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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20640
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT
(Date of Earliest Event Reported) July 11, 1994
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COLUMBIA/HCA HEALTHCARE CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE
State of Incorporation
001-11239 75-2497104
(Commission (I.R.S. Employer
File Number) Identification No.)
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ITEM 5. OTHER EVENTS
The Registrant files herewith those exhibits listed in Item 7(c) below.
ITEM 7(C). EXHIBITS
The following exhibits are furnished in accordance with Item 601 of
Regulation S-K.
1. Distribution Agreement, dated July 11, 1994, by and among
Columbia/HCA Healthcare Corporation and Goldman Sachs & Co.; Lehman Brothers
Inc.; Merrill Lynch, Pierce, Fenner & Smith Incorporated; Morgan Stanley & Co.
Incorporated; and Salomon Brothers Inc.
4.1 Form of Fixed Rate Global Medium-Term Note.
4.2 Form of Floating Rate Global Medium-Term Note.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
COLUMBIA/HCA HEALTHCARE CORPORATION
(Registrant)
By: /s/ STEPHEN T. BRAUN
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Stephen T. Braun,
Senior Vice President and
General Counsel
Date: July 11, 1994
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INDEX TO EXHIBITS
1. Distribution Agreement, dated July 11, 1994, by and among
Columbia/HCA Healthcare Corporation and Goldman Sachs & Co.; Lehman Brothers
Inc.; Merrill Lynch, Pierce, Fenner & Smith Incorporated; Morgan Stanley & Co.
Incorporated; and Salomon Brothers Inc.
4.1 Form of Fixed Rate Global Medium-Term Note.
4.2 Form of Floating Rate Global Medium-Term Note.
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EXHIBIT 1
COLUMBIA/HCA HEALTHCARE CORPORATION
Medium-Term Notes
Due Nine Months or More from Date of Issue
DISTRIBUTION AGREEMENT
July 11, 1994
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
SALOMON BROTHERS INC
Dear Sirs:
Columbia/HCA Healthcare Corporation, a Delaware corporation (the
"Company"), confirms its agreement with Goldman, Sachs & Co., Lehman Brothers
Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co.
Incorporated and Salomon Brothers Inc (individually, an "Agent", and
collectively, the "Agents") with respect to the issue and sale by the Company of
its Medium-Term Notes described herein (the "Notes"). The Notes are to be
issued pursuant to an indenture (the "Indenture") dated as of December 15, 1993
between the Company and The First National Bank of Chicago, as trustee (the
"Trustee"). As of the date hereof, the Company has authorized the issuance and
sale of up to $1,525,000,000 initial offering price (or its equivalent, based
upon the applicable exchange rate at the time of issuance, in such foreign or
composite currencies as the Company shall designate at the time of issuance) of
Notes to or through the Agents pursuant to the terms of this Agreement. It is
understood, however, that the Company may from time to time authorize the
issuance of additional Notes and that such additional Notes may be sold to or
through the Agents pursuant to the terms of this Agreement, all as though the
issuance of such Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company to the
Agents as principal for resale to investors and other purchasers and for the
sale of Notes by the Company directly to investors (as may from time to time be
agreed to by the Company and the Agents), in which case the Agents will act as
an agent of the Company in soliciting Note purchases.
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The Company has filed with the Securities and Exchange Commission (the
"SEC') a registration statement on Form S-3 (No. 33-53409) for the registration
of debt securities, including the Notes, under the Securities Act of 1933, as
amended (the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the SEC under the 1933
Act (the "1933 Act Regulations"). Such registration statement has been declared
effective by the SEC and the Indenture has been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). Such registration statement
(and any further registration statements which may be filed by the Company for
the purpose of registering additional Notes and in connection with which this
Agreement is included or incorporated by reference as an exhibit) and the
prospectus constituting a part thereof, and any prospectus supplements relating
to the Notes, including all documents incorporated therein by reference, as from
time to time amended or supplemented by the filing of documents pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), or the 1933 Act or
otherwise, are referred to herein as the "Registration Statement" and the
"Prospectus", respectively, except that if any revised prospectus shall be
provided to the Agents by the Company for use in connection with the offering of
the Notes, whether or not such revised prospectus is required to be filed by the
Company pursuant to Rule 424(b) of the 1933 Act Regulations, the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Agents for such use.
SECTION 1. Appointment as Agents.
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(a) Appointment. Subject to the terms and conditions stated herein and
subject to the reservation by the Company of the right to sell Notes directly on
its own behalf, the Company hereby appoints each of the Agents as the agents of
the Company for the purpose of soliciting or receiving offers to purchase the
Notes from the Company by others. The Company reserves the right to sell Notes
directly on its own behalf to investors and to appoint additional agents to
solicit sales of the Notes, provided that any such solicitation and sale of the
Notes shall be on substantially the same terms and conditions contained in this
Agreement. In performing its obligations under this Agreement, regardless of
whether it is soliciting offers to purchase the Notes from the Company as its
agent or purchasing Notes from the Company as principal, each Agent is acting
individually and not jointly.
(b) Sale of Notes. The Company shall not sell or approve the solicitation
of purchases of Notes in excess of the amount that shall be authorized by the
Company from time to time or in excess of the principal amount of Notes
registered pursuant to the Registration Statement. The Agents will have no
responsibility for maintaining records with respect to the aggregate principal
amount of Notes sold, or of otherwise monitoring the availability of Notes for
sale, under the Registration Statement.
(c) Purchases as Principal. No Agent shall have any obligation to purchase
Notes from the Company as principal, but any Agent may agree from time to time
to purchase Notes as principal. Any such purchase of Notes by an Agent as
principal shall be made in accordance with Section 3(a) hereof.
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(d) Solicitations as Agent. If agreed upon by an Agent and the Company, an
Agent, acting solely as agent for the Company and not as principal, will solicit
purchases of the Notes. Such Agent will communicate to the Company, orally,
each offer to purchase Notes solicited by such Agent on an agency basis, other
than those offers rejected by such Agent. Such Agent shall have the right, in
its discretion reasonably exercised, to reject any proposed purchase of Notes,
as a whole or in part, and any such rejection shall not be deemed a breach of
the Agent's agreement contained herein. The Company may accept or reject any
proposed purchase of Notes, in whole or in part. The Agent shall make
reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by such Agent and
accepted by the Company. The Agent shall not have any liability to the Company
in the event any such agency purchase is not consummated for any reason. If the
Company shall default on its obligation to deliver Notes to a purchaser whose
offer it has accepted, the Company shall (i) hold such Agent harmless against
any loss, claim or damage arising from or as a result of such default by the
Company and (ii) notwithstanding such default, pay to such Agent any commission
to which it would be entitled in connection with such sale.
(e) Reliance. The Company and the Agents agree that any Notes purchased by
an Agent shall be purchased, and any Notes the placement of which an Agent
arranges shall be placed by the Agent, in reliance on the representations,
warranties, covenants and agreements of the Company contained herein and on the
terms and conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
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(a) Representations and Warranties. The Company represents and warrants to
the Agents as of the date hereon, as of the date of each acceptance by the
Company of an offer for the purchase of Notes (whether to an Agent as principal
or through an Agent as agent), as of the date of each delivery of Notes (whether
to an Agent as principal or through an Agent as agent) (the date of each such
delivery to an Agent as principal being hereafter referred to as a "Settlement
Date"), and as of any time that the Registration Statement or the Prospectus
shall be amended or supplemented or there is filed with the SEC any document
incorporated by reference into the Prospectus (each of the times referenced
above being referred to herein as a "Representation Date") as follows:
(i) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the SEC.
(ii) (a) Each document, if any, filed or to be filed pursuant to the 1934
Act and incorporated by reference in the Prospectus complied or will comply when
so filed in all material respects with the 1934 Act and the applicable rules and
regulations of the SEC thereunder, (b) each part of the Registration Statement,
when such part became effective, did not contain, and each such part, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (c) the Registration
Statement and
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the Prospectus comply, and, as amended or supplemented, if applicable, will
comply in all material respects with the 1933 Act and the 1933 Act Regulations,
and (d) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this Section 1(b) do not apply (A)
to statements or omissions in the Registration Statement or the Prospectus based
upon information relating to any Agent furnished to the Company in writing by
such Agent expressly for use therein or (B) to that part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1) under the
1939 Act of the Trustee.
(iii) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
Subsidiaries (as hereinafter defined), taken as a whole.
(iv) Each direct and indirect subsidiary of the Company (the "Corporate
Subsidiaries") has been duly incorporated, is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
Subsidiaries, taken as a whole.
(v) Each of the partnerships owned or controlled, directly or indirectly,
by the Company (the "Partnerships," and together with the Corporate
Subsidiaries, the "Subsidiaries") has been duly formed and is validly existing
under the laws of its jurisdiction of formation and has the partnership power
and authority to carry on its business as it is currently being conducted and to
own, lease and operate its properties, and each is duly qualified as a foreign
partnership authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the Company and its Subsidiaries, taken as a whole.
(vi) This Agreement has been duly authorized, executed and delivered by the
Company.
(vii) The Indenture has been duly qualified under the 1939 Act and has
been duly authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting
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creditors' rights generally and (b) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability.
(viii) The Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the purchasers thereof in accordance with the terms of this
Agreement, will be entitled to the benefits of the Indenture, and will be valid
and binding obligations of the Company, in each case enforceable against the
Company in accordance with their respective terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (b) rights of acceleration, if any,
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
(ix) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement, the Indenture, and the
Notes will not contravene any provision of applicable law or the certificate of
incorporation or bylaws of the Company or any agreement or other instrument
binding upon the Company or any of its Subsidiaries that is material to the
Company and its Subsidiaries, taken as a whole, or any judgment, order or decree
of any governmental body, agency or court having jurisdiction over the Company
or any subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture, or the Notes except such as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and sale of the
Notes.
(x) There has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
Subsidiaries, taken as a whole, from that set forth in the Prospectus.
(xi) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of its
Subsidiaries is a party or to which any of the properties of the Company or any
of its Subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration Statement that are not
described, filed or incorporated as required.
(xii) The Company is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the Investment Company
Act of 1940, as amended.
(xiii) The Company and its Subsidiaries are (a) in compliance with any and
all applicable foreign, federal, state and local laws and regulations relating
to the protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental Laws"),
(b) have received all permits, licenses or other
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approvals required of them under applicable Environmental Laws to conduct their
respective businesses, and (c) are in compliance with all terms and conditions
of any such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a material
adverse effect on the Company and its Subsidiaries, taken as a whole.
(xiv) In the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on the business, operations
and properties of the Company and its Subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up, closure
of properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review, the Company has
reasonably concluded that such associated costs and liabilities would not,
singly or in the aggregate, have a material adverse effect on the Company and
its Subsidiaries, taken as a whole.
(xv) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
(b) Additional Certifications. Any certificate signed by any director or
officer of the Company and delivered to an Agent or to counsel for an Agent in
connection with an offering of Notes through such Agent as agent or the sale of
Notes to an Agent as principal shall be deemed a representation and warranty by
the Company to such Agent as to the matters covered thereby on the date of such
certificate and at each Representation Date subsequent thereto.
SECTION 3. Solicitations as Agent; Purchases as Principal.
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(a) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and an Agent, such Agent, as an agent of the
Company, will use its reasonable efforts to solicit offers to purchase the Notes
upon the terms and conditions set forth herein and in the Prospectus. All Notes
sold through an Agent as agent will be sold at 100% of their principal amount
unless otherwise agreed to by the Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through any Agent, as agent, commencing
at any time for any period of time or permanently. Upon receipt of instructions
from the Company, such Agent will forthwith suspend solicitation of purchases
from the Company until such time as the Company has advised the Agent that such
solicitation may be resumed.
The Company agrees to pay such Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by such Agent as set
forth in Schedule A hereto.
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(b) Purchases as Principal. Such purchases shall be made in accordance
with terms agreed upon by such Agent and the Company (which terms, unless
otherwise agreed, shall be agreed upon orally, with written confirmation
prepared by such Agent and mailed or telecopied to the Company). An Agent's
commitment to purchase Notes as principal shall be deemed to have been made on
the basis of the representations and warranties of the Company herein contained
and shall be subject to the terms and conditions herein set forth. Each
purchase of Notes, unless otherwise agreed, shall be at a discount from the
principal amount of each such Note equivalent to the applicable commission set
forth in Schedule A hereto. An Agent may engage the services of any other
broker or dealer in connection with the resale of the Notes purchased as
principal and may allow any portion of the discount received in connection with
such purchases from the Company to such brokers and dealers. At the time of
each purchase of Notes by an Agent as principal, such Agent shall specify the
requirements for the stand-off agreement, officer's certificate, opinion of
counsel and comfort letter pursuant to Sections 4(k), 7(b), 7(c) and 7(d)
hereof.
(c) Administrative Procedures. The purchase price, interest rate or
formula, maturity date and other terms of the Notes (as applicable) specified in
Exhibit A hereto shall be agreed upon by the Company and any Agent and set forth
in a pricing supplement to the Prospectus to be prepared in connection with each
sale of Notes. Except as may be otherwise provided in such supplement to the
Prospectus, the Notes will be issued in denominations of $1,000 or any larger
amount that is an integral multiple of $1,000. Administrative procedures with
respect to the sale of Notes shall be agreed upon from time to time by the
Agents, the Company and the Trustee (the "Procedures"). The Agents and the
Company agree to perform the respective duties and obligations specifically
provided to be performed by them in the Procedures.
SECTION 4. Covenants of the Company.
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The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company will notify the Agents
immediately (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the SEC for filing of any supplement to
the Prospectus or any document to be filed pursuant to the 1934 Act which will
be incorporated by reference in the Prospectus, (iii) of the receipt of any
comments from the SEC with respect to the Registration Statement or the
Prospectus, (iv) of any request by the SEC for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information, and (v) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Notice of Certain Proposed Filings. The Company will give each Agent
advance notice of its intention to file any amendment to the Registration
Statement or any amendment or supplement to the Prospectus (other than an
amendment or supplement providing solely for a change in the interest rates of
Notes), whether by the filing of documents pursuant to the 1934
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Act, the 1933 Act or otherwise, and will furnish each Agent with copies of any
such amendment or supplement or other documents proposed to be filed in advance
of such proposed filing.
(c) Copies of the Registration Statement and the Prospectus. The Company
will deliver to each Agent as many conformed copies of the Registration
Statement (as originally filed) and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and documents
incorporated by reference in the Prospectus) as such Agent may reasonably
request. The Company will furnish to each Agent as many copies of the
Prospectus (as amended or supplemented) as such Agent shall reasonably request
so long as such Agent is required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Notes.
(d) Preparation of Pricing Supplements. The Company will prepare, with
respect to any Notes to be sold through or to the Agents pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the Agents and will file such Pricing Supplement pursuant to Rule
424(b)(3) under the 1933 Act not later than the close of business of the SEC on
the fifth business day after the date on which such Pricing Supplement is first
used.
(e) Revisions of Prospectus -- Material Changes. Except as otherwise
provided in subsection (k) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of counsel for the Agents or counsel for
the Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time the Prospectus
is delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of either such counsel, to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, immediate notice shall be given, and confirmed
in writing, to each Agent to cease the solicitation of offers to purchase the
Notes in such Agent's capacity as agent and to cease sales of any Notes any
Agent may then own as principal, and the Company will promptly amend the
Registration Statement and the Prospectus, whether by filing documents pursuant
to the 1934 Act, the 1933 Act or otherwise, as may be necessary to correct such
untrue statement or omission or to make the Registration Statement and
Prospectus comply with such requirements.
(f) Prospectus Revisions -- Periodic Financial Information. Except as
otherwise provided in subsection (k) of this Section, on the date on which there
shall be released to the general public interim financial statement information
related to the Company with respect to each of the first three quarters of any
fiscal year or preliminary financial statement information with respect to any
fiscal year, the Company shall cause the Prospectus to be amended or
supplemented to include or incorporate by reference financial information with
respect thereto and corresponding information for the comparable period of the
preceding fiscal year, as well as such other information and explanations as
shall be necessary for an understanding thereof or as shall be required by the
1933 Act or the 1933 Act Regulations.
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(g) Prospectus Revisions -- Audited Financial Information. Except as
otherwise provided in subsection (k) of this Section, on or prior to the date on
which there shall be released to the general public financial information
included in or derived from the audited financial statements of the Company for
the preceding fiscal year, the Company shall cause the Registration Statement
and the Prospectus to be amended, whether by the filing of documents pursuant to
the 1934 Act, the 1933 Act or otherwise, to include or incorporate by reference
such audited financial statements and the report or reports, and consent or
consents to such inclusion or incorporation by reference, of the independent
accountants with respect thereto, as well as such other information and
explanations as shall be necessary for an understanding of such financial
statements or as shall be required by the 1933 Act or the 1933 Act Regulations.
(h) Earnings Statements. As soon as practicable, but not later than 18
months, after the date of each acceptance by the Company of an offer to purchase
Notes hereunder, to make generally available to its security holders an earnings
statement covering a period of at least 12 months beginning after the later of
(i) the effective date of the Registration Statement, (ii) the effective date of
the most recent post-effective amendment to the Registration Statement to become
effective prior to the date of such acceptance, and (iii) the date of the
Company's most recent Annual Report on Form 10-K filed with the SEC prior to the
date of such acceptance which will satisfy the provisions of Section 11(a) of
the 1933 Act (including, at the option of the Company, Rule 158 of the 1933 Act
Regulations);
(i) Blue Sky Qualifications. The Company will endeavor, in cooperation
with the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agents may designate, and will maintain such qualifications in effect for as
long as may be required for the distribution of the Notes; provided, however,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation in any jurisdiction in which
it is not so qualified. The Company will file such statements and reports as
may be required by the laws of each jurisdiction in which the Notes have been
qualified as above provided. The Company will promptly advise the Agents of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such purpose.
(j) 1934 Act Filings. The Company, during the period when the Prospectus
is required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the 1934 Act.
(k) Stand-Off Agreement. If specified by an Agent in connection with a
purchase by it of Notes as principal, between the date of the agreement to
purchase such Notes and the Settlement Date with respect to such purchase, the
Company will not, without such Agent's prior written consent, offer or sell or
enter into any agreement to sell, any debt securities of the Company (other than
the Notes that are to be sold pursuant to such agreement and commercial paper in
the ordinary course of business).
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(l) Suspension of Certain Obligations. The Company shall not be required
to comply with the provisions of subsections (e), (f) or (g) of this Section
during any period from the time (i) the Agents shall have suspended solicitation
of purchases of the Notes in their capacity as agents pursuant to a request from
the Company and (ii) no Agent shall then hold any Notes purchased as principal
pursuant hereto, until the time the Company shall determine that solicitation of
purchases of the Notes should be resumed or any Agent shall subsequently
purchase Notes from the Company as principal.
SECTION 5. Conditions of Obligations.
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The obligations of each Agent to purchase Notes as principal and to solicit
offers to purchase the Notes as agent of the Company, and the obligations of any
purchasers of the Notes sold through any Agent as agent, will be subject to the
accuracy of the representations and warranties on the part of the Company herein
and to the accuracy of the statements of the Company's officers made in any
certificate furnished pursuant to the provisions hereof, to the performance and
observance by the Company of all its covenants and agreements herein contained
and to the following additional conditions precedent:
(a) Legal Opinions. On the date hereof, the Agents shall have received the
following legal opinions, dated as of the date hereof and in form and substance
satisfactory to the Agents:
(1) Opinion of Company Counsel. The opinion of Stephen T. Braun,
Senior Vice President and General Counsel of the Company, to the effect
that:
(i) the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its Subsidiaries, taken as a whole;
(ii) each Corporate Subsidiary of the Company, which is a "Significant
Subsidiary" within the meaning of the 1933 Act Regulations (the "Material
Corporate Subsidiaries"), has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its Subsidiaries, taken as a whole;
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(iii) each of the Partnerships that is a "Significant Subsidiary"
within the meaning of the 1933 Act Regulations ("the "Material
Partnerships" and, together with the Material Corporate Subsidiaries, the
"Material Subsidiaries"), has been duly formed and is validly existing
under the laws of its jurisdiction of formation and has the partnership
power and authority to carry on its business as it is currently being
conducted and to own, lease and operate its properties, and each is duly
qualified as a foreign partnership authorized to do business in each
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the failure
to be so qualified would not have a material adverse effect on the Company
and its Subsidiaries, taken as a whole;
(iv) this Agreement has been duly authorized, executed and delivered
by the Company;
(v) the Indenture has been duly qualified under the 1939 Act and has
been duly authorized, executed and delivered by the Company and is a valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (b) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability;
(vi) the Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered in accordance with this Agreement against payment of the
consideration therefor, will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the Company, in each case
enforceable against the Company in accordance with their respective terms
except as (a) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (b)
rights of acceleration, if any, and the availability of equitable remedies
may be limited by equitable principles of general applicability;
(vii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture and the Notes will not contravene any provision of applicable law
or the certificate of incorporation or bylaws of the Company or, to the
best of such counsel's knowledge, any agreement or other instrument binding
upon the Company or any of its Material Subsidiaries that is material to
the Company and its Subsidiaries, taken as a whole, or, to the best of such
counsel's knowledge, any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture or the Notes except such as may be required by the securities or
Blue Sky laws of the various states in connection with the offer and sale
of the Notes;
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(viii) the statements (1) in the Prospectus under the captions
"Description of Notes" and "Plan of Distribution" and (2) in the
Registration Statement under Item 15, (3) in "Item 3 - Legal Proceedings"
of the Company's most recent annual report on Form 10-K incorporated by
reference in the Prospectus and (4) in "Item 1 - Legal Proceedings" of Part
II of the Company's quarterly reports on Form 10-Q, if any, filed since
such annual report, in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to such
legal matters, documents and proceedings and fairly summarize the matters
referred to therein;
(ix) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or any
of its Material Subsidiaries is a party or to which any of the properties
of the Company or any of its Material Subsidiaries is subject that are
required to be described in the Registration Statement or the Prospectus
and are not so described or incorporated by reference or of any statutes,
regulations, contracts or other documents that are required to be described
in the Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration Statement that
are not described, filed or incorporated as required;
(x) the Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended;
(xi) such counsel (1) is of the opinion that each document, if any,
filed pursuant to the 1934 Act and incorporated by reference in the
Prospectus (except for financial statements and schedules included therein
as to which such counsel need not express any opinion), complied when so
filed as to form in all material respects with the 1934 Act and the
applicable rules and regulations of the Commission thereunder and (2) is of
the opinion that the Registration Statement and Prospectus (except for
financial statements and schedules as to which such counsel need not
express any opinion), comply as to form in all material respects with the
1933 Act and the 1933 Act Regulations.
In addition, such counsel shall state his belief that (1) each part of
the Registration Statement (except for financial statements and schedules
as to which such counsel need not express any belief and except for that
part of the Registration Statement that constitutes the Form T-1 heretofore
referred to), when such part became effective did not, and, as of the date
such opinion is delivered, does not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and (2)
the Prospectus (except for financial statements and schedules as to which
such counsel need not express any belief) as of the date such opinion is
delivered does not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. Such counsel may state that his belief is based upon his
participation in the preparation
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<PAGE>
of the Registration Statement and Prospectus and any amendments or
supplements thereto and documents incorporated therein by reference and
review and discussion of the contents thereof, but are without independent
check or verification, except as specified.
(2) Opinion of Counsel to the Agents. The opinion of Jenkens &
Gilchrist, a Professional Corporation, counsel for the Agents, covering the
matters referred to in subparagraphs (iv), (v), (vi), (viii) (but only as
to the statements in the Prospectus under "Description of Notes", "Plan of
Distribution" and "Certain United States Federal Income Tax Consequences")
and (xi) (2) of paragraph (1) above.
In addition, such counsel shall state their belief that (1) each part
of the Registration Statement (except for financial statements and
schedules as to which such counsel need not express any belief and except
for that part of the Registration Statement that constitutes the Form T-1
heretofore referred to), when such part became effective did not, and, as
of the date such opinion is delivered, does not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading and (2) the Prospectus (except for financial statements and
schedules as to which such counsel need not express any belief) as of the
date such opinion is delivered does not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. Such counsel may state that their belief is
based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto (but not
including documents incorporated therein by reference) and review and
discussion of the contents thereof (including documents incorporated
therein by reference), but are without independent check or verification,
except as specified.
(b) Officer's Certificate. At the date hereof, the Agents shall have
received a certificate signed by the President, the Chief Financial Officer, any
Vice President, the Treasurer or an Assistant Treasurer of the Company, dated as
of the date hereof, to the effect that (i) since the respective dates as of
which information is given in the Registration Statement and the Prospectus or
since the date of any agreement by an Agent to purchase Notes as principal,
there has not been any material adverse change in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, (ii) the other representations and warranties of
the Company contained in Section 2 hereof are true and correct with the same
force and effect as though expressly made at and as of the date of such
certificate, (iii) the Company has performed or complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the date of such certificate, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been initiated or threatened by the SEC.
(c) Comfort Letter. At the date hereof, the Agents shall have received a
letter from the Company's independent public accountants, containing statements
and information of the type ordinarily included in accountants' "comfort
letters" with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Prospectus.
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<PAGE>
(d) Other Documents. On the date hereof and on each Settlement Date,
counsel to the Agents shall have been furnished with such documents and opinions
as such counsel may reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of Notes as herein contemplated shall be satisfactory in
form and substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement (or, at the option of an
Agent, any applicable agreement by such Agent to purchase Notes as principal)
may be terminated by such Agent by notice to the Company at any time and any
such termination shall be without liability of any party to any other party,
except that the covenant regarding provision of an earnings statement set forth
in Section 4(h) hereof, the provisions concerning payment of expenses under
Section 10 hereof, the indemnity and contribution agreement set forth in
Sections 8 and 9 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery of Section 11 hereof, the
provisions relating to governing law set forth in Section 14 and the provisions
set forth under "Parties" of Section 15 hereof shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold Through an Agent.
-------------------------------------------------------
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, such Agent shall promptly notify the Company and deliver
the Note to the Company, and, if such Agent has theretofore paid the Company for
such Note, the Company will promptly return such funds to such Agent. If such
failure occurred for any reason other than default by an Agent in the
performance of its obligations hereunder, the Company will reimburse such Agent
on an equitable basis for its loss of the use of the funds for the period such
funds were credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
-----------------------------------
The Company covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each acceptance by it
of an offer for the purchase of Notes (whether to an Agent as principal or
through an Agent as agent), and each delivery of Notes to an Agent (whether to
an Agent as principal or through an Agent as agent), shall be deemed to be an
affirmation that the representations and warranties of the Company contained in
this Agreement and in any certificate theretofore delivered to an Agent pursuant
hereto are true and correct at the time of such acceptance or sale, as the case
may be, and an undertaking that such representations and warranties will be true
and correct at the time of delivery to the purchaser or its agent, or to such
Agent, of the Note or Notes relating to such
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<PAGE>
acceptance or sale, as the case may be, as though made at and as of each such
time (and it is understood that such representations and warranties shall relate
to the Registration Statement and Prospectus as amended and supplemented to each
such time).
(b) Subsequent Delivery of Certificates. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a change in the interest
rates of Notes or similar changes, and, unless an Agent shall otherwise specify,
other than by an amendment or supplement which relates exclusively to an
offering of debt securities other than the Notes), (ii) there is filed with the
SEC any document incorporated by reference into the Prospectus (other than any
Current Report on Form 8-K relating exclusively to the issuance of debt
securities under the Registration Statement, unless an Agent shall otherwise
specify), (iii) (if required in connection with the purchase of Notes by an
Agent as principal) the Company sells Notes to an Agent as principal or (iv) if
the Company issues and sells Notes in a form not previously certified to an
Agent by the Company, the Company shall furnish or cause to be furnished to such
Agent forthwith a certificate dated the date of filing with the SEC of such
supplement or document, the date of effectiveness of such amendment, or the date
of such sale, as the case may be, in form satisfactory to such Agent to the
effect that the statements contained in the certificate referred to in Section
5(b) hereof which were last furnished to such Agent are true and correct at the
time of such amendment, supplement filing or sale, as the case may be, as though
made at and as of such time (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a certificate of the
same tenor as the certificate referred to in said Section 5(b), modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a change in the interest
rates of the Notes or similar changes or solely for the inclusion of additional
financial information, and, unless an Agent shall otherwise specify, other than
by an amendment or supplement which relates exclusively to an offering of debt
securities other than the Notes), (ii) there is filed with the SEC any document
incorporated by reference into the Prospectus (other than any Current Report on
Form 8-K, unless an Agent shall otherwise specify), (iii) (if required in
connection with the purchase of Notes by an Agent as principal) the Company
sells Notes to an Agent as principal, or (iv) if the Company issues and sells
Notes in a form not previously certified to an Agent by the Company, the Company
shall furnish or cause to be furnished forthwith to such Agent and to counsel to
the Agent a written opinion of Stephen T. Braun, Senior Vice President and
General Counsel to the Company, or other counsel satisfactory to such Agent,
dated the date of filing with the SEC of such supplement or document, the date
of effectiveness of such amendment, or the date of such sale, as the case may
be, in form and substance satisfactory to such Agent, of the same tenor as the
opinion referred to in Section 5(a)(1) hereof but modified, as necessary, to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion; or, in lieu of such
opinion, counsel last furnishing such opinion to such Agent shall furnish such
Agent with a letter to the effect that such Agent may rely on such last
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<PAGE>
opinion to the same extent as though it was dated the date of such letter
authorizing reliance (except that statements in such last opinion shall be
deemed to relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information or there is filed with the SEC any
document incorporated by reference into the Prospectus which contains additional
financial information, or (ii) (if required in connection with the purchase of
Notes by an Agent as principal) the Company sells Notes to an Agent as
principal, and in either case if an Agent so requests, the Company shall cause
the independent public accountants for the Company, forthwith to furnish such
Agent a letter, dated the date of effectiveness of such amendment, supplement or
document with the SEC, or the date of such sale, as the case may be, in form
satisfactory to such Agent, of the same tenor as the letter referred to in
Section 5(c) hereof but modified to relate to the Registration Statement and
Prospectus, as amended and supplemented to the date of such letter, and with
such changes as may be necessary to reflect changes in the financial statements
and other information derived from the accounting records of the Company.
SECTION 8. Indemnification.
---------------
(a) Indemnification of Agents. The Company agrees to indemnify and hold
harmless each Agent and each person, if any, who controls an Agent within the
meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or alleged
omission therefrom of a material fact necessary to make the statements therein
not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, unless such untrue statement or
omission or such alleged untrue statement or omission was made in reliance upon
and in conformity with written information furnished to the Company by an Agent
expressly for use in the Registration Statement or the Prospectus.
(b) Indemnification of Company. Each Agent agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by an Agent expressly for use in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto).
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(c) General. In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either subsection (a) or (b) of this
section, such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
SECTION 9. Contribution.
------------
In order to provide for just and equitable contribution in circumstances in
which the indemnity agreement provided for in Section 8 hereof is for any reason
held to be unavailable to or insufficient to hold harmless the indemnified
parties although applicable in accordance with its terms, the Company and each
Agent shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the
Company and each such Agent, as incurred, in such proportions that each such
Agent is responsible for that portion represented by the percentage that the
total commissions and underwriting discounts received by each such Agent to the
date of such liability bears to the total net proceeds (before deducting
expenses) from the sale of Notes sold to or through the Agent to the date of
such liability, and the Company is responsible for the balance; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 9, each person, if any, who controls an Agent within
the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Agent, and each director of the Company, each officer of
the Company who signed the Registration Statement, and each person, if any, who
controls the Company within
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<PAGE>
the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company.
SECTION 10. Payment of Expenses.
-------------------
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and all
amendments thereto and the Prospectus and any amendments or supplements thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of book-entry notes;
(d) The fees and disbursements of the Company's accountants and counsel, of
the Trustee and its counsel, and of any Calculation Agent or Exchange Rate
Agent;
(e) The reasonable fees and disbursements of counsel to the Agents incurred
in connection with the establishment of the program relating to the Notes and
incurred from time to time in connection with the transactions contemplated
hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i) hereof including filing fees and
the reasonable fees and disbursements of counsel for the Agents in connection
therewith and in connection with the preparation of any Blue Sky Survey and any
Legal Investment Survey;
(g) The printing and delivery to each Agent in quantities as hereinabove
stated of copies of the Registration Statement and any amendments thereto, and
of the Prospectus and any amendments or supplements thereto, and the delivery by
any Agent of the Prospectus and any amendments or supplements thereto in
connection with solicitations or confirmations of sales of the Notes;
(h) The preparation, printing, reproducing and delivery to each Agent of
copies of the Indenture and all supplements and amendments thereto;
(i) Any fees charged by rating agencies for the rating of the Notes;
(j) The fees and expenses, if any, incurred with respect to any filing with
the National Association of Securities Dealers, Inc.;
(k) Any advertising and other out-of-pocket expenses of any Agent incurred
with the approval of the Company;
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(l) The cost of providing, any CUSIP or other identification numbers for
the Notes; and
(m) The fees and expenses of any Depositary (as defined in the Indenture)
and any nominees thereof in connection with the Notes.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Company submitted pursuant hereto or
thereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Agent or any controlling person of the
Agent, or by or on behalf of the Company, and shall survive each delivery of and
payment for any of the Notes.
SECTION 12. Termination.
-----------
(a) Termination of this Agreement. This Agreement (excluding any agreement
hereunder by the Agent to purchase Notes as principal) may be terminated for any
reason, at any time by either the Company as to any Agent or by any Agent
insofar as this Agreement relates to such Agent upon the giving of 30 days'
written notice of such termination to the other party hereto.
(b) Termination of Agreement to Purchase Notes as Principal. Any Agent may
terminate any agreement hereunder by such Agent to purchase Notes as principal,
immediately upon notice to the Company, at any time prior to the Settlement Date
relating thereto (i) if there has been, since the date of such agreement or
since the respective dates as of which information is given in the Registration
Statement, in the reasonable opinion of such Agent any material adverse change
in the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, or (ii) if
there shall have occurred any material adverse change in the financial markets
in the United States or any outbreak or escalation of hostilities or other
national or international calamity or crisis the effect of which is such as to
make it, in the judgment of such Agent, impracticable to market the Notes or
enforce contracts for the sale of the Notes, or (iii) if trading in any
securities of the Company has been suspended by the SEC or a national securities
exchange, or if trading generally on either the American Stock Exchange or the
New York Stock Exchange shall have been suspended, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices for securities have
been required, by either of said exchanges or by order of the SEC or any other
governmental authority, or if a banking moratorium shall have been declared by
either Federal, New York or Delaware authorities or if a banking moratorium
shall have been declared by the relevant authorities in the country or countries
of origin of any foreign currency or currencies in which the Notes are
denominated or payable, or (iv) if the rating assigned by any nationally
recognized securities rating agency to any debt securities of the Company as of
the date of any applicable principal purchase shall have been lowered since that
date or if any such rating agency shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any debt securities of the Company, or (v) if there
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<PAGE>
shall have come to any Agent's attention any facts that would cause such Agent
to believe that the Prospectus, at the time it was required to be delivered to a
purchaser of Notes, included an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein, in
light of the circumstances existing at the time of such delivery, not
misleading.
(c) General. In the event of any such termination, neither party will have
any liability to the other party hereto, except that (i) the Agent shall be
entitled to any commission earned in accordance with the third paragraph of
Section 3(b) hereof, (ii) if at the time of termination (a) an Agent shall own
any Notes purchased by it as principal with the intention of reselling them or
(b) an offer to purchase any of the Notes has been accepted by the Company but
the time of delivery to the purchaser or his agent of the Note or Notes relating
thereto has not occurred, the covenants set forth in Sections 4 and 7 hereof
shall remain in effect until such Notes are so resold or delivered, as the case
may be, and (iii) the covenant set forth in Section 4(h) hereof, the provisions
of Section 10 hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, and the provisions of Sections 11, 14 and 15 hereof
shall remain in effect.
SECTION 13. Notices.
-------
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Columbia/HCA Healthcare Corporation
201 West Main Street
Louisville, Kentucky 40202
Attention: General Counsel
Fax: 502-572-2163
If to an Agent:
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Attention: Medium-Term Note Department
Fax: 212-902-3000
Lehman Brothers Inc.
3 World Financial Center
12th Floor
New York, NY 10285-1200
Attention: Medium-Term Note Department
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Fax: 212-528-1718
Merrill Lynch & Co.
250 Vesey Street
World Financial Center
North Tower
New York, NY 10281
Attention: MTN Product Management
Fax: 212-449-2234
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
4th Floor
New York, NY 10005
Attention: Medium-Term Note Department
Fax: 212-921-7617
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Attention: Medium-Term Note Group
Fax: 212-783-2274
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law.
-------------
This Agreement and all the rights and obligations of the parties shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in such State.
SECTION 15. Parties.
-------
This Agreement shall inure to the benefit of and be binding upon the Agents
and the Company and their respective successors. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and their respective successors and
the controlling persons and officers and directors referred to in Sections 8 and
9 and their heirs and legal representatives, any legal or equitable right remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto and respective
successors and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other
21
<PAGE>
person, firm or corporation. No purchaser of Notes shall be deemed to be a
successor by reason merely of such purchase.
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between the Agents and the Company in accordance with its terms.
Very truly yours,
COLUMBIA/HCA HEALTHCARE CORPORATION
By:________________________________
Name:______________________________
Title:_____________________________
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Accepted:
GOLDMAN, SACHS & CO.
By:______________________________
Name:____________________________
Title:___________________________
LEHMAN BROTHERS INC.
By:______________________________
Name:____________________________
Title:___________________________
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By:____________________________
Name:__________________________
Title:_________________________
MORGAN STANLEY & CO. INCORPORATED
By:____________________________
Name:__________________________
Title:_________________________
SALOMON BROTHERS INC
By:____________________________
Name:__________________________
Title:_________________________
23
<PAGE>
EXHIBIT A
The following terms, if applicable, shall be agreed to by the Agents and
the Company in connection with each sale of Notes:
Principal Amount: $________
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Spread or Spread Multiplier, if any: Interest Reset Date(s):
Interest Payment Date(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Reset Period:
Interest Payment Period:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
If Repayable:
Optional Repayment Date(s):
Date of Maturity:
Purchase Price: _____%
Settlement Date and Time:
Currency of Denomination:
Denominations (if currency is other than U.S. dollar):
Currency of Payment:
Additional Terms:
Also, in connection with the purchase of Notes by an Agent as principal,
agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinion pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
<PAGE>
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company shall
pay it, on a discount basis, a commission for the sale of each Note equal to the
principal amount of such Note multiplied by the appropriate percentage set forth
below:
<TABLE>
<CAPTION>
MATURITY RANGES PERCENT OF
PRINCIPAL AMOUNT
<S> <C>
From 9 months to less than 1 year........... .125%
From 1 year to less than 18 months.......... .150
From 18 months to less than 2 years......... .200
From 2 years to less than 3 years........... .250
From 3 years to less than 4 years........... .350
From 4 years to less than 5 years........... .450
From 5 years to less than 6 years........... .500
From 6 years to less than 7 years........... .550
From 7 years to less than 10 years.......... .600
From 10 years to less than 15 years......... .625
From 15 years to less than 20 years......... .700
From 20 years to less than 30 years......... .750
Greater than 30 years....................... *
_______________
* As agreed to by the Company and the Agents at the time of sale.
</TABLE>
<PAGE>
EXHIBIT 4.1
FIXED RATE GLOBAL MEDIUM-TERM NOTE
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
REGISTERED PRINCIPAL OR FACE AMOUNT
No. FX CUSIP No. ________________ $_______________________
COLUMBIA/HCA HEALTHCARE CORPORATION
MEDIUM-TERM NOTE
(Fixed Rate)
- - --------------------------------------------------------------------------------
* * * [_] CHECK IF AN INDEXED NOTE * * *
IF CHECKED, CALCULATION AGENT: __________________
If this is an Indexed Note, references herein to "principal" shall be deemed to
be the face amount hereof, except that the amount payable upon Maturity of this
Note shall be determined in accordance with the formula or formulas set forth
below or in an attached Addendum hereto.
- - --------------------------------------------------------------------------------
ORIGINAL ISSUE DATE: INTEREST RATE: STATED MATURITY DATE:
INTEREST PAYMENT DATES:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
<PAGE>
DATE: PERCENTAGE: PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT DATE(S):
<TABLE>
<CAPTION>
<S> <C> <C> <C>
DAY COUNT CONVENTION
[ ] 30/360 FOR THE PERIOD FROM TO .
[ ] ACTUAL/360 FOR THE PERIOD FROM TO .
[ ] ACTUAL/ACTUAL FOR THE PERIOD FROM TO .
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT:
[ ] Yes [ ] Yes
[ ] No [ ] No
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period:
</TABLE>
OTHER PROVISIONS:
Columbia/HCA HealthCare Corporation, a Delaware corporation ("Issuer" or
the "Company," which terms include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum of
2
<PAGE>
DOLLARS, or if this is an Indexed Note, the principal amount as determined in
accordance with the terms set forth under "Other Provisions" above and/or in the
Addendum attached hereto, on the Stated Maturity Date specified above (except to
the extent redeemed or repaid prior to the Stated Maturity Date), and to pay
interest on the principal or face amount as set forth above at the Interest Rate
per annum specified above, until the principal hereof is paid or duly made
available for payment. Reference herein to "this Note", "hereof", "herein" and
comparable terms shall include an Addendum hereto if an Addendum is specified
above.
The Company will pay interest on each Interest Payment Date specified
above, commencing on the first Interest Payment Date next succeeding the
Original Issue Date specified above, and on the Stated Maturity Date or any
Redemption Date or Optional Repayment Date (if specified as repayable at the
option of the Holder in an attached Addendum) (the date of each such Stated
Maturity Date, Redemption Date and Optional Repayment Date and the date on which
principal or an installment of principal is due and payable by declaration of
acceleration pursuant to the Indenture being referred to hereinafter as a
"Maturity" with respect to principal payable on such date); provided, however,
that if the Original Issue Date is between a Regular Record Date (as defined
below) and the next succeeding Interest Payment Date, interest payments will
commence on the Interest Payment Date immediately following the next succeeding
Regular Record Date. Except as provided above, interest payments will be made on
the Interest Payment Dates shown above. Unless otherwise specified above, the
"Regular Record Date" shall be the date 15 calendar days (whether or not a
Business Day) prior to the applicable Interest Payment Date. Interest on this
Note will accrue from and including the most recent Interest Payment Date to
which interest has been paid or duly provided for or, if no interest has been
paid, from the Original Issue Date specified above, to, but excluding such
Interest Payment Date. If the Maturity or an Interest Payment Date falls on a
day which is not a Business Day as defined below, the payment due on such
Maturity or Interest Payment Date will be paid on the next succeeding Business
Day with the same force and effect as if made on such Maturity or Interest
Payment Date, as the case may be, and no interest shall accrue with respect to
such payment for the period from and after such Maturity or Interest Payment
Date. The interest so payable and punctually paid or duly provided for on any
Interest Payment Date will as provided in the Indenture be paid to the Person in
whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such Interest Payment Date.
Any such interest which is payable, but not punctually paid or duly provided for
on any Interest Payment Date (herein called "Defaulted Interest"), shall
forthwith cease to be payable to the registered Holder on such Regular Record
Date, and may be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to the Holder of this Note not less than
10 days prior to such Special Record Date, or may be paid at any time in any
other lawful manner, all as more fully provided in the Indenture.
Payment of the principal of and interest on this Note will be made at the
Office or Agency of the Company maintained by the Company for such purpose, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts; provided, however, that
at the option of the Company, payment of interest
3
<PAGE>
may be made by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register; and provided, further, that
AT THE OPTION OF THE COMPANY, the Holder of this Note may be entitled to receive
payments of principal of and interest on this Note by wire transfer of
immediately available funds if appropriate wire transfer instructions have been
received by the Trustee not less than 15 days prior to the applicable payment
date.
Unless the certificate of authentication hereon has been executed by or on
behalf of The First National Bank of Chicago, the Trustee for this Note under
the Indenture, or its successor thereunder, by the manual signature of one of
its authorized officers, this Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
This Note is one of a duly authorized series of Securities (hereinafter
called the "Securities") of the Company designated as its Medium-Term Notes (the
"Notes"). The Notes are issued and to be issued under an Indenture dated as of
December 15, 1993 (herein called the "Indenture") between the Company and The
First National Bank of Chicago, to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights thereunder of the Company, the Trustee and the Holders of the Notes and
the terms upon which the Notes are to be authenticated and delivered. The terms
of individual Notes may vary with respect to interest rates or interest rate
formulas, issue dates, maturity, redemption, repayment, currency of payment and
otherwise.
Except as otherwise provided in the Indenture, the Notes will be issued in
global form only registered in the name of The Depository Trust Company (the
"Depositary") or its nominee. The Notes will not be issued in definitive form,
except as otherwise provided in the Indenture, and ownership of the Notes shall
be maintained in book entry form by the Depositary for the accounts of
participating organizations of the Depositary.
This Note is not subject to any sinking fund and, unless otherwise provided
above in accordance with the provisions of the following paragraphs, is not
redeemable or repayable prior to the Stated Maturity Date.
If so provided above,this Note may be redeemed by the Company on any date
on and after the Initial Redemption Date, if any, specified above. If no
Initial Redemption Date is set forth above, this Note may not be redeemed prior
to the Stated Maturity Date. On and after the Initial Redemption Date, if any,
this Note may be redeemed at any time in whole or from time to time in part in
increments of $1,000 (provided that any remaining principal hereof shall be at
least $1,000) at the option of the Company at the applicable Redemption Price
(as defined below), together with accrued interest hereon at the applicable rate
payable to the date of redemption (each such date, a "Redemption Date"), on
written notice given not more than 60 nor less than 30 days prior to the
Redemption Date. In the event of redemption of this Note in part only, a new
Note for the unredeemed portion hereof shall be issued in the name of the Holder
hereof upon the surrender hereof.
4
<PAGE>
Unless otherwise specified above, the "Redemption Price" shall initially be
the Initial Redemption Percentage, specified above, of the principal amount of
this Note to be redeemed and shall decline at each anniversary of the Initial
Redemption Date, shown above, by the Annual Redemption Percentage Reduction, if
any, specified above hereof, of the principal amount to be redeemed until the
Redemption Price is 100% of such principal amount.
Unless otherwise specified in an Addendum attached hereto, this Note is not
subject to repayment at the option of the Holder. If this Note shall be
repayable at the option of the Holder as specified in an attached Addendum
hereto, unless otherwise specified in such Addendum, on any Optional Repayment
Date, this Note shall be repayable in whole or in part in increments of $1,000
(provided that any remaining principal hereof shall be at least $1,000) at the
option of the Holder hereof at a repayment price equal to 100% of the principal
amount to be repaid, together with interest thereon payable to the date of
repayment. If specified as repayable at the option of the Holder in such
Addendum, for this Note to be repaid in whole or in part at the option of the
Holder hereof, this Note must be received, with the form entitled "Option to
Elect Repayment" below duly completed, by the Trustee at its Corporate Trust
Office, or such address which the Company shall from time to time notify the
Holders of the Notes, not more than 60 nor less than 30 days prior to the
related Optional Repayment Date. Exercise of such repayment option by the
Holder hereof shall be irrevocable.
Unless otherwise specified above, the "Interest Payment Dates" for the
Fixed Rate Notes will be June 15 and December 15 of each year and the Maturity
Date. Unless otherwise specified above, interest on Fixed Rate Notes will be
computed on the basis of a 360-day year of twelve 30-day months.
If any Interest Payment Date or the Maturity Date of a Fixed Rate Note
falls on a day that is not a Business Day, the required payment of principal,
premium, if any, and/or interest will be made on the next succeeding Business
Day as if made on the date such payment was due, and no interest will accrue on
such payment for the period from and after such Interest Payment Date or the
Maturity Date, as the case may be, to the date of such payment on the next
succeeding Business Day.
As used herein, "Business Day" means any day other than a Saturday or
Sunday or any other day on which banks in The City of New York are generally
authorized or obligated by law or executive order to close.
Notwithstanding anything to the contrary contained herein or in the
Indenture, for purposes of determining the rights of a Holder of a Note for
which the principal thereof is determined by reference to the price or prices of
specified commodities or stocks, interest rate indices, interest or exchange
rate swap indices, the exchange rate of one or more specified currencies
(including a composite currency such as the European Currency Unit) relative to
an indexed currency or such other price, exchange rate or other financial index
or indices as specified above (an "Indexed Note"), in respect of voting for or
against amendments to the Indenture and modifications and the waiver of rights
thereunder, the principal amount of any such Indexed Note shall be deemed to be
equal to the face amount thereof upon issuance. The
5
<PAGE>
method for determining the amount of principal payable at Maturity on an Indexed
Note will be specified in an attached Addendum.
Any provision contained herein with respect to the calculation of the rate
of interest applicable to this Note, its payment dates or any other matter
relating hereto may be modified as specified in an Addendum relating hereto if
so specified above, and references herein to "as specified above" or similar
language of like import shall also be references to any such Addendum.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected thereby at any time by the Company and the Trustee with the consent of
the a majority of the Holders of the aggregate principal amount of the
Outstanding Securities of each series affected thereby. The Indenture also
contains provisions permitting the Holders of a majority in aggregate principal
amount of the Securities of each series at the time Outstanding, on behalf of
the Holders of all the Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the Holder
of this Note shall be conclusive and binding upon such Holder and upon all
future Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the time, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note may be registered on the Security Register of
the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or by its attorney duly authorized in writing, and thereupon
one or more new Notes of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes as requested by the
Holder surrendering the same.
6
<PAGE>
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its corporate
seal to be imprinted hereon.
[FACSIMILE OF SEAL] COLUMBIA/HCA HEALTHCARE
CORPORATION
By:__________________________________
Title:_______________________________
Attest:
By:___________________________
7
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities
of the series designated therein
referred to in the within-mentioned
Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: Dated:
-------------------------------- ---------------------
Authorized Officer
8
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Company
to repay this Note (or portion hereof specified below) pursuant to its terms at
a price equal to the principal amount hereof together with interest to the
repayment date, to the undersigned, at
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its Corporate Trust
Office, or at such other place or places of which the Company shall from time to
time notify the Holder of this Note, not more than 60 nor less than 30 days
prior to an Optional Repayment Date, if any, shown on the face of this Note,
this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000) which the
Holder elects to have repaid and specify the denomination or denominations
(which shall be $1,000 or an integral multiple thereof) of the Notes to be
issued to the Holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be issued for the portion
not being repaid).
$
---------------------- -----------------------------------------
Date: NOTICE: The signature on this
------------------ Option to Elect Repayment must correspond
with the name as written upon the face of
this Note in every particular, without
alteration or enlargement or any change
whatever.
9
<PAGE>
ASSIGNMENT/TRANSFER FORM
------------------------
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto
(insert Taxpayer Identification No.)___________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
_______________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting
and appointing
_______________________________________________________________________________
attorney to transfer said Note on the books of the Company with full power of
substitution in the premises.
Dated: ________________ ____________________________
NOTICE: The signature of the registered Holder to this assignment must
correspond with the name as written upon the face of the within instrument
in every particular, without alteration or enlargement or any change
whatsoever.
10
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM--as tenants in common
UNIF GIFT MIN ACT--........................Custodian...............
(Cust) (Minor)
Under Uniform Gifts to Minors Act
...........................................
(State)
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
11
<PAGE>
EXHIBIT 4.2
FLOATING RATE GLOBAL MEDIUM-TERM NOTE
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
REGISTERED CUSIP No. __________ PRINCIPAL OR FACE AMOUNT
No. BFLR___ $____________
COLUMBIA/HCA HEALTHCARE CORPORATION
MEDIUM-TERM NOTE
(Floating Rate)
- - --------------------------------------------------------------------------------
* * * [ ] CHECK IF AN INDEXED NOTE * * *
If this is an Indexed Note, references herein to "principal" shall be deemed to
be the face amount hereof, except that the amount payable upon Maturity of this
Note shall be determined in accordance with the formula or formulas set forth
below or in an attached Addendum hereto.
- - --------------------------------------------------------------------------------
INTEREST RATE BASIS: ORIGINAL ISSUE DATE: STATED MATURITY DATE:
INDEX MATURITY: INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
SPREAD: INITIAL INTEREST RESET DATE: INTEREST PAYMENT DATES:
<PAGE>
SPREAD MULTIPLIER: INTEREST RATE RESET PERIOD: INTEREST RESET DATES:
MAXIMUM INTEREST MINIMUM INTEREST RATE: IF INTEREST RATE BASIS IS CMT
RATE: RATE:
DESIGNATED CMT MATURITY
INDEX: _____ year(s).
DESIGNATED CMT TELERATE PAGE:
[ ] 7055
[ ] 7052
IF 7052: [ ] WEEK
[ ] MONTH
INITIAL REDEMPTION ANNUAL REDEMPTION OPTIONAL REPAYMENT
PERCENTAGE: PERCENTAGE REDUCTION: DATE(S):
CALCULATION AGENT: IF INTEREST RATE BASIS IS LIBOR:
INDEX CURRENCY: ________________
DESIGNATED LIBOR PAGE:
[ ] Reuters Page: ____________________
[ ] Telerate Page: ____________________
INTEREST CALCULATION: DAY COUNT CONVENTION
[ ] Regular Floating Rate Note [ ] Actual/360 for the period
[ ] Floating Rate/Fixed Rate from to .
Fixed Rate Commencement Date: [ ] Actual/Actual for the period
Fixed Interest Rate: from to .
[ ] Inverse Floating Rate Note [ ] 30/360 for the period
Fixed Interest Rate: from to .
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT
[ ] Yes [ ] Yes
[ ] No [ ] No
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period:
OTHER PROVISIONS:
2
<PAGE>
Columbia/HCA Healthcare Corporation, a Delaware corporation ("Issuer" or the
"Company," which terms include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum of ______________________________
DOLLARS, if this is an Indexed Note, the principal amount as determined in
accordance with the terms set forth under "Other Provisions" above and/or in the
Addendum attached hereto, on the Stated Maturity Date specified above (except to
the extent redeemed or repaid prior to the Stated Maturity Date), and to pay
interest on the principal or face amount hereof as set forth above, at a rate
per annum equal to the Initial Interest Rate specified above until the Initial
Interest Reset Date specified above and thereafter at a rate per annum
determined in accordance with the provisions hereof and any Addendum relating
hereto depending upon the Interest Rate Basis or Bases, if any, and such other
terms specified above, until the principal hereof is paid or duly made available
for payment. Reference herein to "this Note", "hereof", "herein" and comparable
terms shall include an Addendum hereto if an Addendum is specified above.
The Company will pay interest monthly, quarterly, semi-annually, annually or
such other period as specified above under "Interest Payment Period", on each
Interest Payment Date specified above, commencing on the first Interest Payment
Date specified above next succeeding the Original Issue Date specified above,
and on the Stated Maturity Date or any Redemption Date or Optional Repayment
Date (if specified as repayable at the option of the Holder in an attached
Addendum) (the date of each such Stated Maturity Date, Redemption Date and
Optional Repayment Date and the date on which principal or an installment of
principal is due and payable by declaration of acceleration pursuant to the
Indenture being referred to hereinafter as a "Maturity" with respect to
principal payable on such date); provided, however, that if the Original Issue
Date is between a Regular Record Date (as defined below) and the next succeeding
Interest Payment Date, interest payments will commence on the Interest Payment
Date immediately following the next succeeding Regular Record Date; and provided
further, that if an Interest Payment Date (other than an Interest Payment Date
at Maturity) would fall on a day that is not a Business Day (as defined below),
such Interest Payment Date shall be the following day that is a Business Day,
except that in the case the Interest Rate Basis is LIBOR, as indicated above, if
such next Business Day falls in the next calendar month, such Interest Payment
Date shall be the next preceding day that is a Business Day. Except as provided
above, interest payments will be made on the Interest Payment Dates shown above.
Unless otherwise specified above, the "Regular Record Date" shall be the date 15
calendar days (whether or not a Business Day) prior to the applicable Interest
Payment Date. Interest on this Note will accrue from and including the Original
Issue Date specified above, at the rates determined from time to time as
specified herein, until the principal hereof has been paid or made available for
payment. If the Maturity falls on a day which is not a Business Day as defined
below, the payment due on such Maturity will be paid on the next succeeding
Business Day with the same force and effect as if made on such Maturity and no
interest shall accrue with respect to such payment for the period from and after
such Maturity. The interest so payable and punctually paid or duly provided for
on any Interest Payment Date will as provided in the Indenture be paid to the
Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such Interest
Payment Date. Any such interest which is payable, but not punctually paid or
duly provided for on any Interest Payment Date (herein called "Defaulted
3
<PAGE>
Interest"), shall forthwith cease to be payable to the registered Holder on such
Regular Record Date, and may be paid to the Person in whose name this Note (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to the Holder of this Note not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner, all as more fully provided in the Indenture.
Payment of the principal of and interest on this Note will be made at the
Office or Agency of the Company maintained by the Company for such purpose, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts; provided, however, that
at the option of the Company, payment of interest may be made by check mailed to
the address of the Person entitled thereto as such address shall appear in the
Security Register; and provided, further, that AT THE OPTION OF THE COMPANY, the
Holder of this Note may be entitled to receive payments of principal of and
interest on this Note by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received by the Trustee not
less than 15 days prior to the applicable payment date.
Unless the certificate of authentication hereon has been executed by or on
behalf of The First National Bank of Chicago, the Trustee with respect to the
Notes under the Indenture, or its successor thereunder, by the manual signature
of one of its authorized officers, this Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
This Note is one of a duly authorized series of Securities (hereinafter
called the "Securities") of the Company designated as its Medium-Term Notes (the
"Notes"). The Notes are issued and to be issued under an Indenture dated as of
December 15, 1993 (herein called the "Indenture") between the Company and The
First National Bank of Chicago, which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights
thereunder of the Company, the Trustee and the Holders of the Notes and the
terms upon which the Notes are to be authenticated and delivered. The terms of
individual Notes may vary with respect to interest rates or interest rate
formulas, issue dates, maturity, redemption, repayment, currency of payment and
otherwise.
Except as otherwise provided in the Indenture, the Notes will be issued in
global form only registered in the name of The Depository Trust Company (the
"Depositary") or its nominee. The Notes will not be issued in definitive form,
except as otherwise provided in the Indenture, and ownership of the Notes shall
be maintained in book entry form by the Depositary for the accounts of
participating organizations of the Depositary.
This Note is not subject to any sinking fund and, unless otherwise provided
above in accordance with the provisions of the following paragraphs, is not
redeemable or repayable prior to the Stated Maturity Date.
If so provided above, this Note may be redeemed by the Company on any date
on and after the Initial Redemption Date, if any, specified above. If no
Initial Redemption Date is set
4
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forth above, this Note may not be redeemed prior to the Stated Maturity Date.
On and after the Initial Redemption Date, if any, this Note may be redeemed at
any time in whole or from time to time in part in increments of $1,000 (provided
that any remaining principal hereof shall be at least $1,000) at the option of
the Company at the applicable Redemption Price (as defined below) together with
accrued interest hereon at the applicable rate payable to the date of redemption
(each such date, a "Redemption Date"), on written notice given not more than 60
nor less than 30 days prior to the Redemption Date. In the event of redemption
of this Note in part only, a new Note for the unredeemed portion hereof shall
be issued in the name of the Holder hereof upon the surrender hereof.
Unless otherwise specified above, the "Redemption Price" shall initially be
the Initial Redemption Percentage, specified above, of the principal amount of
this Note to be redeemed and shall decline at each anniversary of the Initial
Redemption Date, shown above, by the Annual Redemption Percentage Reduction, if
any, specified on the face hereof, of the principal amount to be redeemed until
the Redemption Price is 100% of such principal amount.
Unless otherwise specified in an Addendum attached hereto, this Note is not
subject to repayment at the option of the Holder. If this Note shall be
repayable at the option of the Holder as specified in an attached Addendum
hereto, unless otherwise specified in such Addendum, on any Optional Repayment
Date, this Note shall be repayable in whole or in part in increments of $1,000
(provided that any remaining principal hereof shall be at least $1,000) at the
option of the Holder hereof at a repayment price equal to 100% of the principal
amount to be repaid, together with interest thereon payable to the date of
repayment. If specified as repayable at the option of the Holder in such
Addendum, for this Note to be repaid in whole or in part at the option of the
Holder hereof, this Note must be received, with the form entitled "Option to
Elect Repayment" below duly completed, by the Trustee at its Corporate Trust
Office, or such address which the Company shall from time to time notify the
Holders of the Notes, not more than 60 nor less than 30 days prior to the
related Optional Repayment Date. Exercise of such repayment option by the
Holder hereof shall be irrevocable.
The interest rate borne by this Note shall be determined as follows:
1. If this Note is designated as a Regular Floating Rate Note above,
then, except as described below, this Note shall bear interest at the rate
determined by reference to the applicable Interest Rate Basis shown above
(i) plus or minus the applicable Spread, if any, and/or (ii) multiplied by
the applicable Spread Multiplier, if any, specified and applied in the
manner described above. Commencing on the Initial Interest Reset Date, the
rate at which interest on this Note is payable shall be reset as of each
Interest Reset Date specified above; provided, however, that the interest
rate in effect for the period from the Original Issue Date to the Initial
Interest Reset Date will be the Initial Interest Rate.
2. If this Note is designated as a Floating Rate/Fixed Rate Note
above, then, except as described below, this Note shall bear interest at
the rate determined by reference to the applicable Interest Rate Basis
shown above (i) plus or minus the
5
<PAGE>
applicable Spread, if any, and/or (ii) multiplied by the applicable Spread
Multiplier, if any, specified and applied in the manner described above.
Commencing on the Initial Interest Reset Date, the rate at which interest
on this Note is payable shall be reset as of each Interest Reset Date
specified above; provided, however, that (i) the interest rate in effect
for the period from the Original Issue Date to the Initial Interest Reset
Date shall be the Initial Interest Rate; and (ii) unless specified above,
the interest rate in effect commencing on, and including, the Fixed Rate
Commencement Date to the Maturity shall be the Fixed Interest Rate, if such
a rate is specified above, or if no such Fixed Interest Rate is so
specified, the interest rate in effect hereon on the day immediately
preceding the Fixed Rate Commencement Date.
3. If this Note is designated as an Inverse Floating Rate Note above,
then, except as described below, this Note will bear interest equal to the
Fixed Interest Rate indicated above minus the rate determined by reference
to the applicable Interest Rate Basis shown above (i) plus or minus the
applicable Spread, if any, and/or (ii) multiplied by the applicable Spread
Multiplier, if any, specified and applied in the manner described above;
provided, however, that the interest rate hereon will not be less than zero
percent. Commencing on the Initial Interest Reset Date, the rate at which
interest on this Note is payable shall be reset as of each Interest Rate
Reset Date specified above; provided, however, that the interest rate in
effect for the period from the Original Issue Date to the Initial Interest
Reset Date shall be the Initial Interest Rate.
4. Notwithstanding the foregoing, if this Note is designated above as
having an Addendum attached, the Note shall bear interest in accordance
with the terms described in such Addendum. If interest on this Note is to
be calculated in accordance with the terms of an attached Addendum, unless
otherwise specified in such Addendum, commencing on the Initial Interest
Reset Date, the rate at which interest on this Note is payable shall be
reset as of each Interest Rate Reset Date specified above; provided,
however, that the interest rate in effect for the period from the Original
Issue Date to the Initial Interest Reset Date shall be the Initial Interest
Rate.
Except as provided above, the interest rate in effect on each day shall be
(a) if such day is an Interest Reset Date, the interest rate determined on the
Interest Determination Date (as defined below) immediately preceding such
Interest Reset Date or (b) if such day is not an Interest Reset Date, the
interest rate determined on the Interest Determination Date immediately
preceding the next preceding Interest Reset Date. Each Interest Rate Basis
shall be the rate determined in accordance with the applicable provision below.
If any Interest Reset Date (which term includes the term Initial Interest Reset
Date unless the context otherwise requires) would otherwise be a day that is not
a Business Day, such Interest Reset Date shall be postponed to the next
succeeding day that is a Business Day, except that if an Interest Rate Basis
specified on the face hereof is LIBOR and such next Business Day falls in the
next succeeding calendar month, such Interest Reset Date shall be the next
preceding Business Day.
Unless otherwise specified above, interest payable on this Note on any
Interest Payment Date shall be the amount of interest accrued from and including
the next preceding Interest
6
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Payment Date in respect of which interest has been paid (or from and including
the Original Issue Date specified above, if no interest has been paid), to but
excluding the related Interest Payment Date; provided, however, that the
interest payments on Maturity will include interest accrued to but excluding
such Maturity. Unless otherwise specified above, Notes calculated on an
Actual/360 basis and Actual/Actual basis (as specified above), accrued interest
for each Interest Calculation Period will be calculated by multiplying (i) the
face amount hereof, (ii) the applicable interest rate, and (iii) the actual
number of days in the related Interest Calculation Period, and dividing the
resulting product by 360 or 365, as applicable (or, with respect to an
Actual/Actual basis Floating Rate Note, if any portion of the related Interest
Calculation Period falls in a leap year, the product of (i) and (ii) above will
be multiplied by the sum of (X) the actual number of days in that portion of the
related Interest Calculation Period falling in a leap year divided by 366 and
(Y) the actual number of days in that portion of such Interest Calculation
Period falling in a non-leap year divided by 365). For Notes calculated on a
30/360 basis (as specified above), accrued interest for an Interest Calculation
Period will be computed on the basis of a 360-day year of twelve 30-day months,
irrespective of how many days are actually in such Interest Calculation Period.
Unless otherwise specified above and/or in an attached Addendum hereto, if this
Note accrues interest on a 30/360 basis, if any Interest Payment Date or the
date of Maturity falls on a day that is not a Business Day, the related payment
of principal or interest will be made on the next succeeding Business Day as if
made on the date such payment was due, and no interest will accrue on the amount
so payable for the period from and after such Interest Payment Date or Maturity,
as the case may be. As used herein, "Interest Calculation Period" means with
respect to any period, the period from and including the most recent Interest
Reset Date (or from and including the original issue date in the case of the
first Interest Reset Date) to but excluding the next succeeding Interest Reset
Date for which accrued interest is being calculated. Unless otherwise specified
above interest with respect to Notes for which the interest rate is calculated
with reference to two or more Interest Rate Bases will be calculated in the same
manner as if only one of the applicable Interest Rate Bases applied.
Unless otherwise specified above, the "Interest Determination Date" with
respect to the CD Rate, the CMT Rate, the Commercial Paper Rate, the Federal
Funds Rate, and the Prime Rate will be the second Business Day preceding each
Interest Reset Date; the "Interest Determination Date" with respect to LIBOR
shall be the second London Business Day (as defined below) preceding each
Interest Reset Date; the "Interest Determination Date" with respect to the
Treasury Rate will be the day in the week in which the related Interest Reset
Date falls on which day Treasury bills (as defined below) normally would be
auctioned (Treasury bills are normally sold at auction on Monday of each week,
unless that day is a legal holiday, in which case the auction is normally held
on the following Tuesday, except that such auction may be held on the preceding
Friday); provided, however, that if, as a result of a legal holiday, an auction
is held on the Friday of the week preceding the related Interest Reset Date, the
related Interest Determination Date shall be such preceding Friday; and
provided, further, that if an auction shall fall on any Interest Reset Date,
then the Interest Reset Date shall instead be the first Business Day following
such auction. If the interest rate of this Note is determined with reference to
two or more Interest Rate Bases, the Interest Determination Date pertaining to
this Note will be the first Business Day which is at least two Business Days
prior to such Interest
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Reset Date on which each Interest Rate Basis shall be determinable. Each
Interest Rate Basis shall be determined and compared on such date, and the
applicable interest rate shall take effect on the related Interest Reset Date.
Unless otherwise specified above, the "Calculation Date" pertaining to any
Interest Determination Date will be the earlier of (i) the tenth calendar day
after such Interest Determination Date or, if such day is not a Business Day,
the next succeeding Business Day, or (ii) the Business Day preceding the
applicable Interest Payment Date or date of Maturity, as the case may be. All
calculations on this Note shall be made by the Calculation Agent specified above
or such successor thereto as is duly appointed by the Company.
All percentages resulting from any calculation on this Note will be rounded
to the nearest one hundred-thousandth of a percentage point, with five one
millionths of a percentage point rounded upwards (e.g., 9.876545% (or
.09876545) would be rounded to 9.87655% (or .0987655)), and all dollar amounts
used in or resulting from such calculation will be rounded to the nearest cent
(with one-half cent being rounded upward).
As used herein, "Business Day" means any day other than a Saturday or
Sunday or any other day on which banks in The City of New York are generally
authorized or obligated by law or executive order to close and, if the
applicable Interest Rate Basis shown above is LIBOR, is also a London Business
Day.
As used herein, "London Business Day" means any day (a) if the Index
Currency specified above is other than the European Currency Unit ("ECU"), on
which dealings in deposits in such Index Currency are transacted in the London
interbank market or (b) if the Index Currency specified above is the ECU, that
is not designated as an ECU Non-Settlement Day by the ECU Banking Association in
Paris or otherwise generally regarded in the ECU interbank market as a day on
which payments on ECUs shall not be made.
Determination of CD Rate. If an Interest Rate Basis for this Note is the
CD Rate, as indicated above, the CD Rate shall be determined on the applicable
Interest Determination Date (a "CD Rate Interest Determination Date"), as the
rate on such date for negotiable certificates of deposit having the Index
Maturity specified above as published by the Board of Governors of the Federal
Reserve System in "Statistical Release H.15(519), Selected Interest Rates" or
any successor publication ("H.15(519)"), under the heading "CDs (Secondary
Market)", or, if not so published by 3:00 P.M., New York City time, on the
related Calculation Date, the rate on such CD Rate Interest Determination Date
for negotiable certificates of deposit of the Index Maturity specified above as
published by the Federal Reserve Bank of New York in its statistical release
"Composite 3:30 P.M. Quotations for U.S. Government Securities" or any successor
publication ("Composite Quotations") under the heading "Certificates of
Deposit". If such rate is not yet published in either H.15(519) or the
Composite Quotations by 3:00 P.M., New York City time, on the Calculation Date,
then the CD Rate on such CD Rate Interest Determination Date will be calculated
by the Calculation Agent and will be the arithmetic mean (rounded to the nearest
one hundred-thousandth of a percentage point, with five one millionths of a
percentage point rounded upwards) of the secondary market offered rates as of
10:00 A.M.,
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New York City time, on such CD Rate Interest Determination Date of three leading
non-bank dealers in negotiable U.S. dollar certificates of deposit in The City
of New York selected by the Calculation Agent for negotiable certificates of
deposit of major United States money market banks in the market for negotiable
certificates of deposit with a remaining maturity closest to the Index Maturity
designated above in an amount that is representative for a single transaction in
that market at that time; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as set forth above, the CD
Rate determined on such CD Rate Interest Determination Date shall be the CD Rate
in effect on such CD Rate Interest Determination Date.
CMT Rate Notes. If an Interest Rate Basis for this Note is the CMT Rate
the CMT Rate shall be determined on the related Interest Determination Date (a
"CMT Rate Interest Determination Date"), as the rate displayed on the Designated
CMT Telerate Page under the caption ". . . Treasury Constant Maturities. . .
Federal Reserve Board Release H.15 . . . Mondays Approximately 3:45 P.M.," under
the column for the Designated CMT Maturity Index for (i) if the Designated CMT
Telerate Page is 7055, the rate on such CMT Rate Interest Determination Date and
(ii) if the Designated CMT Telerate Page is 7052, the week or the month, as
applicable, ended immediately preceding the week in which the related CMT Rate
Interest Determination Date occurs. If such rate is no longer displayed on the
relevant page, or if not displayed by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate for such CMT Rate Interest
Determination Date will be such Treasury Constant Maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519). If such
rate is no longer published, or if not published by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate for such CMT Rate
Interest Determination Date will be such Treasury Constant Maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the Board
of Governors of the Federal Reserve System or the United States Department of
the Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519). If such information is not provided by 3:00 P.M., New York
City time, on the related Calculation Date, then the CMT Rate for the CMT Rate
Interest Determination Date will be calculated by the Calculation Agent and will
be a yield to maturity, based on the arithmetic mean (rounded to the nearest one
hundred-thousandth of a percentage point, with five one millionths of a
percentage point rounded upwards) of the secondary market closing offer side
prices as of approximately 3:30 P.M. (New York City time) on the CMT Rate
Interest Determination Date reported, according to their written records, by
three leading primary United states government securities dealers (each, a
"Reference Dealer") in The City of New York selected by the Calculation Agent
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for the most recently issued direct noncallable fixed rate obligations
of the United States ("Treasury Note") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent cannot obtain three such Treasury Note quotations, the CMT
Rate for such CMT Interest Determination Date will
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<PAGE>
be calculated by the Calculation Agent and will be a yield to maturity based on
the arithmetic mean (rounded to the nearest one hundred-thousandth of a
percentage point, with five one millionths of a percentage point rounded
upwards) of the secondary market offer side prices as of approximately 3:30 P.M.
(New York City time) on the CMT Rate Interest Determination Date of three
Reference Dealers in The City of New York (from five such Reference Dealers
selected by the Calculation Agent and eliminating the highest quotation (or, in
the event of equality, one of the highest) and the lowest quotation (or, in the
event of equality, one of the lowest)), for Treasury Notes with an original
maturity of the number of years that is the next highest to the Designated CMT
Maturity Index and a remaining term to maturity closest to the Designated CMT
Maturity Index and in an amount of at least $100 million. If three or four (and
not five) of such Reference Dealers are quoting as described above, then the CMT
Rate will be based on the arithmetic mean (rounded to the nearest one hundred-
thousandth of a percentage point, with five one millionths of a percentage point
rounded upwards) of the offer prices obtained and neither the highest nor lowest
of such quotes will be eliminated; provided however, that if fewer than three
Reference Dealers as selected as aforesaid by the Calculation Agent are quoting
as described herein, the CMT Rate will be the CMT Rate in effect on such CMT
Rate Interest Determination Date. If two Treasury Notes with an original
maturity as described in the third preceding sentence, have remaining terms to
maturity equally close to the Designated CMT Maturity Index, the quotes for the
CMT Rate Note with the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service on the page designated above (or any other page as may replace such page
on that service for the purpose of displaying Treasury Constant Maturities as
reported in H.15(519)), for the purpose of displaying Treasury Constant
Maturities as reported in H.15(519). If no such page is specified above, the
Designated CMT Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20, or 30 years)
specified above with respect to which the CMT Rate will be calculated. If no
such maturity is specified above, the Designated CMT Maturity Index shall be 2
years.
Determination of Commercial Paper Rate. If an Interest Rate Basis for this
Note is the Commercial Paper Rate, as indicated above, the Commercial Paper Rate
shall be determined on the applicable Interest Determination Date (a "Commercial
Paper Rate Interest Determination Date"), as the Money Market Yield (as defined
below) on such date of the rate for commercial paper having the Index Maturity
specified above as published in H.15(519), under the heading "Commercial Paper".
In the event such rate is not published by 3:00 P.M., New York City time, on the
related Calculation Date, then the Commercial Paper Rate shall be the Money
Market Yield on such Commercial Paper Rate Interest Determination Date of the
rate for commercial paper having the Index Maturity shown above as published in
Composite Quotations under the heading "Commercial Paper" (with an Index
Maturity of one month or three months being deemed to be equivalent to an Index
Maturity of 30 days or 90 days, respectively). If by 3:00 P.M., New York City
time, on the related Calculation Date such rate is not yet published in either
H.15(519) or Composite Quotations, then the Commercial Paper Rate for such
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<PAGE>
Commercial Paper Rate Interest Determination Date shall be as calculated by the
Calculation Agent and shall be the Money Market Yield of the arithmetic mean
(rounded to the nearest one hundred-thousandth of a percentage point, with five
one millionths of a percentage point rounded upwards) of the offered rates at
approximately 11:00 A.M., New York City time, on such Commercial Paper Rate
Interest Determination Date of three leading dealers of commercial paper in The
City of New York selected by the Calculation Agent for commercial paper having
the Index Maturity specified above placed for an industrial issuer whose bond
rating is "AA," or the equivalent, from a nationally recognized securities
rating agency; provided, however, that if the dealers selected as aforesaid by
the Calculation Agent are not quoting as mentioned in this sentence, the
Commercial Paper Rate determined on such Commercial Paper Rate Interest
Determination Date shall be the rate in effect on such Commercial Paper Rate
Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage rounded
upwards to the nearest one hundred-thousandth of a percentage point) calculated
in accordance with the following formula:
Money Market Yield = D x 360 x 100
------------
360-(D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
Determination of Federal Funds Rate. If an Interest Rate Basis for this
Note is the Federal Funds Rate, as indicated above, the Federal Funds Rate shall
be determined on the applicable Interest Determination Date (a "Federal Funds
Rate Interest Determination Date"), as the rate on that date for Federal Funds
as published in H.15(519) under the heading "Federal Funds (Effective)" or, if
not so published by 3:00 P.M., New York City time, on the related Calculation
Date, the rate on such Federal Funds Rate Interest Determination Date, as
published in Composite Quotations under the heading "Federal Funds/Effective
Rate." If such rate is not yet published in either H.15(519) or Composite
Quotations by 3:00 P.M., New York City time, on the related Calculation Date,
the Federal Funds Rate for such Federal Funds Rate Interest Determination Date
shall be calculated by the Calculation Agent and shall be the arithmetic mean
(rounded to the nearest one hundred-thousandth of a percentage point, with five
one millionths of a percentage point rounded upwards) of the rates for the last
transaction in overnight United States dollar Federal funds arranged by three
leading brokers of Federal funds transactions in The City of New York selected
by the Calculation Agent prior to 9:00 A.M., New York City time on such Federal
Funds Rate Interest Determination Date; provided, however, that if the brokers
selected as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, the Federal Funds Rate determined on such Federal Funds Rate
Interest Determination Date shall be the Federal Funds Rate in effect on such
Federal Funds Rate Interest Determination Date.
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Determination of LIBOR. If an Interest Rate Basis for this Note is LIBOR,
as indicated above, LIBOR will be determined on the applicable Interest
Determination Date (a "LIBOR Interest Determination Date"), and will be, either:
(a) if "LIBOR Reuters" is specified above, the arithmetic mean (rounded to the
nearest one hundred-thousandth of a percentage point, with five one millionths
of a percentage point rounded upwards) of the offered rates (unless the
specified Designated LIBOR Page by its terms provides only for a single rate, in
which case such single rate shall be used) for deposits in the Index Currency
having the Index Maturity designated above, commencing on the second London
Business Day immediately following that LIBOR Interest Determination Date, that
appear on the Designated LIBOR Page specified above as of 11:00 A.M. London
time, on that LIBOR Interest Determination Date, if at least two such offered
rates appear (unless, as aforesaid, only a single rate is required) on such
Designated LIBOR Page, or (b) if "LIBOR Telerate" is specified above, the rate
for deposits in the Index Currency having the Index Maturity designated above
commencing on the second London Business Day immediately following that LIBOR
Interest Determination Date, that appears on the Designated LIBOR Page specified
above as of 11:00 A.M. London time, on that LIBOR Interest Determination Date.
If, as described in the immediately preceding sentence, fewer than two offered
rates appear, or no rate appears, LIBOR in respect of the related LIBOR Interest
Determination Date will be determined as if the parties had specified the rate
described in the immediately succeeding paragraph.
With respect to a LIBOR Interest Determination Date on which fewer than two
offered rates appear, or no rate appears, as the case may be, the Calculation
Agent shall request the principal London offices of each of four major reference
banks in the London interbank market, as selected by the Calculation Agent, to
provide the Calculation Agent with its offered quotation for deposits in the
Index Currency for the period of the Index Maturity shown above, commencing on
the second London Business Day immediately following such LIBOR Interest
Determination Date, to prime banks in the London interbank market at
approximately 11:00 A.M., London time, on such LIBOR Interest Determination Date
and in a principal amount that is representative for a single transaction in the
Index Currency in such market at such time. If at least two such quotations are
provided, LIBOR determined on such LIBOR Interest Determination Date shall be
the arithmetic mean (rounded to the nearest one hundred-thousandth of a
percentage point, with five one millionths of a percentage point rounded
upwards) of such quotations as determined by the Calculation Agent. If fewer
than two quotations are provided, LIBOR determined on such LIBOR Interest
Determination Date shall be calculated by the Calculation Agent as the
arithmetic mean (rounded to the nearest one hundred-thousandth of a percentage
point, with five one millionths of a percentage point rounded upwards) of the
rates quoted at approximately 11:00 A.M. (or such other time specified above
under "OTHER PROVISIONS") in the applicable Principal Financial Center(s), on
such LIBOR Interest Determination Date by three major banks in such Principal
Financial Center(s) selected by the Calculation Agent for loans in the Index
Currency to leading European banks having the Index Maturity specified above and
in a principal amount that is representative for a single transaction in the
Index Currency in such market at such time; provided, however, that if the banks
selected as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, LIBOR determined on such LIBOR Interest Determination Date shall
be LIBOR in effect on such LIBOR Interest Determination Date.
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"Index Currency" means the currency (including composite currencies)
specified above as the currency for which LIBOR shall be calculated. If no such
currency is specified above, the Index Currency shall be U.S. dollars.
"Designated LIBOR Page" means either (a) if "LIBOR Reuters" is designated
above, the display on the Reuters Monitor Money Rates Service on the page
designated above (or such other page as may replace such designated page on that
service for the purpose of displaying London interbank offered rates of major
banks) for the related Index Currency for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency, or (b) if
"LIBOR Telerate" is designated above, the display on the Dow Jones Telerate
Service on the page designated above (or such other page as may replace such
designated page on that service or such other service or services as may be
nominated by the British Bankers' Association for the purpose of displaying
London interbank offered rates for the related Index Currency) for the purpose
of displaying the London interbank rates of major banks for the applicable Index
Currency. If neither LIBOR Reuters nor LIBOR Telerate is specified above, LIBOR
for the applicable Index Currency will be determined as if LIBOR Telerate (and,
in the case U.S. dollars is the Index Currency, page 3750) had been specified.
"Principal Financial Center" will generally be the capital city of the
country of the specified index Currency, except that with respect to United
States dollars, Deutsche Marks, Dutch Guilders, Italian Lire, Swiss Francs and
ECUs, the Principal Financial Center shall be the City of New York, Frankfurt,
Amsterdam, Milan, Zurich and Luxembourg, respectively.
Determination of Prime Rate. If an Interest Rate Basis for this Note is
the Prime Rate, as indicated above, the Prime Rate shall be determined on the
applicable Interest Determination Date (a "Prime Rate Interest Determination
Date") as the rate on such date as such rate is published in H.15(519) under the
heading "Bank Prime Loan." If such rate is not published prior to 3:00 P.M.,
New York City time, on the related Calculation Date, then the Prime Rate shall
be the arithmetic mean (rounded to the nearest one hundred-thousandth of a
percentage point, with five one millionths of a percentage point rounded
upwards) of the rates of interest publicly announced by each bank that appears
on the Reuters Screen NYMF Page as such bank's prime rate or base lending rate
as in effect for that Prime Rate Interest Determination Date. If fewer than
four such rates but more than one such rate appear on the Reuters Screen NYMF
Page for such Prime Rate Interest Determination Date, the Prime Rate shall be
the arithmetic mean (rounded to the nearest one hundred-thousandth of a
percentage point, with five one millionths of a percentage point rounded
upwards) of the prime rates quoted on the basis of the actual number of days in
the year divided by a 360-day year as of the close of business on such Prime
Rate Interest Determination Date by four major money center banks in The City of
New York selected by the Calculation Agent. If fewer than two such rates appear
on the Reuters Screen NYMF Page, the Prime Rate will be determined by the
Calculation Agent on the basis of the rates furnished in The City of New York by
three substitute banks or trust companies organized and doing business under the
laws of the United States, or any state thereof, having total equity capital of
at least $500 million and being subject to supervision or examination by Federal
or state authority, selected by the Calculation Agent to provide such rate or
rates; provided, however, that if the banks or trust companies selected as
aforesaid are not quoting as
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<PAGE>
mentioned in this sentence, the Prime Rate for such Prime Rate Interest
Determination Date will be the Prime Rate in effect on such Prime Rate Interest
Determination Date.
"Reuters Screen NYMF Page" means the display designated as page "NYMF" on
the Reuters Monitor Money Rates Service (or such other page as may replace the
NYMF page on that service for the purpose of displaying prime rates or base
lending rates of major United States banks).
Determination of Treasury Rate. If an Interest Rate Basis for this Note is
the Treasury Rate, as specified above, the Treasury Rate shall be determined on
the applicable Interest Determination Date (a "Treasury Rate Interest
Determination Date") as the rate applicable to the most recent auction of direct
obligations of the United States ("Treasury bills") having the Index Maturity
specified above, as such rate is published in H.15(519) under the heading "U.S.
Government Securities -- Treasury Bills -- auction average (investment)" or, if
not so published by 3:00 P.M., New York City time, on the related Calculation
Date, the auction average rate (expressed as a bond equivalent yield on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily basis)
as otherwise announced by the United States Department of the Treasury. In the
event that the results of the auction of Treasury bills having the Index
Maturity specified above are not reported as provided by 3:00 P.M., New York
City time, on such Calculation Date, or if no such auction is held in a
particular week, then the Treasury Rate hereon shall be the rate published in
H.15(519) under the heading "U.S. Government Securities--Treasury Bills--
Secondary Market" (expressed as a bond equivalent yield on the basis of a 365 or
366 day year, as applicable, on a daily basis), or if not published by 3:00 P.M.
New York City time on the related Calculation Date, the Treasury Rate will be
calculated by the Calculation Agent and shall be a yield to maturity (expressed
as a bond equivalent yield on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) of the arithmetic mean (rounded to the
nearest one hundred-thousandth of a percentage point, with five one millionths
of a percentage point rounded upwards) of the secondary market bid rates, as of
approximately 3:30 P.M., New York City time, on such Treasury Rate Interest
Determination Date of three leading primary United States government securities
dealers as selected by the Calculation Agent for the issue of Treasury bills
with a remaining Maturity closest to the Index maturity specified above;
provided, however, that if the dealers selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the Treasury Rate will be
the Treasury Rate in effect on such Treasury Rate Interest Determination Date.
Notwithstanding anything to the contrary contained herein or in the
Indenture, for purposes of determining the rights of a Holder of a Note for
which the principal thereof is determined by reference to the price or prices of
specified commodities or stocks, interest rate indices, interest or exchange
rate swap indices, the exchange rate of one or more specified currencies
(including a composite currency such as the European Currency Unit) relative to
an indexed currency or such other price, exchange rate or other financial index
or indices as specified above (an "Indexed Note"), in respect of voting for or
against amendments to the Indenture and modifications and the waiver of rights
thereunder, the principal amount of any such Indexed Note shall be deemed to be
equal to the face amount thereof upon issuance. The
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method for determining the amount of principal payable at Maturity on an Indexed
Note will be specified in an attached Addendum.
Any provision contained herein with respect to the determination of an
Interest Rate Basis, the specification of Interest Rate Basis, calculation of
the Interest Rate applicable to this Note, its payment dates or any other matter
relating hereto may be modified as specified in an Addendum relating hereto if
so specified above, and references herein to "as specified above" or similar
language of like import shall also be references to any such Addendum.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified above. The Calculation Agent shall calculate
the interest rate hereon in accordance with the foregoing on or before each
Calculation Date. The interest rate on this Note will in no event be higher
than the maximum rate permitted by New York law, as the same may be modified by
United States law of general application.
At the request of the Holder hereof, the Calculation Agent shall provide to
the Holder hereof the interest rate hereon then in effect and, if determined,
the interest rate which shall become effective as of the next Interest Reset
Date.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected thereby at any time by the Company and the Trustee with the consent of
the majority of the Holders of the aggregate principal amount of the Outstanding
Securities of each series affected thereby. The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount of
the Securities of each series at the time Outstanding, on behalf of the Holders
of all the Securities of such series, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the time, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note may be registered on the Security Register of
the Company, upon surrender
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<PAGE>
of this Note for registration of transfer at the office or agency of the Company
in the Borough of Manhattan, The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or by its
attorney duly authorized in writing, and thereupon one or more new Notes of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its corporate
seal to be imprinted hereon.
[FACSIMILE OF SEAL] COLUMBIA/HCA HEALTHCARE CORPORATION
By: ___________________________________________
Title: ___________________________________________
Attest:
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By: ____________________
CERTIFICATE OF AUTHENTICATION
This is one of the Securities
of the series designated therein
referred to in the within-mentioned
Indenture.
THE FIRST NATIONAL BANK OF CHICAGO
By: ____________________ Dated: ____________________
Authorized Officer
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OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Company
to repay this Note (or portion hereof specified below) pursuant to its terms at
a price equal to the principal amount hereof together with interest to the
repayment date, to the undersigned, at
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its Corporate Trust
Office, or at such other place or places of which the Company shall from time to
time notify the Holder of this Note, not more than 60 nor less than 30 days
prior to an Optional Repayment Date, if any, shown on the face of this Note,
this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000) which the
Holder elects to have repaid and specify the denomination or denominations
(which shall be $1,000 or an integral multiple thereof) of the Notes to be
issued to the Holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be issued for the portion
not being repaid).
$
-------------------- -------------------------------------------------
NOTICE: The signature on this
Date: Option to Elect Repayment must
--------------- correspond with the name as written upon the face
of this Note in every particular, without
alteration or enlargement or any change whatever.
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ASSIGNMENT/TRANSFER FORM
------------------------
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto
(insert Taxpayer Identification No.) -------------------------------------------
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
- - --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ---------------------------- attorney to transfer said Note on the
books of the Company with full power of substitution in the premises.
Dated:
-------------- --------------------------------------------
NOTICE: The signature of the registered Holder to this assignment must
correspond with the name as written upon the face of the within instrument
in every particular, without alteration or enlargement or any change
whatsoever.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM--as tenants in common
UNIF GIFT MIN ACT--......................Custodian...................
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
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