LOAN AGREEMENT
AMONG
HCA INC.
(formerly HCA - THE HEALTHCARE COMPANY),
AS BORROWER,
THE LENDERS PARTY HERETO,
AND
TORONTO DOMINION (TEXAS) INC.,
as Administrative Agent
Dated as of June 28, 2001
and Amended and Restated as of July 31, 2001
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
Definitions.......................................................................1
ARTICLE II
Loans............................................................................19
Section 2.1 Loans.................................................19
Section 2.2 Manner of Borrowing and Disbursement..................20
Section 2.3 Interest..............................................22
Section 2.4 Fees..................................................23
Section 2.5 Reduction of Commitment...............................24
Section 2.6 Prepayment............................................24
Section 2.7 Repayment.............................................24
Section 2.8 Notes; Loan Accounts..................................25
Section 2.9 Manner of Payment.....................................25
Section 2.10 Reimbursement.........................................29
Section 2.11 Sharing of Payments...................................30
Section 2.12 Capital Adequacy......................................30
Section 2.13 Mitigation Obligations; Replacement of Lenders........31
ARTICLE III
Conditions Precedent.............................................................32
Section 3.1 Conditions Precedent to Effectiveness of Agreement....32
Section 3.2 Conditions Precedent to Effectiveness of Amendment....34
Section 3.3 Conditions Precedent to Each Advance..................35
ARTICLE IV
Representations and Warranties...................................................36
Section 4.1 Corporate Organization and Existence..................36
Section 4.2 Subsidiaries..........................................37
Section 4.3 Financial Information.................................37
Section 4.4 Changes in Condition..................................38
Section 4.5 Assets................................................38
Section 4.6 Litigation............................................38
</TABLE>
i
<PAGE> 3
<TABLE>
Section 4.7 Tax Returns...........................................39
Section 4.8 Contracts, etc........................................39
Section 4.9 No Legal Obstacle to Agreement........................39
Section 4.10 Defaults..............................................40
Section 4.11 Burdensome Obligations................................40
Section 4.12 Pension Plans.........................................40
Section 4.13 Disclosure............................................40
Section 4.14 Environmental and Public and Employee Health and
Safety Matters.....................................................41
Section 4.15 Federal Regulations...................................41
Section 4.16 Investment Company Act; Other Regulations.............42
Section 4.17 Securities Act Representations........................42
Section 4.18 Additional Securities Law Representations.............42
Section 4.19 Survival of Representations and Warranties, etc.......43
ARTICLE V
General Covenants................................................................43
Section 5.1 Taxes, Indebtedness, etc..............................43
Section 5.2 Maintenance of Properties; Compliance with Law........44
Section 5.3 Transactions with Affiliates..........................44
Section 5.4 Insurance.............................................45
Section 5.5 Financial Statements..................................45
Section 5.6 Ratio of Consolidated Total Debt to Consolidated
Total Capitalization...............................................48
Section 5.7 Interest Coverage Ratio...............................48
Section 5.8 Distributions.........................................48
Section 5.9 Merger or Consolidation...............................49
Section 5.10 Sales of Assets.......................................49
Section 5.11 Compliance with ERISA.................................49
Section 5.12 Negative Pledge.......................................50
Section 5.13 Sale-and-Lease-back Transactions......................51
Section 5.14 [Reserved]............................................52
Section 5.15 Use of Proceeds.......................................52
Section 5.16 Indemnity.............................................52
Section 5.17 Collateral Maintenance................................53
Section 5.18 Securities Law Covenants..............................55
</TABLE>
ii
<PAGE> 4
<TABLE>
ARTICLE VI
Default..........................................................................56
Section 6.1 Events of Default.....................................56
Section 6.2 Annulment of Defaults.................................60
Section 6.3 Waivers...............................................60
ARTICLE VII
The Administrative Agent.........................................................61
Section 7.1 Appointment and Authorization.........................61
Section 7.2 Delegation of Duties..................................61
Section 7.3 Interest Holders......................................61
Section 7.4 Consultation with Counsel.............................62
Section 7.5 Documents.............................................62
Section 7.6 Agents and Affiliates.................................62
Section 7.7 Responsibility of the Administrative Agent............62
Section 7.8 Action by Administrative Agent........................63
Section 7.9 Notice of Default.....................................63
Section 7.10 Responsibility Disclaimed.............................64
Section 7.11 Indemnification.......................................64
Section 7.12 Credit Decision.......................................65
Section 7.13 Successor Administrative Agent........................65
ARTICLE VIII
Change in Circumstances Affecting LIBOR Advances.................................66
Section 8.1 LIBOR Basis Determination Inadequate..................66
Section 8.2 Illegality............................................66
Section 8.3 Increased Costs.......................................67
Section 8.4 Effect On Other Advances..............................68
ARTICLE IX
Miscellaneous....................................................................69
Section 9.1 Notices...............................................69
Section 9.2 Expenses..............................................70
Section 9.3 Waivers...............................................71
Section 9.4 Set-Off...............................................71
</TABLE>
iii
<PAGE> 5
<TABLE>
Section 9.5 Assignment............................................72
Section 9.6 Tax Treatment.........................................75
Section 9.7 Counterparts..........................................76
Section 9.8 Governing Law.........................................76
Section 9.9 Severability..........................................76
Section 9.10 Headings..............................................76
Section 9.11 Interest..............................................77
Section 9.12 Entire Agreement......................................77
Section 9.13 Amendment and Waiver..................................77
Section 9.14 Other Relationships...................................78
Section 9.15 Confidentiality.......................................78
Section 9.16 Survival of Various Provisions........................78
ARTICLE X
Waiver of Jury Trial.............................................................79
Section 10.1 Waiver of Jury Trial..................................79
</TABLE>
Exhibits
Exhibit A - Form of Assignment and Assumption Agreement
Exhibit B - Form of Request for Advance
Exhibit C - Form of Promissory Note
Exhibit D - Form of Borrower's Loan Certificate
Exhibit E-1 - Form of Opinion of Borrower's Counsel
Exhibit E-2 - Form of Opinion of Borrower's In-House Counsel
Schedules
Schedule 1 - Subsidiaries
Schedule 2 - Litigation
Schedule 3 - Indebtedness
Schedule 4 - Address for Notices
Schedule 5 - Applicable Margins and Facility Fee Rate
iv
<PAGE> 6
LOAN AGREEMENT
AMONG
HCA INC.
(formerly HCA - THE HEALTHCARE COMPANY),
THE LENDERS PARTY HERETO,
AND
TORONTO DOMINION (TEXAS) INC.,
as Administrative Agent
Dated as of June 28, 2001
and Amended and Restated as of July 31, 2001
WHEREAS, the Borrower (as defined below) has requested and the Lenders
(as defined below) have agreed, subject to the terms and conditions set forth
herein, to make available to the Borrower a credit facility;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto, the
parties hereby agree as follows:
ARTICLE I
Definitions
For the purposes of this Agreement:
"Acceleration Event" shall mean that on any Valuation Date while the
Number of Shares under the Master Agreement is greater than zero, (i) the
Closing Price (determined without regard to the proviso to the definition
thereof) is less than $18.00; (ii) the Borrower shall fail to perform any
agreement or obligation under the
<PAGE> 7
Registration Rights Agreement, after any applicable grace period has elapsed; or
(iii) any representation made by the Borrower therein shall prove to be
incorrect in any material respect, and, in the case of (i) (ii) or (iii), the
Majority Lenders, within ten (10) Business Days, elect to accelerate the Loans
by delivery of written notice of such election to Borrower.
"Administrative Agent" shall mean Toronto Dominion (Texas) Inc., in its
capacity as Administrative Agent for the Lenders or any successor Administrative
Agent appointed pursuant to Section 7.13 hereof.
"Administrative Agent's Office" shall mean the office of the
Administrative Agent located at the address set forth in Section 9.1 hereof, or
such other office as may be designated pursuant to the provisions of Section 9.1
hereof.
"Advance" shall mean, with respect to a Lender, any amount advanced by
such Lender to the Borrower pursuant to a Request for Advance under Article 2
hereof on the occasion of any borrowing; and Advances shall mean more than one
Advance by one or more Lenders, as the context shall require.
"Affiliate" shall mean (a) any director or officer of any corporation or
partner or joint venturer or Person holding a similar position in another Person
or members of their families, whether or not living under the same roof, or any
Person owning beneficially more than 5% of the outstanding common stock or other
evidences of beneficial interest of the Person in question, (b) any Person of
which any one or more of the Persons described in clause (a) above is an
officer, director or beneficial owner of more than 5% of the shares or other
beneficial interest and (c) any Person controlled by, controlling or under
common control with the Person in question.
"Agreement" shall mean this Loan Agreement, as amended, supplemented,
restated or otherwise modified from time to time.
"Agreement Date" shall be June 28, 2001.
"Amendment Date" shall be July 31, 2001.
"Applicable Law" shall mean, in respect of any Person, all provisions of
constitutions, statutes, rules, regulations, and orders of governmental bodies
or regulatory agencies applicable to such Person, including, without limitation,
all
2
<PAGE> 8
orders and decrees of all courts and arbitrators in proceedings or actions
to which the Person in question is a party or by which it is bound.
"Applicable Margin" shall mean during a Level I Period, Level II Period,
Level III Period or Level IV Period the rate per annum set forth in Schedule 5.
The Applicable Margin shall be fixed at Level II for the period beginning on the
Agreement Date and ending on October 31, 2001. Increases or decreases in the
Applicable Margin shall become effective on the first day of the Level I Period,
Level II Period, Level III Period or Level IV Period as the case may be, to
which such Applicable Margin relates.
"Assignment and Assumption Agreement" shall mean any Assignment and
Assumption Agreement in substantially the form of Exhibit A attached hereto,
pursuant to which a Lender may, as further provided in Section 9.5 hereof, sell
all or a portion of its Loans or Commitment.
"Attributable Debt": (i) as to any capitalized lease obligations, the
Indebtedness carried on the balance sheet in respect thereof in accordance with
GAAP and (ii) as to any operating leases, the total net amount of rent required
to be paid under such leases during the remaining term thereof.
"Auditor" shall mean any independent certified public accountant of
nationally recognized standing and reputation selected by the Borrower.
"Authorized Signatory" shall mean, with respect to the Borrower, the
president, any vice president, the chief financial officer, the treasurer or
the controller of such Person or any other duly authorized representative of
such Person designated in writing by such Person to execute documents,
agreements, and instruments on behalf of such Person.
"Available Commitment" shall mean, as of any particular time, (a) the
Commitment minus (b) the sum of the Loans then outstanding.
"Borrower" shall mean HCA Inc. (formerly HCA - The Healthcare Company)
("HCA").
"Borrowing" shall mean all the Advances initially made to the Borrower
on the same day pursuant to a Request for Advance or a notice by telephone
permitted by Section 2.2 hereof.
3
<PAGE> 9
"Business Day" shall mean a day on which banks and foreign exchange
markets are open for the transaction of business required for or contemplated by
this Agreement in London, England and New York, New York, as relevant to the
determination to be made or the action to be taken, in each case as determined
by the Administrative Agent.
"Change in Control" shall mean that with respect to any corporation,
(a) any Person or "group" (as defined in Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended), other than the Borrower, shall acquire more
than 50% of the Voting Stock of such corporation or (b) any Person or group (as
defined in preceding clause (a)), other than the Borrower, shall acquire more
than 20% of the Voting Stock of such corporation and, at any time following an
acquisition described in this clause (b), the Continuing Directors shall not
constitute a majority of the board of directors of such corporation.
"Closing Price" on any Valuation Date is the closing price of the Shares
on the Exchange as reported by the Exchange on the Exchange Business Day
immediately preceding such Valuation Date; provided, that if after 90 days
following the date of filing of the Registration Statement pursuant to the
Registration Rights Agreement, (i) the Registration Statement is not effective
or (ii) the Borrower has notified the Administrative Agent that the Registration
Statement contains an untrue statement of a material fact or omits to state any
material fact required to be state therein or necessary to make the statements
therein not misleading, the Closing Price solely for purposes of determining the
Collateral Value shall be the price per share determined by the Administrative
Agent using the following formula:
Closing Price = P * (1 - (X/100) )
where
P equals the closing price of the Shares on the Exchange as reported by the
Exchange on the Exchange Business Day immediately preceding the relevant
Valuation Date, and
X equals the number of New York Business Days from, but excluding, the Start
Date (as defined below) to, and including, the Valuation Date, but in no case
shall this number be greater than 20.
4
<PAGE> 10
For this purpose, "Start Date" means, in a case referred in clause (i), the 91st
day following the date of filing of the Registration Statement, and (ii) in a
case referred to in clause (ii), the day on which the Borrower gives notice of
the relevant untrue statement or omission of a material fact pursuant to the
Registration Rights Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean the Borrower's rights under and interests in the
Master Agreement, any Eligible Collateral deposited or required to be deposited
pursuant to Section 5.17 hereof and all other property at any time subject to or
intended to be subject to the Lien created by the Security Agreement.
"Collateral Payment Date" shall mean, in relation to any Valuation Date,
the next day following such Valuation Date that is both a New York Business Day
and a Local Business Day; provided that if the Borrower shall be required to
deliver Eligible Collateral for such Valuation Date, the Collateral Payment Date
shall be the first New York Business Day and Local Business Day on which the
Administrative Agent shall have provided notice of the Collateral Value and the
Collateral Requirement by 12:00 p.m., New York time (it being understood that
if the Administrative Agent delivers such notice after 12:00 p.m., New York
time, on any day, it shall be deemed to be delivered the next New York Business
Day and Local Business Day).
"Collateral Requirement" shall mean, on any date, the outstanding
principal of the Loans.
"Collateral Value" on any date is an amount equal to the sum of: (i) the
Closing Price for such date multiplied by the aggregate Number of Shares under
the Master Agreement, (ii) the value of the Eligible Collateral on deposit with
the Administrative Agent on such date, determined in accordance with Section
5.17 and (iii) the face amount of any LOC posted by the Borrower that meets the
LOC Criteria.
"Commitment" shall mean the obligation of the Lenders, in accordance
with their respective Commitment Ratios, to advance to the Borrower the sum of
up to (i) for the period from and including the Agreement Date to but excluding
the Amendment Date, $300,000,000 and (ii) for the period from and including the
Amendment Date to but excluding the Maturity Date, $500,000,000 under the
Revolving
5
<PAGE> 11
Commitment and the Term Commitment pursuant to the terms and subject to the
conditions hereof, as such obligation may be reduced from time to time pursuant
to the terms hereof.
"Commitment Ratio" shall mean, with respect to any Lender, the
percentage as of the date of determination in which a Lender is severally bound
to satisfy the Commitment to make Advances to the Borrower pursuant to the terms
hereof, which as of the Agreement Date is as set forth below (and which will be
deemed modified to give effect to any assignment by a Lender under Section 9.5
hereof):
<TABLE>
<CAPTION>
Lenders Percentage
------- ----------
Canadian Investments LLC 100%
</TABLE>
"Consolidated Assets" shall mean: the consolidated assets of the
Borrower and its Subsidiaries, determined in accordance with GAAP.
"Consolidated Earnings Before Interest and Taxes" shall mean for any
period for which the amount thereof is to be determined, Consolidated Net Income
for such period plus (i) all amounts deducted in computing such Consolidated Net
Income in respect of interest expense on Indebtedness and income taxes and (ii)
non-recurring charges incurred or made as of or for the fiscal quarters ending
on or after June 30, 2000, related to the Borrower's partial settlement with the
Department of Justice not exceeding in the aggregate $745,000,000 on a pre-tax
basis.
"Consolidated Interest Expense" shall mean for any period for which the
amount thereof is to be determined, all amounts deducted in computing
Consolidated Net Income for such period in respect of interest expense on
Indebtedness determined in accordance with GAAP.
"Consolidated Net Income" shall mean for any period, the consolidated
net income, if any, after taxes, of the Borrower and its Subsidiaries for such
period determined in accordance with GAAP; provided, however, that Consolidated
Net Income shall not include any gain or loss attributable to extraordinary
items, any sale of assets not in the ordinary course of business or any taxes or
tax savings as a result thereof.
"Consolidated Net Tangible Assets" shall mean the total amount of assets
(less applicable reserves and other properly deductible items) after deducting
6
<PAGE> 12
therefrom (i) all current liabilities as disclosed on the consolidated balance
sheet of the Borrower (excluding any thereof which are by their terms extendable
or renewable at the option of the obligor thereon to a time more than 12 months
after the time as of which the amount thereof is being computed and excluding
any deferred income taxes that are included in current liabilities), and (ii)
all goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangible assets, all as set forth on the most recent
consolidated balance sheet of the Borrower and computed in accordance with GAAP.
"Consolidated Net Worth" shall mean, as of the date of determination,
all items which in conformity with GAAP would be included under shareholders'
equity and Temporary Equity on a consolidated balance sheet of the Borrower and
its Subsidiaries at such date.
"Consolidated Total Capitalization" shall mean for any period for which
the amount thereof is to be determined, the sum of Consolidated Net Worth at
such date and Consolidated Total Debt at such date.
"Consolidated Total Debt" shall mean the aggregate of all Indebtedness
(including the current portion thereof) of the Borrower and its Subsidiaries in
conformity with GAAP on a consolidated basis.
"Continuing Director" shall mean any member of the Board of Directors of
the Borrower who is a member of such Board on the date of this Agreement, and
any Person who is a member of such Board and whose nomination as a director was
approved by a majority of the Continuing Directors then on such Board.
"Control Group Person" shall mean any Person which is a member of the
controlled group or is under common control with the Borrower within the meaning
of Section 414(b) or 414(c) of the Code or Section 4001(b)(1) of ERISA.
"Default" shall mean any Event of Default, and any other event specified
in Section 6.1 hereof which with any passage of time or giving of notice (or
both) would constitute such event an Event of Default.
"Default Rate" shall mean a simple per annum interest rate equal to the
sum of (a) LIBOR plus (b) the Applicable Margin plus (c) two percent (2%).
7
<PAGE> 13
"Distribution" shall mean (a) the declaration or payment of any dividend
on or in respect of any shares of any class of capital stock of the Borrower
other than dividends payable solely in shares of common stock of the Borrower;
(b) the pur chase, redemption or other acquisition of any shares of any class of
capital stock of the Borrower directly or indirectly through a Subsidiary or
otherwise; and (c) any other distribution on or in respect of any shares of any
class of capital stock of the Borrower.
"Dollars" or "$": dollars in lawful currency of the United States of
America.
"Effective Date" has the meaning ascribed to it in the Master Agreement.
"Eligible Assignee" shall mean (i) a commercial bank organized under the
laws of the United States, or any State thereof, and having total assets in
excess of $5,000,000,000 (or such lesser amount as shall be satisfactory to the
Borrower); (ii) a commercial bank organized under the laws of any other country,
or a political subdivision of any such country, having total assets in excess of
$5,000,000,000 (or such lesser amount as shall be satisfactory to the Borrower)
or the equivalent thereof; or (iii) any other financial institution which is
engaged in making, purchasing, or otherwise investing in commercial loans for
its own account in the ordinary course of business.
"Eligible Collateral" shall mean cash and U.S. Treasury Bills having a
maturity not later than three (3) months after the Collateral Payment Date on
which they are delivered to the Administrative Agent.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Event of Default" shall mean any of the events specified in Section 6.1
hereof, provided that any requirement for the giving of notice or lapse of time,
or both, has been satisfied.
"Exchange" has the meaning ascribed to it in the Master Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
8
<PAGE> 14
"Exchange Business Day" shall mean a Business Day on which the Exchange
is open for normal business.
"Facility Fee" has the meaning ascribed to it in Section 2.4(b).
"Facility Fee Rate" shall mean, during a Level I Period, Level II
Period, Level III Period or Level IV Period, the rate per annum set forth under
the relevant column heading on Schedule 5. The Facility Fee Rate shall be fixed
at Level II for the period beginning on the Agreement Date and ending on October
31, 2001. Increases or decreases in the Facility Fee Rate shall become effective
on the first day of the Level I Period, Level II Period, Level III Period or
Level IV Period, as the case may be, to which such Facility Fee Rate relates.
"Federal Funds Rate" shall mean, as of any date, the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a New York Business Day, for the next preceding New York
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a New York Business Day, the average of the
quotations for such day on such transactions received by the Administrative
Agent from three federal funds brokers of recognized standing selected by the
Administrative Agent.
"Fee Agreement" shall mean any and all agreements by and between the
Borrower on the one hand and the Administrative Agent on the other hand or the
Borrower on the one hand and the Lenders (or any of them) on the other hand,
setting forth the applicable fees relating to this Agreement.
"Financing Lease" shall mean any lease of property, real or personal, if
the then present value of the minimum rental commitment thereunder should, in
accordance with GAAP, be capitalized on a balance sheet of the lessee.
"GAAP": (a) with respect to determining compliance by the Borrower with
the provisions of subsections 5.6, 5.7, 5.10 and 5.12, generally accepted
accounting principles in the United States of America consistent with those
utilized in preparing the audited financial statements referred to in subsection
4.3 and (b) with respect to the financial statements referred to in subsection
4.3 or the furnishing of financial statements pursuant to subsection 5.5 and
otherwise, generally accepted accounting principles in the United States of
America from time to time in effect.
9
<PAGE> 15
"Governmental Authority" shall mean any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guarantee Obligation" shall mean any arrangement whereby credit is
extended to one party on the basis of any promise of another, whether that
promise is expressed in terms of an obligation to pay the Indebtedness of
another, or to purchase an obligation owed by that other, to purchase assets or
to provide funds in the form of lease or other types of payments under
circumstances that would enable that other to discharge one or more of its
obligations, whether or not such arrangement is listed in the balance sheet of
the obligor or referred to in a footnote thereto, but shall not include
endorsements of items for collection in the ordinary course of business.
"Indebtedness" shall mean, with respect to a Person, at a particular
date, the sum (without duplication) at such date of (a) all indebtedness of such
Person for borrowed money or for the deferred purchase price of property or
services or which is evidenced by a note, bond, debenture or similar instrument,
(b) all obligations of such Person under Financing Leases, (c) all obligations
of such Person in respect of letters of credit, acceptances, or similar
obligations issued or created for the account of such Person in excess of
$1,000,000, (d) all liabilities secured by any Lien on any property owned by the
Borrower or any Subsidiary even though such Person has not assumed or otherwise
become liable for the payment thereof and (e) all Guarantee Obligations relating
to any of the foregoing in excess of $1,000,000.
"Initial Price" has the meaning ascribed to it in the Master Agreement.
"Insolvency" or "Insolvent": at any particular time, a Multiemployer
Plan which is insolvent within the meaning of Section 4245 of ERISA.
"Interest Period" for an Advance shall mean, in the case of the initial
Interest Period, the period commencing on the date that Advance is made and
ending on the numerically corresponding day in the third month thereafter, and,
in the case of each subsequent Interest Period for such Advance shall mean each
successive three month period thereafter beginning on the last day of the
preceding Interest Period for such Advance and ending on the numerically
corresponding day in the third month thereafter. Notwithstanding the foregoing,
however, (i) any applicable Interest Period which would otherwise end on a day
which is not a Business Day shall be extended to the next succeeding Business
Day unless such Business Day falls in
10
<PAGE> 16
another calendar month, in which case such Interest Period shall end on the next
preceding Business Day; (ii) any applicable Interest Period which begins on a
day for which there is no numerically corresponding day in the calendar month
during which such Interest Period is to end shall (subject to clause (i) above)
end on the last day of such calendar month; and (iii) no Interest Period shall
extend beyond the Maturity Date or such earlier date as is necessary so as not
to interfere with the repayment obligations of the Borrower under Section 2.7
hereof. Interest shall be due and payable with respect to any Advance as
provided in Section 2.3 hereof.
"Interest Rate Basis" shall mean the LIBOR Basis.
"Lender" shall mean any lender whose name is set forth on the signature
pages hereof in such capacity and any assignees of the Lenders which hereafter
become parties hereto pursuant to and in accordance with Section 9.5 hereof; and
"Lenders" shall mean some or all of such Persons.
"Level I Period" shall mean any period during which the publicly
announced ratings by S&P and Moody's of the then current senior unsecured,
non-credit enhanced, long-term Indebtedness of the Borrower that has been
publicly issued are BBB- or better or Baa3 or better, respectively.
"Level II Period" shall mean any period during which the publicly
announced ratings by S&P and Moody's of the then current senior unsecured,
non-credit enhanced, long-term Indebtedness of the Borrower that has been
publicly issued are BB+ or Ba1, respectively.
"Level III Period" shall mean any period during which the publicly
announced ratings by S&P and Moody's of the then current senior unsecured,
non-credit enhanced, long-term Indebtedness of the Borrower that has been
publicly issued are BB or Ba2, respectively.
"Level IV Period" shall mean any period during which the publicly
announced ratings by S&P or Moody's of the then current senior unsecured,
non-credit enhanced, long-term Indebtedness of the Borrower that has been
publicly issued are equal to or below BB- or unrated or equal to or below Ba3 or
unrated, as the case may be.
provided, that if on any day the ratings by S&P and Moody's do not coincide for
any rating category and the Level differential is (x) one level, then the higher
rating will
11
<PAGE> 17
be the applicable Level; (y) two levels, the Level at the midpoint will be the
applicable Level; and (z) more than two levels, the lower of the intermediate
Levels will be the applicable Level.
"LIBOR" shall mean, for any Interest Period, the interest rate per annum
determined on the basis of the rate for deposits in Dollars for a period equal
to such Interest Period commencing on the first day of such Interest Period
appearing on Page 3750 of the Telerate screen as of 11:00 a.m., London time, on
the first day of such Interest Period. In the event that such rate does not
appear on Page 3750 of the Telerate screen (or otherwise on such screen),
"LIBOR" shall be determined by reference to such other comparable publicly
available service for displaying eurodollar rates as may be selected by the
Administrative Agent or, in the absence of such availability, by reference to
the rate at which the Reference Bank is offered Dollar deposits at or about
11:00 a.m., New York City time, on the first day of such Interest Period in the
interbank eurodollar market where its eurodollar and foreign currency and
exchange operations are then being conducted for delivery on the first day of
such Interest Period for the number of days comprised therein.
"LIBOR Advance" shall mean an Advance which bears interest at the LIBOR
Basis which the Borrower requests to be made in accordance with the provisions
of Section 2.2 hereof, and which shall be in a principal amount of at least
$500,000 and in an integral multiple of $250,000, except for a LIBOR Advance
which is in an amount equal to the unused amount of the Commitment, which
Advance may be in such amount (but in no event less than $500,000).
"LIBOR Basis" shall mean a simple per annum interest rate equal to the
sum of (a) LIBOR plus (b) the Applicable Margin. The LIBOR Basis shall be
rounded upward, if necessary to the nearest one hundredth of one percent
(1/100%), and, once determined, shall be subject to Article 8 hereof and shall
remain unchanged during the applicable Interest Period.
"LIBOR Reserve Percentage" shall mean the percentage which is in effect
from time to time under Regulation D of the Board of Governors of the Federal
Reserve System, as such regulation may be amended from time to time, as the
actual reserve requirement applicable with respect to Eurocurrency Liabilities
(as that term is defined in Regulation D), to the extent each Lender has any
Eurocurrency Liabilities subject to such reserve requirement at that time.
12
<PAGE> 18
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, any conditional sale or other
title retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing).
"Loan Documents" shall mean this Agreement, the Notes, the Fee
Agreement, the Registration Rights Agreement, the Security Agreement, the Master
Agreement and each Request for Advance and all other documents and agreements
executed or delivered in connection with or contemplated by this Agreement.
"Loans" shall mean amounts advanced by the Lenders to the Borrower under
the Commitment, not to exceed the Commitment, and evidenced by the Notes.
"LOC" has the meaning ascribed to it in Section 5.17(c).
"Local Business Day" shall mean, in relation to the Borrower, a day on
which banks are not required or authorized by law to close in Nashville,
Tennessee, and, in relation to any other Person, a day on which banks are not
required or authorized by law to close in the place specified in this Agreement
in relation to that Person.
"LOC Criteria" has the meaning ascribed to it in Section 5.17(c).
"London Banking Day" shall mean a day, other than a Saturday or a
Sunday, on which banks and foreign exchange markets are scheduled to be open for
the transaction of business in the London interbank deposit market.
"Majority Lenders" shall mean (x) those Lenders holding at least 51% of
the outstanding Loans (or, if no Loans are outstanding, 51% of the Commitments)
and (y) so long as it is a Lender, Canadian Investments LLC.
"Master Agreement" shall mean, collectively, the Amended and Restated
Master Agreement dated as of June 28, 2001 between the Borrower and Canadian
Investments LLC as supplemented by the Confirmations dated June 28, 2001 and
July 31, 2001 entered into thereunder between the Borrower and Canadian
Investments LLC, as the same may be amended from time to time.
13
<PAGE> 19
"Maturity Date" shall mean the earliest of (i) April 30, 2003 (provided
that with ten (10) Business Days' notice prior to April 30, 2003, the Borrower
may request the Lenders to extend the scheduled Maturity Date by not more than
two years, and if Canadian Investments LLC so agrees, the scheduled Maturity
Date will be so extended) or (ii) the date of termination of Lenders' obligation
to make Advances and permit existing Loans to remain outstanding pursuant
either to Section 6.1 or the occurrence of an Acceleration Event.
"Moody's" shall mean 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.
"New York Business Day" shall mean a day, other than a Saturday or a
Sunday, on which banks and foreign exchange markets are open for the transaction
of business required for or contemplated by this Agreement in New York, New
York, in each case as determined by the Administrative Agent.
"Note" shall mean each promissory note issued to any Lender pursuant to
the terms of this Agreement substantially in the form of Exhibit C attached
hereto, and any extensions, renewals, replacements, or amendments to the
foregoing; and "Notes" shall mean more than one of such Notes.
"Notional Amount" has the meaning ascribed to it in the Master
Agreement.
"Number of Shares" has the meaning ascribed to it in the Master
Agreement.
"Obligations" shall mean all payment and performance obligations of
every kind, nature, and description of the Borrower to any Lender or the
Administrative Agent under this Agreement and the other Loan Documents
(including any interest, fees, and other charges on the Loans or otherwise under
the Loan Documents that would accrue but for the filing of a bankruptcy action
with respect to the Borrower, whether or not a claim for such amounts is allowed
in such bankruptcy action and including any obligation to any Lender pursuant to
Section 5.16 hereof), as they may be amended from time to time, or as a result
of making the Loans, whether direct or indirect, absolute or contingent, due or
not due, contractual or tortious, liquidated or unliquidated, arising by
operation of law or otherwise, now existing or hereafter arising.
14
<PAGE> 20
"Payment Date" shall mean the last day of each Interest Period.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Person" shall mean an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan" shall mean at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Borrower or a Control Group
Person is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Principal Property" shall mean each acute care hospital providing
general medical and surgical services (including real property but excluding
equipment, personal property and hospitals which primarily provide specialty
medical services, such as psychiatric and obstetrical and gynecological
services) at least 50% of which is owned by the Borrower and its Subsidiaries on
a consolidated basis and located in the United States of America.
"Reference Bank" shall mean The Toronto Dominion Bank.
"Registration Rights Agreement" shall mean the Registration Rights Agree
ment dated as of June 28, 2001 between the Borrower and Canadian Investments
LLC, as amended, supplemented, restated or otherwise modified from time to time.
"Registration Statement" has the meaning ascribed to it in the
Registration Rights Agreement.
"Regulatory Change" shall mean, with respect to any Lender or Affiliate
thereof, any change on or after the date of this Agreement in United States
Federal, state, or foreign laws or regulations (including Regulation D) or the
adoption or making on or after such date of any interpretations, directives, or
requests applying to a class of banks including such Lender or Affiliate of or
under any United States Federal or state, or any foreign, laws or regulations
(whether or not having the force
15
<PAGE> 21
of law) by any court or governmental or monetary authority charged with the
interpretation or administration thereof.
"Reportable Event" shall mean any of the events set forth in Section
4043(b) of ERISA for which reporting is required under such Section, other than
those events as to which the thirty day notice period is waived under
subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. ss. 2615.
"Request for Advance" shall mean any certificate signed by an Authorized
Signatory of the Borrower requesting an Advance hereunder which will increase
the aggregate amount of the Loans outstanding, which certificate shall be
denominated a "Facility Status Advice," and shall be in substantially the form
of Exhibit B attached hereto. Each Request for Advance shall, among other
things, (a) specify the date of the requested Advance, which shall be a Business
Day, the amount of the Advance, and (b) state that the requirements of Section
3.3 hereof have been satisfied.
"Requirement of Law" shall mean as to any Person, the certificate of
incorporation and by-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer" shall mean the chief executive officer, the
president, any executive or senior vice president or vice president of the
Borrower, the chief financial officer, treasurer or controller of the Borrower.
"Revolving Commitment" shall mean the obligation of the Lenders, in
accordance with their respective Commitment Ratios, to make one or more
Revolving Loans to the Borrower on or after the Agreement Date and before the
Maturity Date in an aggregate principal amount not to exceed thirty percent
(30%) of the Commitment as of the Amendment Date pursuant to the terms and
subject to the conditions hereof, as such obligation may be reduced from time to
time pursuant to the terms hereof.
"Revolving Commitment Period" shall mean the period from and including
the Agreement Date to the Maturity Date.
"Revolving Loan" has the meaning ascribed to it in Section 2.1(b).
16
<PAGE> 22
"S&P" shall mean Standard & Poor's Ratings Service, or any successor
thereto.
"Sale-and-Leaseback Transaction" shall mean any arrangement entered into
by the Borrower or any Significant Subsidiary with any person (other than the
Borrower or a Significant Subsidiary), or to which any such person is a party,
providing for the leasing to the Borrower or any Significant Subsidiary for a
period of more than three years of any Principal Property which has been or is
to be held or transferred by the Borrower or such Significant Subsidiary to such
Person or to any other Person (other than the Borrower or a Significant
Subsidiary), to which funds have been or are to be advanced by such Person on
the security of the leased property.
"Secured Obligations" shall mean the obligations of the Borrower to
repay the principal of the Loans.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Security Agreement" shall mean the Borrower Security Agreement dated as
of June 28, 2001 between the Borrower and Toronto Dominion (Texas), Inc. as
Administrative Agent and on behalf of the Lenders, as amended, supplemented,
restated or otherwise modified from time to time.
"Shares" has the meaning ascribed to it in the Master Agreement.
"Significant Subsidiary" shall mean, at any particular time, any
Subsidiary of the Borrower having total assets of $25,000,000 or more at that
time.
"Single Employer Plan": any Plan which is covered by Title IV of ERISA,
but which is not a Multiemployer Plan.
"Subsidiary" shall mean, as applied to any Person, a corporation,
partnership or other entity (i) of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned directly or
indirectly through one or more intermediaries, by such Person or (ii) which
otherwise is consolidated with the Borrower for financial statement purposes as
determined in accordance with GAAP. Unless otherwise
17
<PAGE> 23
qualified, all references to a "Subsidiary" or to "Subsidiaries" in this
Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.
"Temporary Equity" shall mean any amount included on the consolidated
balance sheet of the Borrower and its Subsidiaries at such date as it pertains
to (i) the repurchase of the Borrower's common stock using derivative financial
instruments indexed to, and potentially settled, in the Borrower's own stock and
(ii) amounts attributed to the consolidation of special purpose vehicle(s) that
are created for the sole purpose of engaging in transactions to effect the
Borrower's repurchase of its own stock.
"Term Commitment" shall mean the obligation of the Lenders, in
accordance with their respective Commitment Ratios, to make a Term Loan on the
Agreement Date to the Borrower in the principal amount of seventy percent (70%)
of the Commitment as of the Agreement Date and a Term Loan on the Amendment Date
to the Borrower in the principal amount of seventy percent (70%) of the
difference between the Commitment as of the Amendment Date and the Commitment as
of the Agreement Date, in each case pursuant to the terms and subject to the
conditions hereof.
"Term Loan" has the meaning ascribed to it in Section 2.1(a).
"Termination Date" has the meaning ascribed to it in the Master
Agreement.
"Valuation Date" is every Exchange Business Day after the Effective Date
and through the Termination Date inclusive of the Termination Date.
"Voting Stock" shall mean of any corporation, shares of capital stock or
other securities of such corporation entitled to vote generally in the election
of directors of such corporation.
Each definition of an agreement in this Article 1 shall include such
agreement as modified, amended, or supplemented from time to time with the prior
written consent of the Majority Lenders, except as otherwise provided in Section
9.13 hereof, and, except where the context otherwise requires, definitions
imparting the singular shall include the plural and vice versa. Except where
otherwise specifically restricted, reference to a party to a Loan Document
includes that party and its successors and assigns. All terms used herein which
are defined in Articles 8 or 9 of the Uniform Commercial Code in effect in the
State of New York on the date hereof
18
<PAGE> 24
and which are not otherwise defined herein shall have the same meanings herein
as set forth therein.
As used herein and in the other Loan Documents, and any certificate or
other document made or delivered pursuant hereto or thereto, accounting terms
relating to the Borrower and its Subsidiaries not defined in this Article I and
accounting terms partly defined in this Article I, to the extent not defined,
shall have the respective meanings given to them under GAAP.
All accounting terms used herein without definition shall be used as
defined under GAAP.
ARTICLE II
Loans
Section 2.1 Loans. Each Lender severally agrees, upon the terms
and subject to the conditions of this Agreement, (a) to make an Advance in the
amount of its Commitment Ratio of the Term Commitment to the Borrower on the
Agreement Date, (b) to make an Advance in the amount of its Commitment Ratio of
the difference between the Term Commitment as of the Amendment Date and the Term
Commitment as of the Agreement Date (together with the Advance in clause (a),
the "Term Loan") to the Borrower on the Amendment Date, and (c) to make one or
more Advances on its Revolving Commitment (the "Revolving Loan") to the Borrower
at any time or from time to time on or after the Agreement Date and before the
Maturity Date in an aggregate outstanding amount not to exceed at any time the
Revolving Commitment (as it may be reduced from time to time pursuant to the
terms hereof). The principal amount of each Lender's Advances made on any date
shall not exceed, in the aggregate, such Lender's Commitment Ratio of the
aggregate Advances to be made on such date by all Lenders. The Borrower agrees
to be liable for the Obligations hereunder. Neither the Administrative Agent nor
any Lender shall be responsible for the obligations of any other Lender
hereunder, nor will the failure of any Lender to comply with this Agreement
relieve any other Lender or the Borrower of its obligations hereunder or under
the other Loan Documents.
19
<PAGE> 25
Section 2.2 Manner of Borrowing and Disbursement.
(a) Choice of Interest Rate, etc. Each Advance shall be
made as a LIBOR Advance which shall in all cases be subject to Sections 2.3(a),
2.3(c) and Article 8 hereof.
(b) LIBOR Advances.
(i) Advances. The Borrower shall give the
Administrative Agent at least three (3) Business Days' irrevocable
written notice in the form of a written Request for Advance (one (1)
Business Day's irrevocable notice in the case of the Advances to be
made on the Agreement Date and the Amendment Date) or notice by
telephone provided any such telephonic notice shall be followed
immediately by a Request for Advance; provided further, however, that
the failure of the Borrower to confirm any notice by telephone or
telecopy with a Request for Advance shall not invalidate any notice so
given. Upon receipt of such notice from the Borrower, the
Administrative Agent shall promptly notify each Lender by telephone or
telecopy of the contents thereof.
(ii) Repayments. In the event Borrower
intends to repay all or any portion of a LIBOR Advance on the Payment
Date for such LIBOR Advance, then, at least three (3) Business Days
prior to such Payment Date, the Borrower shall give the Administrative
Agent written notice specifying the portion of such LIBOR Advance
outstanding on such Payment Date, subject to Section 2.6 hereof, to be
repaid. Upon such Payment Date the portion of such LIBOR Advance
specified in such notice will, subject to the provisions hereof, be so
repaid and the remaining portion of such LIBOR Advance shall remain
outstanding with an Interest Period commencing on such Payment Date.
Except as set forth in the preceding sentence, and subject to Section
2.6, on the Payment Date for any LIBOR Advance, such LIBOR Advance shall
be continued as a LIBOR Advance having an Interest Period commencing on
such Payment Date, and such continuation shall not be considered a
Borrowing hereunder and shall not require the delivery by the Borrower
to the Administrative Agent of a Request for Advance.
(c) Determination and Notice of LIBOR Basis. The
Administrative Agent, whose determination shall be conclusive absent manifest
20
<PAGE> 26
error, shall determine the applicable LIBOR Basis for each Advance and shall
notify the Borrower and the Lenders of such LIBOR Basis.
(d) Notification of Lenders. Upon receipt of a Request
for Advance or a written notice under this Section 2.2 from the Borrower with
respect to a repayment of any then outstanding Advance on the Payment Date for
such Advance, the Administrative Agent shall promptly notify each Lender by
telephone or telecopy of the contents thereof and the amount of such Lender's
portion of the applicable Advance. Each Lender shall, not later than 2:00 p.m.
(New York City time) on the date specified in such notice, make available to the
Administrative Agent at the Administrative Agent's Office, or at such account as
the Administrative Agent shall designate, the amount of its portion of the
applicable Advance (if such Advance will increase the principal amount of the
Loans) in immediately available funds.
(e) Disbursement.
(i) Prior to 2:00 p.m. (New York City time)
on the date of an Advance hereunder (if such Advance will increase
the principal amount of the Loans), the Administrative Agent shall,
subject to the satisfaction of the conditions set forth in this Section
2.2 and in Article 3, disburse the amounts made available to the
Administrative Agent by the Lenders in immediately available funds by
(i) transferring such amounts by wire transfer pursuant to the
instructions of the Borrower, or (ii) in the absence of such
instructions, crediting such amounts to the account of the Borrower
maintained with the Administrative Agent or an affiliate of the
Administrative Agent
(ii) In the case of any Advance which
would (after giving effect to the repayment of outstanding Advances
from the proceeds of such Advance) increase the aggregate principal
balance of the Loans, unless the Administrative Agent shall have
received notice from a Lender prior to the date of any Advance that
such Lender will not make available to the Administrative Agent such
Lender's ratable portion of such Advance, and so long as notice has
been given as provided in Section 2.2(d) hereof, the Administrative
Agent may assume that such Lender has made such portion available to
the Administrative Agent on the date of such Advance and the
21
<PAGE> 27
Administrative Agent may, in its sole discretion and in reliance upon
such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent such Lender shall not have
so made such ratable portion available to the Administrative Agent,
such Lender agrees to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for
each day from the date such amount is made available to the Borrower
until the date such amount is repaid to the Administrative Agent, at
the Federal Funds Rate.
(iii) If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid
shall constitute such Lender's portion of the applicable Advance for
purposes of this Agreement. The failure of any Lender to fund its
portion of any Advance shall not relieve any other Lender of its
obligation, if any, hereunder to fund its respective portion of the
Advance on the date of such borrowing, but no Lender shall be
responsible for any such failure of any other Lender.
(iv) In the event that, at any time when the
Borrower is not in Default, a Lender for any reason fails or refuses to
fund its portion of an Advance, then, until such time as such Lender has
funded its portion of such Advance, or all other Lenders have received
payment in full (whether by repayment or prepayment) of the principal
and interest due in respect of such Advance, such non-funding Lender
shall (A) have no right to vote regarding any issue (other than an issue
which requires the consent or approval of all Lenders) on which voting
is required or advisable under this Agree ment or any other Loan
Document and (B) not be entitled to receive payments of principal,
interest, or fees from the Borrower in respect of such Loans which such
Lender failed to make.
Section 2.3 Interest.
(a) On LIBOR Advances. Interest on each LIBOR Advance
shall be computed on the basis of a 360-day year for the actual number of days
elapsed from and including the first day and to but excluding the last day of
each applicable Interest Period and shall be payable at the LIBOR Basis for such
Advance in arrears on the applicable Payment Date. Interest on LIBOR Advances
then
22
<PAGE> 28
outstanding shall also be due and payable on the Maturity Date (accrued in
respect of the period ending on but excluding the Maturity Date), at the
applicable LIBOR Basis. In addition, if any portion of the principal of any
Advance is repaid on any day that is not a Payment Date for that Advance or the
Maturity Date, interest on that Advance, or the relevant portion thereof, shall
also be due and payable, at the applicable LIBOR Basis, on the date of that
repayment (accrued in respect of the period ending on but excluding that date).
(b) Defaulted Payments. If all or a portion of the
principal amount of any Loan, or any interest payable on any Loan, shall not be
paid when due, the Majority Lenders shall have the option (which option shall
not require any Lender to give prior notice thereof to the Borrower, or require
acceleration of the maturity of the Loans, or the exercise of any other rights
or remedies hereunder in connection with the exercise of such option), to charge
interest on such overdue amount at the Default Rate from the date of such
nonpayment. Such interest shall be payable on the earlier of demand or the
Maturity Date and shall accrue until the earlier of (i) the payment in full of
such overdue amount, (ii) agreement by the Majority Lenders to rescind the
charging of interest on such overdue amount at the Default Rate, or (iii)
payment in full of the Obligations owing under this Agreement and the Notes.
(c) LIBOR Advances Maximum. At no time may the number of
outstanding LIBOR Advances exceed twenty-four (24).
Section 2.4 Fees.
(a) The Borrower agrees to pay to the Administrative
Agent for the account of the Lenders the fees in the amounts and on the dates
set forth in the fee letter dated as of June 28, 2001.
(b) The Borrower agrees to pay to the Administrative
Agent for the account of the Lenders a facility fee (the "Facility Fee") for the
period from and including the Agreement Date to the earlier of the last day of
the Revolving Commitment Period and the date upon which this Agreement is
otherwise terminated or the Revolving Commitment is otherwise reduced to zero,
computed at the Facility Fee Rate on the average daily amount of the undrawn
Revolving Commitment during the period for which payment is required to be made,
payable quarterly in arrears on the last day of each March, June, September and
December and on the earlier of the
23
<PAGE> 29
Maturity Date and the date upon which this Agreement is otherwise terminated,
commencing on September 30, 2001.
Section 2.5 Reduction of Commitment.
(a) Optional. The Borrower shall have the right, at any
time and from time to time after the Agreement Date and prior to the Maturity
Date, upon at least three (3) Business Days' prior written notice to the
Administrative Agent, without premium or penalty (but subject to reimbursement
for expenses pursuant to Section 2.10(a)), to cancel or reduce permanently all
or a portion of the Revolving Commitment, provided that any such partial
reduction shall be made in an amount not less than $5,000,000. As of the date of
cancellation or reduction set forth in such notice, the Revolving Commitment
shall be permanently reduced to the amount stated in the Borrower's notice for
all purposes herein, and the Borrower shall, subject to Section 2.10 hereof, pay
to the Administrative Agent the amount necessary to reduce the principal amount
of the Loans then outstanding under the Revolving Commitment to not more than
the amount of the Revolving Commitment as so reduced, together with accrued
interest on the amount so prepaid.
Section 2.6 Prepayment. LIBOR Advances may be prepaid prior to
the applicable Payment Date, upon one (1) Business Day's prior written notice to
the Administrative Agent, provided that the Borrower shall reimburse each
Lender, on the earlier of demand or the Maturity Date, for any loss or out of
pocket expense incurred by such Lender in connection with such prepayment, as
set forth in Section 2.10 hereof. Each notice of prepayment shall be
irrevocable, and all amounts prepaid on the Loans shall be applied first to
interest and fees and other amounts due and payable hereunder as of such date,
and then to principal. All prepayments of principal shall be treated first as
prepayments of the Revolving Loan and second as prepayments of the Term Loan
unless the Borrower specifies in the notice of prepayment that all principal
shall be treated first as a prepayment of the Term Loan and second as a
prepayment of the Revolving Loan. Term Loan prepayments cannot be reborrowed.
Partial prepayments shall be in a principal amount of not less than $1,000,000
and in an integral multiple of $1,000,000. Upon receipt of any notice of
prepayment, the Administrative Agent shall promptly notify each Lender.
Section 2.7 Repayment.
(a) Loans Exceeding Commitment. If, at any time, the
amount of the Loans then outstanding shall exceed the Commitment, the Borrower
24
<PAGE> 30
shall on such date make a repayment of the principal amount of the Loans in an
amount equal to such excess.
(b) Maturity. In addition to the foregoing, a final
payment of all Obligations then outstanding under this Agreement and the Notes
shall be due and payable on the earlier of the Maturity Date and the occurrence
of an Acceleration Event.
Section 2.8 Notes; Loan Accounts.
(a) The Term Loan and the Revolving Loan shall be
repayable in accordance with the terms and provisions set forth herein and, in
each case, shall be evidenced by the Notes. The Notes shall be issued by the
Borrower to the Lenders and shall be duly executed and delivered by an
Authorized Signatory of the Borrower.
(b) Each Lender may open and maintain on its books in the
name of the Borrower a loan account to which it shall credit the proceeds of the
Term Loan and Revolving Loan made by it and interest thereon. If such Lender
opens such loan account, it shall debit the applicable loan account for the
principal amount of each Advance made by it and accrued interest thereon and
shall credit such loan account for each payment on account of principal of or
interest on the Loans made by it. The records of such Lender with respect to the
loan accounts maintained by it shall, subject to Section 9.5(k), be, absent
manifest error, prima facie evidence of the Loans made by it and accrued
interest thereon, but the failure to maintain such records shall not impair the
obligations of the Borrower to pay all Obligations.
Section 2.9 Manner of Payment.
(a) Each payment (including any prepayment) by the
Borrower on account of the principal of or interest on the Loans and all fees,
shall be made not later than 2:00 p.m. (New York City time) on the date
specified for payment under this Agreement or any other applicable Loan Document
to the Administrative Agent to an account designated by the Administrative
Agent, for the account of the Lenders or the Administrative Agent, in lawful
money of the United States of America in immediately available funds, and shall
be remitted promptly by the Administrative Agent to the Lenders (i) pro rata
based on the outstanding principal amount of the Loans in the case of principal
and interest and (ii) pro rata according to the Commitment Ratio of such Lender
in the case of fees. The failure
25
<PAGE> 31
of the Borrower to make any such payment by such time shall not constitute a
Default hereunder, provided that such payment is received by the Administrative
Agent in immediately available funds by 4:00 p.m. (New York City time) on such
due date, but any such payment received by the Administrative Agent after 2:00
p.m. (New York City time) on such due date shall be deemed to have been made on
the next Business Day for the purpose of calculating interest on amounts
outstanding on the Loans, unless the Administrative Agent, in fact, was able to
remit to such Lender its pro rata share of such payment by 4:00 p.m. (New York
City time) on such due date. In the case of a payment for the account of a
Lender, the Administrative Agent will promptly thereafter distribute the amount
so received in like funds to such Lender. If the Administrative Agent shall not
have received any payment from the Borrower as and when due, the Administrative
Agent will promptly notify the Lenders accordingly.
(b) If any payment under this Agreement or the Notes
shall be specified to be made upon a day which is not a Business Day, it shall
(except as otherwise provided in clause (i) of the definition of "Interest
Period" in Article I hereof) be made on the next day which is a Business Day,
and such extension of time shall in such case be included in computing interest
and fees, if any, in connection with such payment.
(c) Borrower agrees to make any and all payments by the
Borrower hereunder, under the Notes, or under the other Loan Documents, (subject
to the remainder of this Section 2.9) without set-off or counterclaim (including
without limitation any set-off or counterclaim with respect to any right arising
under the Master Agreement) or any deduction whatsoever and free and clear of
any and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding in the case of
each Lender and the Administrative Agent or any other party entitled to receive
a payment hereunder, any taxes (including franchise taxes and taxes imposed on
or measured by net income or profits) imposed with respect to the Administrative
Agent or any Lender or any other party entitled to receive a payment hereunder
by reason of the Administrative Agent, the Lender or by reason of any connection
between, as applicable, the Administrative Agent or such Lender or any other
party entitled to receive a payment hereunder and the relevant taxing
jurisdiction, including, without limitation, a connection arising from such
Person being or having been a citizen, domiciliary, or resident of such
jurisdiction, being organized in such jurisdiction, or having or having had a
permanent establishment or fixed place of business therein, but not including a
connection arising solely from such Person having executed, delivered, performed
its
26
<PAGE> 32
obligations or received any payment under this Agreement (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings, and liabilities in
respect of payments hereunder, under the Notes, or under the other Loan
Documents being hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under the other Loan Documents (subject to the remainder of this
Section 2.9) to any Lender or the Administrative Agent, (1) the sum payable
shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.9(c)) such Lender or the Administrative Agent (as the case may
be) receives an amount equal to the sum it would have received had no such
deductions been made, (2) the Borrower shall make such deductions and (3) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law; provided, however, that
the Borrower shall not be required to increase any amounts payable to any such
Person that are United States withholding taxes imposed on such Person at the
time such Person becomes a party to this Agreement.
(d) In addition, the Borrower shall (subject to the
remainder of this Section 2.9) pay any present or future stamp, documentary,
excise, property or similar taxes, charges or levies that arise from any payment
made hereunder or under the other Loan Documents or from the execution, delivery
or registration of, per forming under, or otherwise with respect to, this
Agreement, the Notes, or the other Loan Documents (hereinafter referred to as
"Other Taxes").
(e) The Borrower shall (subject to the remainder of this
Section 2.9) indemnify each Lender and the Administrative Agent for the full
amount of Taxes and Other Taxes, and for the full amount of taxes imposed by any
jurisdiction on amounts payable under Section 2.9(c), imposed on or paid by
such Lender or the Administrative Agent (as the case may be) and any liability
(including penalties, additions to tax, interest and expenses) arising therefrom
or with respect thereto. This indemnification shall be made within thirty (30)
days from the date such Lender or the Administrative Agent (as the case may be)
makes written demand therefor.
(f) Within 30 days after the date of any payment of
Taxes, the Borrower shall furnish to the Administrative Agent, at its address
referred to in Section 9.1, the original receipt of payment thereof or a
certified copy of such receipt or other evidence of such payment reasonably
satisfactory to the Administrative Agent. In the case of any payment hereunder
or under the other Loan Documents by
27
<PAGE> 33
or on behalf of the Borrower through an account or branch outside the United
States or by or on behalf of the Borrower by a payor that is not a United States
person, if the Borrower determines that no Taxes are payable in respect thereof
as a result of such payment being made by a non-United States person or through
an account or branch located outside the United States, the Borrower shall, upon
the request of the Administrative Agent, furnish, or shall cause such payor to
furnish, to the Administrative Agent, at such address, an opinion of counsel
acceptable to the Administrative Agent stating that such payment is exempt from
Taxes. For purposes of this subsection 2.9(f) and subsection 2.9(g), the terms
"United States" and "United States person" shall have the meanings specified in
Section 7701 of the Internal Revenue Code.
(g) Each Lender that is not a United States person
(a "non-U.S. Lender") shall, on or prior to the date of its execution and
delivery of this Agreement in the case of the Lenders as of the Agreement Date,
and on the date of the Assignment and Assumption Agreement pursuant to which it
became a Lender in the case of each other Lender, provide each of the
Administrative Agent and the Borrower with two duly completed original Internal
Revenue Service Forms W-8BEN or W-8ECI (or applicable successor forms), and, to
the extent applicable, an Internal Revenue Service form W-9 (or applicable
successor form), or in the case of a non-U.S. Lender that is not a bank, two
duly completed original Internal Revenue Service Forms W-8BEN (or applicable
successor forms) and a Certificate in the form of Exhibit H (a "Non-Bank Tax
Certificate"). Each non-U.S. Lender further agrees (i) to deliver to the
Administrative Agent and the Borrower two further duly completed and signed
original copies of such Forms W-8BEN or W-8ECI and W-9, as applicable, or
successor forms, on or before the date that any such form expires or becomes
obsolete and promptly after the occurrence of any event requiring a change from
the most recent forms previously delivered by it to the Borrower or
Administrative Agent in accordance with applicable U.S. law and regulations or,
if no such form was previously delivered, promptly after the occurrence of any
change in law or other event giving rise to the Borrower's need for such form to
enable it to make payments hereunder or under any other Loan Document without
withholding Taxes or subject to withholding at a reduced rate, and (ii) in the
case of a non-U.S. Lender that is not a bank that delivers a statement in the
form of Exhibit H, to deliver such statement on an annual basis on the
anniversary of the date on which such Person became a party to this Agreement,
and any such additional statements and forms as are reasonably requested by the
Borrower or Administrative Agent, and (iii) to notify promptly the Borrower or
Administrative Agent if it is no longer able to deliver, or if it is required to
withdraw or cancel any form or statement previously
28
<PAGE> 34
delivered by it pursuant to this Section 2.9(g). If the forms provided by a
Lender at the time such Lender first becomes a party to this Agreement indicates
a United States interest withholding tax rate in excess of zero, withholding tax
at such rate shall be considered excluded from Taxes unless and until such
Lender provides the appropriate form certifying that a lesser rate applies,
whereupon withholding tax at such lesser rate only shall be considered excluded
from Taxes for periods governed by such form; provided, however, that, if at the
date of the Assignment and Assumption Agreement pursuant to which a Lender
becomes a party to this Agreement, the Lender assignor was entitled to payments
under subsection 2.9(c) in respect of United States withholding tax with respect
to interest paid at such date, then, to such extent, the term Taxes shall
include (in addition to withholding taxes that may be imposed in the future or
other amounts otherwise includable in Taxes) United States withholding tax, if
any, applicable with respect to the Lender assignee on such date.
(h) For any period with respect to which a Lender has
failed to provide the Borrower with the appropriate form described in subsection
2.9(g) (other than if such failure is due to a change in law occurring after the
date on which a form originally was required to be provided or if such form
otherwise is not required under subsection 2.9(g)), such Lender shall not be
entitled to indemnification under Section 2.9(c) or Section 2.9(e) with respect
to Taxes imposed by the United States by reason of such failure; provided,
however, that should a Lender become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall, at the expense of such
Lender, take such steps as such Lender shall reasonably request to assist such
Lender to recover such Taxes.
(i) For purposes of this Section 2.9, the phrase "Loan
Documents" shall not include the Master Agreement.
Section 2.10 Reimbursement.
(a) Whenever any Lender or the Administrative Agent shall
incur any losses or reasonable out-of-pocket expenses (other than losses of the
Applicable Margin) in connection with (i) failure by the Borrower to borrow any
LIBOR Advance after having made a Request for Advance therefor in accordance
with Section 2.2 hereof (whether by reason of the election of the Borrower not
to proceed or the nonfulfillment of any of the conditions set forth in Article
III) other than a failure to borrow resulting from an unavailability which
occurs after notice from the Administrative Agent to the Borrower pursuant to
Section 8.1 or 8.2 hereof,
29
<PAGE> 35
or (ii) repayment or prepayment of any LIBOR Advance in whole or in part
(including a repayment or prepayment pursuant to Sections 8.2 and 8.3(b) hereof)
on a day other than a Payment Date for the Advance, the Borrower agrees to pay
to such Lender, upon the earlier of three Business Days following such Lender's
demand or the Maturity Date, an amount sufficient to compensate such Lender or
the Administrative Agent for all such losses and reasonable out of pocket
expenses. Such Lender's or the Administrative Agent good faith determination of
the amount of such losses and reasonable out-of-pocket expenses, absent manifest
error, shall be binding and conclusive. Upon request of the Borrower, such
Lender or the Administrative Agent, when seeking reimbursement under this
Section 2.10, shall provide a certificate setting forth the amount to be paid to
it by the Borrower hereunder and calculations therefor.
(b) Losses subject to reimbursement hereunder shall
include, without limiting the generality of the foregoing, but without
duplication, expenses incurred by the Administrative Agent or such Lender or any
participant of such Lender permitted hereunder in connection with the
re-employment of funds prepaid, paid, repaid, not borrowed, not converted, or
not paid, as the case may be (other than losses of the Applicable Margin), and
will be payable regardless of whether the Maturity Date is changed by virtue of
an amendment hereto (unless such amendment expressly waives such payment) or as
a result of acceleration of the Obligations and regardless of whether such
Lender has a "matched funding" of such Advance.
Section 2.11 Sharing of Payments. If any Lender shall obtain any
payment (whether involuntary or otherwise) on account of the Loans made by it in
excess of its ratable share of the Loans then outstanding, such Lender shall
forthwith purchase a participation in the Loans from the other Lenders as shall
be necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery. The Borrower agrees
that any Lender so purchasing a participation from another Lender pursuant to
this Section may, to the fullest extent permitted by law, exercise all its
rights of payment with respect to such participation as fully as if such Lender
were the direct creditor of the Borrower in the amount of such participation so
long as the Borrower's Obligations are not increased.
Section 2.12 Capital Adequacy. In the event that a Regulatory
Change regarding capital adequacy does or shall have the effect of reducing the
rate
30
<PAGE> 36
of return on any Lender's (for purposes of this Section 2.12, the term "Lender"
shall include any parent or holding company of such Lender) capital as a
consequence of its obligations hereunder to a level below that which such Lender
could have achieved but for such adoption, change, or compliance (taking into
consideration such Lender's policies with respect to capital adequacy) by an
amount deemed by such Lender to be material, then from time to time, ten (10)
days after submission by such Lender to the Borrower of a written request
therefor, together with a certificate (which shall be conclusive absent manifest
error), setting forth the calculations evidencing such requested additional
amount, and the law or regulation with respect thereto and certifying that such
request is consistent with such Lender's treatment of other similar customers
having similar provisions generally in their agreements with such Lender, and
that such request is being made on the basis of a reasonable allocation of the
costs resulting from such law or regulation, the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction. Notwithstanding the foregoing, the Borrower shall only be obligated
to compensate a Lender for any amount under this section arising or occurring
during (i) in the case of each such request for compensation, any time or period
commencing not more than sixty (60) days prior to the date on which such Lender
submits such request and (ii) any other time or period during which, because of
the unannounced retroactive application of such law, regulation, interpretation,
request, or directive, such Lender could not have known that the resulting
reduction in return might arise. A Lender will notify the Borrower (with a copy
of such notice to the Administrative Agent) that it is entitled to compensation
pursuant to this section as promptly as practicable after such Lender determines
to request such compensation; provided, however, that the failure to provide
such notice shall not restrict the ability of a Lender to be reimbursed under
this Section 2.12 except as provided in clause (i) above.
Section 2.13 Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section
2.12, hereof, or if the Borrower is required to pay an additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.9(c) hereof, then such Lender shall use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to designate a
different lending office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the sole judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section
2.12 or 2.9(c) hereof, as the case may be, in the future
31
<PAGE> 37
and (ii) would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section
2.12 or 8.3 hereof, or if the Borrower is required to pay any additional amount
to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.9(c) hereof, or if any Lender defaults in its obligation
to fund Loans hereunder, then the Borrower may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse, representation or warranty (in accordance
with and subject to the restrictions contained in Section 9.5 hereof), all its
interests, rights and obligations hereunder to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, and (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans, accrued interest (and
premium, if any) thereon, accrued fees and all other amounts payable to it
hereunder and under the other Loan Documents, from the assignee (to the extent
of such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts). A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
ARTICLE III
Conditions Precedent
Section 3.1 Conditions Precedent to Effectiveness of Agreement
The obligation of each Lender to undertake its Commitment Ratio of the
Commitment as of the Agreement Date and to make its initial Advance hereunder is
subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of
the following, in form and substance satisfactory to the Administrative Agent:
32
<PAGE> 38
(i) duly executed Notes;
(ii) the loan certificate of the Borrower
dated as of the Agreement Date, including a certificate of incumbency
with respect to the signature of each Authorized Signatory, which loan
certificate shall be in substantially the form of Exhibit D attached
hereto, together with appropriate attachments thereto;
(iii) legal opinion of Dewey Ballantine
LLP, special New York counsel to the Borrower, and in-house counsel to
the Borrower, each dated as of the Agreement Date addressed to each
Lender and the Administrative Agent substantially in the form of
Exhibits E1 and E2, respectively, attached hereto;
(iv) receipt by the Administrative Agent
and each Lender of all appropriate fees to be paid to them by the
Borrower on or prior to the Agreement Date;
(v) any required consents to the closing of
this Agreement or to the execution, delivery, and performance of this
Agreement and the other Loan Documents, each of which shall be in form
and substance satisfactory to the Administrative Agent and the Lenders;
(vi) duly executed Security Agreement;
(vii) duly executed Master Agreement;
(viii) duly executed Registration Rights
Agreement; and
(ix) all such other documents as the
Administrative Agent may reasonably request, certified by an
appropriate governmental official or Authorized Signatory if so
requested.
(b) The Borrower shall certify to the Administrative
Agent and the Lenders that each of the representations and warranties in Article
IV hereof is
33
<PAGE> 39
true and correct in all material respects as of the Agreement Date and that no
Default then exists or is continuing.
(c) There shall have been, as of the Agreement Date, no
material adverse change in the financial condition, business or operations of
the Borrower and its Subsidiaries taken as a whole, as reflected in the audited
financial statements as of December 31, 2000 of the Borrower.
Section 3.2 Conditions Precedent to Effectiveness of Amendment
The obligation of each Lender to undertake its Commitment Ratio of the increase
in Commitment on the Amendment Date and to make its Advance hereunder on the
Amendment Date is subject to the prior fulfillment of each of the following
conditions:
(a) The Administrative Agent shall have received each of
the following, in form and substance satisfactory to the Administrative Agent:
(i) duly executed Notes in exchange for
the cancelled Notes executed by Borrower on the Agreement;
(ii) the loan certificate of the Borrower
dated as of the Amendment Date, including a certificate of incumbency
with respect to the signature of each Authorized Signatory, which loan
certificate shall be in substantially the form of Exhibit D attached
hereto, together with appropriate attachments thereto;
(iii) legal opinion of Dewey Ballantine
LLP, special New York counsel to the Borrower, and in-house counsel to
the Borrower, each dated as of the Amendment Date addressed to each
Lender and the Administrative Agent substantially in the form of
Exhibits E1 and E2, respectively, attached hereto;
(iv) receipt by the Administrative Agent
and each Lender of all appropriate fees to be paid to them by the
Borrower on or prior to the Amendment Date;
34
<PAGE> 40
(v) any required consents to the closing of
the amendment to this Agreement on the Amendment Date or to the
execution, delivery, and performance of the amended Agreement and the
other Loan Documents, each of which shall be in form and substance
satisfactory to the Administrative Agent and the Lenders;
(vi) duly executed Security Agreement;
(vii) duly executed Master Agreement;
(viii) all such other documents as the
Administrative Agent may reasonably request, certified by an
appropriate governmental official or Authorized Signatory if so
requested.
(b) The Borrower shall certify to the Administrative
Agent and the Lenders that each of the representations and warranties in Article
IV hereof is true and correct in all material respects as of the Amendment Date
and that no Default then exists or is continuing.
(c) There shall have been, as of the Amendment Date, no
material adverse change in the financial condition, business or operations of
the Borrower and its Subsidiaries taken as a whole, as reflected in the audited
financial statements as of December 31, 2000 of the Borrower.
Section 3.3 Conditions Precedent to Each Advance The obligation
of any Lender to make any Advance, including the initial Advance hereunder,
other than an Advance which (after a giving effect to the repayment of
outstanding Advances from the proceeds of such Advance) does not increase the
aggregate principal amount of the Loans outstanding hereunder, is subject to the
fulfillment of each of the following conditions immediately prior to or
contemporaneously with such Advance:
(a) The representations and warranties contained in
Article 4 (as qualified by the disclosures in (i) the Borrower's Annual Report
on Form 10-K for its fiscal year ended December 31, 2000, (ii) the Borrower's
Quarterly Report on Form 10-Q for its fiscal quarter ending March 31, 2001,
(iii) the Borrower's Reports on Form 8-K filed with the Securities and Exchange
Commission on January 31,
35
<PAGE> 41
2001, February 20, 2001, April 24, 2001, May 23, 2001, July 2, 2001 and July 24,
2001 respectively, in the case of each of the items referred to in clauses (i)
and (ii), as filed with the Securities and Exchange Commission and previously
distributed to the Administrative Agent and made available to the Lenders and
(iii) Schedule 2 attached hereto) shall be true and correct in all material
respects on and as of the date of such Advance with the same force and effect as
though made on and as of such date (except for representations and warranties
made as of a specified date, which shall be true and correct as of such date);
(b) There shall not exist, on the date of the making of
the Advance and after giving effect thereto, a Default hereunder, and the
Administrative Agent and each of the Lenders shall have received a Request for
Advance so certifying; and
(c) The aggregate Number of Shares subject to
transactions under the Master Agreement shall not exceed, on the date of the
making of the Advance, 4.95% of the number of outstanding Shares of the Borrower
(including such Number of Shares).
The acceptance of the proceeds of any Loans which (after giving
effect to the repayment of outstanding Loans from the proceeds of such Loans)
would increase the aggregate United States Dollar amount of the Loans
outstanding shall be deemed to be a representation and warranty by the Borrower
as to compliance with this Section 3.3 on the date any such Loan is made.
ARTICLE IV
Representations and Warranties
The Borrower hereby represents and warrants that:
Section 4.1 Corporate Organization and Existence. Each of the
Borrower and each Subsidiary is a corporation, partnership or other entity duly
organized and validly existing and in good standing under the laws of the
jurisdiction in which it is organized (except, in the case of Subsidiaries,
where the failure to be in good standing would not be material to the Borrower
and its Subsidiaries on a consolidated basis) and has all necessary power to
carry on the business now conducted by it. The Borrower has all necessary
corporate power and has taken all
36
<PAGE> 42
corporate action required to make all the provisions of this Agreement and the
Notes and all other agreements and instruments executed in connection herewith
and therewith, the valid and enforceable obligations they purport to be. Each of
the Borrower and each Subsidiary is duly qualified and in good standing in all
jurisdictions other than that of its organization in which the physical
properties owned, leased or operated by it are located (except, in the case of
Subsidiaries, where the failure to be in good standing would not be material to
the Borrower and its Subsidiaries on a consolidated basis), and is duly
authorized, qualified and licensed under all laws, regulations, ordinances or
orders of Governmental Authorities, or otherwise, to carry on its business in
the places and in the manner presently conducted (except where failure would not
be material to the Borrower and its Subsidiaries on a consolidated basis).
Section 4.2 Subsidiaries. As of the date hereof, the Borrower has
only the Subsidiaries set forth in Schedule 1. The capital stock and securities
owned by the Borrower and its Subsidiaries in each of the Borrower's
Subsidiaries are owned free and clear of any mortgage, pledge, lien,
encumbrance, charge or restriction on the transfer thereof other than
restrictions on transfer imposed by applicable securities laws and restrictions,
liens and encumbrances outstanding on the date hereof and listed in said
Schedule 1.
Section 4.3 Financial Information. The Borrower has made
available to the Administrative Agent and each Lender copies of the following
(the "SEC Reports"):
(a) the Annual Report of the Borrower for the fiscal year
ended December 31, 2000, containing the consolidated balance sheet of the
Borrower and its Subsidiaries as at said date and the related consolidated
statements of operations, stockholders' equity and cash flows for the fiscal
year then ended, accompanied by the opinion of Ernst & Young LLP;
(b) the Annual Report of the Borrower on Form 10-K for
the fiscal year ended December 31, 2000;
(c) the Quarterly Report of the Borrower on Form 10-Q for
the fiscal quarter ended March 31, 2001; and
37
<PAGE> 43
(d) Reports of the Borrower on Form 8-K filed with the
Securities and Exchange Commission on January 31, 2001, February 20, 2001, April
24, 2001, May 23, 2001, July 2, 2001 and July 24, 2001.
Such financial statements (including any notes thereto) have been
prepared in accordance with GAAP and fairly present the financial condition of
the corporations covered thereby at the dates thereof and the results of their
operations for the periods covered thereby, subject to normal year-end
adjustments in the case of interim statements. As of the date hereof and except
as disclosed in the above-referenced reports, neither the Borrower nor any of
its Subsidiaries has any known contingent liabilities of any significant amount
which are not referred to in said financial statements or in the notes thereto
which could reasonably be expected to have a material adverse effect on the
business or assets or on the condition, financial or otherwise, of the Borrower
and its Subsidiaries, on a consolidated basis.
Section 4.4 Changes in Condition. Since December 31, 2000 there
has been no material adverse change in the business or assets or in the
condition, financial or otherwise, of the Borrower and its Subsidiaries, on a
consolidated basis.
Section 4.5 Assets. The Borrower and each Subsidiary have good
and marketable title to all material assets carried on their books and reflected
in the most recent balance sheet referred to in subsection 4.3 or furnished
pursuant to subsection 5.5, except for assets held on Financing Leases or
purchased subject to security devices providing for retention of title in the
vendor, and except for assets disposed of as permitted by this Agreement.
Section 4.6 Litigation. Except as disclosed in the Borrower's SEC
Reports, and except as set forth on Schedule 2 hereto, there is no litigation,
at law or in equity, or any proceeding before any federal, state, provincial or
municipal board or other governmental or administrative agency pending or to the
knowledge of the Borrower threatened which, after giving effect to any
applicable insurance, could reasonably be expected to have a material adverse
effect on the business or assets or on the condition, financial or otherwise, of
the Borrower and its Subsidiaries on a consolidated basis or which seeks to
enjoin the consummation of any of the transactions contemplated by this
Agreement or any other Loan Document and involves any material risk that any
such injunction will be issued, and no judgment, decree, or order of any
federal, state, provincial or municipal court, board or other governmental or
administrative agency has been issued against the Borrower or any Subsidiary
which could reasonably be expected to have a material risk of a material
38
<PAGE> 44
adverse effect on the business or assets or on the condition, financial or
otherwise, of the Borrower and its Subsidiaries on a consolidated basis. With
respect to the matters disclosed in the Borrower's SEC Reports and the matters
set forth on Schedule 2 hereto, since the date of such disclosures there has
been no development which is material and adverse to the business or assets or
to the condition, financial or otherwise, of the Borrower and its Subsidiaries
on a consolidated basis.
Section 4.7 Tax Returns. The Borrower and each of its
Subsidiaries have filed all tax returns which are required to be filed and have
paid, or made adequate provision for the payment of, all taxes which have or may
become due pursuant to said returns or to assessments received. The Borrower
knows of no material additional assessments for which adequate reserves have not
been established.
Section 4.8 Contracts, etc. Attached hereto as Schedule 3 is a
statement of outstanding Indebtedness of the Borrower and its Subsidiaries for
borrowed money as of the date set forth therein and a complete and correct list
of all agreements, contracts, indentures, instruments, documents and amendments
thereto to which the Borrower or any Subsidiary is a party or by which it is
bound pursuant to which any such Indebtedness of the Borrower and its
Subsidiaries in excess of $25,000,000 is outstanding on the date hereof. Said
Schedule 3 also includes a complete and correct list of all such Indebtedness of
the Borrower and its Subsidiaries outstanding on the date indicated in respect
of Guarantee Obligations in excess of $1,000,000 and letters of credit in excess
of $1,000,000, and there have been no increases in such Indebtedness since said
date other than as permitted by this Agreement.
Section 4.9 No Legal Obstacle to Agreement. Neither the execution
and delivery of this Agreement or of any Notes, nor the making by the Borrower
of any borrowings hereunder, nor the consummation of any transaction herein or
therein referred to or contemplated hereby or thereby nor the fulfillment of the
terms hereof or thereof or of any agreement or instrument referred to in this
Agreement, has constituted or resulted in or will constitute or result in a
breach of the provisions of any contract to which the Borrower or any of its
Subsidiaries is a party or by which it is bound or of the charter or by-laws of
the Borrower, or the violation of any law, judgment, decree or governmental
order, rule or regulation applicable to the Borrower or any of its
Subsidiaries, or result in the creation under any agreement or instrument of any
security interest, lien, charge or encumbrance upon any of the assets of the
Borrower or any of its Subsidiaries. Other than those which have
39
<PAGE> 45
already been obtained, no approval, authorization or other action by any
governmental authority or any other Person is required to be obtained by the
Borrower or any of its Subsidiaries in connection with the execution, delivery
and performance of this Agreement or the transactions contemplated hereby, or
the making of any borrowing by the Borrower hereunder.
Section 4.10 Defaults. Neither the Borrower nor any Subsidiary is
in default under any provision of its charter or by-laws or, so as to affect
adversely in any material manner the business or assets or the condition,
financial or otherwise, of the Borrower and its Subsidiaries on a consolidated
basis, under any provision of any agreement, lease or other instrument to which
it is a party or by which it is bound or of any Requirement of Law.
Section 4.11 Burdensome Obligations. Neither the Borrower nor any
Subsidiary is a party to or bound by any agreement, deed, lease or other
instrument, or subject to any charter, by-law or other corporate restriction
which, in the opinion of the management thereof, is so unusual or burdensome as
to in the foreseeable future have a material adverse effect on the business or
assets or condition, financial or otherwise, of the Borrower and its
Subsidiaries on a consolidated basis. The Borrower does not presently anticipate
that future expenditures of the Borrower and its Subsidiaries needed to meet the
provisions of any federal or state statutes, orders, rules or regulations will
be so burdensome as to have a material adverse effect on the business or assets
or condition, financial or otherwise, of the Borrower and its Subsidiaries on a
consolidated basis.
Section 4.12 Pension Plans. Each Plan maintained by the Borrower,
any Subsidiary or any Control Group Person or to which any of them makes or will
make contributions is in material compliance with the applicable provisions of
ERISA and the Code. The Borrower and its Subsidiaries have met all of the
funding standards applicable to all Plans, and there exists no event or
condition which would permit the institution of proceedings to terminate any
Plan that is not a Multiemployer Plan. The aggregate current value of the vested
liabilities under the Plans that are subject to Title IV of ERISA and that are
not Multiemployer Plans does not exceed the aggregate current value of such
Plans' assets.
Section 4.13 Disclosure. No statement or information contained in
this Agreement, any other Loan Document, or any other document, certificate or
written statement furnished by or on behalf of the Borrower to the
Administrative Agent or the Lenders, or any of them, for use in connection with
the transactions
40
<PAGE> 46
contemplated by this Agreement, or the other Loan Documents, contained, as of
the date such statement, information or certificate was so furnished, any untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements contained herein or therein not misleading. The projections
and pro forma financial information (if any) contained in the materials
referenced above are based upon good faith estimates and assumptions believed by
management of the Borrower to be reasonable at the time made, it being
recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount.
Section 4.14 Environmental and Public and Employee Health and
Safety Matters. The Borrower and each Subsidiary has complied with all
applicable Federal, state, and other laws, rules and regulations relating to
environmental pollution or to environmental regulation or control or to public
or employee health or safety, except to the extent that the failure to so comply
would not be reasonably likely to result in a material adverse effect on the
business or assets or on the condition, financial or otherwise, of the Borrower
and its Subsidiaries on a consolidated basis. The Borrower's and the
Subsidiaries' facilities do not contain, and have not previously contained, any
hazardous wastes, hazardous substances, hazardous materials, toxic substances or
toxic pollutants regulated under the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response Compensation and Liability Act, the
Hazardous Materials Transportation Act, the Toxic Substance Control Act, the
Clean Air Act, the Clean Water Act or any other applicable law relating to
environmental pollution or public or employee health and safety, in violation of
any such law, or any rules or regulations promulgated pursuant thereto, except
for violations that would not be reasonably likely to result in a material
adverse effect on the business or assets or on the condition, financial or
otherwise, of the Borrower and its Subsidiaries on a consolidated basis. The
Borrower is aware of no events, conditions or circumstances involving
environmental pollution or contamination or public or employee health or safety,
in each case applicable to it or its Subsidiaries, that would be reasonably
likely to result in a material adverse effect on the business or assets or on
the condition, financial or otherwise, of the Borrower and its Subsidiaries on a
consolidated basis.
Section 4.15 Federal Regulations. None of the proceeds of the
Loans will be used, directly or indirectly, for the purpose of purchasing or
carrying any margin stock or for the purpose of reducing or retiring any
Indebtedness which was originally incurred to purchase or carry margin stock in
violation of Regulations U
41
<PAGE> 47
and X. Neither the Borrower nor any bank acting on its behalf has taken or will
take any action which might cause this Agreement or any Note to violate
Regulation U or X or any other regulation of the Board of Governors of the
Federal Reserve System or to violate the Securities Exchange Act of 1934, in
each case as now in effect or as the same may hereafter be in effect. If so
requested by a Lender or the Administrative Agent the Borrower will furnish
such Lender or the Administrative Agent with a statement or statements in
conformity with the requirements of Federal Reserve Form U-1 or G-3 referred to
in Regulation U of said Board of Governors. Neither the making of the Loans nor
the use of proceeds thereof will violate or be inconsistent with the provisions
of Regulation U or X of said Board of Governors.
Section 4.16 Investment Company Act; Other Regulations. The
Borrower is not an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended. The Borrower is not subject to regulation under any Federal or State
statute or regulation which limits its ability to incur Indebtedness.
Section 4.17 Securities Act Representations. Unless and until
the Number of Shares under the Master Agreement has been reduced to zero, the
Borrower shall be deemed to represent to each Lender with respect to each
Transaction it enters into under the Master Agreement, as of the date it enters
into such Transaction, that (1) it is entering into such Transaction for its own
account and not with a view to transfer, resale or distribution, (2) it is an
"accredited investor" within the meaning of Rule 510(a) of Regulation D under
the Securities Act and has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of such
Transaction, and (3) it understands and acknowledges that such Transaction may
involve the purchase or sale of a "security" as defined in the Securities Act
and the securities laws of any state and, therefore, may not be sold, pledged,
hypothecated, transferred or otherwise disposed of unless such security is
registered under the Securities Act and any applicable state securities law, or
an exemption from registration is available.
Section 4.18 Additional Securities Law Representations. Unless
and until the Number of Shares under the Master Agreement has been reduced to
zero, the Borrower shall be deemed to represent to each Lender as of each date
it enters into a Transaction under the Master Agreement that (1) as of such
date, it is not in possession of any material non-public information with
respect to itself, (2) as of such date, it is not entering into such Transaction
for the purpose of manipulating the market price or value of the Shares, (3) as
of such date, no "restricted period" for
42
<PAGE> 48
purposes of Rule 102 of Regulation M under the Exchange Act and no tender offer
for Shares (whether by the Borrower or any other third party) is in effect or
(in the case of a tender offer by the Borrower) has been in effect within the
preceding ten Business Days, and (4) it is entering into such Transaction in
connection with its Share repurchase program which was approved by the executive
committee of its board of directors in October 1999 and March 2000 and publicly
announced in November 1999 and March 2000, respectively, solely for the purposes
stated in such executive committee resolutions and public disclosures.
Section 4.19 Survival of Representations and Warranties, etc. All
representations and warranties made under this Agreement shall survive, and not
be waived by, the execution hereof by any Lender or the Administrative Agent,
any investigation or inquiry by any Lender or the Administrative Agent, or the
making of any Advance under this Agreement.
ARTICLE V
General Covenants
On and after the date hereof, until all of the Notes and all
other amounts payable pursuant hereto shall have been paid in full and so long
as the Commitments shall remain in effect, the Borrower covenants that the
Borrower will comply, and will cause each of its Subsidiaries to comply, with
such of the provisions of this Section 5 and such other provisions of this
Agreement as are applicable to the Person in question.
Section 5.1 Taxes, Indebtedness, etc. Each of the Borrower and
its Subsidiaries will duly pay and discharge, or cause to be paid and
discharged, before the same shall become in arrears, all taxes, assessments,
levies and other governmental charges imposed upon such corporation and its
properties, sales and activities, or any part thereof, or upon the income or
profits therefrom; provided, however, that any such tax, assessment, charge or
levy need not be paid if the validity or amount thereof shall currently be
contested in good faith by appropriate proceedings and if the Borrower or the
Subsidiary in question shall have set aside on its books appropriate reserves
with respect thereto.
(a) Each of the Borrower and its Subsidiaries will
promptly pay when due, or in conformance with customary trade terms, all other
Indebtedness
43
<PAGE> 49
and liabilities incident to its operations; provided, however, that any such
Indebtedness or liability need not be paid if the validity or amount thereof
shall currently be contested in good faith and if the Borrower or the Subsidiary
in question shall have set aside on its books appropriate reserves with respect
thereto. The Subsidiaries will not create, incur, assume or suffer to exist any
Indebtedness, except: (i) Indebtedness outstanding on the date hereof and listed
on Schedule 3; (ii) Indebtedness that is owing to the Borrower or any other
Subsidiary; (iii) Indebtedness incurred pursuant to an accounts receivable
program; and (iv) additional Indebtedness at any time outstanding in an
aggregate principal amount not to exceed 10% of Consolidated Assets.
Section 5.2 Maintenance of Properties; Compliance with Law. Each
of the Borrower and its Subsidiaries (a) will keep its material properties in
good repair, working order and condition and will from time to time make all
necessary and proper repairs, renewals, replacements, additions and improvements
thereto and will comply at all times with the provisions of all material leases
and other material agreements to which it is a party so as to prevent any loss
or forfeiture thereof or thereunder unless compliance therewith is being
currently contested in good faith by appropriate proceedings and (b) in the case
of the Borrower or any Subsidiary of the Borrower while such Person remains a
Subsidiary, will do all things necessary to preserve, renew and keep in full
force and effect and in good standing its corporate existence and franchises
necessary to continue such businesses. The Borrower and its Subsidiaries will
comply in all material respects with all valid and applicable Requirements of
Law (including any such laws, rules, regulations or governmental orders relating
to the protection of environmental or public or employee health or safety) of
the United States, of the States thereof and their counties, municipalities and
other subdivisions and of any other jurisdiction, applicable to the Borrower and
its Subsidiaries, except where compliance therewith shall be contested in good
faith by appropriate proceedings, the Borrower or the Subsidiary in question
shall have set aside on its books appropriate reserves in conformity with GAAP
with respect thereto, and the failure to comply therewith could not reasonably
be expected to, in the aggregate, have a material adverse effect on the business
or assets or on the condition, financial or otherwise, of the Borrower and its
Subsidiaries on a consolidated basis.
Section 5.3 Transactions with Affiliates. Neither the Borrower
nor any of its Subsidiaries will enter into any transactions, including, without
limitation, the purchase, sale or exchange of property or the rendering of any
service, with any of their Affiliates (other than the Borrower and its
Subsidiaries) unless such
44
<PAGE> 50
transaction is not material to the Borrower and its Subsidiaries on a
consolidated basis or is otherwise permitted under this Agreement, is in the
ordinary course of the Borrower's or such Subsidiary's business and is upon fair
and reasonable terms no less favorable to the Borrower or such Subsidiary, as
the case may be, than it would obtain in an arm's-length transaction.
Section 5.4 Insurance. The Borrower will, and will cause each of
its Subsidiaries to, maintain or cause to be maintained, with financially sound
and reputable insurers including any Subsidiary which is engaged in the business
of providing insurance protection, insurance (including, without limitation,
professional liability insurance against claims for malpractice) with respect to
its properties and business and the properties and business of its Subsidiaries
against loss or damage of the kinds customarily insured against of such types
and such amounts as are customarily carried under similar circumstances by
other corporations. Such insurance may be subject to co-insurance,