\n Lenders Percentage
\n ——- ———-<\/p>\n Canadian Investments LLC 100%
\n<\/caption>\n<\/table>\n
“Consolidated Assets” shall mean: the consolidated assets of the
\nBorrower and its Subsidiaries, determined in accordance with GAAP.<\/p>\n
“Consolidated Earnings Before Interest and Taxes” shall mean for any
\nperiod for which the amount thereof is to be determined, Consolidated Net Income
\nfor such period plus (i) all amounts deducted in computing such Consolidated Net
\nIncome in respect of interest expense on Indebtedness and income taxes and (ii)
\nnon-recurring charges incurred or made as of or for the fiscal quarters ending
\non or after June 30, 2000, related to the Borrower’s partial settlement with the
\nDepartment of Justice not exceeding in the aggregate $745,000,000 on a pre-tax
\nbasis.<\/p>\n
“Consolidated Interest Expense” shall mean for any period for which the
\namount thereof is to be determined, all amounts deducted in computing
\nConsolidated Net Income for such period in respect of interest expense on
\nIndebtedness determined in accordance with GAAP.<\/p>\n
“Consolidated Net Income” shall mean for any period, the consolidated
\nnet income, if any, after taxes, of the Borrower and its Subsidiaries for such
\nperiod determined in accordance with GAAP; provided, however, that Consolidated
\nNet Income shall not include any gain or loss attributable to extraordinary
\nitems, any sale of assets not in the ordinary course of business or any taxes or
\ntax savings as a result thereof.<\/p>\n
“Consolidated Net Tangible Assets” shall mean the total amount of assets
\n(less applicable reserves and other properly deductible items) after deducting<\/p>\n
6
\n 12<\/p>\n
therefrom (i) all current liabilities as disclosed on the consolidated balance
\nsheet of the Borrower (excluding any thereof which are by their terms extendable
\nor renewable at the option of the obligor thereon to a time more than 12 months
\nafter the time as of which the amount thereof is being computed and excluding
\nany deferred income taxes that are included in current liabilities), and (ii)
\nall goodwill, trade names, trademarks, patents, unamortized debt discount and
\nexpense and other like intangible assets, all as set forth on the most recent
\nconsolidated balance sheet of the Borrower and computed in accordance with GAAP.<\/p>\n
“Consolidated Net Worth” shall mean, as of the date of determination,
\nall items which in conformity with GAAP would be included under shareholders’
\nequity and Temporary Equity on a consolidated balance sheet of the Borrower and
\nits Subsidiaries at such date.<\/p>\n
“Consolidated Total Capitalization” shall mean for any period for which
\nthe amount thereof is to be determined, the sum of Consolidated Net Worth at
\nsuch date and Consolidated Total Debt at such date.<\/p>\n
“Consolidated Total Debt” shall mean the aggregate of all Indebtedness
\n(including the current portion thereof) of the Borrower and its Subsidiaries in
\nconformity with GAAP on a consolidated basis.<\/p>\n
“Continuing Director” shall mean any member of the Board of Directors of
\nthe Borrower who is a member of such Board on the date of this Agreement, and
\nany Person who is a member of such Board and whose nomination as a director was
\napproved by a majority of the Continuing Directors then on such Board.<\/p>\n
“Control Group Person” shall mean any Person which is a member of the
\ncontrolled group or is under common control with the Borrower within the meaning
\nof Section 414(b) or 414(c) of the Code or Section 4001(b)(1) of ERISA.<\/p>\n
“Default” shall mean any Event of Default, and any other event specified
\nin Section 6.1 hereof which with any passage of time or giving of notice (or
\nboth) would constitute such event an Event of Default.<\/p>\n
“Default Rate” shall mean a simple per annum interest rate equal to the
\nsum of (a) LIBOR plus (b) the Applicable Margin plus (c) two percent (2%).<\/p>\n
7
\n 13<\/p>\n
“Distribution” shall mean (a) the declaration or payment of any dividend
\non or in respect of any shares of any class of capital stock of the Borrower
\nother than dividends payable solely in shares of common stock of the Borrower;
\n(b) the pur chase, redemption or other acquisition of any shares of any class of
\ncapital stock of the Borrower directly or indirectly through a Subsidiary or
\notherwise; and (c) any other distribution on or in respect of any shares of any
\nclass of capital stock of the Borrower.<\/p>\n
“Dollars” or “$”: dollars in lawful currency of the United States of
\nAmerica.<\/p>\n
“Effective Date” has the meaning ascribed to it in the Master Agreement.<\/p>\n
“Eligible Assignee” shall mean (i) a commercial bank organized under the
\nlaws of the United States, or any State thereof, and having total assets in
\nexcess of $5,000,000,000 (or such lesser amount as shall be satisfactory to the
\nBorrower); (ii) a commercial bank organized under the laws of any other country,
\nor a political subdivision of any such country, having total assets in excess of
\n$5,000,000,000 (or such lesser amount as shall be satisfactory to the Borrower)
\nor the equivalent thereof; or (iii) any other financial institution which is
\nengaged in making, purchasing, or otherwise investing in commercial loans for
\nits own account in the ordinary course of business.<\/p>\n
“Eligible Collateral” shall mean cash and U.S. Treasury Bills having a
\nmaturity not later than three (3) months after the Collateral Payment Date on
\nwhich they are delivered to the Administrative Agent.<\/p>\n
“ERISA”: the Employee Retirement Income Security Act of 1974, as
\namended from time to time.<\/p>\n
“Event of Default” shall mean any of the events specified in Section 6.1
\nhereof, provided that any requirement for the giving of notice or lapse of time,
\nor both, has been satisfied.<\/p>\n
“Exchange” has the meaning ascribed to it in the Master Agreement.<\/p>\n
“Exchange Act” shall mean the Securities Exchange Act of 1934, as
\namended.<\/p>\n
8
\n 14<\/p>\n
“Exchange Business Day” shall mean a Business Day on which the Exchange
\nis open for normal business.<\/p>\n
“Facility Fee” has the meaning ascribed to it in Section 2.4(b).<\/p>\n
“Facility Fee Rate” shall mean, during a Level I Period, Level II
\nPeriod, Level III Period or Level IV Period, the rate per annum set forth under
\nthe relevant column heading on Schedule 5. The Facility Fee Rate shall be fixed
\nat Level II for the period beginning on the Agreement Date and ending on October
\n31, 2001. Increases or decreases in the Facility Fee Rate shall become effective
\non the first day of the Level I Period, Level II Period, Level III Period or
\nLevel IV Period, as the case may be, to which such Facility Fee Rate relates.<\/p>\n
“Federal Funds Rate” shall mean, as of any date, the weighted average of
\nthe rates on overnight federal funds transactions with members of the Federal
\nReserve System arranged by federal funds brokers, as published for such day (or,
\nif such day is not a New York Business Day, for the next preceding New York
\nBusiness Day) by the Federal Reserve Bank of New York, or, if such rate is not
\nso published for any day which is a New York Business Day, the average of the
\nquotations for such day on such transactions received by the Administrative
\nAgent from three federal funds brokers of recognized standing selected by the
\nAdministrative Agent.<\/p>\n
“Fee Agreement” shall mean any and all agreements by and between the
\nBorrower on the one hand and the Administrative Agent on the other hand or the
\nBorrower on the one hand and the Lenders (or any of them) on the other hand,
\nsetting forth the applicable fees relating to this Agreement.<\/p>\n
“Financing Lease” shall mean any lease of property, real or personal, if
\nthe then present value of the minimum rental commitment thereunder should, in
\naccordance with GAAP, be capitalized on a balance sheet of the lessee.<\/p>\n
“GAAP”: (a) with respect to determining compliance by the Borrower with
\nthe provisions of subsections 5.6, 5.7, 5.10 and 5.12, generally accepted
\naccounting principles in the United States of America consistent with those
\nutilized in preparing the audited financial statements referred to in subsection
\n4.3 and (b) with respect to the financial statements referred to in subsection
\n4.3 or the furnishing of financial statements pursuant to subsection 5.5 and
\notherwise, generally accepted accounting principles in the United States of
\nAmerica from time to time in effect.<\/p>\n
9
\n 15<\/p>\n
“Governmental Authority” shall mean any nation or government, any state
\nor other political subdivision thereof and any entity exercising executive,
\nlegislative, judicial, regulatory or administrative functions of or pertaining
\nto government.<\/p>\n
“Guarantee Obligation” shall mean any arrangement whereby credit is
\nextended to one party on the basis of any promise of another, whether that
\npromise is expressed in terms of an obligation to pay the Indebtedness of
\nanother, or to purchase an obligation owed by that other, to purchase assets or
\nto provide funds in the form of lease or other types of payments under
\ncircumstances that would enable that other to discharge one or more of its
\nobligations, whether or not such arrangement is listed in the balance sheet of
\nthe obligor or referred to in a footnote thereto, but shall not include
\nendorsements of items for collection in the ordinary course of business.<\/p>\n
“Indebtedness” shall mean, with respect to a Person, at a particular
\ndate, the sum (without duplication) at such date of (a) all indebtedness of such
\nPerson for borrowed money or for the deferred purchase price of property or
\nservices or which is evidenced by a note, bond, debenture or similar instrument,
\n(b) all obligations of such Person under Financing Leases, (c) all obligations
\nof such Person in respect of letters of credit, acceptances, or similar
\nobligations issued or created for the account of such Person in excess of
\n$1,000,000, (d) all liabilities secured by any Lien on any property owned by the
\nBorrower or any Subsidiary even though such Person has not assumed or otherwise
\nbecome liable for the payment thereof and (e) all Guarantee Obligations relating
\nto any of the foregoing in excess of $1,000,000.<\/p>\n
“Initial Price” has the meaning ascribed to it in the Master Agreement.<\/p>\n
“Insolvency” or “Insolvent”: at any particular time, a Multiemployer
\nPlan which is insolvent within the meaning of Section 4245 of ERISA.<\/p>\n
“Interest Period” for an Advance shall mean, in the case of the initial
\nInterest Period, the period commencing on the date that Advance is made and
\nending on the numerically corresponding day in the third month thereafter, and,
\nin the case of each subsequent Interest Period for such Advance shall mean each
\nsuccessive three month period thereafter beginning on the last day of the
\npreceding Interest Period for such Advance and ending on the numerically
\ncorresponding day in the third month thereafter. Notwithstanding the foregoing,
\nhowever, (i) any applicable Interest Period which would otherwise end on a day
\nwhich is not a Business Day shall be extended to the next succeeding Business
\nDay unless such Business Day falls in <\/p>\n
10
\n 16<\/p>\n
another calendar month, in which case such Interest Period shall end on the next
\npreceding Business Day; (ii) any applicable Interest Period which begins on a
\nday for which there is no numerically corresponding day in the calendar month
\nduring which such Interest Period is to end shall (subject to clause (i) above)
\nend on the last day of such calendar month; and (iii) no Interest Period shall
\nextend beyond the Maturity Date or such earlier date as is necessary so as not
\nto interfere with the repayment obligations of the Borrower under Section 2.7
\nhereof. Interest shall be due and payable with respect to any Advance as
\nprovided in Section 2.3 hereof.<\/p>\n
“Interest Rate Basis” shall mean the LIBOR Basis.<\/p>\n
“Lender” shall mean any lender whose name is set forth on the signature
\npages hereof in such capacity and any assignees of the Lenders which hereafter
\nbecome parties hereto pursuant to and in accordance with Section 9.5 hereof; and
\n“Lenders” shall mean some or all of such Persons.<\/p>\n
“Level I Period” shall mean any period during which the publicly
\nannounced ratings by S&P and Moody’s of the then current senior unsecured,
\nnon-credit enhanced, long-term Indebtedness of the Borrower that has been
\npublicly issued are BBB- or better or Baa3 or better, respectively.<\/p>\n
“Level II Period” shall mean any period during which the publicly
\nannounced ratings by S&P and Moody’s of the then current senior unsecured,
\nnon-credit enhanced, long-term Indebtedness of the Borrower that has been
\npublicly issued are BB+ or Ba1, respectively.<\/p>\n
“Level III Period” shall mean any period during which the publicly
\nannounced ratings by S&P and Moody’s of the then current senior unsecured,
\nnon-credit enhanced, long-term Indebtedness of the Borrower that has been
\npublicly issued are BB or Ba2, respectively.<\/p>\n
“Level IV Period” shall mean any period during which the publicly
\nannounced ratings by S&P or Moody’s of the then current senior unsecured,
\nnon-credit enhanced, long-term Indebtedness of the Borrower that has been
\npublicly issued are equal to or below BB- or unrated or equal to or below Ba3 or
\nunrated, as the case may be.<\/p>\n
provided, that if on any day the ratings by S&P and Moody’s do not coincide for
\nany rating category and the Level differential is (x) one level, then the higher
\nrating will <\/p>\n
11
\n 17<\/p>\n
be the applicable Level; (y) two levels, the Level at the midpoint will be the
\napplicable Level; and (z) more than two levels, the lower of the intermediate
\nLevels will be the applicable Level.<\/p>\n
“LIBOR” shall mean, for any Interest Period, the interest rate per annum
\ndetermined on the basis of the rate for deposits in Dollars for a period equal
\nto such Interest Period commencing on the first day of such Interest Period
\nappearing on Page 3750 of the Telerate screen as of 11:00 a.m., London time, on
\nthe first day of such Interest Period. In the event that such rate does not
\nappear on Page 3750 of the Telerate screen (or otherwise on such screen),
\n“LIBOR” shall be determined by reference to such other comparable publicly
\navailable service for displaying eurodollar rates as may be selected by the
\nAdministrative Agent or, in the absence of such availability, by reference to
\nthe rate at which the Reference Bank is offered Dollar deposits at or about
\n11:00 a.m., New York City time, on the first day of such Interest Period in the
\ninterbank eurodollar market where its eurodollar and foreign currency and
\nexchange operations are then being conducted for delivery on the first day of
\nsuch Interest Period for the number of days comprised therein.<\/p>\n
“LIBOR Advance” shall mean an Advance which bears interest at the LIBOR
\nBasis which the Borrower requests to be made in accordance with the provisions
\nof Section 2.2 hereof, and which shall be in a principal amount of at least
\n$500,000 and in an integral multiple of $250,000, except for a LIBOR Advance
\nwhich is in an amount equal to the unused amount of the Commitment, which
\nAdvance may be in such amount (but in no event less than $500,000).<\/p>\n
“LIBOR Basis” shall mean a simple per annum interest rate equal to the
\nsum of (a) LIBOR plus (b) the Applicable Margin. The LIBOR Basis shall be
\nrounded upward, if necessary to the nearest one hundredth of one percent
\n(1\/100%), and, once determined, shall be subject to Article 8 hereof and shall
\nremain unchanged during the applicable Interest Period.<\/p>\n
“LIBOR Reserve Percentage” shall mean the percentage which is in effect
\nfrom time to time under Regulation D of the Board of Governors of the Federal
\nReserve System, as such regulation may be amended from time to time, as the
\nactual reserve requirement applicable with respect to Eurocurrency Liabilities
\n(as that term is defined in Regulation D), to the extent each Lender has any
\nEurocurrency Liabilities subject to such reserve requirement at that time.<\/p>\n
12
\n 18<\/p>\n
“Lien” shall mean any mortgage, pledge, hypothecation, assignment,
\ndeposit arrangement, encumbrance, lien (statutory or other), or preference,
\npriority or other security agreement or preferential arrangement of any kind or
\nnature whatsoever (including, without limitation, any conditional sale or other
\ntitle retention agreement, any financing lease having substantially the same
\neconomic effect as any of the foregoing).<\/p>\n
“Loan Documents” shall mean this Agreement, the Notes, the Fee
\nAgreement, the Registration Rights Agreement, the Security Agreement, the Master
\nAgreement and each Request for Advance and all other documents and agreements
\nexecuted or delivered in connection with or contemplated by this Agreement.<\/p>\n
“Loans” shall mean amounts advanced by the Lenders to the Borrower under
\nthe Commitment, not to exceed the Commitment, and evidenced by the Notes.<\/p>\n
“LOC” has the meaning ascribed to it in Section 5.17(c).<\/p>\n
“Local Business Day” shall mean, in relation to the Borrower, a day on
\nwhich banks are not required or authorized by law to close in Nashville,
\nTennessee, and, in relation to any other Person, a day on which banks are not
\nrequired or authorized by law to close in the place specified in this Agreement
\nin relation to that Person.<\/p>\n
“LOC Criteria” has the meaning ascribed to it in Section 5.17(c).<\/p>\n
“London Banking Day” shall mean a day, other than a Saturday or a
\nSunday, on which banks and foreign exchange markets are scheduled to be open for
\nthe transaction of business in the London interbank deposit market.<\/p>\n
“Majority Lenders” shall mean (x) those Lenders holding at least 51% of
\nthe outstanding Loans (or, if no Loans are outstanding, 51% of the Commitments)
\nand (y) so long as it is a Lender, Canadian Investments LLC.<\/p>\n
“Master Agreement” shall mean, collectively, the Amended and Restated
\nMaster Agreement dated as of June 28, 2001 between the Borrower and Canadian
\nInvestments LLC as supplemented by the Confirmations dated June 28, 2001 and
\nJuly 31, 2001 entered into thereunder between the Borrower and Canadian
\nInvestments LLC, as the same may be amended from time to time.<\/p>\n
13
\n 19<\/p>\n
“Maturity Date” shall mean the earliest of (i) April 30, 2003 (provided
\nthat with ten (10) Business Days’ notice prior to April 30, 2003, the Borrower
\nmay request the Lenders to extend the scheduled Maturity Date by not more than
\ntwo years, and if Canadian Investments LLC so agrees, the scheduled Maturity
\nDate will be so extended) or (ii) the date of termination of Lenders’ obligation
\nto make Advances and permit existing Loans to remain outstanding pursuant
\neither to Section 6.1 or the occurrence of an Acceleration Event.<\/p>\n
“Moody’s” shall mean Moody’s Investors Service, Inc., or any successor
\nthereto.<\/p>\n
“Multiemployer Plan”: a Plan which is a multiemployer plan as defined in
\nSection 4001(a)(3) of ERISA.<\/p>\n
“New York Business Day” shall mean a day, other than a Saturday or a
\nSunday, on which banks and foreign exchange markets are open for the transaction
\nof business required for or contemplated by this Agreement in New York, New
\nYork, in each case as determined by the Administrative Agent.<\/p>\n
“Note” shall mean each promissory note issued to any Lender pursuant to
\nthe terms of this Agreement substantially in the form of Exhibit C attached
\nhereto, and any extensions, renewals, replacements, or amendments to the
\nforegoing; and “Notes” shall mean more than one of such Notes.<\/p>\n
“Notional Amount” has the meaning ascribed to it in the Master
\nAgreement.<\/p>\n
“Number of Shares” has the meaning ascribed to it in the Master
\nAgreement.<\/p>\n
“Obligations” shall mean all payment and performance obligations of
\nevery kind, nature, and description of the Borrower to any Lender or the
\nAdministrative Agent under this Agreement and the other Loan Documents
\n(including any interest, fees, and other charges on the Loans or otherwise under
\nthe Loan Documents that would accrue but for the filing of a bankruptcy action
\nwith respect to the Borrower, whether or not a claim for such amounts is allowed
\nin such bankruptcy action and including any obligation to any Lender pursuant to
\nSection 5.16 hereof), as they may be amended from time to time, or as a result
\nof making the Loans, whether direct or indirect, absolute or contingent, due or
\nnot due, contractual or tortious, liquidated or unliquidated, arising by
\noperation of law or otherwise, now existing or hereafter arising.<\/p>\n
14
\n 20<\/p>\n
“Payment Date” shall mean the last day of each Interest Period.<\/p>\n
“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to
\nand defined in ERISA and any successor entity performing similar functions.<\/p>\n
“Person” shall mean an individual, partnership, corporation, business
\ntrust, joint stock company, trust, unincorporated association, joint venture,
\nGovernmental Authority or other entity of whatever nature.<\/p>\n
“Plan” shall mean at a particular time, any employee benefit plan which
\nis covered by ERISA and in respect of which the Borrower or a Control Group
\nPerson is (or, if such plan were terminated at such time, would under Section
\n4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
\nERISA.<\/p>\n
“Principal Property” shall mean each acute care hospital providing
\ngeneral medical and surgical services (including real property but excluding
\nequipment, personal property and hospitals which primarily provide specialty
\nmedical services, such as psychiatric and obstetrical and gynecological
\nservices) at least 50% of which is owned by the Borrower and its Subsidiaries on
\na consolidated basis and located in the United States of America.<\/p>\n
“Reference Bank” shall mean The Toronto Dominion Bank.<\/p>\n
“Registration Rights Agreement” shall mean the Registration Rights Agree
\nment dated as of June 28, 2001 between the Borrower and Canadian Investments
\nLLC, as amended, supplemented, restated or otherwise modified from time to time.<\/p>\n
“Registration Statement” has the meaning ascribed to it in the
\nRegistration Rights Agreement.<\/p>\n
“Regulatory Change” shall mean, with respect to any Lender or Affiliate
\nthereof, any change on or after the date of this Agreement in United States
\nFederal, state, or foreign laws or regulations (including Regulation D) or the
\nadoption or making on or after such date of any interpretations, directives, or
\nrequests applying to a class of banks including such Lender or Affiliate of or
\nunder any United States Federal or state, or any foreign, laws or regulations
\n(whether or not having the force <\/p>\n
15<\/p>\n
21<\/p>\n
of law) by any court or governmental or monetary authority charged with the
\ninterpretation or administration thereof.<\/p>\n
“Reportable Event” shall mean any of the events set forth in Section
\n4043(b) of ERISA for which reporting is required under such Section, other than
\nthose events as to which the thirty day notice period is waived under
\nsubsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. ss. 2615.<\/p>\n
“Request for Advance” shall mean any certificate signed by an Authorized
\nSignatory of the Borrower requesting an Advance hereunder which will increase
\nthe aggregate amount of the Loans outstanding, which certificate shall be
\ndenominated a “Facility Status Advice,” and shall be in substantially the form
\nof Exhibit B attached hereto. Each Request for Advance shall, among other
\nthings, (a) specify the date of the requested Advance, which shall be a Business
\nDay, the amount of the Advance, and (b) state that the requirements of Section
\n3.3 hereof have been satisfied.<\/p>\n
“Requirement of Law” shall mean as to any Person, the certificate of
\nincorporation and by-Laws or other organizational or governing documents of
\nsuch Person, and any law, treaty, rule or regulation or determination of an
\narbitrator or a court or other Governmental Authority, in each case applicable
\nto or binding upon such Person or any of its property or to which such Person or
\nany of its property is subject.<\/p>\n
“Responsible Officer” shall mean the chief executive officer, the
\npresident, any executive or senior vice president or vice president of the
\nBorrower, the chief financial officer, treasurer or controller of the Borrower.<\/p>\n
“Revolving Commitment” shall mean the obligation of the Lenders, in
\naccordance with their respective Commitment Ratios, to make one or more
\nRevolving Loans to the Borrower on or after the Agreement Date and before the
\nMaturity Date in an aggregate principal amount not to exceed thirty percent
\n(30%) of the Commitment as of the Amendment Date pursuant to the terms and
\nsubject to the conditions hereof, as such obligation may be reduced from time to
\ntime pursuant to the terms hereof.<\/p>\n
“Revolving Commitment Period” shall mean the period from and including
\nthe Agreement Date to the Maturity Date.<\/p>\n
“Revolving Loan” has the meaning ascribed to it in Section 2.1(b).<\/p>\n
16
\n 22<\/p>\n
“S&P” shall mean Standard & Poor’s Ratings Service, or any successor
\nthereto.<\/p>\n
“Sale-and-Leaseback Transaction” shall mean any arrangement entered into
\nby the Borrower or any Significant Subsidiary with any person (other than the
\nBorrower or a Significant Subsidiary), or to which any such person is a party,
\nproviding for the leasing to the Borrower or any Significant Subsidiary for a
\nperiod of more than three years of any Principal Property which has been or is
\nto be held or transferred by the Borrower or such Significant Subsidiary to such
\nPerson or to any other Person (other than the Borrower or a Significant
\nSubsidiary), to which funds have been or are to be advanced by such Person on
\nthe security of the leased property.<\/p>\n
“Secured Obligations” shall mean the obligations of the Borrower to
\nrepay the principal of the Loans.<\/p>\n
“Securities Act” shall mean the Securities Act of 1933, as amended.<\/p>\n
“Security Agreement” shall mean the Borrower Security Agreement dated as
\nof June 28, 2001 between the Borrower and Toronto Dominion (Texas), Inc. as
\nAdministrative Agent and on behalf of the Lenders, as amended, supplemented,
\nrestated or otherwise modified from time to time.<\/p>\n
“Shares” has the meaning ascribed to it in the Master Agreement.<\/p>\n
“Significant Subsidiary” shall mean, at any particular time, any
\nSubsidiary of the Borrower having total assets of $25,000,000 or more at that
\ntime.<\/p>\n
“Single Employer Plan”: any Plan which is covered by Title IV of ERISA,
\nbut which is not a Multiemployer Plan.<\/p>\n
“Subsidiary” shall mean, as applied to any Person, a corporation,
\npartnership or other entity (i) of which shares of stock or other ownership
\ninterests having ordinary voting power (other than stock or such ownership
\ninterests having such power only by reason of the happening of a contingency) to
\nelect a majority of the board of directors or other managers of such
\ncorporation, partnership or other entity are at the time owned directly or
\nindirectly through one or more intermediaries, by such Person or (ii) which
\notherwise is consolidated with the Borrower for financial statement purposes as
\ndetermined in accordance with GAAP. Unless otherwise <\/p>\n
17
\n 23<\/p>\n
qualified, all references to a “Subsidiary” or to “Subsidiaries” in this
\nAgreement shall refer to a Subsidiary or Subsidiaries of the Borrower.<\/p>\n
“Temporary Equity” shall mean any amount included on the consolidated
\nbalance sheet of the Borrower and its Subsidiaries at such date as it pertains
\nto (i) the repurchase of the Borrower’s common stock using derivative financial
\ninstruments indexed to, and potentially settled, in the Borrower’s own stock and
\n(ii) amounts attributed to the consolidation of special purpose vehicle(s) that
\nare created for the sole purpose of engaging in transactions to effect the
\nBorrower’s repurchase of its own stock.<\/p>\n
“Term Commitment” shall mean the obligation of the Lenders, in
\naccordance with their respective Commitment Ratios, to make a Term Loan on the
\nAgreement Date to the Borrower in the principal amount of seventy percent (70%)
\nof the Commitment as of the Agreement Date and a Term Loan on the Amendment Date
\nto the Borrower in the principal amount of seventy percent (70%) of the
\ndifference between the Commitment as of the Amendment Date and the Commitment as
\nof the Agreement Date, in each case pursuant to the terms and subject to the
\nconditions hereof.<\/p>\n
“Term Loan” has the meaning ascribed to it in Section 2.1(a).<\/p>\n
“Termination Date” has the meaning ascribed to it in the Master
\nAgreement.<\/p>\n
“Valuation Date” is every Exchange Business Day after the Effective Date
\nand through the Termination Date inclusive of the Termination Date.<\/p>\n
“Voting Stock” shall mean of any corporation, shares of capital stock or
\nother securities of such corporation entitled to vote generally in the election
\nof directors of such corporation.<\/p>\n
Each definition of an agreement in this Article 1 shall include such
\nagreement as modified, amended, or supplemented from time to time with the prior
\nwritten consent of the Majority Lenders, except as otherwise provided in Section
\n9.13 hereof, and, except where the context otherwise requires, definitions
\nimparting the singular shall include the plural and vice versa. Except where
\notherwise specifically restricted, reference to a party to a Loan Document
\nincludes that party and its successors and assigns. All terms used herein which
\nare defined in Articles 8 or 9 of the Uniform Commercial Code in effect in the
\nState of New York on the date hereof <\/p>\n
18
\n 24<\/p>\n
and which are not otherwise defined herein shall have the same meanings herein
\nas set forth therein.<\/p>\n
As used herein and in the other Loan Documents, and any certificate or
\nother document made or delivered pursuant hereto or thereto, accounting terms
\nrelating to the Borrower and its Subsidiaries not defined in this Article I and
\naccounting terms partly defined in this Article I, to the extent not defined,
\nshall have the respective meanings given to them under GAAP.<\/p>\n
All accounting terms used herein without definition shall be used as
\ndefined under GAAP.<\/p>\n
ARTICLE II<\/p>\n
Loans<\/p>\n
Section 2.1 Loans. Each Lender severally agrees, upon the terms
\nand subject to the conditions of this Agreement, (a) to make an Advance in the
\namount of its Commitment Ratio of the Term Commitment to the Borrower on the
\nAgreement Date, (b) to make an Advance in the amount of its Commitment Ratio of
\nthe difference between the Term Commitment as of the Amendment Date and the Term
\nCommitment as of the Agreement Date (together with the Advance in clause (a),
\nthe “Term Loan”) to the Borrower on the Amendment Date, and (c) to make one or
\nmore Advances on its Revolving Commitment (the “Revolving Loan”) to the Borrower
\nat any time or from time to time on or after the Agreement Date and before the
\nMaturity Date in an aggregate outstanding amount not to exceed at any time the
\nRevolving Commitment (as it may be reduced from time to time pursuant to the
\nterms hereof). The principal amount of each Lender’s Advances made on any date
\nshall not exceed, in the aggregate, such Lender’s Commitment Ratio of the
\naggregate Advances to be made on such date by all Lenders. The Borrower agrees
\nto be liable for the Obligations hereunder. Neither the Administrative Agent nor
\nany Lender shall be responsible for the obligations of any other Lender
\nhereunder, nor will the failure of any Lender to comply with this Agreement
\nrelieve any other Lender or the Borrower of its obligations hereunder or under
\nthe other Loan Documents.<\/p>\n
19
\n 25<\/p>\n
Section 2.2 Manner of Borrowing and Disbursement.<\/p>\n
(a) Choice of Interest Rate, etc. Each Advance shall be
\nmade as a LIBOR Advance which shall in all cases be subject to Sections 2.3(a),
\n2.3(c) and Article 8 hereof.<\/p>\n
(b) LIBOR Advances.<\/p>\n
(i) Advances. The Borrower shall give the
\n Administrative Agent at least three (3) Business Days’ irrevocable
\n written notice in the form of a written Request for Advance (one (1)
\n Business Day’s irrevocable notice in the case of the Advances to be
\n made on the Agreement Date and the Amendment Date) or notice by
\n telephone provided any such telephonic notice shall be followed
\n immediately by a Request for Advance; provided further, however, that
\n the failure of the Borrower to confirm any notice by telephone or
\n telecopy with a Request for Advance shall not invalidate any notice so
\n given. Upon receipt of such notice from the Borrower, the
\n Administrative Agent shall promptly notify each Lender by telephone or
\n telecopy of the contents thereof.<\/p>\n
(ii) Repayments. In the event Borrower
\n intends to repay all or any portion of a LIBOR Advance on the Payment
\n Date for such LIBOR Advance, then, at least three (3) Business Days
\n prior to such Payment Date, the Borrower shall give the Administrative
\n Agent written notice specifying the portion of such LIBOR Advance
\n outstanding on such Payment Date, subject to Section 2.6 hereof, to be
\n repaid. Upon such Payment Date the portion of such LIBOR Advance
\n specified in such notice will, subject to the provisions hereof, be so
\n repaid and the remaining portion of such LIBOR Advance shall remain
\n outstanding with an Interest Period commencing on such Payment Date.
\n Except as set forth in the preceding sentence, and subject to Section
\n 2.6, on the Payment Date for any LIBOR Advance, such LIBOR Advance shall
\n be continued as a LIBOR Advance having an Interest Period commencing on
\n such Payment Date, and such continuation shall not be considered a
\n Borrowing hereunder and shall not require the delivery by the Borrower
\n to the Administrative Agent of a Request for Advance.<\/p>\n
(c) Determination and Notice of LIBOR Basis. The
\nAdministrative Agent, whose determination shall be conclusive absent manifest<\/p>\n
20
\n 26<\/p>\n
error, shall determine the applicable LIBOR Basis for each Advance and shall
\nnotify the Borrower and the Lenders of such LIBOR Basis.<\/p>\n
(d) Notification of Lenders. Upon receipt of a Request
\nfor Advance or a written notice under this Section 2.2 from the Borrower with
\nrespect to a repayment of any then outstanding Advance on the Payment Date for
\nsuch Advance, the Administrative Agent shall promptly notify each Lender by
\ntelephone or telecopy of the contents thereof and the amount of such Lender’s
\nportion of the applicable Advance. Each Lender shall, not later than 2:00 p.m.
\n(New York City time) on the date specified in such notice, make available to the
\nAdministrative Agent at the Administrative Agent’s Office, or at such account as
\nthe Administrative Agent shall designate, the amount of its portion of the
\napplicable Advance (if such Advance will increase the principal amount of the
\nLoans) in immediately available funds.<\/p>\n
(e) Disbursement.<\/p>\n
(i) Prior to 2:00 p.m. (New York City time)
\n on the date of an Advance hereunder (if such Advance will increase
\n the principal amount of the Loans), the Administrative Agent shall,
\n subject to the satisfaction of the conditions set forth in this Section
\n 2.2 and in Article 3, disburse the amounts made available to the
\n Administrative Agent by the Lenders in immediately available funds by
\n (i) transferring such amounts by wire transfer pursuant to the
\n instructions of the Borrower, or (ii) in the absence of such
\n instructions, crediting such amounts to the account of the Borrower
\n maintained with the Administrative Agent or an affiliate of the
\n Administrative Agent<\/p>\n
(ii) In the case of any Advance which
\n would (after giving effect to the repayment of outstanding Advances
\n from the proceeds of such Advance) increase the aggregate principal
\n balance of the Loans, unless the Administrative Agent shall have
\n received notice from a Lender prior to the date of any Advance that
\n such Lender will not make available to the Administrative Agent such
\n Lender’s ratable portion of such Advance, and so long as notice has
\n been given as provided in Section 2.2(d) hereof, the Administrative
\n Agent may assume that such Lender has made such portion available to
\n the Administrative Agent on the date of such Advance and the<\/p>\n
21
\n 27<\/p>\n
Administrative Agent may, in its sole discretion and in reliance upon
\n such assumption, make available to the Borrower on such date a
\n corresponding amount. If and to the extent such Lender shall not have
\n so made such ratable portion available to the Administrative Agent,
\n such Lender agrees to repay to the Administrative Agent forthwith on
\n demand such corresponding amount together with interest thereon, for
\n each day from the date such amount is made available to the Borrower
\n until the date such amount is repaid to the Administrative Agent, at
\n the Federal Funds Rate.<\/p>\n
(iii) If such Lender shall repay to the
\n Administrative Agent such corresponding amount, such amount so repaid
\n shall constitute such Lender’s portion of the applicable Advance for
\n purposes of this Agreement. The failure of any Lender to fund its
\n portion of any Advance shall not relieve any other Lender of its
\n obligation, if any, hereunder to fund its respective portion of the
\n Advance on the date of such borrowing, but no Lender shall be
\n responsible for any such failure of any other Lender.<\/p>\n
(iv) In the event that, at any time when the
\n Borrower is not in Default, a Lender for any reason fails or refuses to
\n fund its portion of an Advance, then, until such time as such Lender has
\n funded its portion of such Advance, or all other Lenders have received
\n payment in full (whether by repayment or prepayment) of the principal
\n and interest due in respect of such Advance, such non-funding Lender
\n shall (A) have no right to vote regarding any issue (other than an issue
\n which requires the consent or approval of all Lenders) on which voting
\n is required or advisable under this Agree ment or any other Loan
\n Document and (B) not be entitled to receive payments of principal,
\n interest, or fees from the Borrower in respect of such Loans which such
\n Lender failed to make.<\/p>\n
Section 2.3 Interest.<\/p>\n
(a) On LIBOR Advances. Interest on each LIBOR Advance
\nshall be computed on the basis of a 360-day year for the actual number of days
\nelapsed from and including the first day and to but excluding the last day of
\neach applicable Interest Period and shall be payable at the LIBOR Basis for such
\nAdvance in arrears on the applicable Payment Date. Interest on LIBOR Advances
\nthen <\/p>\n
22
\n 28<\/p>\n
outstanding shall also be due and payable on the Maturity Date (accrued in
\nrespect of the period ending on but excluding the Maturity Date), at the
\napplicable LIBOR Basis. In addition, if any portion of the principal of any
\nAdvance is repaid on any day that is not a Payment Date for that Advance or the
\nMaturity Date, interest on that Advance, or the relevant portion thereof, shall
\nalso be due and payable, at the applicable LIBOR Basis, on the date of that
\nrepayment (accrued in respect of the period ending on but excluding that date).<\/p>\n
(b) Defaulted Payments. If all or a portion of the
\nprincipal amount of any Loan, or any interest payable on any Loan, shall not be
\npaid when due, the Majority Lenders shall have the option (which option shall
\nnot require any Lender to give prior notice thereof to the Borrower, or require
\nacceleration of the maturity of the Loans, or the exercise of any other rights
\nor remedies hereunder in connection with the exercise of such option), to charge
\ninterest on such overdue amount at the Default Rate from the date of such
\nnonpayment. Such interest shall be payable on the earlier of demand or the
\nMaturity Date and shall accrue until the earlier of (i) the payment in full of
\nsuch overdue amount, (ii) agreement by the Majority Lenders to rescind the
\ncharging of interest on such overdue amount at the Default Rate, or (iii)
\npayment in full of the Obligations owing under this Agreement and the Notes.<\/p>\n
(c) LIBOR Advances Maximum. At no time may the number of
\noutstanding LIBOR Advances exceed twenty-four (24).<\/p>\n
Section 2.4 Fees.<\/p>\n
(a) The Borrower agrees to pay to the Administrative
\nAgent for the account of the Lenders the fees in the amounts and on the dates
\nset forth in the fee letter dated as of June 28, 2001.<\/p>\n
(b) The Borrower agrees to pay to the Administrative
\nAgent for the account of the Lenders a facility fee (the “Facility Fee”) for the
\nperiod from and including the Agreement Date to the earlier of the last day of
\nthe Revolving Commitment Period and the date upon which this Agreement is
\notherwise terminated or the Revolving Commitment is otherwise reduced to zero,
\ncomputed at the Facility Fee Rate on the average daily amount of the undrawn
\nRevolving Commitment during the period for which payment is required to be made,
\npayable quarterly in arrears on the last day of each March, June, September and
\nDecember and on the earlier of the <\/p>\n
23
\n 29<\/p>\n
Maturity Date and the date upon which this Agreement is otherwise terminated,
\ncommencing on September 30, 2001.<\/p>\n
Section 2.5 Reduction of Commitment.<\/p>\n
(a) Optional. The Borrower shall have the right, at any
\ntime and from time to time after the Agreement Date and prior to the Maturity
\nDate, upon at least three (3) Business Days’ prior written notice to the
\nAdministrative Agent, without premium or penalty (but subject to reimbursement
\nfor expenses pursuant to Section 2.10(a)), to cancel or reduce permanently all
\nor a portion of the Revolving Commitment, provided that any such partial
\nreduction shall be made in an amount not less than $5,000,000. As of the date of
\ncancellation or reduction set forth in such notice, the Revolving Commitment
\nshall be permanently reduced to the amount stated in the Borrower’s notice for
\nall purposes herein, and the Borrower shall, subject to Section 2.10 hereof, pay
\nto the Administrative Agent the amount necessary to reduce the principal amount
\nof the Loans then outstanding under the Revolving Commitment to not more than
\nthe amount of the Revolving Commitment as so reduced, together with accrued
\ninterest on the amount so prepaid.<\/p>\n
Section 2.6 Prepayment. LIBOR Advances may be prepaid prior to
\nthe applicable Payment Date, upon one (1) Business Day’s prior written notice to
\nthe Administrative Agent, provided that the Borrower shall reimburse each
\nLender, on the earlier of demand or the Maturity Date, for any loss or out of
\npocket expense incurred by such Lender in connection with such prepayment, as
\nset forth in Section 2.10 hereof. Each notice of prepayment shall be
\nirrevocable, and all amounts prepaid on the Loans shall be applied first to
\ninterest and fees and other amounts due and payable hereunder as of such date,
\nand then to principal. All prepayments of principal shall be treated first as
\nprepayments of the Revolving Loan and second as prepayments of the Term Loan
\nunless the Borrower specifies in the notice of prepayment that all principal
\nshall be treated first as a prepayment of the Term Loan and second as a
\nprepayment of the Revolving Loan. Term Loan prepayments cannot be reborrowed.
\nPartial prepayments shall be in a principal amount of not less than $1,000,000
\nand in an integral multiple of $1,000,000. Upon receipt of any notice of
\nprepayment, the Administrative Agent shall promptly notify each Lender.<\/p>\n
Section 2.7 Repayment.<\/p>\n
(a) Loans Exceeding Commitment. If, at any time, the
\namount of the Loans then outstanding shall exceed the Commitment, the Borrower<\/p>\n
24
\n 30<\/p>\n
shall on such date make a repayment of the principal amount of the Loans in an
\namount equal to such excess.<\/p>\n
(b) Maturity. In addition to the foregoing, a final
\npayment of all Obligations then outstanding under this Agreement and the Notes
\nshall be due and payable on the earlier of the Maturity Date and the occurrence
\nof an Acceleration Event.<\/p>\n
Section 2.8 Notes; Loan Accounts.<\/p>\n
(a) The Term Loan and the Revolving Loan shall be
\nrepayable in accordance with the terms and provisions set forth herein and, in
\neach case, shall be evidenced by the Notes. The Notes shall be issued by the
\nBorrower to the Lenders and shall be duly executed and delivered by an
\nAuthorized Signatory of the Borrower.<\/p>\n
(b) Each Lender may open and maintain on its books in the
\nname of the Borrower a loan account to which it shall credit the proceeds of the
\nTerm Loan and Revolving Loan made by it and interest thereon. If such Lender
\nopens such loan account, it shall debit the applicable loan account for the
\nprincipal amount of each Advance made by it and accrued interest thereon and
\nshall credit such loan account for each payment on account of principal of or
\ninterest on the Loans made by it. The records of such Lender with respect to the
\nloan accounts maintained by it shall, subject to Section 9.5(k), be, absent
\nmanifest error, prima facie evidence of the Loans made by it and accrued
\ninterest thereon, but the failure to maintain such records shall not impair the
\nobligations of the Borrower to pay all Obligations.<\/p>\n
Section 2.9 Manner of Payment.<\/p>\n
(a) Each payment (including any prepayment) by the
\nBorrower on account of the principal of or interest on the Loans and all fees,
\nshall be made not later than 2:00 p.m. (New York City time) on the date
\nspecified for payment under this Agreement or any other applicable Loan Document
\nto the Administrative Agent to an account designated by the Administrative
\nAgent, for the account of the Lenders or the Administrative Agent, in lawful
\nmoney of the United States of America in immediately available funds, and shall
\nbe remitted promptly by the Administrative Agent to the Lenders (i) pro rata
\nbased on the outstanding principal amount of the Loans in the case of principal
\nand interest and (ii) pro rata according to the Commitment Ratio of such Lender
\nin the case of fees. The failure <\/p>\n
25
\n 31<\/p>\n
of the Borrower to make any such payment by such time shall not constitute a
\nDefault hereunder, provided that such payment is received by the Administrative
\nAgent in immediately available funds by 4:00 p.m. (New York City time) on such
\ndue date, but any such payment received by the Administrative Agent after 2:00
\np.m. (New York City time) on such due date shall be deemed to have been made on
\nthe next Business Day for the purpose of calculating interest on amounts
\noutstanding on the Loans, unless the Administrative Agent, in fact, was able to
\nremit to such Lender its pro rata share of such payment by 4:00 p.m. (New York
\nCity time) on such due date. In the case of a payment for the account of a
\nLender, the Administrative Agent will promptly thereafter distribute the amount
\nso received in like funds to such Lender. If the Administrative Agent shall not
\nhave received any payment from the Borrower as and when due, the Administrative
\nAgent will promptly notify the Lenders accordingly.<\/p>\n
(b) If any payment under this Agreement or the Notes
\nshall be specified to be made upon a day which is not a Business Day, it shall
\n(except as otherwise provided in clause (i) of the definition of “Interest
\nPeriod” in Article I hereof) be made on the next day which is a Business Day,
\nand such extension of time shall in such case be included in computing interest
\nand fees, if any, in connection with such payment.<\/p>\n
(c) Borrower agrees to make any and all payments by the
\nBorrower hereunder, under the Notes, or under the other Loan Documents, (subject
\nto the remainder of this Section 2.9) without set-off or counterclaim (including
\nwithout limitation any set-off or counterclaim with respect to any right arising
\nunder the Master Agreement) or any deduction whatsoever and free and clear of
\nany and all present or future taxes, levies, imposts, deductions, charges or
\nwithholdings, and all liabilities with respect thereto, excluding in the case of
\neach Lender and the Administrative Agent or any other party entitled to receive
\na payment hereunder, any taxes (including franchise taxes and taxes imposed on
\nor measured by net income or profits) imposed with respect to the Administrative
\nAgent or any Lender or any other party entitled to receive a payment hereunder
\nby reason of the Administrative Agent, the Lender or by reason of any connection
\nbetween, as applicable, the Administrative Agent or such Lender or any other
\nparty entitled to receive a payment hereunder and the relevant taxing
\njurisdiction, including, without limitation, a connection arising from such
\nPerson being or having been a citizen, domiciliary, or resident of such
\njurisdiction, being organized in such jurisdiction, or having or having had a
\npermanent establishment or fixed place of business therein, but not including a
\nconnection arising solely from such Person having executed, delivered, performed
\nits <\/p>\n
26
\n 32<\/p>\n
obligations or received any payment under this Agreement (all such non-excluded
\ntaxes, levies, imposts, deductions, charges, withholdings, and liabilities in
\nrespect of payments hereunder, under the Notes, or under the other Loan
\nDocuments being hereinafter referred to as “Taxes”). If the Borrower shall be
\nrequired by law to deduct any Taxes from or in respect of any sum payable
\nhereunder or under the other Loan Documents (subject to the remainder of this
\nSection 2.9) to any Lender or the Administrative Agent, (1) the sum payable
\nshall be increased as may be necessary so that after making all required
\ndeductions (including deductions applicable to additional sums payable under
\nthis Section 2.9(c)) such Lender or the Administrative Agent (as the case may
\nbe) receives an amount equal to the sum it would have received had no such
\ndeductions been made, (2) the Borrower shall make such deductions and (3) the
\nBorrower shall pay the full amount deducted to the relevant taxation authority
\nor other authority in accordance with applicable law; provided, however, that
\nthe Borrower shall not be required to increase any amounts payable to any such
\nPerson that are United States withholding taxes imposed on such Person at the
\ntime such Person becomes a party to this Agreement.<\/p>\n
(d) In addition, the Borrower shall (subject to the
\nremainder of this Section 2.9) pay any present or future stamp, documentary,
\nexcise, property or similar taxes, charges or levies that arise from any payment
\nmade hereunder or under the other Loan Documents or from the execution, delivery
\nor registration of, per forming under, or otherwise with respect to, this
\nAgreement, the Notes, or the other Loan Documents (hereinafter referred to as
\n“Other Taxes”).<\/p>\n
(e) The Borrower shall (subject to the remainder of this
\nSection 2.9) indemnify each Lender and the Administrative Agent for the full
\namount of Taxes and Other Taxes, and for the full amount of taxes imposed by any
\njurisdiction on amounts payable under Section 2.9(c), imposed on or paid by
\nsuch Lender or the Administrative Agent (as the case may be) and any liability
\n(including penalties, additions to tax, interest and expenses) arising therefrom
\nor with respect thereto. This indemnification shall be made within thirty (30)
\ndays from the date such Lender or the Administrative Agent (as the case may be)
\nmakes written demand therefor.<\/p>\n
(f) Within 30 days after the date of any payment of
\nTaxes, the Borrower shall furnish to the Administrative Agent, at its address
\nreferred to in Section 9.1, the original receipt of payment thereof or a
\ncertified copy of such receipt or other evidence of such payment reasonably
\nsatisfactory to the Administrative Agent. In the case of any payment hereunder
\nor under the other Loan Documents by<\/p>\n
27
\n 33<\/p>\n
or on behalf of the Borrower through an account or branch outside the United
\nStates or by or on behalf of the Borrower by a payor that is not a United States
\nperson, if the Borrower determines that no Taxes are payable in respect thereof
\nas a result of such payment being made by a non-United States person or through
\nan account or branch located outside the United States, the Borrower shall, upon
\nthe request of the Administrative Agent, furnish, or shall cause such payor to
\nfurnish, to the Administrative Agent, at such address, an opinion of counsel
\nacceptable to the Administrative Agent stating that such payment is exempt from
\nTaxes. For purposes of this subsection 2.9(f) and subsection 2.9(g), the terms
\n“United States” and “United States person” shall have the meanings specified in
\nSection 7701 of the Internal Revenue Code.<\/p>\n
(g) Each Lender that is not a United States person
\n(a “non-U.S. Lender”) shall, on or prior to the date of its execution and
\ndelivery of this Agreement in the case of the Lenders as of the Agreement Date,
\nand on the date of the Assignment and Assumption Agreement pursuant to which it
\nbecame a Lender in the case of each other Lender, provide each of the
\nAdministrative Agent and the Borrower with two duly completed original Internal
\nRevenue Service Forms W-8BEN or W-8ECI (or applicable successor forms), and, to
\nthe extent applicable, an Internal Revenue Service form W-9 (or applicable
\nsuccessor form), or in the case of a non-U.S. Lender that is not a bank, two
\nduly completed original Internal Revenue Service Forms W-8BEN (or applicable
\nsuccessor forms) and a Certificate in the form of Exhibit H (a “Non-Bank Tax
\nCertificate”). Each non-U.S. Lender further agrees (i) to deliver to the
\nAdministrative Agent and the Borrower two further duly completed and signed
\noriginal copies of such Forms W-8BEN or W-8ECI and W-9, as applicable, or
\nsuccessor forms, on or before the date that any such form expires or becomes
\nobsolete and promptly after the occurrence of any event requiring a change from
\nthe most recent forms previously delivered by it to the Borrower or
\nAdministrative Agent in accordance with applicable U.S. law and regulations or,
\nif no such form was previously delivered, promptly after the occurrence of any
\nchange in law or other event giving rise to the Borrower’s need for such form to
\nenable it to make payments hereunder or under any other Loan Document without
\nwithholding Taxes or subject to withholding at a reduced rate, and (ii) in the
\ncase of a non-U.S. Lender that is not a bank that delivers a statement in the
\nform of Exhibit H, to deliver such statement on an annual basis on the
\nanniversary of the date on which such Person became a party to this Agreement,
\nand any such additional statements and forms as are reasonably requested by the
\nBorrower or Administrative Agent, and (iii) to notify promptly the Borrower or
\nAdministrative Agent if it is no longer able to deliver, or if it is required to
\nwithdraw or cancel any form or statement previously <\/p>\n
28
\n 34<\/p>\n
delivered by it pursuant to this Section 2.9(g). If the forms provided by a
\nLender at the time such Lender first becomes a party to this Agreement indicates
\na United States interest withholding tax rate in excess of zero, withholding tax
\nat such rate shall be considered excluded from Taxes unless and until such
\nLender provides the appropriate form certifying that a lesser rate applies,
\nwhereupon withholding tax at such lesser rate only shall be considered excluded
\nfrom Taxes for periods governed by such form; provided, however, that, if at the
\ndate of the Assignment and Assumption Agreement pursuant to which a Lender
\nbecomes a party to this Agreement, the Lender assignor was entitled to payments
\nunder subsection 2.9(c) in respect of United States withholding tax with respect
\nto interest paid at such date, then, to such extent, the term Taxes shall
\ninclude (in addition to withholding taxes that may be imposed in the future or
\nother amounts otherwise includable in Taxes) United States withholding tax, if
\nany, applicable with respect to the Lender assignee on such date.<\/p>\n
(h) For any period with respect to which a Lender has
\nfailed to provide the Borrower with the appropriate form described in subsection
\n2.9(g) (other than if such failure is due to a change in law occurring after the
\ndate on which a form originally was required to be provided or if such form
\notherwise is not required under subsection 2.9(g)), such Lender shall not be
\nentitled to indemnification under Section 2.9(c) or Section 2.9(e) with respect
\nto Taxes imposed by the United States by reason of such failure; provided,
\nhowever, that should a Lender become subject to Taxes because of its failure to
\ndeliver a form required hereunder, the Borrower shall, at the expense of such
\nLender, take such steps as such Lender shall reasonably request to assist such
\nLender to recover such Taxes.<\/p>\n
(i) For purposes of this Section 2.9, the phrase “Loan
\nDocuments” shall not include the Master Agreement.<\/p>\n
Section 2.10 Reimbursement.<\/p>\n
(a) Whenever any Lender or the Administrative Agent shall
\nincur any losses or reasonable out-of-pocket expenses (other than losses of the
\nApplicable Margin) in connection with (i) failure by the Borrower to borrow any
\nLIBOR Advance after having made a Request for Advance therefor in accordance
\nwith Section 2.2 hereof (whether by reason of the election of the Borrower not
\nto proceed or the nonfulfillment of any of the conditions set forth in Article
\nIII) other than a failure to borrow resulting from an unavailability which
\noccurs after notice from the Administrative Agent to the Borrower pursuant to
\nSection 8.1 or 8.2 hereof, <\/p>\n
29
\n 35
\nor (ii) repayment or prepayment of any LIBOR Advance in whole or in part
\n(including a repayment or prepayment pursuant to Sections 8.2 and 8.3(b) hereof)
\non a day other than a Payment Date for the Advance, the Borrower agrees to pay
\nto such Lender, upon the earlier of three Business Days following such Lender’s
\ndemand or the Maturity Date, an amount sufficient to compensate such Lender or
\nthe Administrative Agent for all such losses and reasonable out of pocket
\nexpenses. Such Lender’s or the Administrative Agent good faith determination of
\nthe amount of such losses and reasonable out-of-pocket expenses, absent manifest
\nerror, shall be binding and conclusive. Upon request of the Borrower, such
\nLender or the Administrative Agent, when seeking reimbursement under this
\nSection 2.10, shall provide a certificate setting forth the amount to be paid to
\nit by the Borrower hereunder and calculations therefor.<\/p>\n
(b) Losses subject to reimbursement hereunder shall
\ninclude, without limiting the generality of the foregoing, but without
\nduplication, expenses incurred by the Administrative Agent or such Lender or any
\nparticipant of such Lender permitted hereunder in connection with the
\nre-employment of funds prepaid, paid, repaid, not borrowed, not converted, or
\nnot paid, as the case may be (other than losses of the Applicable Margin), and
\nwill be payable regardless of whether the Maturity Date is changed by virtue of
\nan amendment hereto (unless such amendment expressly waives such payment) or as
\na result of acceleration of the Obligations and regardless of whether such
\nLender has a “matched funding” of such Advance.<\/p>\n
Section 2.11 Sharing of Payments. If any Lender shall obtain any
\npayment (whether involuntary or otherwise) on account of the Loans made by it in
\nexcess of its ratable share of the Loans then outstanding, such Lender shall
\nforthwith purchase a participation in the Loans from the other Lenders as shall
\nbe necessary to cause such purchasing Lender to share the excess payment ratably
\nwith each of them; provided, however, that if all or any portion of such excess
\npayment is thereafter recovered from such purchasing Lender, such purchase from
\neach Lender shall be rescinded and such Lender shall repay to the purchasing
\nLender the purchase price to the extent of such recovery. The Borrower agrees
\nthat any Lender so purchasing a participation from another Lender pursuant to
\nthis Section may, to the fullest extent permitted by law, exercise all its
\nrights of payment with respect to such participation as fully as if such Lender
\nwere the direct creditor of the Borrower in the amount of such participation so
\nlong as the Borrower’s Obligations are not increased.<\/p>\n
Section 2.12 Capital Adequacy. In the event that a Regulatory
\nChange regarding capital adequacy does or shall have the effect of reducing the
\nrate <\/p>\n
30<\/p>\n
36<\/p>\n
of return on any Lender’s (for purposes of this Section 2.12, the term “Lender”
\nshall include any parent or holding company of such Lender) capital as a
\nconsequence of its obligations hereunder to a level below that which such Lender
\ncould have achieved but for such adoption, change, or compliance (taking into
\nconsideration such Lender’s policies with respect to capital adequacy) by an
\namount deemed by such Lender to be material, then from time to time, ten (10)
\ndays after submission by such Lender to the Borrower of a written request
\ntherefor, together with a certificate (which shall be conclusive absent manifest
\nerror), setting forth the calculations evidencing such requested additional
\namount, and the law or regulation with respect thereto and certifying that such
\nrequest is consistent with such Lender’s treatment of other similar customers
\nhaving similar provisions generally in their agreements with such Lender, and
\nthat such request is being made on the basis of a reasonable allocation of the
\ncosts resulting from such law or regulation, the Borrower shall pay to such
\nLender such additional amount or amounts as will compensate such Lender for such
\nreduction. Notwithstanding the foregoing, the Borrower shall only be obligated
\nto compensate a Lender for any amount under this section arising or occurring
\nduring (i) in the case of each such request for compensation, any time or period
\ncommencing not more than sixty (60) days prior to the date on which such Lender
\nsubmits such request and (ii) any other time or period during which, because of
\nthe unannounced retroactive application of such law, regulation, interpretation,
\nrequest, or directive, such Lender could not have known that the resulting
\nreduction in return might arise. A Lender will notify the Borrower (with a copy
\nof such notice to the Administrative Agent) that it is entitled to compensation
\npursuant to this section as promptly as practicable after such Lender determines
\nto request such compensation; provided, however, that the failure to provide
\nsuch notice shall not restrict the ability of a Lender to be reimbursed under
\nthis Section 2.12 except as provided in clause (i) above.<\/p>\n
Section 2.13 Mitigation Obligations; Replacement of Lenders.<\/p>\n
(a) If any Lender requests compensation under Section
\n2.12, hereof, or if the Borrower is required to pay an additional amount to any
\nLender or any Governmental Authority for the account of any Lender pursuant to
\nSection 2.9(c) hereof, then such Lender shall use reasonable efforts (consistent
\nwith its internal policy and legal and regulatory restrictions) to designate a
\ndifferent lending office for funding or booking its Loans hereunder or to assign
\nits rights and obligations hereunder to another of its offices, branches or
\naffiliates, if, in the sole judgment of such Lender, such designation or
\nassignment (i) would eliminate or reduce amounts payable pursuant to Section
\n2.12 or 2.9(c) hereof, as the case may be, in the future <\/p>\n
31<\/p>\n
37<\/p>\n
and (ii) would not subject such Lender to any unreimbursed cost or expense and
\nwould not otherwise be disadvantageous to such Lender. The Borrower hereby
\nagrees to pay all reasonable costs and expenses incurred by any Lender in
\nconnection with any such designation or assignment.<\/p>\n
(b) If any Lender requests compensation under Section
\n2.12 or 8.3 hereof, or if the Borrower is required to pay any additional amount
\nto any Lender or any Governmental Authority for the account of any Lender
\npursuant to Section 2.9(c) hereof, or if any Lender defaults in its obligation
\nto fund Loans hereunder, then the Borrower may, at its sole expense and effort,
\nupon notice to such Lender and the Administrative Agent, require such Lender to
\nassign and delegate, without recourse, representation or warranty (in accordance
\nwith and subject to the restrictions contained in Section 9.5 hereof), all its
\ninterests, rights and obligations hereunder to an assignee that shall assume
\nsuch obligations (which assignee may be another Lender, if a Lender accepts such
\nassignment); provided that (i) the Borrower shall have received the prior
\nwritten consent of the Administrative Agent, which consent shall not
\nunreasonably be withheld, and (ii) such Lender shall have received payment of an
\namount equal to the outstanding principal of its Loans, accrued interest (and
\npremium, if any) thereon, accrued fees and all other amounts payable to it
\nhereunder and under the other Loan Documents, from the assignee (to the extent
\nof such outstanding principal and accrued interest and fees) or the Borrower (in
\nthe case of all other amounts). A Lender shall not be required to make any such
\nassignment and delegation if, prior thereto, as a result of a waiver by such
\nLender or otherwise, the circumstances entitling the Borrower to require such
\nassignment and delegation cease to apply.<\/p>\n
ARTICLE III<\/p>\n
Conditions Precedent<\/p>\n
Section 3.1 Conditions Precedent to Effectiveness of Agreement
\nThe obligation of each Lender to undertake its Commitment Ratio of the
\nCommitment as of the Agreement Date and to make its initial Advance hereunder is
\nsubject to the prior fulfillment of each of the following conditions:<\/p>\n
(a) The Administrative Agent shall have received each of
\nthe following, in form and substance satisfactory to the Administrative Agent:<\/p>\n
32
\n 38<\/p>\n
(i) duly executed Notes;<\/p>\n
(ii) the loan certificate of the Borrower
\n dated as of the Agreement Date, including a certificate of incumbency
\n with respect to the signature of each Authorized Signatory, which loan
\n certificate shall be in substantially the form of Exhibit D attached
\n hereto, together with appropriate attachments thereto;<\/p>\n
(iii) legal opinion of Dewey Ballantine
\n LLP, special New York counsel to the Borrower, and in-house counsel to
\n the Borrower, each dated as of the Agreement Date addressed to each
\n Lender and the Administrative Agent substantially in the form of
\n Exhibits E1 and E2, respectively, attached hereto;<\/p>\n
(iv) receipt by the Administrative Agent
\n and each Lender of all appropriate fees to be paid to them by the
\n Borrower on or prior to the Agreement Date;<\/p>\n
(v) any required consents to the closing of
\n this Agreement or to the execution, delivery, and performance of this
\n Agreement and the other Loan Documents, each of which shall be in form
\n and substance satisfactory to the Administrative Agent and the Lenders;<\/p>\n
(vi) duly executed Security Agreement;<\/p>\n
(vii) duly executed Master Agreement;<\/p>\n
(viii) duly executed Registration Rights<\/p>\n
Agreement; and<\/p>\n
(ix) all such other documents as the
\n Administrative Agent may reasonably request, certified by an
\n appropriate governmental official or Authorized Signatory if so
\n requested.<\/p>\n
(b) The Borrower shall certify to the Administrative
\nAgent and the Lenders that each of the representations and warranties in Article
\nIV hereof is <\/p>\n
33
\n 39<\/p>\n
true and correct in all material respects as of the Agreement Date and that no
\nDefault then exists or is continuing.<\/p>\n
(c) There shall have been, as of the Agreement Date, no
\nmaterial adverse change in the financial condition, business or operations of
\nthe Borrower and its Subsidiaries taken as a whole, as reflected in the audited
\nfinancial statements as of December 31, 2000 of the Borrower.<\/p>\n
Section 3.2 Conditions Precedent to Effectiveness of Amendment
\nThe obligation of each Lender to undertake its Commitment Ratio of the increase
\nin Commitment on the Amendment Date and to make its Advance hereunder on the
\nAmendment Date is subject to the prior fulfillment of each of the following
\nconditions:<\/p>\n
(a) The Administrative Agent shall have received each of
\nthe following, in form and substance satisfactory to the Administrative Agent:<\/p>\n
(i) duly executed Notes in exchange for
\n the cancelled Notes executed by Borrower on the Agreement;<\/p>\n
(ii) the loan certificate of the Borrower
\n dated as of the Amendment Date, including a certificate of incumbency
\n with respect to the signature of each Authorized Signatory, which loan
\n certificate shall be in substantially the form of Exhibit D attached
\n hereto, together with appropriate attachments thereto;<\/p>\n
(iii) legal opinion of Dewey Ballantine
\n LLP, special New York counsel to the Borrower, and in-house counsel to
\n the Borrower, each dated as of the Amendment Date addressed to each
\n Lender and the Administrative Agent substantially in the form of
\n Exhibits E1 and E2, respectively, attached hereto;<\/p>\n
(iv) receipt by the Administrative Agent
\n and each Lender of all appropriate fees to be paid to them by the
\n Borrower on or prior to the Amendment Date;<\/p>\n
34
\n 40<\/p>\n
(v) any required consents to the closing of
\n the amendment to this Agreement on the Amendment Date or to the
\n execution, delivery, and performance of the amended Agreement and the
\n other Loan Documents, each of which shall be in form and substance
\n satisfactory to the Administrative Agent and the Lenders;<\/p>\n
(vi) duly executed Security Agreement;<\/p>\n
(vii) duly executed Master Agreement;<\/p>\n
(viii) all such other documents as the
\n Administrative Agent may reasonably request, certified by an
\n appropriate governmental official or Authorized Signatory if so
\n requested.<\/p>\n
(b) The Borrower shall certify to the Administrative
\nAgent and the Lenders that each of the representations and warranties in Article
\nIV hereof is true and correct in all material respects as of the Amendment Date
\nand that no Default then exists or is continuing.<\/p>\n
(c) There shall have been, as of the Amendment Date, no
\nmaterial adverse change in the financial condition, business or operations of
\nthe Borrower and its Subsidiaries taken as a whole, as reflected in the audited
\nfinancial statements as of December 31, 2000 of the Borrower.<\/p>\n
Section 3.3 Conditions Precedent to Each Advance The obligation
\nof any Lender to make any Advance, including the initial Advance hereunder,
\nother than an Advance which (after a giving effect to the repayment of
\noutstanding Advances from the proceeds of such Advance) does not increase the
\naggregate principal amount of the Loans outstanding hereunder, is subject to the
\nfulfillment of each of the following conditions immediately prior to or
\ncontemporaneously with such Advance:<\/p>\n
(a) The representations and warranties contained in
\nArticle 4 (as qualified by the disclosures in (i) the Borrower’s Annual Report
\non Form 10-K for its fiscal year ended December 31, 2000, (ii) the Borrower’s
\nQuarterly Report on Form 10-Q for its fiscal quarter ending March 31, 2001,
\n(iii) the Borrower’s Reports on Form 8-K filed with the Securities and Exchange
\nCommission on January 31, <\/p>\n
35
\n 41<\/p>\n
2001, February 20, 2001, April 24, 2001, May 23, 2001, July 2, 2001 and July 24,
\n2001 respectively, in the case of each of the items referred to in clauses (i)
\nand (ii), as filed with the Securities and Exchange Commission and previously
\ndistributed to the Administrative Agent and made available to the Lenders and
\n(iii) Schedule 2 attached hereto) shall be true and correct in all material
\nrespects on and as of the date of such Advance with the same force and effect as
\nthough made on and as of such date (except for representations and warranties
\nmade as of a specified date, which shall be true and correct as of such date);<\/p>\n
(b) There shall not exist, on the date of the making of
\nthe Advance and after giving effect thereto, a Default hereunder, and the
\nAdministrative Agent and each of the Lenders shall have received a Request for
\nAdvance so certifying; and<\/p>\n
(c) The aggregate Number of Shares subject to
\ntransactions under the Master Agreement shall not exceed, on the date of the
\nmaking of the Advance, 4.95% of the number of outstanding Shares of the Borrower
\n(including such Number of Shares).<\/p>\n
The acceptance of the proceeds of any Loans which (after giving
\neffect to the repayment of outstanding Loans from the proceeds of such Loans)
\nwould increase the aggregate United States Dollar amount of the Loans
\noutstanding shall be deemed to be a representation and warranty by the Borrower
\nas to compliance with this Section 3.3 on the date any such Loan is made.<\/p>\n
ARTICLE IV<\/p>\n
Representations and Warranties<\/p>\n
The Borrower hereby represents and warrants that:<\/p>\n
Section 4.1 Corporate Organization and Existence. Each of the
\nBorrower and each Subsidiary is a corporation, partnership or other entity duly
\norganized and validly existing and in good standing under the laws of the
\njurisdiction in which it is organized (except, in the case of Subsidiaries,
\nwhere the failure to be in good standing would not be material to the Borrower
\nand its Subsidiaries on a consolidated basis) and has all necessary power to
\ncarry on the business now conducted by it. The Borrower has all necessary
\ncorporate power and has taken all <\/p>\n
36
\n 42<\/p>\n
corporate action required to make all the provisions of this Agreement and the
\nNotes and all other agreements and instruments executed in connection herewith
\nand therewith, the valid and enforceable obligations they purport to be. Each of
\nthe Borrower and each Subsidiary is duly qualified and in good standing in all
\njurisdictions other than that of its organization in which the physical
\nproperties owned, leased or operated by it are located (except, in the case of
\nSubsidiaries, where the failure to be in good standing would not be material to
\nthe Borrower and its Subsidiaries on a consolidated basis), and is duly
\nauthorized, qualified and licensed under all laws, regulations, ordinances or
\norders of Governmental Authorities, or otherwise, to carry on its business in
\nthe places and in the manner presently conducted (except where failure would not
\nbe material to the Borrower and its Subsidiaries on a consolidated basis).<\/p>\n
Section 4.2 Subsidiaries. As of the date hereof, the Borrower has
\nonly the Subsidiaries set forth in Schedule 1. The capital stock and securities
\nowned by the Borrower and its Subsidiaries in each of the Borrower’s
\nSubsidiaries are owned free and clear of any mortgage, pledge, lien,
\nencumbrance, charge or restriction on the transfer thereof other than
\nrestrictions on transfer imposed by applicable securities laws and restrictions,
\nliens and encumbrances outstanding on the date hereof and listed in said
\nSchedule 1.<\/p>\n
Section 4.3 Financial Information. The Borrower has made
\navailable to the Administrative Agent and each Lender copies of the following
\n(the “SEC Reports”):<\/p>\n
(a) the Annual Report of the Borrower for the fiscal year
\nended December 31, 2000, containing the consolidated balance sheet of the
\nBorrower and its Subsidiaries as at said date and the related consolidated
\nstatements of operations, stockholders’ equity and cash flows for the fiscal
\nyear then ended, accompanied by the opinion of Ernst & Young LLP;<\/p>\n
(b) the Annual Report of the Borrower on Form 10-K for
\nthe fiscal year ended December 31, 2000;<\/p>\n
(c) the Quarterly Report of the Borrower on Form 10-Q for
\nthe fiscal quarter ended March 31, 2001; and<\/p>\n
37<\/p>\n
43<\/p>\n
(d) Reports of the Borrower on Form 8-K filed with the
\nSecurities and Exchange Commission on January 31, 2001, February 20, 2001, April
\n24, 2001, May 23, 2001, July 2, 2001 and July 24, 2001.<\/p>\n
Such financial statements (including any notes thereto) have been
\nprepared in accordance with GAAP and fairly present the financial condition of
\nthe corporations covered thereby at the dates thereof and the results of their
\noperations for the periods covered thereby, subject to normal year-end
\nadjustments in the case of interim statements. As of the date hereof and except
\nas disclosed in the above-referenced reports, neither the Borrower nor any of
\nits Subsidiaries has any known contingent liabilities of any significant amount
\nwhich are not referred to in said financial statements or in the notes thereto
\nwhich could reasonably be expected to have a material adverse effect on the
\nbusiness or assets or on the condition, financial or otherwise, of the Borrower
\nand its Subsidiaries, on a consolidated basis.<\/p>\n
Section 4.4 Changes in Condition. Since December 31, 2000 there
\nhas been no material adverse change in the business or assets or in the
\ncondition, financial or otherwise, of the Borrower and its Subsidiaries, on a
\nconsolidated basis.<\/p>\n
Section 4.5 Assets. The Borrower and each Subsidiary have good
\nand marketable title to all material assets carried on their books and reflected
\nin the most recent balance sheet referred to in subsection 4.3 or furnished
\npursuant to subsection 5.5, except for assets held on Financing Leases or
\npurchased subject to security devices providing for retention of title in the
\nvendor, and except for assets disposed of as permitted by this Agreement.<\/p>\n
Section 4.6 Litigation. Except as disclosed in the Borrower’s SEC
\nReports, and except as set forth on Schedule 2 hereto, there is no litigation,
\nat law or in equity, or any proceeding before any federal, state, provincial or
\nmunicipal board or other governmental or administrative agency pending or to the
\nknowledge of the Borrower threatened which, after giving effect to any
\napplicable insurance, could reasonably be expected to have a material adverse
\neffect on the business or assets or on the condition, financial or otherwise, of
\nthe Borrower and its Subsidiaries on a consolidated basis or which seeks to
\nenjoin the consummation of any of the transactions contemplated by this
\nAgreement or any other Loan Document and involves any material risk that any
\nsuch injunction will be issued, and no judgment, decree, or order of any
\nfederal, state, provincial or municipal court, board or other governmental or
\nadministrative agency has been issued against the Borrower or any Subsidiary
\nwhich could reasonably be expected to have a material risk of a material <\/p>\n
38
\n 44<\/p>\n
adverse effect on the business or assets or on the condition, financial or
\notherwise, of the Borrower and its Subsidiaries on a consolidated basis. With
\nrespect to the matters disclosed in the Borrower’s SEC Reports and the matters
\nset forth on Schedule 2 hereto, since the date of such disclosures there has
\nbeen no development which is material and adverse to the business or assets or
\nto the condition, financial or otherwise, of the Borrower and its Subsidiaries
\non a consolidated basis.<\/p>\n
Section 4.7 Tax Returns. The Borrower and each of its
\nSubsidiaries have filed all tax returns which are required to be filed and have
\npaid, or made adequate provision for the payment of, all taxes which have or may
\nbecome due pursuant to said returns or to assessments received. The Borrower
\nknows of no material additional assessments for which adequate reserves have not
\nbeen established.<\/p>\n
Section 4.8 Contracts, etc. Attached hereto as Schedule 3 is a
\nstatement of outstanding Indebtedness of the Borrower and its Subsidiaries for
\nborrowed money as of the date set forth therein and a complete and correct list
\nof all agreements, contracts, indentures, instruments, documents and amendments
\nthereto to which the Borrower or any Subsidiary is a party or by which it is
\nbound pursuant to which any such Indebtedness of the Borrower and its
\nSubsidiaries in excess of $25,000,000 is outstanding on the date hereof. Said
\nSchedule 3 also includes a complete and correct list of all such Indebtedness of
\nthe Borrower and its Subsidiaries outstanding on the date indicated in respect
\nof Guarantee Obligations in excess of $1,000,000 and letters of credit in excess
\nof $1,000,000, and there have been no increases in such Indebtedness since said
\ndate other than as permitted by this Agreement.<\/p>\n
Section 4.9 No Legal Obstacle to Agreement. Neither the execution
\nand delivery of this Agreement or of any Notes, nor the making by the Borrower
\nof any borrowings hereunder, nor the consummation of any transaction herein or
\ntherein referred to or contemplated hereby or thereby nor the fulfillment of the
\nterms hereof or thereof or of any agreement or instrument referred to in this
\nAgreement, has constituted or resulted in or will constitute or result in a
\nbreach of the provisions of any contract to which the Borrower or any of its
\nSubsidiaries is a party or by which it is bound or of the charter or by-laws of
\nthe Borrower, or the violation of any law, judgment, decree or governmental
\norder, rule or regulation applicable to the Borrower or any of its
\nSubsidiaries, or result in the creation under any agreement or instrument of any
\nsecurity interest, lien, charge or encumbrance upon any of the assets of the
\nBorrower or any of its Subsidiaries. Other than those which have <\/p>\n
39
\n 45<\/p>\n
already been obtained, no approval, authorization or other action by any
\ngovernmental authority or any other Person is required to be obtained by the
\nBorrower or any of its Subsidiaries in connection with the execution, delivery
\nand performance of this Agreement or the transactions contemplated hereby, or
\nthe making of any borrowing by the Borrower hereunder.<\/p>\n
Section 4.10 Defaults. Neither the Borrower nor any Subsidiary is
\nin default under any provision of its charter or by-laws or, so as to affect
\nadversely in any material manner the business or assets or the condition,
\nfinancial or otherwise, of the Borrower and its Subsidiaries on a consolidated
\nbasis, under any provision of any agreement, lease or other instrument to which
\nit is a party or by which it is bound or of any Requirement of Law.<\/p>\n
Section 4.11 Burdensome Obligations. Neither the Borrower nor any
\nSubsidiary is a party to or bound by any agreement, deed, lease or other
\ninstrument, or subject to any charter, by-law or other corporate restriction
\nwhich, in the opinion of the management thereof, is so unusual or burdensome as
\nto in the foreseeable future have a material adverse effect on the business or
\nassets or condition, financial or otherwise, of the Borrower and its
\nSubsidiaries on a consolidated basis. The Borrower does not presently anticipate
\nthat future expenditures of the Borrower and its Subsidiaries needed to meet the
\nprovisions of any federal or state statutes, orders, rules or regulations will
\nbe so burdensome as to have a material adverse effect on the business or assets
\nor condition, financial or otherwise, of the Borrower and its Subsidiaries on a
\nconsolidated basis.<\/p>\n
Section 4.12 Pension Plans. Each Plan maintained by the Borrower,
\nany Subsidiary or any Control Group Person or to which any of them makes or will
\nmake contributions is in material compliance with the applicable provisions of
\nERISA and the Code. The Borrower and its Subsidiaries have met all of the
\nfunding standards applicable to all Plans, and there exists no event or
\ncondition which would permit the institution of proceedings to terminate any
\nPlan that is not a Multiemployer Plan. The aggregate current value of the vested
\nliabilities under the Plans that are subject to Title IV of ERISA and that are
\nnot Multiemployer Plans does not exceed the aggregate current value of such
\nPlans’ assets.<\/p>\n
Section 4.13 Disclosure. No statement or information contained in
\nthis Agreement, any other Loan Document, or any other document, certificate or
\nwritten statement furnished by or on behalf of the Borrower to the
\nAdministrative Agent or the Lenders, or any of them, for use in connection with
\nthe transactions <\/p>\n
40
\n 46<\/p>\n
contemplated by this Agreement, or the other Loan Documents, contained, as of
\nthe date such statement, information or certificate was so furnished, any untrue
\nstatement of a material fact or omitted to state a material fact necessary to
\nmake the statements contained herein or therein not misleading. The projections
\nand pro forma financial information (if any) contained in the materials
\nreferenced above are based upon good faith estimates and assumptions believed by
\nmanagement of the Borrower to be reasonable at the time made, it being
\nrecognized by the Lenders that such financial information as it relates to
\nfuture events is not to be viewed as fact and that actual results during the
\nperiod or periods covered by such financial information may differ from the
\nprojected results set forth therein by a material amount.<\/p>\n
Section 4.14 Environmental and Public and Employee Health and
\nSafety Matters. The Borrower and each Subsidiary has complied with all
\napplicable Federal, state, and other laws, rules and regulations relating to
\nenvironmental pollution or to environmental regulation or control or to public
\nor employee health or safety, except to the extent that the failure to so comply
\nwould not be reasonably likely to result in a material adverse effect on the
\nbusiness or assets or on the condition, financial or otherwise, of the Borrower
\nand its Subsidiaries on a consolidated basis. The Borrower’s and the
\nSubsidiaries’ facilities do not contain, and have not previously contained, any
\nhazardous wastes, hazardous substances, hazardous materials, toxic substances or
\ntoxic pollutants regulated under the Resource Conservation and Recovery Act, the
\nComprehensive Environmental Response Compensation and Liability Act, the
\nHazardous Materials Transportation Act, the Toxic Substance Control Act, the
\nClean Air Act, the Clean Water Act or any other applicable law relating to
\nenvironmental pollution or public or employee health and safety, in violation of
\nany such law, or any rules or regulations promulgated pursuant thereto, except
\nfor violations that would not be reasonably likely to result in a material
\nadverse effect on the business or assets or on the condition, financial or
\notherwise, of the Borrower and its Subsidiaries on a consolidated basis. The
\nBorrower is aware of no events, conditions or circumstances involving
\nenvironmental pollution or contamination or public or employee health or safety,
\nin each case applicable to it or its Subsidiaries, that would be reasonably
\nlikely to result in a material adverse effect on the business or assets or on
\nthe condition, financial or otherwise, of the Borrower and its Subsidiaries on a
\nconsolidated basis.<\/p>\n
Section 4.15 Federal Regulations. None of the proceeds of the
\nLoans will be used, directly or indirectly, for the purpose of purchasing or
\ncarrying any margin stock or for the purpose of reducing or retiring any
\nIndebtedness which was originally incurred to purchase or carry margin stock in
\nviolation of Regulations U <\/p>\n
41<\/p>\n
47<\/p>\n
and X. Neither the Borrower nor any bank acting on its behalf has taken or will
\ntake any action which might cause this Agreement or any Note to violate
\nRegulation U or X or any other regulation of the Board of Governors of the
\nFederal Reserve System or to violate the Securities Exchange Act of 1934, in
\neach case as now in effect or as the same may hereafter be in effect. If so
\nrequested by a Lender or the Administrative Agent the Borrower will furnish
\nsuch Lender or the Administrative Agent with a statement or statements in
\nconformity with the requirements of Federal Reserve Form U-1 or G-3 referred to
\nin Regulation U of said Board of Governors. Neither the making of the Loans nor
\nthe use of proceeds thereof will violate or be inconsistent with the provisions
\nof Regulation U or X of said Board of Governors.<\/p>\n
Section 4.16 Investment Company Act; Other Regulations. The
\nBorrower is not an “investment company”, or a company “controlled” by an
\n“investment company”, within the meaning of the Investment Company Act of 1940,
\nas amended. The Borrower is not subject to regulation under any Federal or State
\nstatute or regulation which limits its ability to incur Indebtedness.<\/p>\n
Section 4.17 Securities Act Representations. Unless and until
\nthe Number of Shares under the Master Agreement has been reduced to zero, the
\nBorrower shall be deemed to represent to each Lender with respect to each
\nTransaction it enters into under the Master Agreement, as of the date it enters
\ninto such Transaction, that (1) it is entering into such Transaction for its own
\naccount and not with a view to transfer, resale or distribution, (2) it is an
\n“accredited investor” within the meaning of Rule 510(a) of Regulation D under
\nthe Securities Act and has such knowledge and experience in financial and
\nbusiness matters that it is capable of evaluating the merits and risks of such
\nTransaction, and (3) it understands and acknowledges that such Transaction may
\ninvolve the purchase or sale of a “security” as defined in the Securities Act
\nand the securities laws of any state and, therefore, may not be sold, pledged,
\nhypothecated, transferred or otherwise disposed of unless such security is
\nregistered under the Securities Act and any applicable state securities law, or
\nan exemption from registration is available.<\/p>\n
Section 4.18 Additional Securities Law Representations. Unless
\nand until the Number of Shares under the Master Agreement has been reduced to
\nzero, the Borrower shall be deemed to represent to each Lender as of each date
\nit enters into a Transaction under the Master Agreement that (1) as of such
\ndate, it is not in possession of any material non-public information with
\nrespect to itself, (2) as of such date, it is not entering into such Transaction
\nfor the purpose of manipulating the market price or value of the Shares, (3) as
\nof such date, no “restricted period” for <\/p>\n
42
\n 48<\/p>\n
purposes of Rule 102 of Regulation M under the Exchange Act and no tender offer
\nfor Shares (whether by the Borrower or any other third party) is in effect or
\n(in the case of a tender offer by the Borrower) has been in effect within the
\npreceding ten Business Days, and (4) it is entering into such Transaction in
\nconnection with its Share repurchase program which was approved by the executive
\ncommittee of its board of directors in October 1999 and March 2000 and publicly
\nannounced in November 1999 and March 2000, respectively, solely for the purposes
\nstated in such executive committee resolutions and public disclosures.<\/p>\n
Section 4.19 Survival of Representations and Warranties, etc. All
\nrepresentations and warranties made under this Agreement shall survive, and not
\nbe waived by, the execution hereof by any Lender or the Administrative Agent,
\nany investigation or inquiry by any Lender or the Administrative Agent, or the
\nmaking of any Advance under this Agreement.<\/p>\n
ARTICLE V<\/p>\n
General Covenants<\/p>\n
On and after the date hereof, until all of the Notes and all
\nother amounts payable pursuant hereto shall have been paid in full and so long
\nas the Commitments shall remain in effect, the Borrower covenants that the
\nBorrower will comply, and will cause each of its Subsidiaries to comply, with
\nsuch of the provisions of this Section 5 and such other provisions of this
\nAgreement as are applicable to the Person in question.<\/p>\n
Section 5.1 Taxes, Indebtedness, etc. Each of the Borrower and
\nits Subsidiaries will duly pay and discharge, or cause to be paid and
\ndischarged, before the same shall become in arrears, all taxes, assessments,
\nlevies and other governmental charges imposed upon such corporation and its
\nproperties, sales and activities, or any part thereof, or upon the income or
\nprofits therefrom; provided, however, that any such tax, assessment, charge or
\nlevy need not be paid if the validity or amount thereof shall currently be
\ncontested in good faith by appropriate proceedings and if the Borrower or the
\nSubsidiary in question shall have set aside on its books appropriate reserves
\nwith respect thereto.<\/p>\n
(a) Each of the Borrower and its Subsidiaries will
\npromptly pay when due, or in conformance with customary trade terms, all other
\nIndebtedness <\/p>\n
43
\n 49<\/p>\n
and liabilities incident to its operations; provided, however, that any such
\nIndebtedness or liability need not be paid if the validity or amount thereof
\nshall currently be contested in good faith and if the Borrower or the Subsidiary
\nin question shall have set aside on its books appropriate reserves with respect
\nthereto. The Subsidiaries will not create, incur, assume or suffer to exist any
\nIndebtedness, except: (i) Indebtedness outstanding on the date hereof and listed
\non Schedule 3; (ii) Indebtedness that is owing to the Borrower or any other
\nSubsidiary; (iii) Indebtedness incurred pursuant to an accounts receivable
\nprogram; and (iv) additional Indebtedness at any time outstanding in an
\naggregate principal amount not to exceed 10% of Consolidated Assets.<\/p>\n
Section 5.2 Maintenance of Properties; Compliance with Law. Each
\nof the Borrower and its Subsidiaries (a) will keep its material properties in
\ngood repair, working order and condition and will from time to time make all
\nnecessary and proper repairs, renewals, replacements, additions and improvements
\nthereto and will comply at all times with the provisions of all material leases
\nand other material agreements to which it is a party so as to prevent any loss
\nor forfeiture thereof or thereunder unless compliance therewith is being
\ncurrently contested in good faith by appropriate proceedings and (b) in the case
\nof the Borrower or any Subsidiary of the Borrower while such Person remains a
\nSubsidiary, will do all things necessary to preserve, renew and keep in full
\nforce and effect and in good standing its corporate existence and franchises
\nnecessary to continue such businesses. The Borrower and its Subsidiaries will
\ncomply in all material respects with all valid and applicable Requirements of
\nLaw (including any such laws, rules, regulations or governmental orders relating
\nto the protection of environmental or public or employee health or safety) of
\nthe United States, of the States thereof and their counties, municipalities and
\nother subdivisions and of any other jurisdiction, applicable to the Borrower and
\nits Subsidiaries, except where compliance therewith shall be contested in good
\nfaith by appropriate proceedings, the Borrower or the Subsidiary in question
\nshall have set aside on its books appropriate reserves in conformity with GAAP
\nwith respect thereto, and the failure to comply therewith could not reasonably
\nbe expected to, in the aggregate, have a material adverse effect on the business
\nor assets or on the condition, financial or otherwise, of the Borrower and its
\nSubsidiaries on a consolidated basis.<\/p>\n
Section 5.3 Transactions with Affiliates. Neither the Borrower
\nnor any of its Subsidiaries will enter into any transactions, including, without
\nlimitation, the purchase, sale or exchange of property or the rendering of any
\nservice, with any of their Affiliates (other than the Borrower and its
\nSubsidiaries) unless such <\/p>\n
44
\n 50<\/p>\n
transaction is not material to the Borrower and its Subsidiaries on a
\nconsolidated basis or is otherwise permitted under this Agreement, is in the
\nordinary course of the Borrower’s or such Subsidiary’s business and is upon fair
\nand reasonable terms no less favorable to the Borrower or such Subsidiary, as
\nthe case may be, than it would obtain in an arm’s-length transaction.<\/p>\n
Section 5.4 Insurance. The Borrower will, and will cause each of
\nits Subsidiaries to, maintain or cause to be maintained, with financially sound
\nand reputable insurers including any Subsidiary which is engaged in the business
\nof providing insurance protection, insurance (including, without limitation,
\nprofessional liability insurance against claims for malpractice) with respect to
\nits properties and business and the properties and business of its Subsidiaries
\nagainst loss or damage of the kinds customarily insured against of such types
\nand such amounts as are customarily carried under similar circumstances by
\nother corporations. Such insurance may be subject to co-insurance, deductibility
\nor similar clauses which, in effect, result in self-insurance of certain losses,
\nand the Borrower may self-insure against such loss or damage, provided that
\nadequate insurance reserves are maintained in connection with such
\nself-insurance.<\/p>\n
Section 5.5 Financial Statements. The Borrower will and will
\ncause each of its Subsidiaries to maintain a standard system of accounting in
\nwhich full, true and correct entries will be made of all dealings or
\ntransactions in relation to its business and affairs in accordance with GAAP
\nconsistently applied, and will furnish the following to each Lender (in
\nduplicate if so requested):<\/p>\n
(a) Annual Statements. As soon as available, and in any
\nevent within 120 days after the end of each fiscal year, the consolidated
\nbalance sheet as at the end of each fiscal year and consolidated statements of
\noperations and cash flow and of stockholders’ equity for such fiscal year of the
\nBorrower and its Subsidiaries, together with comparative consolidated figures
\nfor the next preceding fiscal year, accompanied by reports or certificates of an
\nAuditor, to the effect that such balance sheet and statements were prepared in
\naccordance with GAAP consistently applied and fairly present the financial
\nposition of the Borrower and its Subsidiaries as at the end of such fiscal year
\nand the results of their operations and cash flows for the year then ended and
\nthe statement of such Auditor and of a Responsible Officer of the Borrower that
\nsuch Auditor and Responsible Officer have caused the provisions of this
\nAgreement to be reviewed and that nothing has come to their attention to lead
\nthem to believe that any Default exists hereunder or, if such is not the case,
\nspecifying such Default or possible Default and the nature thereof. In <\/p>\n
45
\n 51<\/p>\n
addition, such financial statements shall be accompanied by a certificate of a
\nResponsible Officer of the Borrower containing computations showing compliance
\nwith subsections 5.6, 5.7, 5.10 and 5.12.<\/p>\n
(b) Quarterly Statements. As soon as available, and in
\nany event within 60 days after the close of each of the first three fiscal
\nquarters of the Borrower and its Subsidiaries in each year, condensed
\nconsolidated balance sheets as at the end of such fiscal quarter and condensed
\nconsolidated statements of operations and cash flows for the portion of the
\nfiscal year then ended, of the Borrower and its Subsidiaries, together with
\ncomputations showing compliance with subsections 5.6, 5.7, 5.10 and 5.12,
\naccompanied by a certificate of a Responsible Officer of the Borrower that such
\nstatements and computations have been properly prepared in accordance with GAAP
\nfor interim financial information, consistently applied, and fairly present the
\nfinancial position of the Borrower and its Subsidiaries as at the end of such
\nfiscal quarter and the results of their operations and cash flows for such
\nquarter and for the portion of the fiscal year then ended, subject to normal
\naudit and year-end adjustments, and to the further effect that he has caused the
\nprovisions of this Agreement and all other agreements to which the Borrower or
\nany of its Subsidiaries is a party and which relate to Indebtedness to be
\nreviewed, and has no knowledge that any Default has occurred under this
\nAgreement or under any such other agreement, or, if said Responsible Officer has
\nsuch knowledge, specifying such Default and the nature thereof.<\/p>\n
(c) Notice of Material Litigation; Defaults. The Borrower
\nwill promptly notify each Lender in writing, by delivery of the Borrower’s
\nAnnual Report on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports
\non Form 8-K filed with the Securities and Exchange Commission or otherwise, as
\nto any litigation or administrative proceeding to which it or any of its
\nSubsidiaries may hereafter be a party which, after giving effect to any
\napplicable insurance, may involve any material risk of any material judgment or
\nliability or which may otherwise result in any material adverse change in the
\nbusiness or assets or in the condition, financial or otherwise, of the Borrower
\nand its Subsidiaries on a consolidated basis and which litigation or proceeding
\nis otherwise required to be disclosed in such reports. Promptly upon acquiring
\nknowledge thereof, the Borrower will notify each Lender of the existence of any
\nDefault, including, without limitation, any default in the payment of any
\nIndebtedness for money borrowed of the Borrower or any Subsidiary or under the
\nterms of any agreement relating to such Indebtedness, specifying the nature of
\nsuch Default and what action the Borrower has taken or is taking or proposes to
\ntake with respect thereto. Promptly upon acquiring knowledge <\/p>\n
46
\n 52<\/p>\n
thereof, the Borrower will notify each Lender of a change in the publicly
\nannounced ratings by S&P and Moody’s of the then current senior unsecured,
\nnon-credit enhanced, long-term Indebtedness of the Borrower.<\/p>\n
(d) ERISA Reports. The Borrower will furnish the
\nAdministrative Agent with copies of any request for waiver of the funding
\nstandards or extension of the amortization periods required by Sections 303 and
\n304 of ERISA or Section 412 of the Code promptly after any such request is
\nsubmitted by the Borrower to the Department of Labor or the Internal Revenue
\nService, as the case may be. Promptly after a Reportable Event occurs, or the
\nBorrower or any of its Subsidiaries receives notice that the PBGC or any
\nControl Group Person has instituted or intends to institute proceedings to
\nterminate any pension or other Plan that is a “defined benefit plan” as defined
\nby ERISA, or prior to the Plan administrator’s terminating such Plan pursuant to
\nSection 4041 of ERISA, the Borrower will notify the Administrative Agent and
\nwill furnish to the Administrative Agent a copy of any notice of such Reportable
\nEvent which is required to be filed with the PBGC, or any notice delivered by
\nthe PBGC evidencing its institution of such proceedings or its intent to
\ninstitute such proceedings, or any notice to the PBGC that a Plan is to be
\nterminated, as the case may be. The Borrower will promptly notify each Lender
\nupon learning of the occurrence of any of the following events with respect to
\nany Plan which is a Multiemployer Plan: a partial or complete withdrawal from
\nany Plan which may result in the incurrence by the Borrower or any of its
\nSubsidiaries of withdrawal liability in excess of $1,000,000 under Subtitle E of
\nTitle IV of ERISA, or of the termination, insolvency or reorganization status of
\nany Plan under such Subtitle E which may result in liability to the Borrower or
\nany of its Subsidiaries in excess of $1,000,000. In the event of such a
\nwithdrawal, upon the request of the Administrative Agent or any Lender, the
\nBorrower will promptly provide information with respect to the scope and extent
\nof such liability, to the best of the Borrower’s knowledge.<\/p>\n
(e) Reports to Stockholders, etc. Promptly after the
\nsending, making available or filing of the same, copies of all reports and
\nfinancial statements which the Borrower shall send or make available to its
\nstockholders including, without limitation, all reports on Form 8-K, 10-Q or
\n10-K or any similar form hereafter in use which the Borrower shall file with the
\nSecurities and Exchange Commission.<\/p>\n
(f) Other Information. From time to time upon request of
\nthe Administrative Agent or any Lender, the Borrower will furnish information<\/p>\n
47
\n 53<\/p>\n
regarding the business affairs and condition, financial or otherwise, of the
\nBorrower and its Subsidiaries. The Borrower agrees that any authorized officers
\nand representatives of any Lender shall have the right during reasonable
\nbusiness hours to examine the books and records of the Borrower and its
\nSubsidiaries, and to make notes and abstracts therefrom, to make an independent
\nexamination of its books and records for the purpose of verifying the accuracy
\nof the reports delivered by the Borrower and its Subsidiaries pursuant to this
\nAgreement or otherwise, and ascertaining compliance with this Agreement.<\/p>\n
(g) Confidentiality of Information. Each Lender
\nacknowledges that some of the information furnished to such Lender pursuant to
\nthis subsection 5.5 may be received by such Lender prior to the time it shall
\nhave been made public, and each Lender agrees that it will keep all information
\nso furnished confidential and shall make no use of such information until it
\nshall have become public, except (i) in connection with matters involving
\noperations under or enforcement of this Agreement or the Notes, (ii) in
\naccordance with each Lender’s obligations under law or pursuant to subpoenas or
\nother process to make information available to governmental agencies and
\nexaminers or to others, (iii) to each Lender’s corporate Affiliates and
\nTransferees and prospective Transferees so long as such Persons agree to be
\nbound by this subsection 5.5(g) or (iv) with the prior consent of the Borrower.<\/p>\n
Section 5.6 Ratio of Consolidated Total Debt to Consolidated
\nTotal Capitalization. The Borrower and its Subsidiaries will not at any time
\nhave outstanding Consolidated Total Debt in an amount in excess of 65% of
\nConsolidated Total Capitalization.<\/p>\n
Section 5.7 Interest Coverage Ratio. On the last day of each
\nfiscal quarter of the Borrower, commencing with the fiscal quarter ending June
\n30, 2001, the Consolidated Earnings Before Interest and Taxes of the Borrower
\nand its Subsidiaries for the four consecutive fiscal quarters of the Borrower
\nthen ending will be an amount which equals or exceeds 200% of the Consolidated
\nInterest Expense of the Borrower and its Subsidiaries for the same four
\nconsecutive fiscal quarters.<\/p>\n
Section 5.8 Distributions. The Borrower will not make any
\nDistribution except that, so long as no Event of Default exists or would exist
\nafter giving effect thereto, the Borrower may make Distributions.<\/p>\n
48<\/p>\n
54<\/p>\n
Section 5.9 Merger or Consolidation. The Borrower will not become
\na constituent corporation in any merger or consolidation unless the Borrower
\nshall be the surviving or resulting corporation and immediately before and after
\ngiving effect to such merger or consolidation there shall exist no Default;
\nprovided that the Borrower may merge into another Subsidiary owned by the
\nBorrower for the purpose of causing the Borrower to be incorporated in a
\ndifferent jurisdiction in the United States or causing the Borrower to change
\nits name.<\/p>\n
Section 5.10 Sales of Assets. The Borrower and its Subsidiaries
\nmay from time to time sell or otherwise dispose of all or any part of their
\nrespective assets; provided, however, that in any fiscal year, the Borrower and
\nits Subsidiaries will not (a) sell or dispose of (including, without limitation,
\nany disposition resulting from any merger or consolidation involving a
\nSubsidiary of the Borrower, and any Sale-and-Leaseback Transaction), outside of
\nthe ordinary course of business, to Persons other than the Borrower and its
\nSubsidiaries, assets constituting in the aggregate more than 12% of Consolidated
\nAssets of the Borrower and its Subsidiaries as at the end of the immediately
\npreceding fiscal year and (b) exchange with any Persons other than the Borrower
\nand its Subsidiaries any asset or group of assets for another asset or group of
\nassets unless (i) such asset or group of assets are exchanged for an asset or
\ngroup of assets of a substantially similar type or nature, (ii) on a pro forma
\nbasis both before and after giving effect to such exchange, no Default or Event
\nof Default shall have occurred and be continuing, (iii) the aggregate fair
\nmarket value (in the case of any exchange of any material assets or group of
\nassets, as determined in good faith by the Board of Directors of the Borrower)
\nof the asset or group of assets being transferred by the Borrower or such
\nSubsidiary and the asset or group of assets being acquired by the Borrower or
\nsuch Subsidiary are substantially equal and (iv) the aggregate of (x) all assets
\nof the Borrower and its Subsidiaries sold pursuant to subsection 5.10(a)
\n(including, without limitation, any disposition resulting from any merger or
\nconsolidation involving a Subsidiary of the Borrower, and any
\nSale-and-Leaseback Transaction) and (y) the aggregate fair market value (as
\ndetermined in good faith by the Board of Directors of the Borrower) of all
\nassets of the Borrower and its Subsidiaries exchanged pursuant to this
\nsubsection 5.10(b) does not exceed 20% of Consolidated Assets of the Borrower
\nand its Subsidiaries as at the end of the immediately preceding fiscal year.<\/p>\n
Section 5.11 Compliance with ERISA. Each of the Borrower and its
\nSubsidiaries will meet, and will cause all Control Group Persons to meet, all
\nminimum funding requirements applicable to any Plan imposed by ERISA or the
\nCode (without giving effect to any waivers of such requirements or extensions of
\nthe <\/p>\n
49
\n 55<\/p>\n
related amortization periods which may be granted), and will at all times
\ncomply, and will cause all Control Group Persons to comply, in all material
\nrespects with the provisions of ERISA and the Code which are applicable to the
\nPlans, except where the failure to do so could not reasonably be expected to
\nhave a material adverse effect. At no time shall the aggregate actual and
\ncontingent liabilities of the Borrower under Sections 4062, 4063, 4064 and
\nother provisions of ERISA with respect to all Plans (and all other pension plans
\nto which the Borrower, any Subsidiary, or any Control Group Person made
\ncontributions prior to such time) exceed $10,000,000. Neither the Borrower nor
\nits Subsidiaries will permit any event or condition to exist which could permit
\nany Plan which is not a Multiemployer Plan to be terminated under circumstances
\nwhich would cause the lien provided for in Section 4068 of ERISA to attach to
\nthe assets of the Borrower or any of its Subsidiaries.<\/p>\n
Section 5.12 Negative Pledge. The Borrower will not and will
\nensure that no Subsidiary will create or have outstanding any lien or security
\ninterest on or over any Principal Property in respect of any Indebtedness and
\nthe Borrower will not create or have outstanding any lien or security interest
\non or over the capital stock of any of its Subsidiaries that own a Principal
\nProperty and will ensure that no Subsidiary will create or have outstanding any
\nlien or security interest on or over the capital stock of any of its respective
\nSubsidiaries that own a Principal Property except in either case for:<\/p>\n
(a) any security for the purchase price or cost of
\nconstruction of real property acquired by the Borrower or any of its
\nSubsidiaries (or additions, substantial repairs, alterations or substantial
\nimprovements thereto) or equipment, provided that such Indebtedness and such
\nsecurity are incurred within eighteen (18) months of the acquisition or
\ncompletion of construction (or alteration or repair) and full operation;<\/p>\n
(b) any security existing on property or on capital
\nstock, as the case may be, at the time of acquisition of such property or
\ncapital stock, as the case may be, by the Borrower or a Subsidiary or on the
\nproperty or capital stock, as the case may be, of a corporation at the time of
\nthe acquisition of such corporation by the Borrower or a Subsidiary (including
\nacquisitions through merger or consolidation);<\/p>\n
(c) any security created in favor of the Borrower or a
\nSubsidiary;<\/p>\n
50
\n 56<\/p>\n
(d) any security created by operation of law in favor of
\ngovernment agencies of the United States of America or any State thereof;<\/p>\n
(e) any security created in connection with the borrowing
\nof funds if within 120 days such funds are used to repay Indebtedness in at
\nleast the same principal amount as secured by other security of Principal
\nProperty or capital stock of a Subsidiary that owns a Principal Property, as the
\ncase may be, with an independent appraised fair market value at least equal to
\nthe appraised fair market value of the Principal Property or capital stock of a
\nSubsidiary that owns a Principal Property, as the case may be, secured by the
\nnew security; and<\/p>\n
(f) any extension, renewal or replacement of any security
\nreferred to in the foregoing clauses (a) through (e) provided that the amount
\nthereby secured is not increased;<\/p>\n
unless any Loans made and\/or to be made to and all other sums payable by the
\nBorrower under this Agreement shall be secured equally and ratably with (or
\nprior to) such Indebtedness so long as such Indebtedness shall be so secured.
\nNotwithstanding the foregoing, the Borrower and any one or more Subsidiaries
\nmay, without securing the Loans made and\/or to be made to and all other sums
\npayable by the Borrower under this Agreement, create, issue or assume
\nIndebtedness which would otherwise be subject to the foregoing restrictions in
\nan aggregate principal amount which, together with all other such Indebtedness
\nof the Borrower and its Subsidiaries (not including Indebtedness permitted to be
\nsecured pursuant to the foregoing clauses (a) through (f) and the aggregate
\nAttributable Debt), including Indebtedness in respect of Sale-and-Lease-back
\nTransactions (other than those permitted by subsection 5.13(b)), does not exceed
\n10% of Consolidated Net Tangible Assets of the Borrower and its Subsidiaries.<\/p>\n
Section 5.13 Sale-and-Lease-back Transactions. Neither the
\nBorrower nor any Significant Subsidiary will enter into any Sale-and-Lease-back
\nTransaction with respect to any Principal Property with any Person (other than
\nthe Borrower or a Subsidiary) unless either (a) the Borrower or such Significant
\nSubsidiary would be entitled, pursuant to the provisions described in subsection
\n5.12(a) through (f) to incur Indebtedness secured by a security on the property
\nto be leased without equally and ratably securing the Loans made and\/or to be
\nmade to and all other sums payable by the Borrower under this Agreement, or (b)
\nthe Borrower during or immediately after the expiration of 120 days after the
\neffective date of such <\/p>\n
51
\n 57<\/p>\n
transaction applies to the voluntary retirement of its Indebtedness and\/or the
\nacquisition or construction of Principal Property an amount equal to the greater
\nof the net proceeds of the sale of the property leased in such transaction or
\nthe fair value in the opinion of a Responsible Officer of the Borrower of the
\nleased property at the time such transaction was entered into.<\/p>\n
Section 5.14 [Reserved]<\/p>\n
Section 5.15 Use of Proceeds. The Borrower will not use any part
\nof the proceeds of the Loans to purchase or carry Margin Stock in violation of
\nRegulation U or to extend credit for the purpose of purchasing or carrying any
\nMargin Stock in violation of Regulation U. Each Lender shall be responsible for
\nits compliance with, and the administration of its Loans for purposes of,
\nRegulation U.<\/p>\n
Section 5.16 Indemnity. The Borrower agrees to indemnify and hold
\nharmless each Lender and the Administrative Agent and each of their respective
\naffiliates, employees, representatives, shareholders, officers, and directors
\n(any of the foregoing shall be an “Indemnitee”) from and against any and all
\nclaims, liabilities, losses, damages, actions, reasonable attorneys’ fees, and
\nexpenses (as such fees and expenses are incurred) and demands by any party
\n(other than the Borrower), including the costs of investigating and defending
\nsuch claims, whether or not the Borrower or the Person seeking indemnification
\nis the prevailing party (a) resulting from any breach or alleged breach by the
\nBorrower of any representation or warranty made hereunder; or (b) otherwise
\narising out of (i) the Commitment or this Agreement which relates to (i) any
\nbreach or alleged breach by the Borrower of any covenant made hereunder, any
\nLoan Document, or any transaction contemplated hereby or thereby, including,
\nwithout limitation, the use of the proceeds of Loans hereunder, (ii) allegations
\nof any participation by the Lenders or the Administrative Agent, or any of them,
\nin the affairs of the Borrower, (iii) any claims against the Lenders or the
\nAdministrative Agent, or any of them, by any shareholder or other investor in or
\nlender to the Borrower by any brokers or finders or investment advisers or
\ninvestment bankers retained by the Borrower or by any other third party,
\narising out of the Commitment or otherwise under this Agreement or any other
\nLoan Document; except to the extent that the Person seeking indemnification
\nhereunder is determined in such case to have acted with gross negligence or
\nwillful misconduct, in any case, by a final, non-appealable judicial order. The
\nobligations of the Borrower under this Section 5.16 are in addition to, and
\nshall not otherwise limit, any liabilities which the Borrower might otherwise
\nhave in connection with any warranties or similar obligations of the Borrower
\nin any other Loan Document.<\/p>\n
52
\n 58<\/p>\n
Section 5.17 Collateral Maintenance.<\/p>\n
(a) The Borrower will pledge all of its rights under the
\nMaster Agreement as collateral security for its Secured Obligations to the
\nLenders under this Loan Agreement and the Notes. Although the parties intend for
\nall purposes other than tax purposes that each Lender shall own any Shares that
\nconstitute the Number of Shares for purposes of the Master Agreement unless and
\nuntil they are delivered to the Borrower pursuant to the Master Agreement, in
\nthe event any such Shares are deemed owned by the Borrower prior to such
\ndelivery, the Borrower shall be deemed to have pledged, and does hereby pledge,
\na number of Shares equal to the Number of Shares and all proceeds thereof to the
\nAdministrative Agent on behalf of the Lenders as security for the performance by
\nthe Borrower of its Secured Obligations under the Loan Agreement, and shall be
\ndeemed to have granted, and does hereby grant, to the Administrative Agent on
\nbehalf of the Lenders a security interest in such Shares and all proceeds
\nthereof. The Borrower shall cooperate with the Administrative Agent in
\nconnection with the execution, delivery, filing and recordation, at Borrower’s
\nexpense, of a financing statement and shall take any other action that may be
\nnecessary or desirable and reasonably requested by the Administrative Agent to
\ncreate, preserve, perfect or validate such security interest.<\/p>\n
(b) If on any Valuation Date the Collateral Value is less
\nthan the Collateral Requirement on such date, then the Borrower will deliver to
\nthe Administrative Agent by the close of business on the related Collateral
\nPayment Date Eligible Collateral with an aggregate value at least equal to such
\ndifference. For this and all other purposes of this Section 5.17, the value of
\ncash shall be the amount thereof and the value of other Eligible Collateral on
\nany date shall be the closing bid price for such Eligible Collateral on the
\nBusiness Day immediately preceding such date as determined by the Administrative
\nAgent based on a commercially recognized price source. If on any Valuation Date
\nthe Collateral Requirement is less than the Collateral Value on such date, the
\nBorrower shall be entitled to withdraw on the related Collateral Payment Date
\nEligible Collateral with an aggregate value up to such difference. Any Eligible
\nCollateral consisting of cash shall be delivered to the Administrative Agent by
\nwire transfer of immediately available funds to the following account of the
\nAdministrative Agent maintained by the Administrative Agent at Bank of America
\nN.T. & S.A. New York, ABA #026009593, Acct #655-011-3535, favour the Toronto
\nDominion Bank New York, Re: Canadian Investments LLC. It is understood and
\nagreed that such account shall be an account of the Administrative Agent, in its
\ncapacity as such and for the sole benefit of the Lenders, <\/p>\n
53
\n 59<\/p>\n
and shall be under the sole dominion and control of the Administrative Agent in
\nthat capacity. Any Eligible Collateral consisting of treasury securities shall
\nbe delivered to the Administrative Agent by causing such treasury securities (or
\na securities entitlement in respect thereof) to be credited to the following
\naccount of the Administrative Agent maintained by the Administrative Agent at
\nBank of New York, Bank of NYC\/TD Bank, ABA: 021000018. It is understood and
\nagreed that such account shall be an account of the Administrative Agent, in its
\ncapacity as such and for the sole benefit of the Lenders, and the Administrative
\nAgent, in that capacity, shall be the entitlement holder with respect thereto.
\nThe Administrative Agent may notify the Borrower of different delivery
\ninstructions in writing, so long as the instructions involve an account of a
\nPerson acting as secured party as agent of and for the sole benefit of the
\nLenders under the Security Agreement. The Administrative Agent hereby
\nirrevocably waives any right it would otherwise have to apply any of the
\nCollateral to any obligations of any Person other than the Borrower’s Secured
\nObligations to the Lenders under this Agreement, the Security Agreement and the
\nNotes.<\/p>\n
(c) Use of Letter of Credit: On any Collateral Payment
\nDate, upon at least 5 Exchange Business Days’ prior notice to the Administrative
\nAgent, the Borrower may obtain a letter of credit meeting the conditions set
\nforth below (the “LOC”) in order to satisfy its obligations to deposit
\nadditional Collateral in respect of the Collateral Requirement due on such
\nCollateral Payment Date.<\/p>\n
The LOC must (A) be issued by a commercial bank whose long-term
\nunsubordinated, unsecured debt is rated at least A+ by S&P and at least A1 by
\nMoody’s, (B) be irrevocable and in form and substance reasonably satisfactory to
\nthe Administrative Agent, (C) name the Administrative Agent, in its capacity as
\nsuch, as beneficiary for the benefit of the Lenders, (D) have an expiry date not
\nearlier than six months after the Maturity Date (taking into account automatic
\nrenewal periods provided for in such LOC) and (E) be delivered to the
\nAdministrative Agent in executed form, at the address for the Administrative
\nAgent herein (collectively the “LOC Criteria”).<\/p>\n
If the Borrower posted an LOC meeting the LOC Criteria on or
\nprior to a Collateral Payment Date or has otherwise deposited Eligible
\nCollateral with the Administrative Agent, then the Borrower may either (i)
\nsubstitute a new LOC meeting the LOC Criteria for such LOC or Eligible
\nCollateral, or (ii) have the LOC surrendered by the Administrative Agent;
\nprovided, however, that such substitution <\/p>\n
54
\n 60
\nor surrender shall only be permitted to the extent the Collateral Value after
\neffecting such substitution or surrender will not be less than the Collateral
\nRequirement.<\/p>\n
The Administrative Agent may, with the consent of the Majority
\nLenders or at their direction, draw on an LOC posted by the Borrower upon
\noccurrence of any Event of Default to satisfy the Borrower’s Secured Obligations
\nunder this Agreement.<\/p>\n
(d) Notwithstanding the foregoing provisions, the
\nAdministrative Agent’s obligation to return Eligible Collateral or an LOC shall
\nbe subject to the condition that no Default shall be continuing.<\/p>\n
(e) For purposes of the calculation of the value of
\nCollateral posted and to be released pursuant to this Section 5.17, the
\nAdministrative Agent shall credit the Borrower with interest accrued on cash
\nCollateral, from and including the date the cash Collateral was posted hereunder
\nby the Borrower or was received as a distribution on other Eligible Collateral
\nposted by the Borrower, through and including the date of the calculation (but
\ndisregarding cash Collateral already released on or before that date). Such
\ninterest on cash Collateral shall be compounded daily and shall accrue for each
\nday to but excluding the date it is released to the Borrower or applied to the
\nBorrower’s Secured Obligations under this Agreement or the Notes in accordance
\nwith the terms of the Security Agreement at the rate per annum, for that day,
\nequal to the Federal Funds Rate. Interest on cash Collateral accruing as
\nprovided in this subsection 5.17(e) shall for all purposes be treated hereunder
\nand under the Security Agreement as Collateral and, to the extent not previously
\nreleased to the Borrower, shall be paid to it by the Administrative Agent when
\nall the Borrower’s Secured Obligations to the Lenders under this Agreement and
\nthe Notes have been paid in full. The Administrative Agent shall be solely
\nresponsible to the Borrower and the Lenders for making such arrangements as are
\nnecessary with The Toronto Dominion Bank or any other depositary at which cash
\nCollateral delivered hereunder is held so as to provide for the crediting of
\nthis interest daily to the cash Collateral account maintained pursuant to this
\nsubsection 5.17.<\/p>\n
Section 5.18 Securities Law Covenants.<\/p>\n
(a) The Borrower covenants to each Lender that (1) the
\nBorrower shall not commence a “distribution” (as defined in Regulation M under
\nthe Exchange Act) of Shares or a tender offer for Shares on the Effective Date
\nof any <\/p>\n
55
\n 61<\/p>\n
Transaction under the Master Agreement, (2) to the extent that the Borrower
\ndetermines pursuant to a Confirmation under the Master Agreement when such
\nLender will be required to deliver Shares to the Borrower thereunder, no
\n“restricted period” for purposes of Rule 102 of Regulation M under the Exchange
\nAct will be in effect on any day on which such Lender is required, pursuant to
\nthe terms thereof, to deliver Shares to the Borrower (any such day being, for
\npurposes of this paragraph, a “Settlement Date”), and no tender offer for Shares
\nby the Borrower will be in effect on any Settlement Date or within the preceding
\nten Business Days, (3) the Borrower shall not, and shall cause its affiliated
\npurchasers (as defined in Rule 10b-18 under the Exchange Act) not to, purchase
\nShares on the Effective Date of such Transaction, (4) the Borrower shall not
\ndisclose any material non-public information with respect to itself to any
\nLender without such Lender’s consent, unless such non-disclosure would breach an
\nobligation of the Borrower under this Agreement or the other Loan Documents, (5)
\nif at any time during the X (as defined in the “Notice” provisions of any
\nConfirmation under the Master Agreement) Exchange Business Days prior to an
\nOptional Termination Date or the Termination Date (each as defined in such
\nConfirmation) the Borrower comes to have possession of material non-public
\ninformation with respect to itself, the Borrower will notify each Lender that a
\nblackout period is in effect, and when the Borrower ceases to be in possession
\nof material non-public information, the Borrower will notify each Lender that
\nthe blackout period has ended.<\/p>\n
(b) The Borrower agrees that it will comply, in
\nconnection with each Transaction entered into under the Master Agreement and all
\nrelated or contemporaneous sales and purchases of Shares, with the applicable
\nprovisions of the Securities Act, the Exchange Act, and the rules and
\nregulations thereunder, including without limitation, Rule 10b-5 under the
\nExchange Act, provided that each party shall be entitled to rely conclusively on
\nany information communicated by the other party concerning such other party’s
\nmarket activities.<\/p>\n
ARTICLE VI<\/p>\n
Default<\/p>\n
Section 6.1 Events of Default. Upon the occurrence of any of the
\nfollowing events:<\/p>\n
56
\n 62<\/p>\n
(a) any default shall be made by the Borrower in any
\npayment in respect of: (i) interest payable hereunder or any indemnity payable
\nunder Section 5.16 hereof, in either case as the same shall become due, and such
\ndefault shall continue for a period of five days; or (ii) principal of any of
\nthe Indebtedness hereunder or evidenced by the Notes as the same shall become
\ndue, whether at maturity, by prepayment, by acceleration or otherwise; or<\/p>\n
(b) any default shall be made by either the Borrower or
\nany Subsidiary of the Borrower in the performance or observance of any of the
\nprovisions of subsections 5.6 through 5.10 and 5.12, 5.13 and 5.15; or<\/p>\n
(c) any default shall be made in the due performance or
\nobservance of any other covenant, agreement or provision to be performed or
\nobserved by either the Borrower or any Subsidiary under this Agreement (in the
\ncase of a covenant, agreement or provision of Section 5.18, only if the
\nAdministrative Agent has not released its security interest in Borrower’s rights
\nunder the Master Agreement), and such default shall not be rectified or cured to
\nthe satisfaction of the Majority Lenders within a period expiring thirty (30)
\ndays after written notice thereof by the Administrative Agent to the Borrower;
\nor<\/p>\n
(d) any representation or warranty of or with respect to
\nthe Borrower or any subsidiary of the Borrower to the Lenders in connection with
\nthis Agreement shall have been untrue in any material respect on or as of the
\ndate made and the facts or circumstances to which such representation or
\nwarranty relates shall not have been subsequently corrected to make such
\nrepresentation or warranty no longer incorrect; or<\/p>\n
(e) any default shall be made in the payment of any item
\nof Indebtedness of the Borrower or any Subsidiary or under the terms of any
\nagreement relating to such Indebtedness and such default shall continue without
\nhaving been duly cured, waived or consented to, beyond the period of grace, if
\nany, therein specified; provided, however, that such default shall not
\nconstitute an Event of Default unless (i) the outstanding principal amount of
\nsuch item of Indebtedness exceeds $10,000,000, or (ii) the aggregate outstanding
\nprincipal amount of such item of Indebtedness and all other items of
\nIndebtedness of the Borrower and its Subsidiaries as to which such defaults
\nexist and have continued without being duly cured, waived or consented to beyond
\nthe respective periods of grace, if any, therein specified exceeds $25,000,000,
\nor (iii) such default shall have continued without being rectified or cured to
\nthe satisfaction of the Majority Lenders for a period of <\/p>\n
57<\/p>\n
63<\/p>\n
thirty (30) days after written notice thereof by the Administrative Agent to the
\nBorrower; or<\/p>\n
(f) either the Borrower or any Significant Subsidiary
\nshall be involved in financial difficulties as evidenced:<\/p>\n
(i) by its commencement of a voluntary
\n case under Title 11 of the United States Code as from time to time in
\n effect, or by its authorizing, by appropriate proceedings of its board
\n of directors or other governing body, the commencement of such a
\n voluntary case;<\/p>\n
(ii) by the filing against it of a petition
\n commencing an involuntary case under said Title 11 which shall not have
\n been dismissed within sixty (60) days after the date on which said
\n petition is filed or by its filing an answer or other pleading within
\n said 60-day period admitting or failing to deny the material allegations
\n of such a petition or seeking, consenting or acquiescing in the relief
\n therein provided;<\/p>\n
(iii) by the entry of an order for relief in
\n any involuntary case commenced under said Title 11;<\/p>\n
(iv) by its seeking relief as a debtor under
\n any applicable law, other than said Title 11, of any jurisdiction
\n relating to the liquidation or reorganization of debtors or to the
\n modification or alteration of the rights of creditors, or by its
\n consenting to or acquiescing in such relief;<\/p>\n
(v) by the entry of an order by a court of
\n competent jurisdiction (i) finding it to be bankrupt or insolvent, (ii)
\n ordering or approving its liquidation, reorganization or any
\n modification or alteration of the rights of its creditors, or (iii)
\n assuming custody of, or appointing a receiver or other custodian for,
\n all or a substantial part of its property; or<\/p>\n
(vi) by its making an assignment for the
\n benefit of, or entering into a composition with, its creditors, or <\/p>\n
58
\n 64<\/p>\n
appointing or consenting to the appointment of a receiver or other
\n custodian for all or a substantial part of its property;<\/p>\n
(g) a Change in Control of the Borrower shall occur;<\/p>\n
(h) All or any portion of any Loan Document shall at any
\ntime and for any reason be declared by a court of competent jurisdiction in a
\nsuit with respect to such Loan Document to be null and void, or a proceeding
\nshall be commenced by any governmental authority having jurisdiction over the
\nBorrower or by the Borrower seeking to establish the invalidity or
\nunenforceability thereof (exclusive of questions of interpretation of any
\nprovision thereof); or<\/p>\n
(i) The Security Agreement shall for any reason other
\nthan negligence by any Lender or the Administrative Agent cease to create a
\nvalid and perfected first priority lien on the Collateral purported to be
\ncovered thereby;<\/p>\n
(j) (i) the Borrower shall fail to perform its
\nobligations to post Eligible Collateral or an LOC of an LOC issuer meeting the
\nLOC Criteria as required in Section 5.17 and shall fail to remedy the failure by
\nthe close of business on the next day that is a New York Business Day and Local
\nBusiness Day after notice from the Administrative Agent, or (ii) an LOC or the
\nissuer of an LOC delivered by the Borrower pursuant to Section 5.17 ceases to
\nmeet any of the LOC Criteria, or the issuer of such an LOC fails to honor a
\ndrawing made under the LOC strictly in accordance with its terms (in any such
\ncase, an “LOC Event”) and, in any case referred to in clause (ii), on or before
\nthe next day that is a New York Business Day and Local Business Day after notice
\nof the circumstances from the Administrative Agent, the Borrower has not
\ndelivered to the relevant account specified in Section 5.17 hereof, or to the
\nAdministrative Agent, any combination of Eligible Collateral and an LOC of
\nanother LOC issuer each meeting the LOC Criteria such that after the delivery
\nthe requirements of Section 5.17 would be satisfied if the LOC involved in the
\nLOC Event were treated on that New York Business Day and Local Business Day as
\nhaving a face amount of zero;<\/p>\n
then and in each and every such case, (x) the Administrative Agent may, with the
\nconsent of the Majority Lenders, or shall, at the direction of the Majority
\nLenders, proceed to protect and enforce the rights of the Lenders by suit in
\nequity, action at law and\/or other appropriate proceeding either for specific
\nperformance of any covenant or condition contained in this Agreement or any Note
\nor in any instrument delivered to each Lender pursuant to this Agreement, or in
\naid of the exercise of any <\/p>\n
59<\/p>\n
65<\/p>\n
power granted in this Agreement or any Note or any such instrument or
\nassignment, and (y) the Administrative Agent may, with the consent of the
\nMajority Lenders, or shall, at the direction of the Majority Lenders, by notice
\nin writing to the Borrower terminate the obligations of the Lenders to make the
\nLoans hereunder, and thereupon such obligations shall terminate forthwith and
\n(z) (unless there shall have occurred an Event of Default under subsection
\n6.1(f), in which case the obligations of the Lenders to make the Loans hereunder
\nshall automatically terminate and the unpaid balance of the Indebtedness
\nhereunder and accrued interest thereon and all other amounts payable hereunder
\n(the “Lender Obligations”) shall automatically become due and payable) the
\nAdministrative Agent may, with the consent of the Majority Lenders, or shall, at
\nthe direction of the Majority Lenders, by notice in writing to the Borrower
\ndeclare all or any part of the unpaid balance of the Lender Obligations then
\noutstanding to be forthwith due and payable, and thereupon such unpaid balance
\nor part thereof shall become so due and payable without presentment, protest or
\nfurther demand or notice of any kind, all of which are hereby expressly waived,
\nthe obligations of the Lenders to make further Loans hereunder shall terminate
\nforthwith, and the Administrative Agent may, with the consent of the Majority
\nLenders, or shall, at the direction of the Majority Lenders, proceed to enforce
\npayment of such balance or part thereof in such manner as the Administrative
\nAgent may elect, and each Lender may offset and apply toward the payment of such
\nbalance or part thereof, and to the curing of any such Event of Default, any
\nIndebtedness from such Lender to the Borrower, including any Indebtedness
\nrepresented by deposits in any general account maintained with such Lender or
\nany obligations of such Lender under the Master Agreement.<\/p>\n
Section 6.2 Annulment of Defaults. An Event of Default shall not
\nbe deemed to be in existence for any purpose of this Agreement if the
\nAdministrative Agent, with the consent of or at the direction of the Majority
\nLenders, subject to Section 6.1, shall have waived such event in writing or
\nstated in writing that the same has been cured to its reasonable satisfaction,
\nbut no such waiver shall extend to or affect any subsequent Event of Default or
\nimpair any rights of the Administrative Agent or the Lenders upon the occurrence
\nthereof.<\/p>\n
Section 6.3 Waivers. The Borrower hereby waives to the extent
\npermitted by applicable law (a) all presentments, demands for performance,
\nnotices of nonperformance (except to the extent required by the provisions
\nhereof), protests, notices of protest and notices of dishonor in connection with
\nany of the Indebtedness hereunder or evidenced by the Notes, (b) any requirement
\nof diligence or promptness on the part of any Lender in the enforcement of its
\nrights under the provisions of this <\/p>\n
60
\n 66<\/p>\n
Agreement or any Note, and (c) any and all notices of every kind and description
\nwhich may be required to be given by any statute or rule of law and any defense
\nof any kind which the Borrower may now or hereafter have with respect to its
\nliability under this Agreement or any Note, except for any such notice required
\nby statute which cannot be waived prior to default and any defense relating to
\nany such notice or any notice required by this Agreement or any Note.<\/p>\n
ARTICLE VII<\/p>\n
The Administrative Agent<\/p>\n
Section 7.1 Appointment and Authorization. Each Lender hereby
\nirrevocably appoints and authorizes, and hereby agrees that it will require any
\ntransferee of any of its interest in its Loans and in its Notes irrevocably to
\nappoint and authorize, the Administrative Agent to take such actions as its
\nagent on its behalf and to exercise such powers hereunder as are delegated by
\nthe terms hereof, together with such powers as are reasonably incidental
\nthereto. Neither the Administrative Agent nor any of its directors, officers,
\nemployees, or agents shall be liable for any action taken or omitted to be taken
\nby it or them hereunder or in connection herewith, except to the extent
\nresulting from its or their own gross negligence or willful misconduct as
\ndetermined by a final non-appealable judicial order of a court of competent
\njurisdiction.<\/p>\n
Section 7.2 Delegation of Duties. The Administrative Agent may
\nexecute any of its duties under the Loan Documents by or through agents or
\nattorneys selected by it using reasonable care and shall be entitled to advice
\nof counsel concerning all matters pertaining to such duties. The Administrative
\nAgent shall not be responsible to any Lender for the negligence or misconduct of
\nany agents or attorneys selected by it with reasonable care.<\/p>\n
Section 7.3 Interest Holders. The Administrative Agent may treat
\neach Lender, or the Person designated in the last notice filed with the
\nAdministrative Agent under this Section 7.3, as the holder of all of the
\ninterests of such Lender in its Loans and in its Notes until written notice of
\ntransfer, signed by such Lender (or the Person designated in the last notice
\nfiled with the Administrative Agent) and by the Person designated in such
\nwritten notice of transfer, in form and substance satisfactory to the
\nAdministrative Agent, shall have been filed with the Administrative Agent.<\/p>\n
61<\/p>\n
67<\/p>\n
Section 7.4 Consultation with Counsel. The Administrative Agent
\nmay consult with legal counsel selected by it and shall not be liable for any
\naction taken or suffered by it in good faith in reliance on such advice of
\ncounsel.<\/p>\n
Section 7.5 Documents. The Administrative Agent shall not be
\nunder any duty to examine, inquire into, or pass upon the validity,
\neffectiveness, or genuineness of this Agreement, any Note, or any instrument,
\ndocument, or communication furnished pursuant hereto or in connection herewith,
\nand the Administrative Agent shall be entitled to assume that they are valid,
\neffective, and genuine, have been signed or sent by the proper parties and are
\nwhat they purport to be.<\/p>\n
Section 7.6 Agents and Affiliates. With respect to the Commitment
\nand the Loans, any Lender which is an Affiliate of the Administrative Agent
\nshall have the same rights and powers hereunder as any other Lender, and the
\nAdministrative Agent and its other Affiliates may accept deposits from, lend
\nmoney to and generally engage in any kind of business with the Borrower or any
\nAffiliates of, or Persons doing business with, the Borrower, including the
\ntransactions contemplated in the Master Agreement, as if it were not affiliated
\nwith the Administrative Agent and without any obligation to account therefor.<\/p>\n
Section 7.7 Responsibility of the Administrative Agent. The
\nduties and obligations of the Administrative Agent under this Agreement and the
\nSecurity Agreement are only those expressly set forth in this Agreement and in
\nthe Security Agreement. The Administrative Agent shall be entitled to assume
\nthat no Default or Event of Default has occurred and is continuing unless it has
\nbeen notified in writing by the Borrower of such fact, or has been notified by a
\nLender in writing that such Lender considers that a Default or an Event of
\nDefault has occurred and is continuing, and such Lender shall specify in detail
\nthe nature thereof. The Administrative Agent shall not be liable hereunder or
\nunder the Security Agreement to any Lender for any action taken or omitted to be
\ntaken except to the extent resulting from its own gross negligence or willful
\nmisconduct as determined by a final, non-appealable judicial order of a court of
\ncompetent jurisdiction. The Administrative Agent shall provide each Lender with
\ncopies of such documents received from the Borrower as such Lender may
\nreasonably request.<\/p>\n
62
\n 68<\/p>\n
Section 7.8 Action by Administrative Agent.<\/p>\n
(a) The Administrative Agent shall be entitled to use its
\ndiscretion with respect to exercising or refraining from exercising any rights
\nwhich may be vested in it by, and with respect to taking or refraining from
\ntaking any action or actions which it may be able to take under or in respect
\nof, this Agreement and the Security Agreement, unless the Administrative Agent
\nshall have been instructed by the Majority Lenders (or where expressly required
\nhereunder, all Lenders) to exercise or refrain from exercising such rights or to
\ntake or refrain from taking such action, provided that the Administrative Agent
\nshall not exercise any rights under Section 6.2(a) of this Agreement without the
\nrequest of the Majority Lenders unless time is of the essence, in which case
\nsuch action shall be taken as and to the extent that the Administrative Agent
\nshall, in its sole discretion, determine to be appropriate. The Administrative
\nAgent shall incur no liability to the Lenders under or in respect of this
\nAgreement or the Security Agreement with respect to anything which it may do or
\nrefrain from doing in the reasonable exercise of its judgment or which may seem
\nto it to be necessary or desirable in the circumstances, except for its gross
\nnegligence or willful misconduct as determined by a final, non-appealable
\njudicial order of a court of competent jurisdiction. The Administrative Agent
\nmay seek indemnification from the Lenders before taking any action and may
\nrefrain from taking such action if there is no indemnification.<\/p>\n
(b) The Administrative Agent shall not be liable to the
\nLenders or to any Lender in acting or refraining from acting under this
\nAgreement or the Security Agreement in accordance with the instructions of the
\nMajority Lenders (or where expressly required hereunder, all Lenders), and any
\naction taken or failure to act pursuant to such instructions shall be binding on
\nall Lenders. The Administrative Agent shall not be obligated to take any action
\nwhich is contrary to law or which would in its reasonable opinion subject it to
\nliability.<\/p>\n
Section 7.9 Notice of Default. In the event that the
\nAdministrative Agent or a Lender shall have been notified in writing of any
\nDefault, the Administrative Agent or such Lender shall promptly notify the
\nLenders and the Administrative Agent (provided failure to give such notice shall
\nnot result in any liability on the part of such Lender or Administrative Agent),
\nand the Administrative Agent shall take such action and assert such rights under
\nthis Agreement and the Security Agreement as the Majority Lenders shall request
\nin writing, and the Administrative Agent shall not be subject to any liability
\nby reason of its acting pursuant to any such request. If the Majority Lenders
\nshall fail to request the Administrative Agent to take action or to assert
\nrights under this Agreement or the Security Agreement in respect of any Default
\nor Event of Default within ten (10) <\/p>\n
63
\n 69<\/p>\n
days after their receipt of the notice of any Default or Event of Default from
\nthe Administrative Agent, or shall request inconsistent action with respect to
\nsuch Default or Event of Default, the Administrative Agent may, but shall not be
\nrequired to, take such action and assert such rights (other than rights under
\nArticle 6 hereof) as it deems in its discretion to be advisable for the
\nprotection of the Lenders, except that, if the Majority Lenders have instructed
\nthe Administrative Agent not to take such action or assert such right, in no
\nevent shall the Administrative Agent act contrary to such instructions unless
\ntime is of the essence, in which case the Administrative Agent may act in
\naccordance with its reasonable discretion.<\/p>\n
Section 7.10 Responsibility Disclaimed. The Administrative Agent
\nshall not have any liability or responsibility whatsoever in its capacity as
\nAdministrative Agent:<\/p>\n
(a) To the Borrower or any other Person or entity as a
\nconsequence of any failure or delay in performance by or any breach by, any
\nLender or Lenders of any of its or their obligations under this Agreement;<\/p>\n
(b) To any Lender or Lenders, as a consequence of any
\nfailure or delay in performance by, or any breach by, (i) the Borrower of any of
\nits obligations under this Agreement or any Note, or any other Loan Document or
\n(ii) any other obligor under any other Loan Document;<\/p>\n
(c) To any Lender or Lenders for any statements,
\nrepresentations, or warranties in this Agreement, or any other document
\ncontemplated by this Agreement or any information provided pursuant to this
\nAgreement, any other Loan Document, or any other document contemplated by this
\nAgreement, or for the validity, effectiveness, enforceability, or sufficiency of
\nthis Agreement, the Notes, any other Loan Document, or any other document
\ncontemplated by this Agreement; or<\/p>\n
(d) To any Person for any act or omission other than to
\nthe extent arising from gross negligence or willful misconduct of the
\nAdministrative Agent or, in the case of the Borrower, breach of the duties
\nimposed on the Administrative Agent as secured party by applicable law, in any
\ncase as determined by a final, non-appealable judicial order of a court of
\ncompetent jurisdiction.<\/p>\n
Section 7.11 Indemnification. Each Lender agrees to indemnify the
\nAdministrative Agent (to the extent not promptly reimbursed by the Borrower) pro<\/p>\n
64
\n 70<\/p>\n
rata according to such Lender’s respective Commitment Ratio, from and against
\nany and all liabilities, obligations, losses, damages, penalties, actions,
\njudgments, suits, costs, expenses (including fees and expenses of experts,
\nagents, consultants, and counsel), or disbursements of any kind or nature
\nwhatsoever which may be imposed on, incurred by, or asserted against the
\nAdministrative Agent in any way relating to or arising out of this Agreement,
\nany other Loan Document, or any other document contemplated by this Agreement or
\nany action taken or omitted by the Administrative Agent under this Agreement,
\nany other Loan Document, or any other document contemplated by this Agreement,
\nexcept that no Lender shall be liable to the Administrative Agent for any
\nportion of such liabilities, obligations, losses, damages, penalties, actions,
\njudgments, suits, costs, expenses, or disbursements to the extent resulting from
\nthe gross negligence or willful misconduct of the Administrative Agent, as the
\ncase may be, as determined by a final, non-appealable judicial order of a court
\nof competent jurisdiction. The provisions of this Section 7.11 shall survive the
\ntermination of this Agreement.<\/p>\n
Section 7.12 Credit Decision. Each Lender represents and warrants
\nto each other and to the Administrative Agent that:<\/p>\n
(a) In making its decision to enter into this Agreement
\nand to make Advances it has independently taken whatever steps it considers
\nnecessary to evaluate the financial condition and affairs of the Borrower and
\nthat it has made an independent credit judgment, and that it has not relied upon
\ninformation provided by the Administrative Agent; and<\/p>\n
(b) So long as any portion of the Commitment or Loans
\nremains outstanding, it will continue to make its own independent evaluation of
\nthe financial condition and affairs of the Borrower.<\/p>\n
Section 7.13 Successor Administrative Agent. Subject to the
\nappointment and acceptance of a successor Administrative Agent as provided
\nbelow, the Administrative Agent may resign at any time by giving ten (10) days’
\nprior written notice thereof to the Lenders and the Borrower. Upon any such
\nresignation, the Majority Lenders shall have the right to appoint a successor
\nAdministrative Agent, which successor agent shall be approved by the Borrower.
\nIf no successor Administrative Agent shall have been so appointed by the
\nMajority Lenders, and shall have accepted such appointment within thirty (30)
\ndays after the retiring Administrative Agent’s giving of notice of resignation,
\nthen the retiring Administrative Agent may, on behalf of the Lenders, appoint a
\nsuccessor <\/p>\n
65
\n 71<\/p>\n
Administrative Agent from among the Lenders, which shall be reasonably
\nacceptable to the Borrower. Upon the acceptance of any appointment as
\nAdministrative Agent hereunder by a successor Administrative Agent, such
\nsuccessor Administrative Agent shall thereupon succeed to and become vested with
\nall the rights, powers, privileges, duties, and obligations of the retiring
\nAdministrative Agent, and the retiring Administrative Agent shall be discharged
\nfrom its duties and obligations hereunder. After any retiring Administrative
\nAgent’s resignation hereunder as Administrative Agent, the provisions of this
\nSection 7.13 shall continue in effect for its benefit in respect of any actions
\ntaken or omitted to be taken by it while it was acting as the Administrative
\nAgent.<\/p>\n
ARTICLE VIII<\/p>\n
Change in Circumstances Affecting LIBOR Advances<\/p>\n
Section 8.1 LIBOR Basis Determination Inadequate. Notwithstanding
\nanything contained herein which may be construed to the contrary, if with
\nrespect to any proposed LIBOR Advance for any Interest Period, the
\nAdministrative Agent determines after consultation with the Lenders that
\ndeposits in United States Dollars (in the applicable amount) are not being
\noffered to each of the Lenders (for purposes of this Section 8.1, the term
\n“Lender” shall include any parent or holding company of any of such Lenders) in
\nthe London interbank deposit market for such Interest Period or if any Lender
\ngives the Administrative Agent notice that such Lender has determined that LIBOR
\nwould not adequately and fairly reflect the cost to such Lender of making or
\nmaintaining an applicable LIBOR Advance proposed to be subject to such Interest
\nPeriod, the Administrative Agent shall forthwith give notice thereof to the
\nBorrower, whereupon until the Administrative Agent notifies the Borrower that
\nthe circumstances giving rise to such situation no longer exist (at which time a
\nnew Interest Period shall commence), such LIBOR Advance shall bear interest at
\nrate per annum equal to the sum of the Federal Funds Rate plus .50% (50 basis
\npoints) plus the Applicable Margin. Such interest shall be payable in arrears
\nquarterly and on the Local Business Day following the commencement of a new
\nInterest Period.<\/p>\n
Section 8.2 Illegality. If after the date hereof, the adoption of
\nany Applicable Law, or any change in any Applicable Law, or any change in
\ninterpretation or administration thereof by any governmental authority, central
\nbank, or comparable agency charged with the interpretation or administration
\nthereof, or <\/p>\n
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\n 72<\/p>\n
compliance by any Lender with any request or directive (whether or not having
\nthe force of law) of any such authority, central bank, or comparable agency,
\nshall make it unlawful or impossible for any Lender to make, maintain, or fund
\nits LIBOR Advances, such Lender shall so notify the Administrative Agent, and
\nthe Administrative Agent shall forthwith give notice thereof to the other
\nLenders and the Borrower. Before giving any notice to the Administrative Agent
\npursuant to this Section 8.2, such Lender shall designate a different lending
\noffice and shall take such alternative courses of action if such designation or
\ncourses of action will avoid the need for giving such notice and will not, in
\nthe good faith judgment of such Lender, be otherwise disadvantageous to the
\nLender. Upon receipt of such notice, notwithstanding anything contained in
\nArticle 2 hereof, the Borrower shall repay in full the then outstanding
\nprincipal amount of each affected LIBOR Advance of the Lender so affected,
\ntogether with accrued interest thereon, either (a) on the last day of the then
\ncurrent Interest Period applicable to such Advance if the Lender may lawfully
\ncontinue to maintain and fund such Advance to such day or (b) immediately if the
\nLender may not lawfully continue to fund and maintain such Advance to such day.<\/p>\n
Section 8.3 Increased Costs.<\/p>\n
(a) If any Regulatory Change:<\/p>\n
(i) Shall subject any Lender (for purposes
\n of this Section 8.3 (a) and (b), the term “Lender” shall include any
\n parent or holding company of such Lender) to any tax, duty, or other
\n charge with respect to its obligation to make LIBOR Advances, or its
\n LIBOR Advances, or shall change the basis of taxation of payments to
\n such Lender of the principal of or interest on its LIBOR Advances or in
\n respect of any other amounts due under this Agreement in respect of its
\n LIBOR Advances or its obligation to make LIBOR Advances (except for
\n changes in the rate of tax on the overall net income of such Lender); or<\/p>\n
(ii) Shall impose, modify, or deem applicable
\n any reserve (including, without limitation the LIBOR Reserve Percentage
\n or any other reserve imposed by the Board of Governors of the Federal
\n Reserve System), special deposit, capital adequacy, assessment, or other
\n requirement or condition against assets of, deposits with or for the
\n account of, or commitments or credit <\/p>\n
67
\n 73<\/p>\n
extended by any Lender, or shall impose on any Lender or the eurodollar
\n interbank borrowing market any other condition affecting its obligation
\n to make such LIBOR Advances or its LIBOR Advances;<\/p>\n
and the result of any of the foregoing is to increase the cost to any Lender of
\nmaking or maintaining any such LIBOR Advances, or to reduce the amount of any
\nsum received or receivable by any Lender under this Agreement or under its Note
\nwith respect thereto, then, on the earlier of three Business Days following
\nwritten demand by such Lender or the Maturity Date, the Borrower agrees to pay
\nto such Lender such additional amount or amounts as will compensate such Lender
\nfor such increased costs. Each Lender will promptly notify the Borrower and the
\nAdministrative Agent of any event of which it has knowledge, occurring after the
\ndate hereof, which will entitle such Lender to compensation pursuant to this
\nSection 8.3 and will designate a different lending office and shall take
\nalternative courses of action if such designation or courses of action will
\navoid the need for, or reduce the amount of, such compensation and will not, in
\nthe good faith judgment of such Lender, be otherwise disadvantageous to the
\nLender.<\/p>\n
(b) A certificate of any Lender claiming compensation
\nunder this Section 8.3 and setting forth the additional amount or amounts to be
\npaid to it hereunder and calculations therefor shall be conclusive in the
\nabsence of manifest error. In determining such amount, such Lender may use any
\nreasonable averaging and attribution methods. If such Lender demands
\ncompensation under this Section 8.3, the Borrower may at any time, upon at least
\nfive (5) Business Days’ prior written notice to such Lender and the
\nAdministrative Agent, prepay in full the then outstanding affected LIBOR
\nAdvances of the Lender, together with accrued interest thereon to the date of
\nprepayment, along with any reimbursement required under Section 2.10 hereof. <\/p>\n
Section 8.4 Effect On Other Advances. If notice has been given
\npursuant to Section 8.1, 8.2, or 8.3 hereof suspending the obligation of a
\nLender to make any type of LIBOR Advance, or requiring LIBOR Advances of such
\nLender to be repaid or prepaid, then the Borrower and such Lender shall
\nnegotiate in good faith with a view to establishing an alternate basis for
\ndetermining the interest rate basis to be applicable to the Loans of such
\nLender; provided that all Lenders similarly affected shall be treated the same.<\/p>\n
68
\n 74<\/p>\n
ARTICLE IX<\/p>\n
Miscellaneous<\/p>\n
Section 9.1 Notices.<\/p>\n
(a) All notices and other communications under this
\nAgreement shall be in writing and shall be deemed to have been given three (3)
\ndays after deposit in the mail, designated as certified mail, return receipt
\nrequested, postprepaid, one (1) day after being entrusted to a reputable
\ncommercial overnight delivery service, or upon confirmation of receipt after
\ntransmission by facsimile addressed to the party to which such notice is
\ndirected at its address determined as provided in this Section 9.1, provided
\nthat all notices and other communication given to the Administrative Agent under
\nArticle 2 shall not be deemed received by the Administrative Agent until the
\nAdministrative Agent actually receives such notice or communication. All notices
\nand other communications under this Agreement shall be given to the parties
\nhereto at the following addresses:<\/p>\n
(i) If to the Borrower, to it at:<\/p>\n
HCA Inc.
\n One Park Plaza
\n Nashville, TN 37203
\n Attn: Keith Giger
\n Telecopy: 615-344-5720<\/p>\n
(ii) If to the Administrative Agent, to it at:<\/p>\n
Toronto Dominion (Texas) Inc.
\n 909 Fanin Street
\n Houston, TX 77010
\n Attn: Alva J. Jones
\n Telecopy: (713) 951-9921<\/p>\n
With copy sent to:<\/p>\n
69
\n 75<\/p>\n
TD Securities (USA) Inc.
\n 31 West 52nd Street
\n New York, New York 10019
\n Attn: P. Joseph Hegener, Jr.
\n Telecopy: (212) 974-6378<\/p>\n
(b) If to the Lenders, to each at the addresses set forth
\nbeside its name on Schedule 4 hereof or, if applicable, on the Assignment and
\nAssumption Agreement executed by such Lender.<\/p>\n
Copies shall be provided to Persons other than parties hereto only in the case
\nof notices under Article 6 hereof and failure to provide such copies shall not
\naffect the validity of the notice given to the primary recipient.<\/p>\n
(c) Any party hereto may change the address to which
\nnotices shall be directed under this Section 9.1 by giving ten (10) days’
\nwritten notice of such change to the other parties.<\/p>\n
Section 9.2 Expenses.<\/p>\n
(a) Each of the parties shall pay its own expenses in
\nconnection with the preparation, negotiation, execution, and delivery of this
\nAgreement and the other Loan Documents executed on the Agreement Date and the
\nAmendment Date, the transactions contemplated hereunder and thereunder, and the
\nmaking of the Advances in the initial Borrowing.<\/p>\n
(b) The Borrower shall pay all reasonable out of pocket
\nexpenses of the Administrative Agent and the Lenders in connection with the
\npreparation, negotiation, execution and delivery of any waiver, amendment, or
\nconsent by the Administrative Agent and Lenders, or any of them, relating to
\nthis Agreement or the other Loan Documents whether or not executed, including,
\nbut not limited to, the reasonable fees and disbursements of counsel for the
\nAdministrative Agent but only if the relevant waiver or amendment or consent is
\nrequested in writing by the Borrower, and excluding an amendment to extend the
\nMaturity Date, unless reimbursement of such expenses by the Borrower is provided
\nfor in a related Fee Agreement.<\/p>\n
(c) The Borrower shall pay all reasonable out-of-pocket
\ncosts and expenses of enforcement of rights and collection against the Borrower
\nor <\/p>\n
70
\n 76<\/p>\n
the Collateral if an Event of Default occurs, which in each case shall include
\nreasonable fees and out of pocket expenses of counsel (including the allocated
\ncost of in-house counsel) for the Administrative Agent and each Lender, and the
\nreasonable fees and out of pocket expenses of counsel and of any experts,
\nagents, or consultants of the Administrative Agent and each Lender.<\/p>\n
Section 9.3 Waivers. The rights and remedies of the
\nAdministrative Agent and the Lenders under this Agreement and the other Loan
\nDocuments shall be cumulative and not exclusive of any rights or remedies which
\nthey would otherwise have. No failure or delay by the Administrative Agent, the
\nMajority Lenders or the Lenders in exercising any right shall operate as a
\nwaiver of such right. The Administrative Agent and the Lenders expressly reserve
\nthe right to require strict compliance with the terms of this Agreement in
\nconnection with any funding of a request for an Advance. In the event any Lender
\ndecides to fund a request for an Advance at a time when the Borrower is not in
\nstrict compliance with the terms of this Agreement, such decision by such Lender
\nshall not be deemed to constitute an undertaking by such Lender or the
\nAdministrative Agent to fund any further requests for Advances or preclude the
\nLenders from exercising any rights available to the Administrative Agent or the
\nLenders under the Loan Documents or at law or equity. Any waiver or indulgence
\ngranted by the Lenders or the Majority Lenders shall not constitute a
\nmodification of this Agreement, except to the extent expressly provided, in
\nwriting, in such waiver or indulgence, or constitute a course of dealing by any
\nLender at variance with the terms of this Agreement such as to require further
\nnotice by any Lender of such Lender’s intent to require strict adherence to the
\nterms of this Agreement in the future.<\/p>\n
Section 9.4 Set-Off. In addition to any rights now or hereafter
\ngranted under Applicable Law and not by way of limitation of any such rights,
\nafter the Maturity Date (whether by acceleration or otherwise), the Lenders (and
\nthe Administrative Agent on their behalf) are hereby authorized by the Borrower
\nat any time or from time to time, upon direction by the Administrative Agent,
\nwith the consent of the Majority Lenders, without notice to the Borrower or to
\nany other Person, any such notice being hereby expressly waived, to set-off and
\nto appropriate and apply any and all deposits (general, time or demand,
\nincluding, but not limited to, Indebtedness evidenced by certificates of
\ndeposit, in each case whether matured or unmatured) and any other Indebtedness
\nor any obligation of the Lender under the Master Agreement at any time held or
\nowing by any Lender to or for the credit or the account of the Borrower, against
\nand on account of the Obligations of the Borrower, to any Lender or such holder
\nunder this Agreement or any Note, including, but not <\/p>\n
71
\n 77<\/p>\n
limited to, all Obligations arising out of or connected with this Agreement or
\nany Note, irrespective of whether or not (a) the Administrative Agent and the
\nLenders shall have made any demand hereunder or (b) the Administrative Agent and
\nthe Lenders shall have declared the principal of and interest on the Loans and
\nNotes and other amounts due hereunder to be due and payable as permitted by
\nSection 6.2 hereof and although said obligations and liabilities, or any of
\nthem, shall be contingent or unmatured. Any sums obtained by the Administrative
\nAgent or any Lender shall be subject to the application of payments provisions
\nof Article II hereof. Upon direction by the Administrative Agent, with the
\nconsent of the Majority Lenders, after the Maturity Date (whether by reason of
\nacceleration or otherwise) each Lender holding deposits of the Borrower shall
\nexercise its set-off rights as so directed.<\/p>\n
Section 9.5 Assignment.<\/p>\n
(a) The Loan Documents shall be binding upon and inure to
\nthe benefit of the Borrower, the Administrative Agent, the Lenders, and their
\nrespective successors and assigns, except that the Borrower may not assign any
\nof its rights or transfer any of its duties thereunder without the prior written
\nconsent of each of the Lenders. Any attempted or purported assignment or
\ntransfer by the Borrower in contravention of this Section 9.5(a) shall be null
\nand void.<\/p>\n
(b) Any Lender may assign to one or more Eligible
\nAssignees any or all of its rights, title, and interest hereunder and under any
\nNote, the Loans, and the Commitment, provided that no such assignment shall be
\nmade without the consent of the Administrative Agent, and, except during the
\ncontinuance of an Event of Default, the Borrower, which consent shall not be
\nunreasonably withheld or delayed.<\/p>\n
(c) Any assignment by any Lender of such interest
\nhereunder and under any Note, the Loans, and the Commitment shall be in a
\nminimum aggregate principal amount of $10,000,000 (or, if less, the remaining
\nbalance of such interest hereunder and under such Note, the Loans, and the
\nCommitment), unless the Borrower shall have consented otherwise, and (i) shall
\nbe of a constant, and not a varying, percentage of such Lender’s rights and
\nobligations being assigned under this Agreement, (ii) the parties to such
\nassignment shall execute and deliver to the Administrative Agent, for its
\nrecording in the Register (as defined below), an Assignment and Acceptance,
\ntogether with any Note subject to such assignment and a processing and
\nrecordation fee payable to the Administrative Agent <\/p>\n
72
\n 78<\/p>\n
in the amount of $3,500, and (iii) the Borrower shall issue a new Note to each
\nLender party to such assignment against receipt of the existing Note of the
\nassignor Lender in accordance with Section 2.8. Upon such execution, delivery,
\nand recording, from and after the Effective Date, as defined in the Assignment
\nand Acceptance, the assignee thereunder shall be a party hereto and, to the
\nextent provided in such Assignment and Acceptance, have the rights and
\nobligations of a Lender hereunder.<\/p>\n
(d) Any Lender may participate any of its rights
\nhereunder and under any Note, the Loans, or the Commitment with the written
\nconsent of the Borrower, provided that any grant of rights to a participant with
\nrespect to the Loans by such Lender shall state that such rights exist only as a
\nresult of the agreement between the participant and such Lender. The holder of
\nany such participation shall not be entitled to require such Lender to take or
\nomit to take any action under this Agreement except any action that would extend
\nthe maturity of such Note or the mandatory reductions of the Commitment, reduce
\nthe interest rate payable on such Note or the commitment fee, increase the
\nCommitment, forgive the payment of principal or interest on such Note, or extend
\nany payment date with respect thereto, in each case solely to the extent that it
\nparticipates in such Note, Commitment, or commitment fee.<\/p>\n
(e) [Reserved]<\/p>\n
(f) In connection with each assignment or participation
\nhereunder, the assigning or granting Lender shall deliver to the assignee or
\nparticipant Lender a copy of each Federal Reserve Form delivered to it
\nhereunder.<\/p>\n
(g) Any Lender that proposes to assign or participate any
\nof its rights hereunder and under any Note, the Loans, or the Commitment
\nhereunder shall provide at least three (3) Business Days’ written prior notice
\nof such transaction to the Borrower and the Administrative Agent. No Lender
\nshall, as between the Borrower and such Lender, be relieved of any of its
\nobligations hereunder as a result of any assignment or granting of
\nparticipations in all or any part of the Loans, such Note, or the Commitment, or
\nother obligations owed to such Lender, except that such Lender shall be relieved
\nof its obligations hereunder to the extent of any assignment of all or any part
\nof the Loans, such Note, or the Commitment made pursuant to Section 9.5(b) to
\nthe extent these obligations are assumed by the relevant assignee. All amounts
\npayable to any Lender under this Section 9.5 shall be determined as if such
\nLender had not (a) sold any participations and (b) made any pledges or
\nassignments pursuant to Section 9.5(h).<\/p>\n
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\n 79<\/p>\n
(h) Nothing contained in this Section 9.5 shall prevent
\nor prohibit any Lender from assigning or pledging all or any portion of the
\nLoans and any Note to any Federal Reserve Bank as collateral security pursuant
\nto Regulation A and any Operating Circular issued by the Board of Governors of
\nthe Federal Reserve System of the United States; provided that no such
\nassignment or pledge shall relieve such Lender from its obligations hereunder.<\/p>\n
(i) Whenever in this Agreement any of the parties hereto
\nis referred to, such reference shall be deemed to include the successors and
\nassigns of such party and all covenants, promises, and agreements by or on
\nbehalf of the Borrower which are contained in this Agreement shall inure to the
\nbenefit of the successors and assigns of the Lenders.<\/p>\n
(j) By executing and delivering an Assignment and
\nAcceptance, the assigning Lender thereunder and the assignee thereunder confirm
\nto and agree with each other and the other parties hereto as follows: (i) other
\nthan the representation and warranty that it is the legal and beneficial owner
\nof the interest being assigned thereby free and clear of any adverse claim and
\nthe representations and warranties expressly set forth in the applicable
\nAssignment and Acceptance, the assigning Lender makes no representation or
\nwarranty and assumes no responsibility with respect to any statements,
\nwarranties, or representations made in or in connection with any of the Loan
\nDocuments or any other instrument or document furnished pursuant thereto; (ii)
\nthe assigning Lender makes no representation or warranty and assumes no
\nresponsibility with respect to the financial condition of the Borrower or the
\nperformance or observance by the Borrower of any of its obligations under the
\nLoan Documents; (iii) such assignee confirms that it has received a copy of this
\nAgreement, together with copies of the most recent financial statements
\ndelivered pursuant to Section 5.5 (or if no such financial statements shall have
\nthen been delivered, then copies of the financial statements referred to in
\nSection 4.3) and such other documents and information as it has deemed
\nappropriate to make its own credit analysis and decision to enter into such
\nAssignment and Acceptance; (iv) such assignee will, independently and without
\nreliance upon the assigning Lender and based on such documents and information
\nas it shall deem appropriate at the time, continue to make its own credit
\ndecisions in taking or not taking action under this Agreement; and (v) such
\nassignee appoints and authorizes the Administrative Agent as its agent pursuant
\nto, and in accordance with, Article 7 hereof.<\/p>\n
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\n 80<\/p>\n
(k) The Borrower hereby designates the Administrative
\nAgent to serve as the Borrower’s agent, solely for purposes of this Section
\n9.5(k), to maintain at its address at which notices are to be given to it
\npursuant to Section 9.1 a copy of each Assignment and Acceptance and a register
\nfor the recordation of the names and addresses of the Lenders and the
\nCommitments of, and principal amount of the Loans owing to, each Lender from
\ntime to time (the “Register”). The entries in the Register shall be conclusive,
\nin the absence of manifest error, and the Borrower, the Administrative Agent,
\nand the Lenders may treat each person whose name is so recorded in the Register
\nas a Lender hereunder for all purposes of this Agreement. The Register shall be
\navailable for inspection by the Borrower or any Lender at any reasonable time
\nand from time to time upon reasonable prior notice.<\/p>\n
(l) Notwithstanding any other provision set forth in this
\nAgreement, the obligations of the Borrower to any assignee under the Loan
\nDocuments shall be no greater than they would be in the absence of any transfer.<\/p>\n
Section 9.6 Tax Treatment.<\/p>\n
(a) Each of the Lenders (which for purposes of this
\nSection 9.6 shall include any member of Canadian Investments LLC) and the
\nBorrower each agree that, solely for U.S. tax purposes, it (i) will treat the
\ntransaction contemplated by the Loan Documents (the “Transaction”) as a series
\nof purchases of Shares by the Borrower on the dates on which Shares are acquired
\nby or on behalf of such Lender, which Shares are pledged by the Borrower to such
\nLender and held by a custodian for such Lender to secure the Borrower’s
\nobligations under a loan from such Lender to the Borrower, (ii) will treat such
\nLender as entitled to repayment of the Loan and all payments of interest with
\nrespect to the Loan in cash by the Borrower to such Lender, regardless of
\nwhether such cash is derived directly from the Borrower or any other source, and
\n(iii) will not take any action (including filing any tax return or form or
\ntaking any position in any tax proceeding) that is inconsistent with such
\ntreatment, unless such action or position is required by a change in statutory
\nlaw or regulation or by a judicial or other authoritative interpretation of the
\nlaw enacted, promulgated or published after the date of this Agreement. Nothing
\nin the preceding sentence, however, shall affect the rights granted or
\nobligations imposed upon the parties in the Loan Documents.<\/p>\n
(b) Each of the Lenders agrees to use reasonable efforts
\nto notify the Borrower in writing of any written request for information from,
\naudit by, proposed adjustment from or other inquiry by or dispute with any
\napplicable taxing <\/p>\n
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\n 81<\/p>\n
authority that concerns the treatment of the Transaction for U.S. tax purposes
\nwithin thirty business days of the receipt of the relevant communication from
\nsuch taxing authority.<\/p>\n
Section 9.7 Counterparts. This Agreement may be executed in any
\nnumber of counterparts, each of which shall be deemed to be an original, but all
\nsuch separate counterparts shall together constitute but one and the same
\ninstrument.<\/p>\n
Section 9.8 Governing Law. This Agreement, the Notes and the Loan
\nDocuments shall be construed in accordance with and governed by the internal
\nlaws of the State of New York applicable to agreements made and to be performed
\nin New York. If any action or proceeding shall be brought by the Administrative
\nAgent or any Lender hereunder or under any other Loan Document in order to
\nenforce any right or remedy under this Agreement or under any Note or any other
\nLoan Document, the Borrower hereby consents to and will submit to the
\njurisdiction of any state or federal court of competent jurisdiction sitting
\nwithin the area comprising the Southern District of New York on the date of this
\nAgreement. The Borrower, for itself and on behalf of its Subsidiaries, hereby
\nagrees that service of the summons and complaint and all other process which may
\nbe served in any such suit, action or proceeding may be effected by mailing by
\nregistered mail a copy of such process to the offices of the Borrower at the
\naddresses given in Section 9.1 hereof and that personal service of process shall
\nnot be required. Nothing herein shall be construed to prohibit service of
\nprocess by any other method permitted by law, or the bringing of any suit,
\naction or proceeding in any other jurisdiction. The Borrower agrees that final
\njudgment in such suit, action or proceeding shall be conclusive and may be
\nenforced in any other jurisdiction by suit on the judgment or in any other
\nmanner provided by Applicable Law.<\/p>\n
Section 9.9 Severability. Any provision of this Agreement which
\nis prohibited or unenforceable shall be ineffective to the extent of such
\nprohibition or unenforceability without invalidating the remaining provisions
\nhereof in that jurisdiction or affecting the validity or enforceability of such
\nprovision in any other jurisdiction.<\/p>\n
Section 9.10 Headings. Headings used in this Agreement are for
\nconvenience only and shall not be used in connection with the interpretation of
\nany provision hereof.<\/p>\n
76
\n 82<\/p>\n
Section 9.11 Interest.<\/p>\n
(a) In no event shall the amount of interest due or
\npayable hereunder or under the Notes exceed the maximum rate of interest allowed
\nby Applicable Law, and in the event any such payment in excess of such maximum
\nrate is made by the Borrower or is received by any Lender, then the amount of
\nthe excess shall be credited as a payment of principal, unless the Borrower
\nshall notify the Administrative Agent and such Lender to refund such excess sum
\nforthwith. It is the express intent hereof that the Borrower not pay and the
\nLenders not receive, directly or indirectly in any manner whatsoever, interest
\nin excess of that which may legally be paid by the Borrower under Applicable
\nLaw.<\/p>\n
(b) Notwithstanding the use by the Lenders of LIBOR as a
\nreference rate for the determination of interest on the Loans, no Lender shall
\nbe under any obligation to obtain funds from any particular source in order to
\ncharge interest to the Borrower at interest rates tied to such reference rate.<\/p>\n
Section 9.12 Entire Agreement. Except as otherwise expressly
\nprovided herein, this Agreement, the Notes, and the Loan Documents to which the
\nBorrower is a party embody the entire Agreement and understanding among the
\nparties hereto and thereto and supersede all prior agreements, understandings,
\nand conversations relating to the subject matter hereof and thereof.<\/p>\n
Section 9.13 Amendment and Waiver. Neither this Agreement nor any
\nterm hereof nor any Loan Document may be amended orally, nor may any provision
\nhereof be waived orally, but only by an instrument in writing signed by the
\nMajority Lenders or the Borrower, as the case may be, and, in the case of an
\namendment, by the Borrower and the Majority Lenders, except that any amendment
\nor waiver that would (a) increase or decrease (other than a pro rata decrease)
\nin the amount of the Commitment or any Lender’s Commitment Ratio, (b) change the
\ntiming of, or reduce the amount of, payments of principal, interest, and fees
\ndue hereunder, (c) release or impair any guaranty issued in favor of the
\nAdministrative Agent and the Lenders, (d) waive any Event of Default due to the
\nfailure by the Borrower to pay any sum due hereunder, (e) amend this Section
\n9.13, Section 9.5(a) or the definition of Majority Lenders, or (f) waive any
\ncondition precedent specified in Section 3.1 to the initial Advance hereunder,
\nmay be made only by an instrument in writing signed by all of the Lenders and,
\nin the case of an amendment, also by the Borrower. Any amendment to any
\nprovision hereunder governing the rights, obligations, or liabilities of the
\nAdministrative Agent in its capacity as such may be made only by an instrument
\nin writing signed by the Administrative Agent.<\/p>\n
77
\n 83<\/p>\n
Section 9.14 Other Relationships. No relationship created
\nhereunder or under any other Loan Document shall in any way affect the ability
\nof the Administrative Agent and each Lender to enter into or maintain business
\nrelationships with the Borrower or any of its Affiliates beyond the
\nrelationships specifically contemplated by this Agreement and the other Loan
\nDocuments.<\/p>\n
Section 9.15 Confidentiality. Each Lender and the Administrative
\nAgent agrees (on behalf of itself and each of its affiliates, directors,
\nofficers, employees and representatives) to use reasonable precautions to keep
\nconfidential, in accordance with their customary procedures for handling
\nconfidential information of the same nature and in accordance with safe and
\nsound banking practices, any non-public information supplied to it by the
\nBorrower pursuant to this Agreement that is identified by the Borrower as being
\nconfidential at the time the same is delivered to such Lender or the
\nAdministrative Agent, provided that (a) nothing herein shall limit the
\ndisclosure of any such information (i) to the extent required by statute, rule,
\nregulation, or judicial process, (ii) to counsel for such Lender or the
\nAdministrative Agent, (iii) to bank examiners, auditors, or accountants, (iv) to
\nany Affiliate of the Administrative Agent or any other Lender who shall have
\nagreed to keep such information confidential as set forth herein, (v) in
\nconnection with any litigation to which any one or more of the Lenders or the
\nAdministrative Agent is a party, or (vi) to any assignee or participant (or
\nprospective assignee or participant) so long as such assignee or participant (or
\nprospective assignee or participant) shall have agreed to keep such information
\nconfidential as set forth herein, and (b) in no event shall any Lender or the
\nAdministrative Agent be obligated or required to return any materials furnished
\nby the Borrower.<\/p>\n
Section 9.16 Survival of Various Provisions. Notwithstanding
\nanything herein which may be construed to the contrary, rights and obligations
\npursuant to Sections 2.9(c), 2.10, 5.16 and 9.6 hereof shall survive the
\ntermination of this Agreement and the payment and performance of all other
\nObligations, and obligations of a party under Section 9.6 shall also survive
\nthat party’s transfer of its other rights and obligations hereunder insofar as
\nthose obligations relate to the period prior to the effective date of such
\ntransfer.<\/p>\n
78
\n 84<\/p>\n
ARTICLE X<\/p>\n
Waiver of Jury Trial<\/p>\n
Section 10.1 Waiver of Jury Trial. THE BORROWER, THE
\nADMINISTRATIVE AGENT, AND EACH LENDER HEREBY AGREE TO WAIVE AND HEREBY WAIVES
\nTHE RIGHT TO A TRIAL BY JURY IN ANY COURT AND IN ANY ACTION OR PROCEEDING OF ANY
\nTYPE IN WHICH THE BORROWER, ANY OF THE LENDERS, THE ADMINISTRATIVE AGENT, OR ANY
\nOF THEIR RESPECTIVE SUCCESSORS OR ASSIGNS IS A PARTY, AS TO ALL MATTERS AND
\nTHINGS ARISING DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT, THE NOTES, OR THE
\nOTHER LOAN DOCUMENTS AND THE RELATIONS AMONG THE PARTIES LISTED IN THIS SECTION
\n10.1. EXCEPT AS PROHIBITED BY LAW, THE BORROWER WAIVES ANY RIGHTS IT MAY HAVE TO
\nCLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THIS SECTION, ANY SPECIAL,
\nEXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN
\nADDITION TO, ACTUAL DAMAGES. THE BORROWER CERTIFIES THAT NEITHER ANY
\nREPRESENTATIVE, AGENT, OR ATTORNEY OF THE ADMINISTRATIVE AGENT OR ANY LENDER HAS
\nREPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR ANY LENDER
\nWOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS.
\nEACH PARTY TO THIS AGREEMENT ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO
\nTHIS AGREEMENT AND EACH OTHER LOAN DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL
\nWAIVERS AND CERTIFICATIONS IN THIS SECTION. THE PROVISIONS OF THIS SECTION HAVE
\nBEEN FULLY DISCLOSED BY AND TO THE PARTIES AND THE PROVISIONS SHALL BE SUBJECT
\nTO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY
\nOTHER PARTY THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN
\nALL INSTANCES.<\/p>\n
[Remainder of Page Intentionally Left Blank]<\/p>\n
79<\/p>\n
85<\/p>\n
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
\ncaused it to be executed by their duly authorized officers, all as of the day
\nand year first above written.<\/p>\n
BORROWER: HCA INC., a Delaware corporation<\/p>\n
By: \/s\/ James T. Glasscock
\n ——————————–<\/p>\n
Title: V.P., Investments
\n ————————<\/p>\n
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS) INC.<\/p>\n
By: \/s\/ Alva J. Jones
\n ——————————–<\/p>\n
Title: Vice President
\n ————————<\/p>\n
LENDER: CANADIAN INVESTMENTS LLC<\/p>\n
By: \/s\/ Alvin Shrago
\n ——————————–<\/p>\n
Title: Attorney-in-Fact
\n ————————<\/p>\n
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