule I.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to
a Eurodollar Loan, the aggregate (without duplication) of the rates (expressed
as a decimal fraction) of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and emergency reserves under
any regulations of the Board of Governors of the Federal Reserve
<PAGE> 11
10
System or other Governmental Authority having jurisdiction with respect
thereto), dealing with reserve requirements prescribed for Eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of such
Board) maintained by a member bank of such System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum determined
on the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period appearing on
Page 3750 of the Telerate screen as of 11:00 A.M., London time, two Business
Days prior to the beginning of such Interest Period. In the event that such rate
does not appear on Page 3750 of the Telerate screen (or otherwise on such
screen), the "Eurodollar Base Rate" shall be determined by reference to such
other comparable publicly available service for displaying eurodollar rates as
may be selected by the Agent or, in the absence of such availability, by
reference to the rate at which the Agent is offered Dollar deposits at or about
11:00 A.M., New York City time, two Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where its eurodollar and
foreign currency and exchange operations are then being conducted for delivery
on the first day of such Interest Period for the number of days comprised
therein.
"Eurodollar Lending Office": the office of each Bank
designated as such in Schedule I.
"Eurodollar Loans": Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the nearest
1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar
Loans under a particular Facility, the then current Interest Periods with
respect to all of which begin on the same date and end on the same later date
(whether or not such Loans shall originally have been made on the same day).
"Event of Default": any of the events specified in subsection
7.1, provided that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, event or act has been satisfied.
"Facility": each of (a) the Term Commitments and the Term
Loans made thereunder (the "Term Facility") and (b) the Revolving Commitments
and the extensions of credit made thereunder (the "Revolving Facility").
"Facility Fee": as defined in subsection 2.11(a).
<PAGE> 12
11
"Facility Fee Rate": 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 in Schedule IV. The Facility Fee Rate shall be fixed at
Level II for the period beginning on the Closing Date and ending on the date
that is six months after the Closing Date. Increases or decreases in the
Facility Fee Rate shall become effective on the first day of the Level I Period,
Level II Period, Level III Period or Level IV Period, as the case maybe, to
which such Facility Fee Rate relates.
"Financing Lease": any lease of property, real or personal, if
the then present value of the minimum rental commitment thereunder should, in
accordance with GAAP, be capitalized on a balance sheet of the lessee.
"Fixed Rate CAF Advance": any CAF Advance made pursuant to a
Fixed Rate CAF Advance Request.
"Fixed Rate CAF Advance Request": any CAF Advance Request
requesting the Banks to offer to make CAF Advances at a fixed rate (as opposed
to a rate composed of the LIBO Rate plus (or minus) a margin).
"GAAP": (a) with respect to determining compliance by the
Company with the provisions of subsections 6.6, 6.7, 6.10 and 6.12, generally
accepted accounting principles in the United States of America consistent with
those utilized in preparing the audited financial statements referred to in
subsection 4.3 and (b) with respect to the financial statements referred to in
subsection 4.3 or the furnishing of financial statements pursuant to subsection
6.5 and otherwise, generally accepted accounting principles in the United States
of America from time to time in effect.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Granting Bank": as defined in subsection 9.6(h).
"Guarantee Obligation": any arrangement whereby credit is
extended to one party on the basis of any promise of another, whether that
promise is expressed in terms of an obligation to pay the Indebtedness of
another, or to purchase an obligation owed by that other, to purchase assets or
to provide funds in the form of lease or other types of payments under
circumstances that would enable that other to discharge one or more of its
obligations, whether or not such arrangement is listed in the balance sheet of
the obligor or referred to in a footnote thereto, but shall not include
endorsements of items for collection in the ordinary course of business.
"Indebtedness": of a Person, at a particular date, the sum
(without duplication) at such date of (a) all indebtedness of such Person for
borrowed money or for the deferred purchase price of property or services or
which is evidenced by a note, bond, debenture or similar instrument, (b) all
obligations of such Person under Financing Leases, (c) all obligations of such
Person in respect of letters of credit, acceptances, or similar obligations
issued or created for the account of such Person in excess of $1,000,000, (d)
all liabilities secured by any Lien on any property owned by the Company or any
Subsidiary even though such Person has not assumed or
<PAGE> 13
12
otherwise become liable for the payment thereof and (e) all Guarantee
Obligations relating to any of the foregoing in excess of $1,000,000.
"Insolvency" or "Insolvent": at any particular time, a
Multiemployer Plan which is insolvent within the meaning of Section 4245 of
ERISA.
"Interest Payment Date": (a) as to any Alternate Base Rate
Loan, the last day of each March, June, September and December, commencing on
the first of such days to occur after Alternate Base Rate Loans are made or
Eurodollar Loans are converted to Alternate Base Rate Loans, (b) as to any
Eurodollar Loan in respect of which the Company has selected an Interest Period
of one, two or three months, the last day of such Interest Period and (c) as to
any Eurodollar Loan in respect of which the Company has selected a longer
Interest Period than the periods described in clause (b), each day that is three
months, or a whole multiple thereof, after the first day of such Interest Period
and the last day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loans:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loans and ending one, two, three or six months thereafter (or, with the
consent of all the Banks, nine or twelve months thereafter), as
selected by the Company in its notice of borrowing or its notice of
conversion, as the case may be; and
(ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loans and
ending one, two, three or six months thereafter (or, with the consent
of all the Banks, nine or twelve months thereafter), as selected by the
Company by irrevocable notice to the Agent not less than three Business
Days prior to the last day of the then current Interest Period with
respect to such Eurodollar Loans;
provided that, all of the foregoing provisions relating to Interest Periods are
subject to the following:
(1) if any Interest Period pertaining to a Eurodollar Loan
would otherwise end on a day which is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period shall end on
the immediately preceding Business Day;
(2) if the Company shall fail to give notice as provided
above, the Company shall be deemed to have selected an Alternate Base
Rate Loan to replace the affected Eurodollar Loan;
(3) any Interest Period pertaining to a Eurodollar Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day
of a calendar month;
<PAGE> 14
13
(4) any Interest Period pertaining to a Eurodollar Loan that
would otherwise end after the Revolving Termination Date or the Term
Maturity Date shall end on the Revolving Termination Date or Term
Maturity Date, as the case may be; and
(5) the Company shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan during an
Interest Period for such Loan.
"Issuing Bank": Chase, in its capacity as the issuer of any
Letter of Credit.
"L/C Commitment": $1,250,000,000.
"L/C Fee Commitment Date": the last day of each March, June,
September and December and the last day of the Revolving Commitment Period.
"L/C Obligations": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters of
Credit that have not then been reimbursed pursuant to subsection 3.5.
"L/C Participants": the collective reference to all the
Revolving Banks other than the Issuing Bank.
"Letters of Credit": as defined in subsection 3.1(a).
"Level I Period": any period during which the publicly
announced ratings by S&P and Moody's of the then current senior unsecured,
non-credit enhanced, long-term Indebtedness of the Company that has been
publicly issued are BBB- or better or Baa3 or better, respectively.
"Level II Period": any period during which the publicly
announced ratings by S&P and Moody's of the then current senior unsecured,
non-credit enhanced, long-term Indebtedness of the Company that has been
publicly issued are BB+ or Ba1, respectively.
"Level III Period": any period which the publicly announced
ratings by S&P and Moody's of the then current senior unsecured, non-credit
enhanced, long-term Indebtedness of the Company that has been publicly issued
are BB or Ba2, respectively.
"Level IV Period": any period which the publicly announced
ratings by S&P or Moody's of the then current senior unsecured, non-credit
enhanced, long-term Indebtedness of the Company that has been publicly issued
are 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 Moody's do not coincide for
any rating category and the Level differential is (x) one level, then the higher
rating will be the applicable Level; (y) two levels, the Level at the midpoint
will be the applicable Level; and (z) more than two levels, the lower of the
intermediate Levels will be the applicable Level.
<PAGE> 15
14
"LIBO Rate": in respect of any LIBO Rate CAF Advance, the
Eurodollar Base Rate for an interest period commencing on the date of such CAF
Advance and ending on the CAF Advance Maturity Date with respect thereto.
"LIBO Rate CAF Advance": any CAF Advance made pursuant to a
LIBO Rate CAF Advance Request.
"LIBO Rate CAF Advance Request": any CAF Advance Request
requesting the Banks to offer to make CAF Advances at an interest rate equal to
the LIBO Rate plus (or minus) a margin.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, any conditional sale or other
title retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing).
"Loan Documents": this Agreement and the Notes.
"Loans": the loans made by the Banks to the Company pursuant
to this Agreement.
"Majority Facility Banks": with respect to any Facility, the
holders of more than 50% of the aggregate unpaid principal amount of the Term
Loans or the Total Revolving Extensions of Credit, as the case may be,
outstanding under such Facility (or, in the case of the Revolving Facility,
prior to any termination of the Revolving Commitments, the holders of more than
50% of the Total Revolving Commitments).
"Moody's": Moody's Investors Service, Inc., or any successor
thereto.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Non-Excluded Taxes": as defined in subsection 2.21(a).
"Non-U.S. Banks": as defined in subsection 2.21(d).
"Notes": the collective reference to any promissory note
evidencing Loans.
"Other Taxes": any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"Participants": as defined in subsection 9.6(b).
"PBGC": the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
<PAGE> 16
15
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Company or a Control Group
Person is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Principal Property": means each acute care hospital providing
general medical and surgical services (including real property but excluding
equipment, personal property and hospitals which primarily provide specialty
medical services, such as psychiatric and obstetrical and gynecological
services) at least 50% of which is owned by the Company and its Subsidiaries on
a consolidated basis and located in the United States of America.
"Purchasing Banks": as defined in subsection 9.6(c).
"Register": as defined in subsection 9.6(d).
"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System.
"Regulation X": Regulation X of the Board of Governors of the
Federal Reserve System.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of such term as
used in Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(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.
"Required Banks": at any time, the holders of more than 50% of
(a) until the Closing Date, the Commitments then in effect and (b) thereafter,
the sum of (i) the aggregate unpaid principal amount of the Term Loans then
outstanding and (ii) the Total Revolving Commitments then in effect or, if the
Revolving Commitments have been terminated, the Total Revolving Extensions of
Credit then outstanding; provided, that for the purposes of declaring the Loans
to be due and payable pursuant to Section 7, and for all purposes after the
Loans become due and payable pursuant to Section 7 or the Revolving Commitments
shall have been expired or terminated, the outstanding CAF Advances of each Bank
shall be included in its Revolving Extensions of Credit in determining the
Required Banks.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
<PAGE> 17
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"Responsible Officer": the chief executive officer, the
president, any executive or senior vice president or vice president of the
Company, the chief financial officer, treasurer or controller of the Company.
"Revolving Bank": each Bank that has a Revolving Commitment or
that holds Revolving Loans.
"Revolving Commitment": as to any Bank, the obligation of such
Bank, if any, to make Revolving Loans and participate in Letters of Credit in an
aggregate principal and/or face amount not to exceed the amount set forth under
the heading "Revolving Commitment" opposite such Bank's name on Schedule I or in
the Commitment Transfer Supplement pursuant to which such Bank became a party
hereto, as the same may be changed from time to time pursuant to the terms
hereof. The original amount of the Total Revolving Commitments is
$1,750,000,000.
"Revolving Commitment Period": the period from and including
the Closing Date to the Revolving Termination Date.
"Revolving Extensions of Credit": as to any Revolving Bank at
any time, an amount equal to the sum of (a) the aggregate principal amount of
all Revolving Loans held by such Bank then outstanding and (b) such Bank's
Revolving Percentage of the L/C Obligations then outstanding.
"Revolving Loans": as defined in subsection 2.4(a).
"Revolving Percentage": as to any Revolving Bank at any time,
the percentage which such Bank's Revolving Commitment then constitutes of the
Total Revolving Commitments or, at any time after the Revolving Commitments
shall have expired or terminated, the percentage which the aggregate principal
amount of such Bank's Revolving Loans then outstanding constitutes of the
aggregate principal amount of the Revolving Loans then outstanding, provided,
that, in the event that the Revolving Loans are paid in full prior to the
reduction to zero of the Total Revolving Extensions of Credit, the Revolving
Percentages shall be determined in a manner designed to ensure that the other
outstanding Revolving Extensions of Credit shall be held by the Revolving Banks
on a comparable basis.
"Revolving Termination Date": April 30, 2006.
"S&P": Standard & Poor's Ratings Service, or any successor
thereto.
"Sale-and-Leaseback Transaction": any arrangement entered into
by the Company or any Significant Subsidiary with any person (other than the
Company or a Significant Subsidiary), or to which any such person is a party,
providing for the leasing to the Company or any Significant Subsidiary for a
period of more than three years of any Principal Property which has been or is
to be held or transferred by the Company or such Significant Subsidiary to such
Person or to any other Person (other than the Company or a Significant
Subsidiary), to which funds have been or are to be advanced by such Person on
the security of the leased property.
<PAGE> 18
17
"Significant Subsidiary": at any particular time, any
Subsidiary of the Company 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.
"SPC": as defined in subsection 9.6(h).
"Subsidiary": as to any Person, a corporation, partnership or
other entity (i) of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests having
such power only by reason of the happening of a contingency) to elect a majority
of the board of directors or other managers of such corporation, partnership or
other entity are at the time owned directly or indirectly through one or more
intermediaries, by such Person or (ii) which otherwise is consolidated with the
Company for financial statement purposes as determined in accordance with GAAP.
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of
the Company.
"Taxes": any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Temporary Equity": any amount included on the consolidated
balance sheet of the Company and its Subsidiaries at such date as it pertains to
(i) the repurchase of the Company's common stock using derivative financial
instruments indexed to, and potentially settled in, the Company's own stock and
(ii) amounts attributed to the consolidation of special purpose vehicle(s) that
are created for the sole purpose of engaging in transactions to effect the
Company's repurchase of its own stock.
"Term Bank": each Bank that has a Term Commitment or that
holds a Term Loan.
"Term Commitment": as to any Bank, the obligation of such
Bank, if any, to make a Term Loan to the Company in a principal amount not to
exceed the amount set forth under the heading "Term Commitment" opposite such
Bank's name on Schedule I. The original aggregate amount of the Term Commitments
is $750,000,000.
"Term Loan": as defined in subsection 2.1.
"Term Maturity Date": April 30, 2006.
"Term Percentage": as to any Term Bank at any time, the
percentage which such Bank's Term Commitment then constitutes of the aggregate
Term Commitments (or, at any time after the Closing Date, the percentage which
the aggregate principal amount of such Bank's Term Loans then outstanding
constitutes of the aggregate principal amount of the Term Loans then
outstanding).
"Total Revolving Commitments": at any time, the aggregate
amount of the Revolving Commitments then in effect.
<PAGE> 19
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"Total Revolving Extensions of Credit": at any time, the
aggregate amount of the Revolving Extensions of Credit of the Revolving Banks
outstanding at such time.
"Transfer Effective Date": as defined in each Commitment
Transfer Supplement.
"Transferee": as defined in subsection 9.6(f).
"Type": as to any Loan, its nature as an Alternate Base Rate
Loan or a Eurodollar Loan.
"United States": the United States of America.
"Voting Stock": of any corporation, shares of capital stock or
other securities of such corporation entitled to vote generally in the election
of directors of such corporation.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the Notes or any certificate or other document made or
delivered pursuant hereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Company and its Subsidiaries not defined in
subsection 1.1 and accounting terms partly defined in subsection 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Commitments. Subject to the terms and conditions
hereof, (a) each Term Bank severally agrees to make a term loan (a "Term Loan")
to the Company on the Closing Date in an amount not to exceed the amount of the
Term Commitment of such Bank. The Term Loans may from time to time be Eurodollar
Loans and/or Alternate Base Rate Loans, as determined by the Company and
notified to the Agent in accordance with subsections 2.2 and 2.14.
2.2 Procedure for Term Loan Borrowing. The Company shall give
the Agent irrevocable notice (which notice must be received by the Agent (i)
prior to 12:00 Noon, New York City time, three Business Days prior to the
Closing Date, in the case of Eurodollar Loans and (ii) prior to 12:00 Noon, New
York City time, one Business Day prior to the anticipated
<PAGE> 20
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Closing Date, in the case of Alternate Base Rate Loans) requesting that the Term
Banks make the Term Loans on the Closing Date and specifying the amount and
Type(s) to be borrowed. Upon receipt of such notice the Agent shall promptly
notify each Term Bank thereof. Not later than 12:00 Noon, New York City time, on
the Closing Date each Term Bank shall make available to the Agent at the Funding
Office an amount in immediately available funds equal to the Term Loan to be
made by such Bank. The Agent shall credit the account of the Company on the
books of such office of the Agent with the aggregate of the amounts made
available to the Agent by the Term Banks in immediately available funds.
2.3 Repayment of Term Loans. The Term Loan of each Term Bank
shall mature and be payable by the Company in 16 consecutive quarterly
installments commencing July 31, 2002, each of which shall be in an amount equal
to such Term Bank's Term Percentage multiplied by the amount set forth below
opposite such installment:
<TABLE>
<CAPTION>
Installment Date Principal Amount
---------------- ----------------
July 31, 2002 $18,750,000
October 31, 2002 $18,750,000
January 31, 2003 $18,750,000
April 30, 2003 $18,750,000
July 31, 2003 $37,500,000
October 31, 2003 $37,500,000
January 31, 2004 $37,500,000
April 30, 2004 $37,500,000
July 31, 2004 $56,250,000
October 31, 2004 $56,250,000
January 31, 2005 $56,250,000
April 30, 2005 $56,250,000
July 31, 2005 $75,000,000
October 31, 2005 $75,000,000
January 31, 2006 $75,000,000
Term Maturity Date $75,000,000
</TABLE>
2.4 Revolving Commitments. (a) Subject to the terms and
conditions hereof, each Revolving Bank severally agrees to make revolving credit
loans ("Revolving Loans") to the Company from time to time during the Revolving
Commitment Period in an aggregate principal amount at any one time outstanding
which, when added to such Bank's Revolving Percentage of the sum of the L/C
Obligations then outstanding, does not exceed the amount of such Bank's
Revolving Commitment. The Company shall not request, and the Banks shall not
make, any Revolving Loan if, after giving effect to the making of such Revolving
Loan, the aggregate amount of the Available Revolving Commitments would be less
than zero. During the Revolving Commitment Period the Company may use the
Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in
part, and reborrowing, all in
<PAGE> 21
20
accordance with the terms and conditions hereof. The Revolving Loans may from
time to time be Eurodollar Loans and/or Alternate Base Rate Loans, as determined
by the Company and notified to the Agent in accordance with subsections 2.5 and
2.14.
(b) The Company shall repay all outstanding Revolving Loans on
the Revolving Termination Date.
2.5 Procedure for Revolving Loan Borrowing. The Company may
borrow under the Revolving Commitments during the Revolving Commitment Period on
any Business Day, provided that the Company shall give the Agent irrevocable
notice (which notice must be received by the Agent (a) prior to 12:00 Noon, New
York City time, three Business Days prior to the requested Borrowing Date, in
the case of Eurodollar Loans, or (b) prior to 10:00 A.M., New York City time, on
the requested Borrowing Date, in the case of Alternate Base Rate Loans),
specifying (i) the amount and Type of Revolving Loans to be borrowed, (ii) the
requested Borrowing Date and (iii) in the case of Eurodollar Loans, the
respective amounts of each such Type of Loan and the respective lengths of the
initial Interest Periods therefor. Each borrowing under the Revolving
Commitments shall be in an amount equal to (x) in the case of Alternate Base
Rate Loans, $1,000,000 or a whole multiple thereof (or, if the then aggregate
Available Revolving Commitments are less than $1,000,000, such lesser amount)
and (y) in the case of Eurodollar Loans, $10,000,000 or a whole multiple of
$1,000,000 in excess thereof. Upon receipt of any such notice from the Company,
the Agent shall promptly notify each Revolving Bank thereof. Each Revolving Bank
will make the amount of its pro rata share of each borrowing available to the
Agent for the account of the Company at the Funding Office prior to 12:00 Noon,
New York City time, on the Borrowing Date requested by the Company in funds
immediately available to the Agent. Such borrowing will then be made available
to the Company by the Agent crediting the account of the Company on the books of
such office with the aggregate of the amounts made available to the Agent by the
Revolving Banks and in like funds as received by the Agent.
2.6 CAF Advances. Subject to the terms and conditions of this
Agreement, the Company may borrow CAF Advances from time to time on any Business
Day during the CAF Advance Availability Period. The Company shall not request,
and the Banks shall not make, any CAF Advance if, after giving effect to the
making of such CAF Advance, the aggregate amount of the Available Revolving
Commitments would be less than zero. Within the limits and on the conditions
hereinafter set forth with respect to CAF Advances, the Company from time to
time may borrow, repay and reborrow CAF Advances.
2.7 Procedure for CAF Advance Borrowing. (a) The Company shall
request CAF Advances by delivering a CAF Advance Request to the CAF Advance
Agent, not later than 12:00 Noon, New York City time, four Business Days prior
to the proposed Borrowing Date (in the case of a LIBO Rate CAF Advance Request),
and not later than 10:00 A.M., New York City time, one Business Day prior to the
proposed Borrowing Date (in the case of a Fixed Rate CAF Advance Request). Each
CAF Advance Request in respect of any Borrowing Date may solicit bids for CAF
Advances on such Borrowing Date in an aggregate principal amount of $10,000,000
or an integral multiple of $1,000,000 in excess thereof and having not more than
three alternative CAF Advance Maturity Dates. The CAF Advance Maturity Date for
each CAF Advance shall be the date set forth therefor in the relevant CAF
Advance Request, which date
<PAGE> 22
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shall be (i) not less than 7 days nor more than 360 days after the Borrowing
Date therefor, in the case of a Fixed Rate CAF Advance, (ii) one, two, three or
six months after the Borrowing Date therefor, in the case of a LIBO CAF Advance
and (iii) not later than the Revolving Termination Date, in the case of any CAF
Advance. The CAF Advance Agent shall notify each Bank promptly by facsimile
transmission of the contents of each CAF Advance Request received by the CAF
Advance Agent.
(b) In the case of a LIBO Rate CAF Advance Request, upon
receipt of notice from the CAF Advance Agent of the contents of such CAF Advance
Request, each Bank may elect, in its sole discretion, to offer irrevocably to
make one or more CAF Advances at the applicable LIBO Rate plus (or minus) a
margin determined by such Bank in its sole discretion for each such CAF Advance.
Any such irrevocable offer shall be made by delivering a CAF Advance Offer to
the CAF Advance Agent, before 10:30 A.M., New York City time, on the day that is
three Business Days before the proposed Borrowing Date, setting forth:
(i) the maximum amount of CAF Advances for each CAF Advance
Maturity Date and the aggregate maximum amount of CAF Advances for all
CAF Advance Maturity Dates which such Bank would be willing to make
(which amounts may, subject to subsection 2.6, exceed such Bank's
Revolving Commitments); and
(ii) the margin above or below the applicable LIBO Rate at
which such Bank is willing to make each such CAF Advance.
The CAF Advance Agent shall advise the Company before 11:00 A.M., New York City
time, on the date which is three Business Days before the proposed Borrowing
Date of the contents of each such CAF Advance Offer received by it. If the CAF
Advance Agent, in its capacity as a Bank, shall elect, in its sole discretion,
to make any such CAF Advance Offer, it shall advise the Company of the contents
of its CAF Advance Offer before 10:15 A.M., New York City time, on the date
which is three Business Days before the proposed Borrowing Date.
(c) In the case of a Fixed Rate CAF Advance Request, upon
receipt of notice from the CAF Advance Agent of the contents of such CAF Advance
Request, each Bank may elect, in its sole discretion, to offer irrevocably to
make one or more CAF Advances at a rate of interest determined by such Bank in
its sole discretion for each such CAF Advance. Any such irrevocable offer shall
be made by delivering a CAF Advance Offer to the CAF Advance Agent before 9:30
A.M., New York City time, on the proposed Borrowing Date, setting forth:
(i) the maximum amount of CAF Advances for each CAF Advance
Maturity Date, and the aggregate maximum amount for all CAF Advance
Maturity Dates, which such Bank would be willing to make (which amounts
may, subject to subsection 2.6, exceed such Bank's Revolving
Commitment); and
(ii) the rate of interest at which such Bank is willing to
make each such CAF Advance.
The CAF Advance Agent shall advise the Company before 10:00 A.M., New York City
time, on the proposed Borrowing Date of the contents of each such CAF Advance
Offer received by it. If the CAF Advance Agent, in its capacity as a Bank, shall
elect, in its sole discretion, to make any
<PAGE> 23
22
such CAF Advance Offer, it shall advise the Company of the contents of its CAF
Advance Offer before 9:15 A.M., New York City time, on the proposed Borrowing
Date.
(d) Before 11:30 A.M., New York City time, three Business Days
before the proposed Borrowing Date (in the case of CAF Advances requested by a
LIBO Rate CAF Advance Request) and before 10:30 A.M., New York City time, on the
proposed Borrowing Date (in the case of CAF Advances requested by a Fixed Rate
CAF Advance Request), the Company, in its absolute discretion, shall:
(i) cancel such CAF Advance Request by giving the CAF Advance
Agent telephone notice to that effect, or
(ii) by giving telephone notice to the CAF Advance Agent
(immediately confirmed by delivery to the CAF Advance Agent of a CAF
Advance Confirmation by facsimile transmission) (A) subject to the
provisions of subsection 2.7(e), accept one or more of the offers made
by any Bank or Banks pursuant to subsection 2.7(b) or subsection
2.7(c), as the case may be, and (B) reject any remaining offers made by
Banks pursuant to subsection 2.7(b) or subsection 2.7(c), as the case
may be.
(e) The Company's acceptance of CAF Advances in response to
any CAF Advance Offers shall be subject to the following limitations:
(i) the amount of CAF Advances accepted for each CAF Advance
Maturity Date specified by any Bank in its CAF Advance Offer shall not
exceed the maximum amount for such CAF Advance Maturity Date specified
in such CAF Advance Offer;
(ii) the aggregate amount of CAF Advances accepted for all CAF
Advance Maturity Dates specified by any Bank in its CAF Advance Offer
shall not exceed the aggregate maximum amount specified in such CAF
Advance Offer for all such CAF Advance Maturity Dates;
(iii) the Company may not accept offers for CAF Advances for
any CAF Advance Maturity Date in an aggregate principal amount in
excess of the maximum principal amount requested in the related CAF
Advance Request; and
(iv) if the Company accepts any of such offers, it must accept
offers based solely upon pricing for each relevant CAF Advance Maturity
Date and upon no other criteria whatsoever, and if two or more Banks
submit offers for any CAF Advance Maturity Date at identical pricing
and the Company accepts any of such offers but does not wish to (or, by
reason of the limitations set forth in subsection 2.6, cannot) borrow
the total amount offered by such Banks with such identical pricing, the
Company shall accept offers from all of such Banks in amounts allocated
among them pro rata according to the amounts offered by such Banks
(with appropriate rounding, in the sole discretion of the Company, to
assure that each accepted CAF Advance is an integral multiple of
$1,000,000); provided that if the number of Banks that submit offers
for any CAF Advance Maturity Date at identical pricing is such that,
after the Company accepts such offers pro rata in accordance with the
foregoing provisions of this paragraph, the CAF Advance to be made by
any such Bank would be less than $5,000,000 principal amount,
<PAGE> 24
23
the number of such Banks shall be reduced by the CAF Advance Agent by
lot until the CAF Advances to be made by each such remaining Bank would
be in a principal amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof.
(f) If the Company notifies the CAF Advance Agent that a CAF
Advance Request is cancelled pursuant to subsection 2.7(d)(i), the CAF Advance
Agent shall give prompt telephone notice thereof to the Banks.
(g) If the Company accepts pursuant to subsection 2.7(d)(ii)
one or more of the offers made by any Bank or Banks, the CAF Advance Agent
promptly shall notify each Bank which has made such an offer of (i) the
aggregate amount of such CAF Advances to be made on such Borrowing Date for each
CAF Advance Maturity Date and (ii) the acceptance or rejection of any offers to
make such CAF Advances made by such Bank. Before 12:00 Noon, New York City time,
on the Borrowing Date specified in the applicable CAF Advance Request, each Bank
whose CAF Advance Offer has been accepted shall make available to the Agent at
the Funding Office the amount of CAF Advances to be made by such Bank, in
immediately available funds. The Agent will make such funds available to the
Company as soon as practicable on such date at such office of the Agent. As soon
as practicable after each Borrowing Date, the CAF Advance Agent shall notify
each Bank of the aggregate amount of CAF Advances advanced on such Borrowing
Date and the respective CAF Advance Maturity Dates thereof.
2.8 CAF Advance Payments. (a) The Company shall pay to the
Administrative Agent, for the account of each Bank which has made a CAF Advance,
on the applicable CAF Advance Maturity Date the then unpaid principal amount of
such CAF Advance. The Company shall not have the right to prepay any principal
amount of any CAF Advance without the consent of the Bank to which such CAF
Advance is owed.
(b) The Company shall pay interest on the unpaid principal
amount of each CAF Advance from the Borrowing Date to the applicable CAF Advance
Maturity Date at the rate of interest specified in the CAF Advance Offer
accepted by the Company in connection with such CAF Advance (calculated on the
basis of a 360-day year for actual days elapsed), payable on each applicable CAF
Advance Interest Payment Date.
(c) If any principal of, or interest on, any CAF Advance shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such CAF Advance shall, without limiting any rights of any Bank
under this Agreement, bear interest from the date on which such payment was due
at a rate per annum which is 2% above the rate which would otherwise be
applicable to such CAF Advance until the stated CAF Advance Maturity Date of
such CAF Advance, and for each day thereafter at a rate per annum which is 2%
above the Alternate Base Rate, in each case until paid in full (as well after as
before judgment). Interest accruing pursuant to this paragraph (c) shall be
payable from time to time on demand.
2.9 Evidence of Debt. (a) The Company unconditionally promises
to pay to the Agent, for the account of each Bank that makes a CAF Advance, on
the CAF Advance Maturity Date with respect thereto, the principal amount of such
CAF Advance. The Company further unconditionally promises to pay interest on
each such CAF Advance for the period from and including the Borrowing Date of
such CAF Advance on the unpaid principal amount thereof
<PAGE> 25
24
from time to time outstanding at the applicable rate per annum determined as
provided in, and payable as specified in, subsection 2.8(b). Each Bank shall
maintain in accordance with its usual practice appropriate records evidencing
indebtedness of the Company to such Bank resulting from each CAF Advance of such
Bank from time to time, including the amounts of principal and interest payable
and paid to such Bank from time to time in respect of such CAF Advance. The
Agent shall maintain the Register pursuant to subsection 9.6(d), and a record
therein for each Bank, in which shall be recorded (i) the amount of each CAF
Advance made by such Bank, the CAF Advance Maturity Date thereof, the interest
rate applicable thereto and each CAF Advance Interest Payment Date applicable
thereto, and (ii) the amount of any sum received by the Agent hereunder from the
Company on account of such CAF Advance. The entries made in the Register and the
records of each Bank maintained pursuant to this subsection 2.9 shall, to the
extent permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the Company therein recorded; provided, however,
that the failure of any Bank or the Agent to maintain the Register or any such
record, or any error therein, shall not in any manner affect the obligation of
the Company to repay (with applicable interest) the CAF Advances made by such
Bank in accordance with the terms of this Agreement.
(b) At the request of any Bank at any time, the Company agrees
that it will execute and deliver to such Bank a Note evidencing the Revolving
Loans, the Term Loans or the CAF Advances of such Bank.
2.10 Certain Restrictions. A CAF Advance Request may request
offers for CAF Advances to be made on not more than one Borrowing Date and to
mature on not more than three CAF Advance Maturity Dates. No CAF Advance Request
may be submitted earlier than five Business Days after submission of any other
CAF Advance Request.
2.11 Facility Fees, etc. (a) The Company agrees to pay to the
Agent for the account of each Revolving Bank a facility fee ("Facility Fees";
each a "Facility Fee") for the period from and including the Closing Date to the
earlier of the last day of the Revolving Commitment Period and the date upon
which this Agreement is otherwise terminated, computed at the Facility Fee Rate
on the average daily amount of the Revolving Commitment of such Bank during the
period for which payment is made, payable quarterly in arrears on the last day
of each March, June, September and December and on the earlier of the Revolving
Termination Date and the date upon which this Agreement is otherwise terminated,
commencing on the first of such dates to occur after the date hereof.
(b) The Company agrees to pay to the Agent the fees in the
amounts and on the dates set forth in the fee letter dated March 14, 2001
between the Company and the Agent.
2.12 Termination or Reduction of Revolving Commitments. The
Company shall have the right, upon not less than three Business Days' notice to
the Agent, to terminate the Revolving Commitments or, from time to time, to
reduce the amount of the Revolving Commitments; provided that no such
termination or reduction of Revolving Commitments shall be permitted if, after
giving effect thereto and to any prepayments of the Revolving Loans made on the
effective date thereof, the Total Revolving Extensions of Credit and the
aggregate amount of CAF Advances outstanding would exceed the Total Revolving
Commitments. Any such
<PAGE> 26
25
reduction shall be in an amount equal to $10,000,000, or a whole multiple of
$1,000,000 in excess thereof, and shall reduce permanently the Revolving
Commitments then in effect.
2.13 Optional Prepayments. The Company may at any time and
from time to time prepay the Loans, in whole or in part, without premium or
penalty, upon irrevocable notice delivered to the Agent at least three Business
Days prior thereto in the case of Eurodollar Loans and at least one Business Day
prior thereto in the case of Alternate Base Rate Loans, which notice shall
specify the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans or Alternate Base Rate Loans or a combination thereof;
provided, that if a Eurodollar Loan is prepaid on any day other than the last
day of the Interest Period applicable thereto, the Company shall also pay any
amounts owing pursuant to subsection 2.22. Upon receipt of any such notice the
Agent shall promptly notify each relevant Bank thereof. If any such notice is
given, the amount specified in such notice shall be due and payable on the date
specified therein, together with (except in the case of Revolving Loans that are
Alternate Base Rate Loans) accrued interest to such date on the amount prepaid.
Partial prepayments of Term Loans and/or Revolving Loans shall be in an
aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in
excess thereof.
2.14 Conversion and Continuation Options. (a) The Company may
elect from time to time to convert all or any part of outstanding Eurodollar
Loans to Alternate Base Rate Loans by giving the Agent at least two Business
Days' prior irrevocable notice of such election, provided that any such
conversion of Eurodollar Loans may only be made on the last day of an Interest
Period with respect thereto. The Company may elect from time to time to convert
all or any part of outstanding Alternate Base Rate Loans to Eurodollar Loans by
giving the Agent at least three Business Days' prior irrevocable notice of such
election (which notice shall specify the length of the initial Interest Period
therefor), provided that no Alternate Base Rate Loan under a particular Facility
may be converted into a Eurodollar Loan when any Event of Default has occurred
and is continuing and the Agent or the Majority Facility Banks in respect of
such Facility have determined in its or their sole discretion not to permit such
conversions. Upon receipt of any such notice the Agent shall promptly notify
each relevant Bank thereof.
(b) All or any portion of any Eurodollar Loan may be continued
as such upon the expiration of the then current Interest Period with respect
thereto by the Company giving irrevocable notice to the Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
subsection 1.1, of the length of the next Interest Period to be applicable to
such Loans, provided that no Eurodollar Loan under a particular Facility may be
continued as such when any Event of Default has occurred and is continuing and
the Agent has or the Majority Facility Banks in respect of such Facility have
determined in its or their sole discretion not to permit such continuations, and
provided, further, that if the Company shall fail to give any required notice as
described above in this paragraph or if such continuation is not permitted
pursuant to the preceding proviso such Loans shall be automatically converted to
Alternate Base Rate Loans on the last day of such then expiring Interest Period.
Upon receipt of any such notice the Agent shall promptly notify each relevant
Bank thereof.
2.15 Limitations on Eurodollar Tranches. Notwithstanding
anything to the contrary in this Agreement, all borrowings, conversions and
continuations of Eurodollar Loans under each Facility and all selections of
Interest Periods shall be in such amounts and be made
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26
pursuant to such elections so that, (a) after giving effect thereto, the
aggregate principal amount of the Eurodollar Loans comprising each Eurodollar
Tranche shall be equal to $10,000,000 or a whole multiple of $1,000,000 in
excess thereof and (b) no more than 15 Eurodollar Tranches shall be outstanding
at any one time.
2.16 Interest Rates and Payment Dates. (a) Each Eurodollar
Loan under each Facility (other than a LIBO Rate CAF Advance) shall bear
interest for each day during each Interest Period with respect thereto at a rate
per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin for such Facility.
(b) Each Alternate Base Rate Loan under each Facility shall
bear interest at a rate per annum equal to the Alternate Base Rate plus the
Applicable Margin for such Facility.
(c) (i) If all or a portion of the principal amount of any
Loan or Reimbursement Obligation shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to (x) in the case of the Loans (other than
CAF Advances), the rate that would otherwise be applicable thereto pursuant to
the foregoing provisions of this subsection plus 2% or (y) in the case of
Reimbursement Obligations, the rate applicable to Alternate Base Rate Loans
under the Revolving Facility plus 2%, and (ii) if all or a portion of any
interest payable on any Loan or Reimbursement Obligation or any Facility Fee or
other amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum equal to the rate then applicable to Alternate Base Rate
Loans under the relevant Facility plus 2%, in each case, with respect to clauses
(i) and (ii) above, from the date of such non-payment until such amount is paid
in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
2.17 Computation of Interest and Fees. (a) Interest and fees
payable pursuant hereto shall be calculated on the basis of a 360-day year for
the actual days elapsed, except that, with respect to Alternate Base Rate Loans
the rate of interest on which is calculated on the basis of the Prime Rate, the
interest thereon shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed. The Agent shall as soon as
practicable notify the Company and the relevant Banks of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the Alternate Base Rate or the Eurocurrency Reserve Requirements shall
become effective as of the opening of business on the day on which such change
becomes effective. The Agent shall as soon as practicable notify the Company and
the relevant Banks of the effective date and the amount of each such change in
interest rate.
(b) Each determination of an interest rate by the Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Company and the Banks in the absence of manifest error. The Agent shall, at
the request of the Company, deliver to the Company a
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27
statement showing the quotations used by the Agent in determining any interest
rate pursuant to subsection 2.16(a).
2.18 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Agent shall have determined (which determination shall
be conclusive and binding upon the Company) that, by reason of
circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate for such
Interest Period, or
(b) the Agent shall have received notice from the Majority
Facility Banks in respect of the relevant Facility that the Eurodollar
Rate determined or to be determined for such Interest Period will not
adequately and fairly reflect the cost to such Banks (as conclusively
certified by such Banks) of making or maintaining their affected Loans
during such Interest Period,
the Agent shall give telecopy or telephonic notice thereof to the Company and
the relevant Banks as soon as practicable thereafter. If such notice is given
(x) any Eurodollar Loans under the relevant Facility requested to be made on the
first day of such Interest Period shall be made as Alternate Base Rate Loans,
(y) any Loans under the relevant Facility that were to have been converted on
the first day of such Interest Period to Eurodollar Loans shall be continued as
Alternate Base Rate Loans and (z) any outstanding Eurodollar Loans under the
relevant Facility shall be converted, on the last day of the then-current
Interest Period, to Alternate Base Rate Loans. Until such notice has been
withdrawn by the Agent, no further Eurodollar Loans under the relevant Facility
shall be made or continued as such, nor shall the Company have the right to
convert Loans under the relevant Facility to Eurodollar Loans.
2.19 Pro Rata Treatment and Payments. (a) Each borrowing by
the Company from the Banks hereunder (other than borrowing of CAF Advances),
each payment by the Company on account of any commitment fee and any reduction
of the Commitments of the Banks shall be made pro rata according to the
respective Term Percentages or Revolving Percentages, as the case may be, of the
relevant Banks.
(b) Each payment (including each prepayment) by the Company on
account of principal of and interest on the Term Loans shall be made pro rata
according to the respective outstanding principal amounts of the Term Loans then
held by the Term Banks. Amounts prepaid on account of the Term Loans may not be
reborrowed.
(c) Each payment (including each prepayment) by the Company on
account of principal of and interest on the Revolving Loans shall be made pro
rata according to the respective outstanding principal amounts of the Revolving
Loans then held by the Revolving Banks.
(d) All payments (including prepayments) to be made by the
Company hereunder, whether on account of principal, interest, fees or otherwise,
shall be made without setoff or counterclaim and shall be made prior to 1:00
P.M., New York City time, on the due date thereof to the Agent, for the account
of the Banks, at the Agent's office set forth in subsection
<PAGE> 29
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9.2, in Dollars and in immediately available funds. The Agent shall distribute
such payments to the Banks promptly upon receipt in like funds as received. If
any payment hereunder (other than payments on the Eurodollar Loans) becomes due
and payable on a day other than a Business Day, such payment shall be extended
to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes
due and payable on a day other than a Business Day, the maturity thereof shall
be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business Day. In
the case of any extension of any payment of principal pursuant to the preceding
two sentences, interest thereon shall be payable at the then applicable rate
during such extension.
(e) Unless the Agent shall have been notified in writing by
any Bank prior to a borrowing that such Bank will not make the amount that would
constitute its share of such borrowing available to the Agent, the Agent may
assume that such Bank is making such amount available to the Agent, and the
Agent may, in reliance upon such assumption, make available to the Company a
corresponding amount. If such amount is not made available to the Agent by the
required time on the Borrowing Date therefor, such Bank shall pay to the Agent,
on demand, such amount with interest thereon at a rate equal to the daily
average Federal Funds Effective Rate for the period until such Bank makes such
amount immediately available to the Agent. A certificate of the Agent submitted
to any Bank with respect to any amounts owing under this paragraph shall be
conclusive in the absence of manifest error. If such Bank's share of such
borrowing is not made available to the Agent by such Bank within three Business
Days after such Borrowing Date, the Agent shall also be entitled to recover such
amount with interest thereon at the rate per annum applicable to Alternate Base
Rate Loans under the relevant Facility, on demand, from the Company.
(f) Unless the Agent shall have been notified in writing by
the Company prior to the date of any payment due to be made by the Company
hereunder that the Company will not make such payment to the Agent, the Agent
may assume that the Company is making such payment, and the Agent may, but shall
not be required to, in reliance upon such assumption, make available to the
Banks their respective pro rata shares of a corresponding amount. If such
payment is not made to the Agent by the Company within three Business Days after
such due date, the Agent shall be entitled to recover, on demand, from each Bank
to which any amount which was made available pursuant to the preceding sentence,
such amount with interest thereon at the rate per annum equal to the daily
average Federal Funds Effective Rate. Nothing herein shall be deemed to limit
the rights of the Agent or any Bank against the Company.
2.20 Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof after
the date hereof or compliance by any Bank with any request or directive (whether
or not having the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof:
(i) shall subject any Bank to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any Application
or any Eurodollar Loan made by it, or change the basis of taxation of
payments to such Bank in respect thereof (except for Non-Excluded Taxes
covered by subsection 2.21 and changes in the rate of tax on the
overall net income of such Bank);
<PAGE> 30
29
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Bank that is not otherwise
included in the determination of the Eurodollar Rate; or
(iii) shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank, by
an amount that such Bank deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Company shall promptly pay such Bank, upon
its demand, any additional amounts necessary to compensate such Bank for such
increased cost or reduced amount receivable. If any Bank becomes entitled to
claim any additional amounts pursuant to this paragraph, it shall, within 90
days after it becomes aware of such fact, notify the Company (with a copy to the
Agent) of the event by reason of which it has become so entitled.
(b) If any Bank shall have determined that the adoption of or
any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof after the date hereof or compliance by
such Bank or any corporation controlling such Bank with any request or directive
regarding capital adequacy (whether or not having the force of law) from any
Governmental Authority made subsequent to the date hereof shall have the effect
of reducing the rate of return on such Bank's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Bank or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Bank's or such corporation's policies with respect to capital adequacy) by
an amount deemed by such Bank to be material, then from time to time, after
submission by such Bank to the Company (with a copy to the Agent) of a written
request therefore (such request shall include details reasonably sufficient to
establish the basis for such additional costs and shall be submitted to the
Company within 30 Business Days after it becomes aware of such fact), the
Company shall pay to such Bank such additional amount or amounts as will
compensate such Bank or such corporation for such reduction; provided that the
Company shall not be required to compensate a Bank pursuant to this paragraph
for any amounts incurred more than 90 days prior to the date that such Bank
notifies the Company of such Bank's intention to claim compensation therefor;
and provided further that, if the circumstances giving rise to such claim have a
retroactive effect, then such 90 day period shall be extended to include the
period of such retroactive effect.
(c) A certificate as to any additional amounts payable
pursuant to this subsection submitted by any Bank to the Company (with a copy to
the Agent) shall be conclusive in the absence of manifest error. The obligations
of the Company pursuant to this subsection shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
2.21 Taxes. (a) All payments made by the Company under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any
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30
present or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority, excluding net
income taxes, franchise taxes and excise taxes (imposed in lieu of net income
taxes) imposed on the Agent or any Bank as a result of a present or former
connection between the Agent or such Bank and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
the Agent or such Bank having executed, delivered or performed its obligations
or received a payment under, or enforced, this Agreement or any other Loan
Document). If any such non-excluded taxes, levies, imposts, duties, charges,
fees, deductions or withholdings ("Non-Excluded Taxes") or Other Taxes are
required to be withheld from any amounts payable to the Agent or any Bank
hereunder, the amounts so payable to the Agent or such Bank shall be increased
to the extent necessary to yield to the Agent or such Bank (after payment of all
Non-Excluded Taxes and Other Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement, provided,
however, that the Company shall not be required to increase any such amounts
payable to any Bank with respect to any Non-Excluded Taxes (i) that are
attributable to such Bank's failure to comply with the requirements of paragraph
(d) or (e) of this subsection or (ii) that are United States withholding taxes
imposed on amounts payable to such Bank at the time such Bank becomes a party to
this Agreement, except to the extent that such Bank's assignor (if any) was
entitled, at the time of assignment, to receive additional amounts from the
Company with respect to such Non-Excluded Taxes pursuant to this paragraph.
(b) In addition, the Company shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable
by the Company, as promptly as possible thereafter the Company shall send to the
Agent for its own account or for the account of the relevant Bank, as the case
may be, a certified copy of an original official receipt received by the Company
showing payment thereof. If the Company fails to pay any Non-Excluded Taxes or
Other Taxes when due to the appropriate taxing authority or fails to remit to
the Agent the required receipts or other required documentary evidence, the
Company shall indemnify the Agent and the Banks for any incremental taxes,
interest or penalties that may become payable by the Agent or any Bank as a
result of any such failure.
(d) Each Bank (or Transferee) that is not a "U.S. Person" as
defined in Section 7701(a)(30) of the Code (a "Non-U.S. Bank") shall deliver to
the Company and the Agent (or, in the case of a Participant, to the Bank from
which the related participation shall have been purchased) two copies of either
U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of a
Non-U.S. Bank claiming exemption from U.S. federal withholding tax under Section
871(h) or 881(c) of the Code with respect to payments of "portfolio interest", a
statement substantially in the form of Exhibit D and a Form W-8BEN, or any
subsequent versions thereof or successors thereto, properly completed and duly
executed by such Non-U.S. Bank claiming complete exemption from, or a reduced
rate of, U.S. federal withholding tax on all payments by the Company under this
Agreement and the other Loan Documents. Such forms shall be delivered by each
Non-U.S. Bank on or before the date it becomes a party to this Agreement (or, in
the case of any Participant, on or before the date such Participant purchases
the related
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participation). In addition, each Non-U.S. Bank shall deliver such forms
promptly upon the obsolescence or invalidity of any form previously delivered by
such Non-U.S. Bank. Each Non-U.S. Bank shall promptly notify the Company at any
time it determines that it is no longer in a position to provide any previously
delivered certificate to the Company (or any other form of certification adopted
by the U.S. taxing authorities for such purpose). Notwithstanding any other
provision of this paragraph, a Non-U.S. Bank shall not be required to deliver
any form pursuant to this paragraph that such Non-U.S. Bank is not legally able
to deliver.
(e) A Bank that is entitled to an exemption from or reduction
of non-U.S. withholding tax under the law of the jurisdiction in which the
Company is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Company (with a
copy to the Agent), at the time or times prescribed by applicable law or
reasonably requested by the Company, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate, provided that such Bank is
legally entitled to complete, execute and deliver such documentation and in such
Bank's judgment such completion, execution or submission would not materially
prejudice the legal position of such Bank.
(f) The agreements in this subsection shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.22 Indemnity. The Company agrees to indemnify each Bank for,
and to hold each Bank harmless from, any loss (excluding the Applicable Margin,
if included therein) or expense that such Bank may sustain or incur as a
consequence of (a) default by the Company in making a borrowing of, conversion
into or continuation of Eurodollar Loans after the Company has given a notice
requesting the same in accordance with the provisions of this Agreement, (b)
default by the Company in making any prepayment of or conversion from Eurodollar
Loans after the Company has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans on a day that is not the last day of an Interest Period with respect
thereto. Such indemnification may include an amount equal to the excess, if any,
of (i) the amount of interest that would have accrued on the amount so prepaid,
or not so borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Bank) that
would have accrued to such Bank on such amount by placing such amount on deposit
for a comparable period with leading banks in the interbank eurodollar market. A
certificate as to any amounts payable pursuant to this subsection 2.22, together
with calculations in reasonable detail, submitted to the Company by any Bank
shall be conclusive in the absence of manifest error. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
2.23 Change of Lending Office. Each Bank agrees that, upon the
occurrence of any event giving rise to the operation of subsection 2.20 or
2.21(a) with respect to such Bank, it will, if requested by the Company, use
reasonable efforts (subject to overall policy
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considerations of such Bank) to designate another lending office for any Loans
affected by such event with the object of avoiding the consequences of such
event; provided, that such designation is made on terms that, in the sole
judgment of such Bank, cause such Bank and its lending office(s) to suffer no
economic, legal or regulatory disadvantage, and provided, further, that nothing
in this subsection shall affect or postpone any of the obligations of the
Company or the rights of any Bank pursuant to subsection 2.20 or 2.21(a).
2.24 Replacement of Banks. The Company shall be permitted to
replace any Bank that (a) requests reimbursement for amounts owing pursuant to
subsection 2.20 or 2.21(a) or (b) defaults in its obligation to make Loans
hereunder, with a replacement financial institution; provided that (i) such
replacement does not conflict with any Requirement of Law, (ii) prior to any
such replacement, such Bank shall have taken no action under subsection 2.23 so
as to eliminate the continued need for payment of amounts owing pursuant to
subsection 2.20 or 2.21(a), (iii) the replacement financial institution shall
purchase, at par, all Loans and other amounts owing to such replaced Bank on or
prior to the date of replacement, (iv) the Company shall be liable to such
replaced Bank under subsection 2.22 if any Eurodollar Loan owing to such
replaced Bank shall be purchased other than on the last day of the Interest
Period relating thereto, (v) the replacement financial institution, if not
already a Bank, shall be reasonably satisfactory to the Agent, (vi) the replaced
Bank shall be obligated to make such replacement in accordance with the
provisions of subsection 9.6 (provided that the Company shall be obligated to
pay the registration and processing fee referred to therein), (vii) until such
time as such replacement shall be consummated, the Company shall pay all
additional amounts (if any) required pursuant to subsection 2.20 or 2.21(a), as
the case may be, and (viii) any such replacement shall not be deemed to be a
waiver of any rights that the Company, the Agent or any other Bank shall have
against the replaced Bank.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions
hereof, the Issuing Bank, in reliance on the agreements of the other Revolving
Banks set forth in subsection 3.4(a), agrees to issue letters of credit
("Letters of Credit") for the account of the Company on any Business Day during
the Revolving Commitment Period in such form as may be approved from time to
time by the Issuing Bank; provided that the Issuing Bank shall have no
obligation to issue any Letter of Credit if, after giving effect to such
issuance, (i) the L/C Obligations would exceed the L/C Commitment or (ii) the
aggregate amount of the Available Revolving Commitments would be less than zero.
Each Letter of Credit shall (i) be denominated in Dollars and (ii) expire no
later than the earlier of (x) the first anniversary of its date of issuance and
(y) the date that is five Business Days prior to the Revolving Termination Date,
provided that any Letter of Credit with a one-year term may provide for the
renewal thereof for additional one-year periods (which shall in no event extend
beyond the date referred to in clause (y) above).
(b) The Issuing Bank shall not at any time be obligated to
issue any Letter of Credit if such issuance would conflict with, or cause the
Issuing Bank or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
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3.2 Procedure for Issuance of Letter of Credit. The Company
may from time to time request that the Issuing Bank issue a Letter of Credit by
delivering to the Issuing Bank at its address for notices specified herein an
Application therefor, completed to the satisfaction of the Issuing Bank, and
such other certificates, documents and other papers and information as the
Issuing Bank may request. Upon receipt of any Application, the Issuing Bank will
process such Application and the certificates, documents and other papers and
information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall the Issuing Bank be required to issue any Letter
of Credit earlier than three Business Days after its receipt of the Application
therefor and all such other certificates, documents and other papers and
information relating thereto) by issuing the original of such Letter of Credit
to the beneficiary thereof or as otherwise may be agreed to by the Issuing Bank
and the Company. The Issuing Bank shall furnish a copy of such Letter of Credit
to the Company promptly following the issuance thereof. The Issuing Bank shall
promptly furnish to the Agent, which shall in turn promptly furnish to the
Banks, notice of the issuance of each Letter of Credit (including the amount
thereof).
3.3 Fees and Other Charges. (a) The Company will pay a fee on
all outstanding Letters of Credit at a per annum rate equal to the Applicable
Margin then in effect with respect to Eurodollar Loans under the Revolving
Facility, shared ratably among the Revolving Banks and payable quarterly in
arrears on each L/C Fee Payment Date after the issuance date. In addition, the
Company shall pay to the Issuing Bank for its own account a fronting fee of
0.125% per annum on the undrawn and unexpired amount of each Letter of Credit,
payable quarterly in arrears on each L/C Fee Payment Date after the Issuance
Date.
(b) In addition to the foregoing fees, the Company shall pay
or reimburse the Issuing Bank for such normal and customary costs and expenses
as are incurred or charged by the Issuing Bank in issuing, negotiating,
effecting payment under, amending or otherwise administering any Letter of
Credit.
3.4 L/C Participations. (a) The Issuing Bank irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce the
Issuing Bank to issue Letters of Credit, each L/C Participant irrevocably agrees
to accept and purchase and hereby accepts and purchases from the Issuing Bank,
on the terms and conditions set forth below, for such L/C Participant's own
account and risk an undivided interest equal to such L/C Participant's Revolving
Percentage in the Issuing Bank's obligations and rights under and in respect of
each Letter of Credit and the amount of each draft paid by the Issuing Bank
thereunder. Each L/C Participant unconditionally and irrevocably agrees with the
Issuing Bank that, if a draft is paid under any Letter of Credit for which the
Issuing Bank is not reimbursed in full by the Company in accordance with the
terms of this Agreement, such L/C Participant shall pay to the Issuing Bank upon
demand at the Issuing Bank's address for notices specified herein an amount
equal to such L/C Participant's Revolving Percentage of the amount of such
draft, or any part thereof, that is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant
to the Issuing Bank pursuant to subsection 3.4(a) in respect of any unreimbursed
portion of any payment made by the Issuing Bank under any Letter of Credit is
paid to the Issuing Bank within three Business Days after the date such payment
is due, such L/C Participant shall pay to the Issuing Bank on demand an amount
equal to the product of (i) such amount, times (ii) the daily average Federal
Funds
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Effective Rate during the period from and including the date such payment is
required to the date on which such payment is immediately available to the
Issuing Bank, times (iii) a fraction the numerator of which is the number of
days that elapse during such period and the denominator of which is 360. If any
such amount required to be paid by any L/C Participant pursuant to subsection
3.4(a) is not made available to the Issuing Bank by such L/C Participant within
three Business Days after the date such payment is due, the Issuing Bank shall
be entitled to recover from such L/C Participant, on demand, such amount with
interest thereon calculated from such due date at the rate per annum applicable
to Alternate Base Rate Loans under the Revolving Facility. A certificate of the
Issuing Bank submitted to any L/C Participant with respect to any amounts owing
under this Section shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Bank has made
payment under any Letter of Credit and has received from any L/C Participant its
pro rata share of such payment in accordance with subsection 3.4(a), the Issuing
Bank receives any payment related to such Letter of Credit (whether directly
from the Company or otherwise, including proceeds of collateral applied thereto
by the Issuing Bank), or any payment of interest on account thereof, the Issuing
Bank will distribute to such L/C Participant its pro rata share thereof;
provided, however, that in the event that any such payment received by the
Issuing Bank shall be required to be returned by the Issuing Bank, such L/C
Participant shall return to the Issuing Bank the portion thereof previously
distributed by the Issuing Bank to it.
3.5 Reimbursement Obligation of the Company. The Company
agrees to reimburse the Issuing Bank on the Business Day next succeeding the
Business Day on which the Issuing Bank notifies the Company of the date and
amount of a draft presented under any Letter of Credit and paid by the Issuing
Bank for the amount of (a) such draft so paid and (b) any taxes, fees, charges
or other costs or expenses incurred by the Issuing Bank in connection with such
payment. Each such payment shall be made to the Issuing Bank at its address for
notices referred to herein in Dollars and in immediately available funds.
Interest shall be payable on any such amounts from the date on which the
relevant draft is paid until payment in full at the rate set forth in (i) until
the Business Day next succeeding the date of the relevant notice, subsection
2.16(b) with respect to Revolving Loans and (ii) thereafter, subsection 2.16(c).
3.6 Obligations Absolute. The Company's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment that the
Company may have or have had against the Issuing Bank, any beneficiary of a
Letter of Credit or any other Person. The Company also agrees with the Issuing
Bank that the Issuing Bank shall not be responsible for, and the Company's
Reimbursement Obligations under subsection 3.5 shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Company and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Company against any
beneficiary of such Letter of Credit or any such transferee. The Issuing Bank
shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
the Issuing Bank.
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The Company agrees that any action taken or omitted by the Issuing Bank under or
in connection with any Letter of Credit or the related drafts or documents, if
done in the absence of gross negligence or willful misconduct and in accordance
with the standards of care specified in the Uniform Commercial Code of the State
of New York, shall be binding on the Company and shall not result in any
liability of the Issuing Bank to the Company.
3.7 Letter of Credit Payments. If any draft shall be presented
for payment under any Letter of Credit, the Issuing Bank shall promptly notify
the Company of the date and amount thereof. The responsibility of the Issuing
Bank to the Company in connection with any draft presented for payment under any
Letter of Credit shall, in addition to any payment obligation expressly provided
for in such Letter of Credit, be limited to determining that the documents
(including each draft) delivered under such Letter of Credit in connection with
such presentment are substantially in conformity with such Letter of Credit.
3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Banks that:
4.1 Corporate Organization and Existence. Each of the Company
and each Subsidiary is a corporation, partnership or other entity duly organized
and validly existing and in good standing under the laws of the jurisdiction in
which it is organized (except, in the case of Subsidiaries, where the failure to
be in good standing would not be material to the Company and its Subsidiaries on
a consolidated basis) and has all necessary power to carry on the business now
conducted by it. The Company has all necessary corporate power and has taken all
corporate action required to make all the provisions of this Agreement and the
Notes and all other agreements and instruments executed in connection herewith
and therewith, the valid and enforceable obligations they purport to be. Each of
the Company and each Subsidiary is duly qualified and in good standing in all
jurisdictions other than that of its organization in which the physical
properties owned, leased or operated by it are located (except, in the case of
Subsidiaries, where the failure to be in good standing would not be material to
the Company and its Subsidiaries on a consolidated basis), and is duly
authorized, qualified and licensed under all laws, regulations, ordinances or
orders of Governmental Authorities, or otherwise, to carry on its business in
the places and in the manner presently conducted (except where such failure
would not be material to the Company and its Subsidiaries on a consolidated
basis).
4.2 Subsidiaries. As of the date hereof, the Company has only
the Subsidiaries set forth in Schedule II. The capital stock and securities
owned by the Company and its Subsidiaries in each of the Company's Subsidiaries
are owned free and clear of any mortgage, pledge, lien, encumbrance, charge or
restriction on the transfer thereof other than restrictions on transfer imposed
by applicable securities laws and restrictions, liens and encumbrances
outstand