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EXHIBIT 10
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AMENDED AND RESTATED CREDIT AGREEMENT
among
LIFEPOINT HOSPITALS HOLDINGS, INC.
as Borrower,
FLEET NATIONAL BANK,
as Administrative Agent,
BANK OF AMERICA, N.A. and
DEUTSCHE BANC ALEX. XXXXX INC.,
as Co-Syndication Agents,
CREDIT LYONNAIS NEW YORK BRANCH and
SUNTRUST BANK,
as Co-Documentation Agents,
and
the Lenders
from Time to Time Parties Hereto,
Dated as of June 19, 2001
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FLEET SECURITIES, INC.,
as Arranger
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS......................................................2
1.1 DEFINED TERMS.......................................................2
1.2 OTHER DEFINITION PROVISIONS........................................24
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS..................................25
2.1 REVOLVING COMMITMENTS..............................................25
2.2 PROCEDURE FOR REVOLVING LOAN BORROWING.............................26
2.3 COMMITMENT FEES, ETC...............................................26
2.4 TERMINATION OR REDUCTION OF REVOLVING COMMITMENTS..................27
2.5 SWINGLINE LOANS....................................................27
2.6 PREPAYMENTS........................................................28
2.7 CONVERSION AND CONTINUATION OPTIONS................................29
2.8 LIMITATIONS ON LIBOR LOANS.........................................29
2.9 INTEREST RATES AND PAYMENT DATE....................................29
2.10 COMPUTATION OF INTEREST AND FEES...................................30
2.11 INABILITY TO DETERMINE INTEREST RATE...............................30
2.12 PRO RATA TREATMENT AND PAYMENTS....................................31
2.13 LEGAL REQUIREMENTS.................................................32
2.14 TAXES..............................................................34
2.15 INDEMNITY..........................................................36
2.16 CHANGE OF LENDING OFFICE...........................................36
2.17 REPLACEMENT OF LENDERS.............................................37
SECTION 3. LETTERS OF CREDIT................................................37
3.1 L/C COMMITMENT.....................................................37
3.2 PROCEDURE FOR ISSUANCE OF LETTER OF CREDIT.........................38
3.3 FEES AND OTHER CHARGES.............................................38
3.4 L/C PARTICIPATIONS.................................................38
3.5 REIMBURSEMENT OBLIGATION OF THE BORROWER...........................39
3.6 OBLIGATIONS ABSOLUTE...............................................40
3.7 LETTER OF CREDIT PAYMENTS..........................................40
SECTION 4. CONDITIONS PRECEDENT.............................................40
4.1 CONDITIONS TO INITIAL EXTENSION OF CREDIT..........................40
4.2 CONDITIONS TO EACH EXTENSION OF CREDIT.............................43
SECTION 5. REPRESENTATIONS AND WARRANTIES...................................44
5.1 FINANCIAL CONDITION................................................44
5.2 EXISTENCE; COMPLIANCE WITH LAW.....................................44
5.3 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS......................45
5.4 NO LEGAL IMPEDIMENT................................................45
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5.5 LITIGATION.........................................................45
5.6 NO DEFAULT.........................................................46
5.7 OWNERSHIP OF PROPERTY; LIENS.......................................46
5.8 LICENSES; ACCREDITATIONS; INTELLECTUAL PROPERTY....................46
5.9 TAXES..............................................................47
5.10 FEDERAL REGULATIONS................................................47
5.11 LABOR MATTERS......................................................47
5.12 ERISA..............................................................47
5.13 INVESTMENT COMPANY ACT; OTHER REGULATIONS..........................48
5.14 SUBSIDIARIES.......................................................48
5.15 USE OF PROCEEDS....................................................48
5.16 ENVIRONMENTAL MATTERS..............................................48
5.17 ACCURACY OF INFORMATION, ETC.......................................49
5.18 SECURITY DOCUMENTS.................................................50
5.19 SOLVENCY...........................................................51
5.20 FLOOD ZONE.........................................................51
5.21 DELAWARE CODE......................................................51
5.22 DISTRIBUTION AGREEMENT.............................................51
SECTION 6. AFFIRMATIVE COVENANTS............................................51
6.1 FINANCIAL STATEMENTS...............................................51
6.2 CERTIFICATES; OTHER INFORMATION....................................52
6.3 PAYMENT OF OBLIGATIONS.............................................53
6.4 MAINTENANCE OF EXISTENCE; COMPLIANCE...............................53
6.5 MAINTENANCE OF PROPERTY............................................53
6.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.............54
6.7 NOTICES............................................................54
6.8 ENVIRONMENTAL LAWS.................................................54
6.9 RESERVED...........................................................55
6.10 INSURANCE..........................................................55
6.11 AFTER ACQUIRED EQUITY INTERESTS, ETC...............................56
6.12 APPRAISALS; ENVIRONMENTAL REPORTS; ETC.............................56
SECTION 7. NEGATIVE COVENANTS...............................................57
7.1 FINANCIAL COVENANTS................................................57
7.2 INDEBTEDNESS.......................................................58
7.3 LIENS..............................................................59
7.4 FUNDAMENTAL CHANGES................................................60
7.5 DISPOSITION OF PROPERTY............................................60
7.6 RESTRICTED PAYMENTS................................................61
7.7 CAPITAL EXPENDITURES...............................................62
7.8 INVESTMENTS........................................................62
7.9 TRANSACTIONS WITH AFFILIATES.......................................64
7.10 SALES AND LEASEBACKS...............................................65
7.11 CHANGES IN FISCAL PERIODS..........................................65
7.12 NEGATIVE PLEDGE CLAUSES............................................65
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7.13 RESTRICTIVE CLAUSES................................................65
7.14 LINES OF BUSINESS..................................................65
7.15 AMENDMENT OF CERTAIN AGREEMENTS....................................66
SECTION 8. EVENTS OF DEFAULT................................................66
SECTION 9. THE AGENTS.......................................................69
9.1 APPOINTMENT........................................................69
9.2 DELEGATION OF DUTIES...............................................70
9.3 EXCULPATORY PROVISIONS.............................................70
9.4 RELIANCE BY ADMINISTRATIVE AGENT...................................70
9.5 NOTICE OF DEFAULT..................................................71
9.6 NON-RELIANCE ON AGENTS AND OTHER LENDERS...........................71
9.7 INDEMNIFICATION....................................................71
9.8 AGENT IN ITS INDIVIDUAL CAPACITY...................................72
9.9 SUCCESSOR ADMINISTRATIVE AGENT.....................................72
9.10 AUTHORIZATION TO RELEASE GUARANTEES AND LIENS......................72
9.11 DOCUMENTATION AGENT, SYNDICATION AGENT AND ARRANGERS...............73
SECTION 10. MISCELLANEOUS...................................................73
10.1 AMENDMENTS AND WAIVERS.............................................73
10.2 NOTICES............................................................74
10.3 NO WAIVER; CUMULATIVE REMEDIES.....................................74
10.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.........................75
10.5 PAYMENT OF EXPENSES AND TAXES......................................75
10.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS.............76
10.7 ADJUSTMENTS; SET-OFF...............................................78
10.8 COUNTERPARTS.......................................................78
10.9 SEVERABILITY.......................................................79
10.10 INTEGRATION........................................................79
10.11 GOVERNING LAW......................................................79
10.12 SUBMISSION TO JURISDICTION; WAIVERS................................79
10.13 CONFIDENTIALITY....................................................80
10.14 WAIVERS OF JURY TRIAL..............................................80
10.15 USURY..............................................................81
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SCHEDULES:
1.1A Pricing Grid
1.1B Hospitals
1.1C Mortgaged Property
1.1D Revolving Commitments
5.3 Consents, Authorizations, Filings and Notices
5.5 Litigation
5.7 Locations of Assets
5.14(a) Organizational Chart
5.14(b) Subsidiaries, Ownership
5.18 UCC Filing Jurisdictions
7.2 Permitted Indebtedness
7.8(e) Certain Investments
7.8(m) Other Investments
EXHIBITS:
A Form of Assignment and Acceptance
B Form of Amended and Restated Borrower Security Agreement
C Form of Compliance Certificate
D Form of Amended and Restated Guarantee and Security Agreement
E Form of Amended and Restated LifePoint Parent Guarantee and Security
Agreement
F List of Mortgages
G Form of Acquisition Compliance Checklist
H Form of Trademark Security Agreement
I Form of Revolving Note
J Form of Borrowing Notice
K Form of Swingline Note
L Form of Interest Rate Option Notice
M Form of Exemption Certificate
N Form of Closing Certificate
O Form of Guarantee and Pledge Agreement of New Subsidiary
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AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 19, 2001,
among LIFEPOINT HOSPITALS HOLDINGS, INC., a Delaware corporation (the
"Borrower"), FLEET NATIONAL BANK as administrative agent (in such capacity, the
"Administrative Agent") and as swingline lender (in such capacity, the
"Swingline Lender"), the financial institutions or entities from time to time
parties to this Agreement as lenders (the "Lenders"), Bank of America, N.A. and
Deutsche Banc Alex. Xxxxx Inc., as co-syndication agents (in such capacity, the
"Co-Syndication Agents" and each a "Co-Syndication Agent"), and Credit Lyonnais
New York Branch and SunTrust Bank, as co-documentation agents (in such capacity,
the "Co-Documentation Agents" and each a "Co-Documentation Agent").
RECITALS
A. Healthtrust, Inc. - The Hospital Company ("HTI"), the Lenders and
certain other banks and financial institutions (collectively, the "Original
Lenders") and the Administrative Agent, in its capacity as administrative agent
for the Original Lenders, are parties to a Credit Agreement dated as of May 11,
1999, as amended by a First Amendment to Credit Agreement dated as of December
31, 1999 and a Second Amendment to Credit Agreement dated as of May 23, 2000 (as
so amended, the "Original Agreement") under which HTI received certain revolving
credit loans and term loans pursuant to lending commitments totaling
$210,000,000 in the aggregate.
B. As contemplated by the Original Agreement, LifePoint Hospitals, Inc.
("LifePoint Parent") subsequently assumed all of the rights and obligations of
HTI under the Original Agreement and in turn, Borrower assumed all of the rights
and obligations of LifePoint Parent under the Original Agreement and received
certain revolving credit loans and Letters of Credit thereunder.
C. Borrower desires to amend and restate the Original Agreement (1) to
provide for a revolving credit facility in the principal amount of $200,000,000,
(2) to modify the list of institutions comprising its lending group, (3) to add
a swing line financing arrangement in the amount of $15,000,000 (the "Swingline
Facility"), and (4) to make certain other amendments, modifications and
revisions thereto.
D. Borrower desires to use the proceeds of the revolving credit
facility (1) to support the issuance of letters of credit, (2) for working
capital, Capital Expenditures and general corporate purposes, (3) to finance
Permitted Acquisitions, and (4) to restructure its existing credit facilities.
Any of the Indebtedness owed to the Original Lenders remaining after the
restructuring will be reallocated on a pro rata basis among the Lenders.
E. The Lenders are willing to provide such revolving credit facility,
all subject to the terms and conditions of this Agreement.
F. The parties hereto, for their convenience, have elected to amend and
restate the Original Agreement pursuant to this Agreement rather than amend the
Original Agreement or
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enter into a new credit agreement and intend that all indebtedness, obligations
and liens created under the Original Agreement and the other Loan Documents be
continued hereunder and thereunder and remain in full force and effect and not
be discharged, paid, satisfied or cancelled except to the extent otherwise
provided herein and therein.
NOW THEREFORE, the parties hereto, intending to be legally bound, and
in consideration of the foregoing and the mutual covenants contained herein,
hereby agree that the Original Agreement be, and it hereby is, amended and
restated to read in its entirety (but retaining references to the foregoing
Recitals) as follows:
I. DEFINITIONS.
1.1 Defined Terms. As used herein, the terms listed in this Section 1.1
shall have the meanings assigned to them in this Section 1.1.
"Accreditation Body": all Persons having jurisdiction over the
accreditation, certification, evaluation or operation of any of the Hospitals,
including without limitation the Joint Commission on Accreditation of Healthcare
Organizations and applicable state licensing bodies having jurisdiction over the
licensing of acute care Hospitals as such.
"Acquisition": any acquisition of all or substantially all of the
assets or equity interests of any Person or any division thereof.
"Adjustment Date": see definition of "Applicable Margin".
"Administrative Agent": see the Preamble.
"Affiliate": as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either to (a) vote 10% or more of the securities
having ordinary voting power for the election of directors (or persons
performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Agents": collectively, the Administrative Agent, the Syndication
Agent, the Co-Agent and the Documentation Agent.
"Aggregate Exposure": with respect to any Lender at any time, an amount
equal to such Lender's Commitment then in effect or, if the Commitments have
been terminated, the amount of such Lender's Revolving Extensions of Credit then
outstanding.
"Aggregate Exposure Percentage": with respect to any Lender at any
time, the ratio (expressed as a percentage) of such Lender's Aggregate Exposure
at such time to the Aggregate Exposure of all Lenders at such time.
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"Agreement": this Agreement, as amended, supplemented or otherwise
modified from time to time.
"Applicable Margin": (i) from and after the date hereof until the first
Adjustment Date identified below, the Applicable Margin for Base Rate Loans
shall be 0% and the Applicable Margin for LIBOR Loans shall be 1.50%.
(ii) from and after the date the Administrative Agent receives
the quarterly financial statements required by Section 6.1(b) and the
Compliance Certificate required by Section 6.2(b) (beginning with the
financial statements for the fiscal quarter ending September 30, 2001)
(each, an "Adjustment Date"), subject to the provisions of paragraphs
(i) above and (iv) below, the Applicable Margin shall be determined
from the Pricing Grid attached hereto as Schedule 1.1A based upon the
ratio of Consolidated Total Debt of LifePoint Parent at any date to
Consolidated EBITDA of LifePoint Parent for the most recently ended
Reference Period immediately preceding such Adjustment Date.
(iii) No downward adjustment of the Applicable Margin
hereunder shall be permitted unless and until (A) all of the required
financial statements for the relevant Reference Period have been
delivered to the Administrative Agent and the Lenders as required in
Section 6.1; and (B) there shall exist no Default at the time of such
proposed downward adjustment.
(iv) The determination of the Applicable Margin hereunder as
of any fiscal quarter end shall be based on unaudited quarterly
financial statements for the relevant Reference Period; provided,
however, that in the event of any discrepancy between computations
based upon any unaudited quarterly financial statements and the related
audited financial statements furnished pursuant to Section 6.1(a) (the
"Audited Financial Statements") in favor of the Lenders, the
computation based upon the Audited Financial Statements shall govern
(retroactive to the relevant Adjustment Date), and the amount of
interest and commitment fees thereby overdue and payable by Borrower
shall be paid to the Administrative Agent, for the account of the
Lenders, within 10 days after written notice of such correction is
provided to the Borrower by the Administrative Agent.
"Arranger": see the preamble hereto.
"Asset Sale": any sale, lease, sale and leaseback, assignment,
conveyance, transfer or other disposition ("Disposition") of property or a
series of any such related Dispositions of property; provided, however, for
purposes of this Agreement "Disposition" shall not include (i) operating leases
of office space in the ordinary course of business and on market terms;
provided, however, that to the extent such office space relates to real property
constituting Collateral, such operating leases shall comply with the applicable
provisions of this Agreement and the Security Documents and shall continue to be
subject to the Lien of the Security Documents, (ii) operating leases of
unimproved real property in the ordinary course of business and on market terms,
provided such unimproved real property is not material to the business
operations of any Loan Party; provided, however, that to the extent such
unimproved real property constitutes Collateral,
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such operating leases shall comply with the applicable provisions of this
Agreement and the Security Documents and shall continue to be subject to the
Lien of the Security Documents and, if so requested by Borrower, the
Administrative Agent may, in its sole discretion, enter into subordination and
non-disturbance agreements including such agreements that may be requested by a
leasehold lender in connection with the subsequent development of such
unimproved real property by such lessee, in form and substance reasonably
satisfactory to the Administrative Agent on behalf of the Lenders with respect
to any such lease, and (iii) operating leases of equipment and machinery deemed
in good faith by a Loan Party to be temporarily surplus and on market terms;
provided, however, that to the extent such equipment and machinery constitute
Collateral, such operating leases shall comply with the applicable provisions of
this Agreement and the Security Documents and shall continue to be subject to
the Lien of the Security Documents.
"Assignee": as defined in Section 10.6(c).
"Assignment and Acceptance": an Assignment and Acceptance,
substantially in the form of Exhibit A.
"Assignor": as defined in Section 10.6(c).
"Available Revolving Commitment": as to any Lender at any time, an
amount equal to the excess, if any, of (a) such Lender's Revolving Commitment
then in effect over (b) such Lender's Revolving Extensions of Credit then
outstanding.
"Base Rate": for any day, a rate per annum equal to the Prime Rate in
effect on such day.
"Base Rate Loans": Revolving Loans bearing interest based upon the Base
Rate.
"Borrower": see the Preamble.
"Borrower Security Agreement": the Amended and Restated Security
Agreement of Borrower to be executed and delivered by Borrower, substantially in
the form of Exhibit B, as the same may be amended, supplemented or otherwise
modified from time to time.
"Borrowing Date": any Business Day specified by Borrower as a date on
which Borrower requests the relevant Lenders to make Loans hereunder.
"Borrowing Notice": see Section 2.2.
"Business Day": a day on which commercial banks settle payments in (i)
New York or London if the payment obligation is calculated by reference to any
LIBOR Rate, or (ii) New York, if the payment obligation is calculated by
reference to the Base Rate.
"Capital Expenditures": for any period, with respect to any Person, the
aggregate of all payments by such Person and its Subsidiaries during such period
(including, without duplication,
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the aggregate amount of Capital Lease Obligations incurred during such period)
for the rental, lease, purchase, construction, replacement, repair or use of any
property, the value of which should be capitalized under GAAP and Statement No.
13 of the Financial Accounting Standards Board on such Person's consolidated
balance sheet; provided, that, for purposes hereof, Capital Expenditures shall
not include (A) expenditures of proceeds of insurance settlements, condemnation
awards and other settlements in respect of lost, destroyed, damaged or condemned
assets, equipment or other property to the extent such expenditures are made to
replace or repair such lost, destroyed, damaged or condemned assets, equipment
or other property or otherwise to acquire assets or properties useful in the
business of Borrower or its Subsidiaries nor (B) any payment comprising part of
the Total Purchase Price for any Permitted Acquisition.
"Capital Lease Obligations": as to any Person, the obligations of such
Person and its Subsidiaries to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, to the extent such obligations are required to be
classified and accounted for as a capital lease on a balance sheet of such
Person under GAAP. For purposes of this Agreement, the amount of such
obligations at any time shall be the capitalized amount thereof at such time
determined in accordance with GAAP.
"Cash Equivalents": (a) Investments (of one year or less) in direct or
guaranteed obligations of the United States, or any agency thereof; (b)
investments (of 270 days or less) in certificates of deposit of any Lender and
any other domestic commercial bank of recognized standing, in each case having
capital, surplus and undivided profits in excess of $100,000,000, and senior
debt rated carrying one of the two highest ratings of Standard & Poor's Ratings
Service, A Division of McGraw Hill, Inc., or Xxxxx'x Investors Service, Inc. (an
"Approved Institution"); (c) investments (of 270 days or less) in commercial
paper given one of the two highest ratings by Standard and Poor's Ratings
Service, A Division of McGraw Hill, Inc., or by Xxxxx'x Investors Service, Inc.;
(d) investments redeemable at any time without penalty in money market
instruments placed through a Lender or an Approved Institution; (e) repurchase
agreements fully collateralized by United States government securities; and (f)
deposits insured by the Federal Deposit Insurance Corporation.
"Change of Control": for any reason (a) any "person" or "group" (as
such terms are used in Sections 13(d) and 14(d) of the Exchange Act) is or
becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a Person shall be deemed to have "beneficial
ownership" of all securities that such Person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 35% of the total outstanding Equity
Interests (on a fully-diluted basis) of LifePoint Parent entitled to vote in the
election of directors; (b) during any period of up to 24 consecutive months,
commencing after the Closing Date, individuals who at the beginning of such 24
month period were directors of LifePoint Parent (together with any new director
whose election by its Board of Directors or whose nomination for election by its
shareholders was approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the directors of LifePoint Parent then in
office; (c) LifePoint Parent shall cease to own of record and beneficially 100%
of the issued and
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outstanding Equity Interests of Borrower; (d) Borrower shall for any reason no
longer own of record and beneficially, directly or indirectly through one or
more other Subsidiaries, all of the issued and outstanding Equity Interests of
all of its Subsidiaries (including all Subsidiary Guarantors) except the
Existing Joint Venture or as permitted pursuant to Sections 7.4 or 7.5; or (e)
Borrower shall cease to own of record and beneficially, directly or indirectly
through one or more Subsidiaries, at least 51% of the issued and outstanding
Equity Interests in the Existing Joint Venture except as permitted pursuant to
Sections 7.4 or 7.5 hereof.
"Closing Certificate": see Section 4.1(i).
"Closing Date": the date on which the conditions precedent set forth in
Section 4.1 shall have been satisfied, which date is June 19, 2001.
"Co-Agent": see the preamble hereto.
"Co-Arranger": see the preamble hereto.
"Code": the Internal Revenue Code of 1986, as amended from time to
time, and the Treasury Regulations promulgated thereunder.
"Collateral": all property of the Loan Parties, now owned or hereafter
acquired, upon which a Lien is purported to be created by any Security Document.
"Columbia/HCA": HCA - The Healthcare Company (f/k/a Columbia/HCA
Healthcare Corporation).
"Commitment": as to any Lender, the sum of the Swingline Commitment and
the Revolving Commitment of such Lender.
"Commonly Controlled Entity": an entity, whether or not incorporated,
that is under common control with Borrower within the meaning of Section 4001 of
ERISA or is part of a group that includes Borrower and that is treated as a
single employer under Section 414 of the Code.
"Compliance Certificate": a certificate duly executed by a Responsible
Officer substantially in the form of Exhibit C.
"Confidential Information Memorandum": the Confidential Information
Memorandum dated May, 2001 and furnished to the Lenders.
"Consolidated EBITDA": for any period, as to LifePoint Parent and its
Subsidiaries, Consolidated Net Income for such period plus, without duplication
and to the extent reflected as a charge in the statement of such Consolidated
Net Income for such period, the sum of (a) income tax expense, (b) Consolidated
Interest Expense, (c) depreciation and amortization expense (including deferred
loan cost amortization if a non-cash charge), (d) ESOP expense (if a
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non-cash charge), and (e) other non-cash charges not to exceed five percent (5%)
of the book value Consolidated Total Assets as of the last day of the most
recent Reference Period for which the Administrative Agent has received
financial statements pursuant to Section 6.1(a) or (b), all determined on a
consolidated basis in accordance with GAAP. For the purposes of calculating
Consolidated EBITDA for any Reference Period pursuant to any determination of
the ratio of Consolidated Total Debt to Consolidated EBITDA, the ratio of
Consolidated Senior Debt to Consolidated EBITDA or the ratio of Consolidated
EBITDA to Consolidated Interest Expense, (i) if at any time during such
Reference Period such Person or any Subsidiary shall have made any Material
Disposition, the Consolidated EBITDA for such Reference Period shall be reduced
by an amount equal to the Consolidated EBITDA (if positive) attributable to the
property that is the subject of such Material Disposition for such Reference
Period or increased by an amount equal to the Consolidated EBITDA (if negative)
attributable thereto for such Reference Period and (ii) if during such Reference
Period such Person or any Subsidiary shall have made a Material Acquisition,
Consolidated EBITDA for such Reference Period shall be calculated after giving
pro forma effect thereto as if such Material Acquisition occurred on the first
day of such Reference Period based upon the audited or reviewed financial
statements for such Reference Period of the Target of such Material Acquisition,
or if no such audited or reviewed financial statements are available, to the
extent consented to by the Administrative Agent.
"Consolidated Interest Expense": for any period, as to LifePoint Parent
and its Subsidiaries, the aggregate amount (determined on a consolidated basis
in accordance with GAAP) of interest, commitment fees, letter of credit fees and
net payments under Rate Hedging Agreements accrued (whether such interest is
reflected as an item of expense or capitalized, but excluding xxxx-to-market
adjustments that are non-cash in nature and breakage fees or income) during such
period (including without limitation the commitment fees and the Letter of
Credit fees hereunder, and the interest component of Capital Lease Obligations)
in respect of all Indebtedness of LifePoint Parent and its Subsidiaries (net of
credits under Rate Hedging Agreements) for such period; provided however, that
if during any period LifePoint Parent or any Subsidiary shall have made a
Material Acquisition, Consolidated Interest Expense for such period shall be
calculated after giving pro forma effect for the Indebtedness incurred or
related to the Material Acquisition as if such Material Acquisition occurred on
the first day of such period.
"Consolidated Net Income": for any period, as to LifePoint Parent and
its Subsidiaries, the net income (or loss) of LifePoint Parent and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Worth": at any date, as to any Person, (a) the total
assets determined on a consolidated basis in accordance with GAAP of such Person
and its Subsidiaries minus (b) total liabilities determined on a consolidated
basis in accordance with GAAP of such Person and its Subsidiaries.
"Consolidated Senior Debt": at any date, the aggregate principal amount
of all Indebtedness of such Person and its Subsidiaries at such date, minus the
aggregate outstanding amount of Subordinated Debt of such Person and its
Subsidiaries at such date determined on a consolidated basis in accordance with
GAAP.
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"Consolidated Total Assets": at any date, as to any Person, the total
assets determined on a consolidated basis in accordance with GAAP of such Person
and its Subsidiaries.
"Consolidated Total Debt": at any date, the aggregate principal amount
of all Indebtedness of such Person and its Subsidiaries at such date, determined
on a consolidated basis in accordance with GAAP.
"Cumberland Ambulatory Surgery Subsidiary": the proposed Subsidiary
(and related Investment therein) of a Loan Party formed to become a partner in a
partnership proposed to be named 'Cumberland Surgery Center, L.P.' which shall
own and operate an ambulatory surgery center in Somerset, KY (and related
facilities) adjacent to Lake Cumberland Hospital in accordance with the
description thereof set forth in Schedule 7.8(e).
"Default": any of the events specified in Section 8, whether or not any
requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"Default Rate": see Section 2.9(c).
"Defaulting Lenders": Lenders who are in breach of any of their
obligations hereunder, as determined by the Administrative Agent in its
reasonable discretion.
"Disposition": see definition of "Asset Sale".
"Distribution Agreement" the Distribution Agreement, dated as of May
11, 1999, by and among Columbia/HCA, LifePoint Parent and Triad Hospitals, Inc.,
as originally executed or hereafter amended with the prior written consent of
the Required Lenders.
"Documentation Agent": see the preamble hereto.
"Dollars" and "$": dollars in lawful currency of the United States.
"Environmental Laws": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Legal Requirements
regulating, relating to or imposing liability or standards of conduct concerning
protection of the environment, as now or may at any time hereafter be in effect.
"Equity Interests": any and all shares, interests, participations or
other equivalents (however designated) of capital stock, partnership interests,
member interests and any and all equivalent ownership interests in a Person, and
any and all warrants, rights or options to purchase any of the foregoing, other
than equity interests or warrants, right or options issued in connection with
exercise by a present or former employee, officer or director under a stock
incentive plan, stock option plan or other equity-based compensation plan or
arrangement.
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"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ESOP": the LifePoint Parent's Retirement Plan.
"Event of Default": any of the events specified in Section 8.
"Existing Joint Venture": Dodge City Healthcare Group, L.P.
"Facility": the collective reference to each of the Revolving Facility
and the Swingline Facility.
"Federal Funds Effective Rate": for any period, a fluctuating interest
rate per annum (based on a 360 day year) equal for each day during such period
to the weighted average of the rates of interest charged on overnight Federal
funds transactions with member banks of the Federal Reserve System arranged by
Federal funds brokers on such day, as published for any day which is a Business
Day by the Federal Reserve Bank of New York (or, in the absence of such
publication, as reasonably determined by the Administrative Agent).
"Funding Office": the office of the Administrative Agent specified in
Section 10.2 or such other office as may be specified from time to time by the
Administrative Agent as its funding office by written notice to Borrower and the
Lenders.
"GAAP": generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or such other entity as may be approved
by a significant segment of the accounting profession, provided, however, that
for purposes of compliance with Section 7.1 and the related definitions, "GAAP"
means such principles as in effect on December 31, 2000 as applied by LifePoint
Parent and their respective Subsidiaries and the Accountants in the preparation
of the most recent audited annual statements referred to in Section 5.1 and
consistently followed, without giving effect to any subsequent changes thereto.
In the event that any accounting change of the Financial Accounting Standards
Board shall be promulgated resulting in a change in the method of calculation of
financial covenants, financial standards or other terms in this Agreement, then
Borrower and the Administrative Agent agree to enter into negotiations in order
to amend such provisions of this Agreement so as to equitably reflect such
accounting changes to the effect that the criteria for evaluating Borrower's
financial condition shall be the same after such accounting changes as if such
accounting changes had not been made. Until such time as such an amendment shall
have been executed and delivered by Borrower, the Administrative Agent and the
Required Lenders, all financial covenants, financial standards and other terms
in this Agreement shall continue to be calculated or construed as if such
accounting changes had not occurred.
"Governmental Authority": any nation or government, state or other
political subdivision thereof, agency, authority, instrumentality, regulatory
body, court, central bank or other entity
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exercising executive, legislative, judicial, taxing, regulatory or
administrative functions or pertaining to government, any securities exchange
and any self-regulatory organization.
"Guarantee and Security Agreement": the Amended and Restated Guarantee
and Security Agreement to be executed and delivered by each Subsidiary
Guarantor, substantially in the form of Exhibit D, as the same may be amended,
supplemented or otherwise modified from time to time.
"Guarantee Obligation": with respect to any Person, (a) any guarantee
by such specified Person of the payment or performance of, or any contingent
obligation of such Person in respect of any Indebtedness or other obligation of
any primary obligor, (b) any other arrangement whereby credit is extended to a
primary obligor on the basis of any promise or undertaking of such Person
including any binding "comfort letter" or "make well agreement" written by such
Person to a creditor or prospective creditor of such primary obligor, to (i) pay
the Indebtedness of such primary obligor, (ii) purchase an obligation owed by
such primary obligor, (iii) pay for the purchase or lease of assets or services
regardless of the actual delivery thereof or (iv) maintain the capital, working
capital, solvency or general financial condition of such primary obligor, (c)
any liability of such Person as a general partner of a partnership in respect of
Indebtedness or other obligations of such partnership, (d) any liability of such
Person as a joint venturer of a joint venture in respect of Indebtedness or
other obligations of such joint venture, and (e) any liability of such Person
with respect to the tax liability of others as a member of a group (other than a
group consisting solely of Borrower and its Subsidiaries) that is consolidated
for tax purposes, and (f) reimbursement obligations, whether contingent or
matured, of such Person with respect to letters of credit, bankers acceptances,
surety bonds, other financial guarantees and Rate Hedging Agreements; in each
case whether or not any of the foregoing are reflected on the balance sheet of
such Person or in a footnote thereto; provided, however, that the term
"Guarantee Obligation" shall not include endorsements for collection or deposit
in the ordinary course of business. The amount of any Guarantee Obligation and
the amount of Indebtedness resulting from such Guarantee Obligation shall be the
maximum amount that the guarantor may become obligated to pay in respect of the
obligations (whether or not such obligations are outstanding at the time of
computation).
"Guarantors": collectively, LifePoint Parent and the Subsidiary
Guarantors.
"HCA Side Letter": that certain letter agreement dated May 11, 1999
from Columbia/HCA in respect of the collateral assignment of each of the
Transition Agreements.
"Hazardous Materials": (a) any petroleum or petroleum products,
flammable materials, explosives, radioactive materials, asbestos, urea
formaldehyde foam insulation, and polychlorinated biphenyls, (b) any chemicals
or other materials or substances or wastes that are now or hereafter become
defined as or included in the definition of "hazardous substances", "hazardous
wastes", "hazardous materials", "extremely hazardous wastes", "restricted
hazardous wastes", "toxic substances", "toxic pollutants", "contaminants",
"pollutants" or words of similar import under any Environmental Law, and (c) any
other chemical or other material or substance,
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exposure to which is now or hereafter prohibited, limited or regulated under any
Environmental Law.
"High Yield Documents": the High Yield Notes and all other documents
and agreements executed in connection therewith, each as originally executed or
as amended pursuant to Section 7.15.
"High Yield Offering Memorandum": the Offering Memorandum dated May 4,
1999 relating to the High Yield Notes.
"High Yield Notes": the $150,000,000 in 10.75% Senior Subordinated
Notes due 2009 issued by HTI on May 11, 1999.
"High Yield Offering": that certain subordinated debt offering of HTI
which closed on May 11, 1999.
"HTI": see the preamble.
"Hospitals": any of the acute care hospitals owned or operated by any
of the Loan Parties from time to time, of which 18 are owned and 3 are leased
and all are operated by Borrower and its Subsidiaries on the date hereof as set
forth on Schedule 1.1B hereto.
"Indebtedness": of any Person at any date, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) obligations of such Person
for the deferred purchase price of property or services (other than trade
payables incurred in the ordinary course of such Person's business), (c) all
obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments, (d) indebtedness created or arising under any conditional
sale or other title retention agreement with respect to property acquired by
such Person (even though the rights and remedies of the seller or lender under
such agreement in the event of default are limited to repossession or sale of
such property), (e) the principal portion of Capital Lease Obligations of such
Person, (f) all obligations of such Person, contingent or otherwise, as an
account party under acceptance, letter of credit or similar facilities, (g) all
Guarantee Obligations of such Person in respect of Indebtedness of another
Person, (h) all Indebtedness of another Person secured by (or for which the
holder of such obligation has an existing right, contingent or otherwise, to be
secured by) any Lien on property owned by such Person, whether or not such
Person has assumed or become liable for the payment of such obligation, (i) all
obligations of such Person in respect of Rate Hedging Agreements, (j) all
obligations of such Person under take-or-pay or similar arrangements or under
commodities agreements, (k) all preferred Equity Interests issued by such Person
and which by the terms thereof could be (at the request of the holders thereof
or otherwise) subject to mandatory sinking fund payments, redemption or other
acceleration (other than as a result of a Change of Control that does not in
fact result in a redemption of such preferred Equity Interests) at any time
during the term of this Agreement, (l) the principal portion of all obligations
of such Person under Synthetic Leases, (m) the Indebtedness of any partnership
or unincorporated joint venture in which such Person is a general partner or a
joint venturer, and (n) the outstanding attributed principal amount under any
Securitization Transaction.
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"Initial Financial Statements": see Section 4.1(e).
"Insolvency" or "Insolvent": with respect to any Multiemployer Plan,
the condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"Intellectual Property": collectively, all rights, priorities and
privileges relating to intellectual property, whether arising under United
States, multinational or foreign laws or otherwise, including copyrights,
copyright licenses, patents, patent licenses, trademarks, trademark licenses,
technology, know-how and processes, and all rights to xxx at law or in equity
for any infringement or other impairment thereof, including the right to receive
all proceeds and damages therefrom.
"Interest Payment Date": (a) as to any Base Rate Loan, the last day of
each March, June, September and December to occur while such Base Rate Loan is
outstanding and the final maturity date of such Base Rate Loan, (b) as to any
LIBOR Loan having an Interest Period of three months or less, the last day of
such Interest Period, and (c) as to any LIBOR Loan having an Interest Period
longer than three months, each day that is three months, or a whole multiple
thereof, after the first day of such Interest Period and the last day of such
Interest Period.
"Interest Period": as to any Swingline Loan, the period commencing on
the date of such Swingline Loan and ending on the earlier of fifteen (15) days
thereafter or the Scheduled Revolving Termination Date and as to any LIBOR Loan,
(a) initially, the period commencing on the borrowing or conversion date, as the
case may be, with respect to such LIBOR Loan and ending one, two, three or six
months thereafter or, if available in the discretion of all Lenders, ending nine
or twelve months thereafter, as selected by Borrower in its notice of borrowing
or notice of conversion, as the case may be, given with respect thereto; and (b)
thereafter, each period commencing on the last day of the next preceding
Interest Period applicable to such LIBOR Loan and ending one, two, three or six
months thereafter or, if available in the sole discretion of the Administrative
Agent, ending nine or twelve months thereafter, as selected by Borrower by
irrevocable notice to the Administrative Agent not less than three Business Days
prior to the last day of the then current Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest Periods are
subject to the following:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension would
be to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day;
(ii) Borrower may not select an Interest Period under any
Facility that would extend beyond the Scheduled Revolving Termination
Date;
(iii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar
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month at the end of such Interest Period) shall end on the last
Business Day of a calendar month; and
(iv) Borrower shall select Interest Periods so as not to
require a payment or prepayment of any LIBOR Loan during an Interest
Period for such LIBOR Loan.
"Investments": as defined in Section 7.8.
"Issuing Lender": Fleet National Bank or any of its Affiliates in their
capacity as issuer of any Letter of Credit and any other Lender that is
satisfactory to the Administrative Agent and Borrower in the exercise of their
mutual discretion.
"JCAHO": the Joint Commission on Accreditation of Healthcare
Organizations, or any similar successor organization thereto.
"L/C Application": an application, in such form as any Issuing Lender
may specify from time to time, requesting such Issuing Lender to issue a Letter
of Credit.
"L/C Commitment": $50,000,000.
"L/C Fee Payment Date": the last day of each March, June, September and
December and the last day of the Revolving Commitment Period.
"L/C Obligations": at any time, an amount equal to the sum of (a) the
aggregate undrawn and unexpired amount of the then outstanding Letters of Credit
and (b) the aggregate amount of drawings under Letters of Credit which have not
then been reimbursed pursuant to Section 3.5.
"L/C Participants": all Lenders other than any Issuing Lender.
"Legal Requirement": as to any Person, the certificate of
incorporation, by-laws, certificate of limited partnership, certificate of
formation, partnership agreement or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject, including without limitation ERISA,
Environmental Laws, the federal Medicare and Medicaid statutes, anti-kickback
and fraud and abuse laws and regulations, (including without limitation 42
U.S.C. ss.1320a-7b, 42 U.S.C. ss.1395nn or 31 U.S.C. ss.3729, or the regulations
promulgated thereunder), health and environmental protection laws, storm
drainage control laws, doing business and/or licensing laws, zoning and
subdivision laws and ordinances, and laws regarding access and facilities for
disabled persons including but not limited to the federal Architectural Barriers
Act, the Fair Housing Amendments Act of 1988, the Rehabilitation Act of 1973,
and the Americans with Disabilities Act of 1990.
"Lenders": as defined in the preamble hereto. References herein to a
Lender or Lenders may include any Issuing Lender or the Swingline Lender or both
as the context requires.
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"Letter of Credit Fees" see Section 3.3.
"Letters of Credit": as defined in Section 3.1.
"LIBOR Base Rate": with respect to each Interest Period for a LIBOR
Loan, that rate per annum which represents the offered rate for deposits in U.S.
Dollars, for a period of time comparable to such Interest Period, which appears
on the Telerate page 3750 as of 11:00 a.m. (London time) on that day that is two
Business Days preceding the first day of such Interest Period; provided,
however, that if the rate described above does not appear on the Telerate System
on any applicable interest determination date, the LIBOR Base Rate for such
Interest Period shall be the rate (rounded upwards, if necessary, to the nearest
one-hundred thousandth of a percentage point) determined on the basis of the
offered rates for deposits in U.S. Dollars for a period of time comparable to
such Interest Period which are offered by four major banks in the London
interbank market at approximately 11:00 a.m. (London time) on that day that is
two London Business Days preceding the first day of such Interest Period, as
selected by the Administrative Agent. The principal London office of each of
four major London banks will be requested to provide a quotation of its U.S.
Dollar deposit offered rate. If at least two such quotations are provided, the
rate for that date will be the arithmetic mean of the quotations. If fewer than
two quotations are provided as requested, the rate for that date will be
determined on the basis of the rates quoted for loans in U.S. Dollars to leading
European banks for a period of time comparable to such Interest Period offered
by major banks in New York City at approximately 11:00 a.m. (New York City) time
on that day that is two Business Days preceding the first day of such Interest
Period. In the event that the Administrative Agent is unable to obtain any such
quotation as provided above, it will be deemed that the LIBOR Base Rate for the
proposed Interest Period cannot be determined. The Administrative Agent shall
give prompt notice to Borrower of the LIBOR Base Rate as determined for each
LIBOR Loan and such notice shall be conclusive and binding, absent manifest
error.
"LIBOR Loans": Revolving Loans bearing interest at a rate determined on
the basis of the LIBOR Rate.
"LIBOR Rate": with respect to each day during each Interest Period
pertaining to a LIBOR Loan, a rate per annum determined for such day in
accordance with the following formula (rounded upward, if necessary, to the
nearest 1/16th of 1%):
LIBOR Base Rate
---------------
1.00 - LIBOR Reserve Requirements
"LIBOR Reserve Requirements": for any day as applied to a LIBOR Loan,
the aggregate (without duplication) of the maximum rates (expressed as a decimal
fraction) of reserve requirements in effect on such day (including basic,
supplemental, marginal and emergency reserves under any regulations of the Board
of Governors of the Federal Reserve System or other Governmental Authority
having jurisdiction with respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as "Eurocurrency
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Liabilities" in Regulation D of such Board) maintained by a member bank of the
Federal Reserve System.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement and any capital lease having substantially the
same economic effect as any of the foregoing).
"LifePoint Parent": see the Recitals.
"LifePoint Parent Guarantee and Security Agreement": the Amended and
Restated LifePoint Parent Guarantee and Security Agreement to be executed and
delivered by LifePoint Parent, substantially in the form of Exhibit E, as the
same may be amended, supplemented or otherwise modified from time to time.
"Loan" any loan made by any Lender or any Swingline Lender pursuant to
this Agreement.
"Loan Documents": this Agreement, the Security Documents, the Notes and
any other documents executed in connection therewith, as amended, supplemented
or modified from time to time.
"Loan Parties": (a) LifePoint Parent, (b) Borrower and each of its
Subsidiaries, and (c) any other Affiliate of Borrower that is or becomes a party
to a Loan Document.
"Loan Party": any of the Loan Parties.
"Managed Care Plans": all health maintenance organizations, preferred
provider organizations, individual practice associations, competitive medical
plans and similar arrangements.
"Material Acquisition": any acquisition of property or series of
related acquisitions of property that (a) constitutes assets comprising all or
substantially all of an operating unit of a business or constitutes all or
substantially all of the Equity Interests of a Person and (b) involves the
payment of consideration by a Person and its Subsidiaries in excess of
$1,000,000 in the aggregate.
"Material Adverse Effect": a material adverse effect on (a) the
business, assets, property, operations, condition (financial or otherwise),
liabilities or prospects of LifePoint Parent, Borrower, or Borrower and its
Subsidiaries taken as a whole, (b) the ability of any Loan Party to perform any
material obligation under any of the Loan Documents to which it is bound, (c)
any event or condition which would reasonably be likely to result in an Event of
Default (including any financial covenant Event of Default) after the passage of
time, or (d) the validity or
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enforceability of (i) this Agreement or (ii) any of the other Loan Documents or
(iii) the rights or remedies of the Administrative Agent or the Lenders
hereunder or thereunder.
"Material Disposition": any Disposition of property or series of
related Dispositions of property that (a) constitutes assets comprising all or
substantially all of an operating unit of a business or constitutes all or
substantially all of the Equity Interests of a Person and (b) results in gross
proceeds to a Person or any of its Subsidiaries in excess of $1,000,000 in the
aggregate.
"Material Subsidiaries": each direct or indirect Subsidiary (or any
combination thereof) of Borrower existing on the date hereof or hereafter
acquired or created which (i) has a net worth (calculated in accordance with
GAAP) equal to or greater than 10% of the Consolidated Net Worth of Borrower and
its Subsidiaries (calculated as of the most recent fiscal period with respect to
which the Administrative Agent shall have received audited financial statements)
or (ii) has annual book net income (determined in accordance with GAAP) equal to
or greater than 5% of the annual Consolidated Net Income of Borrower and its
Subsidiaries (calculated for the most recent fiscal year of Borrower for which
the Administrative Agent has received audited financial statements).
"Medical Facilities": any Hospital, outpatient clinic and long term
care facility and related medical office building or other facility owned or
used by any of the Loan Parties in its business.
"Mortgaged Properties": the real properties and improvements thereon
listed on Schedule 1.1C and properties related thereto, as to which the
Administrative Agent for the benefit of the Lenders shall have been granted a
Lien pursuant to the Mortgages.
"Mortgages": each of the mortgages, collateral assignments of leases
and rents and deeds of trust, as amended, supplemented or otherwise modified
from time to time, made by any Loan Party in favor of, or for the benefit of,
the Administrative Agent for the benefit of the Lenders as listed on Exhibit F.
"Multiemployer Plan": a Plan that is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": the cash proceeds received from any issuance or
sale of equity securities or debt securities or instruments or the incurrence of
loans, net of attorney's fees, investment banking fees, accountant's fees,
underwriting discounts and commissions and other customary fees and expenses
actually incurred in connection therewith.
"Non-Excluded Taxes": as defined in Section 2.14(a).
"Non-U.S. Lender": as defined in Section 2.14(d).
"Notes": the collective reference to the Revolving Notes and the
Swingline Note.
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"Obligations": the unpaid principal of and interest on (including
interest accruing after the maturity of the Loans and Reimbursement Obligations
and interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
Borrower, whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) the Loans and all other obligations and liabilities
of Borrower to the Administrative Agent or to any Lender (or, in the case of
Rate Hedging Agreements, any affiliate of any Lender), whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, this
Agreement, any other Loan Document, the Letters of Credit, any Rate Hedging
Agreement entered into with any Lender or any affiliate of any Lender or any
other document made, delivered or given in connection herewith or therewith,
whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including all fees, charges and disbursements of
counsel to the Administrative Agent or to any Lender that are required to be
paid by Borrower pursuant hereto) or otherwise.
"Organizational Documents": as to any Person, the certificate of
incorporation, by-laws, certificate of limited partnership, certificate of
formation, partnership agreement or other organizational or governing document
of such Person.
"Original Agreement": see the Recitals.
"Original Lenders": see the Recitals.
"Participant": as defined in Section 10.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA (or any successor).
"Permitted Acquisitions": an Acquisition by Borrower or a Subsidiary
Guarantor, subject to the fulfillment of the following conditions:
(i) If such Acquisition or series of related Acquisitions
involves a Total Purchase Price of more than $45,000,000 in the
aggregate, Borrower shall have obtained the prior written approval of
the Required Lenders;
(ii) Target EBITDA of the Target for its most recently ended
four fiscal quarters shall exceed $1.00;
(iii) If such Acquisition or series of related Acquisitions
involves a Total Purchase Price of more than $20,000,000 in the
aggregate, then no later than (A) on the date of or prior to the
consummation of any such Acquisition, Borrower shall have delivered to
the Administrative Agent, with sufficient copies for all of the
Lenders, copies of executed counterparts of such Purchase Agreement,
together with all schedules thereto, copies of the Target's financial
statements supplied to Borrower, projections, a pro forma Compliance
Certificate, and any additional agreements or instruments to be
executed at
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the closing thereunder (to the extent available), (B) promptly
following a request therefor, copies of such other information or
documents relating to such acquisition as the Administrative Agent
shall have reasonably requested, and (C) if requested by the
Administrative Agent, promptly following the consummation of such
Acquisition, certified copies of the agreements, instruments and
documents referred to above to the extent the same has been executed
and delivered at the closing under such Purchase Agreement;
(iv) No Loan Party shall, in connection with any such
Acquisition, assume or remain liable with respect to any Indebtedness
of the related seller, except (A) to the extent permitted under Section
7.2 and (B) obligations of such seller incurred in the ordinary course
of business and necessary or desirable to the continued operation of
the underlying properties; and any other such liabilities or
obligations not permitted to be assumed or otherwise supported
hereunder shall be paid in full or released as to the assets being so
acquired on or before the consummation of such Acquisition;
(v) All other assets and properties acquired in connection
with any such Acquisition shall be free and clear of any Liens other
than as permitted under Section 7.3;
(vi) The Loan Parties shall have complied as applicable with
all of the provisions in Section 6.11, including the execution and
delivery of such additional agreements, instruments, certificates,
opinions and other papers as the Administrative Agent may reasonably
require;
(vii) The Target must be engaged primarily in the business of
Borrower and its Subsidiaries existing on the date hereof;
(viii) No Default shall have occurred and be continuing or
reasonably be expected to result from such Acquisition;
(ix) Without limiting the generality of the foregoing, after
giving effect to such Acquisition, Borrower shall be in compliance with
the provisions of Section 7.1, calculated on a pro forma basis as of
the end of and for the quarter most recently ended prior to the date of
such Acquisition; and
(x) Borrower shall have submitted to the Administrative Agent
a properly completed Acquisition Compliance Checklist substantially in
the form of Exhibit G hereto which must be satisfactory to the
Administrative Agent in form and substance and a written estimate of
projected Capital Expenditures in connection with such Acquisition
pursuant to Section 7.7.
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity.
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"Plan": at a particular time, any employee benefit plan that is covered
by ERISA and in respect of which Borrower or a Commonly Controlled Entity is
(or, if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Pricing Grid": the pricing grid attached hereto as Schedule 1.1A.
"Prime Rate": The variable per annum rate of interest so designated
from time to time by the Reference Lender at its head office as its Prime Rate.
The Prime Rate is not necessarily intended to be the lowest rate of interest
charged by the Reference Lender in connection with extensions of credit.
"Projections": as defined in Section 6.2(c).
"Properties": as defined in Section 5.16(a).
"Purchase Agreement": any of the asset and/or equity purchase
agreements relating to a Permitted Acquisition between Borrower or any
Subsidiary and the seller of such assets and/or equity.
"Rate Hedging Agreements": all interest rate swaps, caps or collar
agreements or similar arrangements providing for protection against fluctuations
in interest rates or currency exchange rates or the exchange of nominal interest
obligations, either generally or under specific contingencies.
"Reference Lender": Fleet National Bank.
"Reference Period": any period of four consecutive fiscal quarters of
Borrower.
"Register": as defined in Section 10.6(d).
"Regulation U": Regulation U of the Board as in effect from time to
time.
"Reimbursement Obligation": the obligation of Borrower to reimburse an
Issuing Lender pursuant to Section 3.5 for amounts drawn under Letters of
Credit.
"Reorganization": with respect to any Multiemployer Plan, the condition
that such plan is in reorganization within the meaning of Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC
Reg.ss.4043.
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"Required Lenders": at any time, the holders (who are not Defaulting
Lenders) of more than 50% of the Total Commitments then in effect or, if the
Commitments have been terminated, the Total Revolving Extensions of Credit then
outstanding.
"Responsible Officer": as to any Loan Party, the chief executive
officer, chief operating officer, president, chief financial officer, general
counsel or controller of such Loan Party, but in any event, with respect to
financial matters, the chief financial officer of Borrower.
"Restricted Payment": any distribution or payment of cash or property,
or both, directly or indirectly (a) in respect of any Subordinated Debt, or (b)
to the holder of any Equity Interest in any Loan Party or to any Affiliates of
any Loan Party for any reason whatsoever, including without limitation,
salaries, loans, debt repayment, consulting fees, expense reimbursements and
dividends, distributions, put, call or redemption payments and any other
payments in respect of Equity Interests.
"Revolving Commitment": as to any Lender, the obligation of such
Lender, if any, to make Revolving Loans and participate in Letters of Credit in
an aggregate principal and/or face amount not to exceed the amount set forth
under the heading "Revolving Commitment" opposite such Lender's name on Schedule
1.1D or in the Assignment and Acceptance pursuant to which such Lender became a
party hereto, as the same may be changed from time to time pursuant to the terms
hereof.
"Revolving Commitment Period": the period from and including the
Closing Date to the Scheduled Revolving Termination Date.
"Revolving Extensions of Credit": as to any Lender at any time, an
amount equal to the sum of (a) the aggregate principal amount of all Revolving
Loans and Swingline Loans held by such Lender then outstanding and (b) an amount
equal to such Lender's Revolving Percentage of the L/C Obligations then
outstanding.
"Revolving Facility": the Revolving Commitments and the extensions of
credit made thereunder.
"Revolving Loans": as defined in Section 2.1(a).
"Revolving Note": as defined in Section 2.1(c).
"Revolving Percentage": as to any Lender at any time, the percentage
which such Lender's Revolving Commitment then constitutes of the Total Revolving
Commitments (or, at any time after the Revolving Commitments shall have expired
or terminated, the percentage which the aggregate principal amount of such
Lender's Revolving Loans then outstanding constitutes of the aggregate principal
amount of the Revolving Loans then outstanding).
"Scheduled Revolving Termination Date": June 19, 2006.
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"SEC": the Securities and Exchange Commission, and any successor
thereto.
"Securitization Transaction": means a financing transaction or series
of financing transactions that have been or may be entered into by a member of
Borrower's consolidated group pursuant to which such member may sell, convey or
otherwise transfer to (i) a Subsidiary or affiliate, or (ii) any other Person,
or may grant a security interest in, any accounts receivable, notes receivable,
rights to future lease payments or residuals or other similar rights to payment
(the "Securitization Receivables") (whether such Securitization Receivables are
then existing or arising in the future) of such member, and any assets related
thereto, including without limitation, all security interests in merchandise or
services financed thereby, the proceeds of such Securitization Receivables, and
other assets which are customarily sold or in respect of which security
interests are customarily granted in connection with securitization transactions
involving such assets.
"Security Documents": the collective reference to the LifePoint Parent
Guarantee and Security Agreement, Borrower Security Agreement, the Guarantee and
Security Agreement, the Trademark Security Agreement, the Mortgages and all
other security documents hereafter delivered to the Administrative Agent
granting a Lien on any property of any Person to secure the obligations and
liabilities of any Loan Party under any Loan Document, as amended, supplemented
or modified from time to time.
"Single Employer Plan": any Plan that is covered by Title IV of ERISA,
but that is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, means that, as of any
date of determination, (a) the amount of the "present fair saleable value" of
the assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise", as of such date, as such
quoted terms are determined in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required to pay the liability of such Person on its
debts as such debts become absolute and matured, (c) such Person will not have,
as of such date, an unreasonably small amount of capital with which to conduct
its business, and (d) such Person will be able to pay its debts as they mature.
For purposes of this definition, (i) "debt" means liability on a "claim", and
(ii) "claim" means any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y)
right to an equitable remedy for breach of performance if such breach gives rise
to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured or unmatured, disputed,
undisputed, secured or unsecured.
"Subordinated Debt": the High Yield Offering and any other Indebtedness
of Borrower or any of its Subsidiaries subordinated on terms satisfactory to the
Administrative Agent and the Required Lenders pursuant to written agreements in
form and substance satisfactory to the Administrative Agent.
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"Subsidiary" as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. The definition of
"Subsidiaries" of LifePoint Parent and Borrower shall include the Existing Joint
Venture. Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a direct or indirect Subsidiary
or Subsidiaries of LifePoint Parent or Borrower; provided that no Plan
(including the ESOP) shall be considered a Subsidiary of LifePoint Parent or
Borrower.
"Subsidiary Guarantor": each direct or indirect Subsidiary of Borrower.
"Swingline Commitment": means the commitment of the Swingline Lender to
make Swingline Loans in an aggregate principal amount at any time outstanding up
to $15,000,000 and the commitment of the Lenders to purchase participation
interests in the Swingline Loans.
"Swingline Exposure": at any time the aggregate principal amount of all
Swingline Loans outstanding at such time.
"Swingline Facility": as defined in the preamble hereto.
"Swingline Lender": Fleet National Bank, in its capacity as lender of
Swingline Loans hereunder, and its successors in such capacity.
"Swingline Loan": any loan made by the Swingline Lender pursuant to
Section 2.5.
"Swingline Note": see Section 2.5(a).
"Syndication Agent": as defined in the preamble hereto.
"Synthetic Lease": means any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing product
where such transaction is considered borrowed money Indebtedness for tax
purposes but is classified as an operating lease under GAAP.
"Target": any Person or any division of a Person, all or substantially
all of the outstanding Equity Interests or all or substantially all of the
assets of which, are proposed to be acquired by Borrower or any of its
Subsidiaries in connection with a Permitted Acquisition.
"Target EBITDA": for any period, as to the Target, net income for such
period plus, without duplication and to the extent reflected as a charge in the
statement of such net income for such period, the sum of (a) income tax expense,
(b) interest expense, and (c) depreciation and amortization expense, all
calculated in accordance with generally accepted accounting principles
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consistently applied and as may be adjusted to give effect to cost savings as a
result of the Acquisition to the extent agreed to in writing by the
Administrative Agent.
"Tax Sharing Agreement": the Tax Sharing and Indemnification Agreement,
dated as of May 11, 1999, by and among Columbia/HCA, LifePoint Parent and Triad
Hospitals, Inc. as originally executed or hereafter amended with the prior
written consent of Required Lenders.
"Third Party Payor Programs": All third party payor programs in which
Borrower and its Subsidiaries currently or in the future may participate,
including, without limitation, Medicare, Medicaid, Blue Cross and/or Blue
Shield, Managed Care Plans, other private insurance programs and employee
assistance programs.
"Total Commitments": at any time the total amount of the Commitments
then in effect.
"Total Purchase Price": the "purchase price" for any Acquisition
including, without limitation, but without duplication, (a) all cash payable by
any Loan Party to the seller or Affiliate of the seller at the closing of the
Acquisition; (b) all equity securities of any Loan Party, and warrants, options
and other rights to acquire equity securities of any Loan Party, issued at the
closing of the Acquisition valued in accordance with the fair market value of
such securities; (c) all Indebtedness incurred by LifePoint Parent or Borrower
or any of its Subsidiaries in favor of any seller or Affiliate of any seller;
(d) all Indebtedness and other liabilities of or related to the Target that are
assumed by any Loan Party, or subject to which the acquired assets are acquired,
or (in the case of an equity security purchase or merger) that remain unpaid at
the closing of the Acquisition; (e) amounts payable under noncompetition
agreements; (f) the maximum amount of all compensation (other than base salary
and customary bonuses) during the 12-month period following the closing of the
acquisition under all employment agreements entered into in connection with the
Acquisition; (g) amounts payable under consulting or other similar agreements
entered into in connection with the Acquisition, the payment and amount of which
are not conditioned on the performance of a specified amount of services or
which are in excess of a reasonable amount for the specified services; and (h)
the maximum amount of all contingent future payments or other consideration
(including any Equity Interests and warrants, options and other rights to
acquire Equity Interests, valued in accordance with the fair market value of
such securities but excluding employee benefit plans) not otherwise described in
this definition, including without limitation "earn-out" payments and amounts
payable upon disposition of the acquired business (unless the Required Lenders
shall otherwise agree), and (i) all other payments and obligations which
constitute in substance purchase price rather than payment for services. For
purposes of clauses (f) and (h) of the preceding sentence, the maximum amount of
any payment or other consideration specified therein shall be the maximum amount
provided for in the relevant agreement, or, if no maximum amount is so provided,
the amount reasonably estimated by Borrower on the basis of assumptions and
calculations provided in writing to the Agent and approved by them. Such
assumptions shall include reasonable projections of any measure of financial or
other performance that enters into the calculation of the amount of any such
payment or other consideration but shall not include any assumption that any
other future event that is a condition to such payment or consideration (such as
the later disposition of the acquired business or a public or private offering
of securities) will not occur. Any amounts
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included in clauses (e), (g) or (h) payable after the 12-month period following
the closing of the acquisition shall be calculated on a net present value basis
discounted at the then current U.S. treasury rate with a maturity substantially
the same as the final payment thereunder (or such other rate as is then
acceptable to the Administrative Agent). Notwithstanding any of the foregoing to
the contrary, for purposes of clause (iii) of the definition of "Permitted
Acquisitions" only, the term "Total Purchase Price" shall exclude any amounts
included in clause (b) above, any contingent future payments or other
consideration which constitute Equity Interests and warrants, options and other
rights to acquire Equity Interests, and Subordinated Debt which has no interest
payment component.
"Total Revolving Commitments": at any time, the aggregate amount of the
Revolving Commitments then in effect.
"Total Revolving Extensions of Credit": at any time, the aggregate
amount of the Revolving Extensions of Credit of the Lenders outstanding at such
time.
"Trademark Security Agreement": the Trademark Security Agreement to be
executed and delivered by Borrower, LifePoint Parent and certain of their
Subsidiaries, substantially in the form of Exhibit H, as the same may be
amended, supplemented or otherwise modified from time to time.
"Transferee": any Assignee or Participant.
"Transition Agreements": collectively, (a) the Distribution Agreement;
(b) the Tax Sharing Agreement; (c) the benefits and employment matters agreement
among Columbia/HCA, Triad Hospitals, Inc. and LifePoint Parent; (d) the
insurance allocation and administration agreement among Columbia/HCA, Triad
Hospitals, Inc. and LifePoint Parent; (e) the computer and data processing
services agreement between Columbia Information Systems, Inc. ("CIS") and
LifePoint Parent; (f) the transitional services agreement between Columbia/HCA
and LifePoint Parent; (g) agreement to share telecommunications services between
CIS and LifePoint Parent; and (h) agreements between Columbia/HCA and LifePoint
Parent relating to the provision of account collection services and relating to
LifePoint Parent's participation in a group purchasing organization with
Columbia/HCA.
"Type": as to any Loan, its nature as a Base Rate Loan, a LIBOR Loan or
a Swingline Loan.
"United States" or "U.S.": the United States of America.
"U.S. Lender": as defined in Section 2.14(d).
1.2 Other Provisions. Unless otherwise specified therein, all terms
defined in this Agreement shall have the defined meanings when used in the other
Loan Documents or any certificate or other document made or delivered pursuant
hereto or thereto. As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant
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hereto or thereto, (a) accounting terms relating to Borrower and its
Subsidiaries not defined in Section 1.1 and accounting terms partly defined in
Section 1.1, to the extent not defined, shall have the respective meanings given
to them under GAAP, (b) the words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation", and (c) the words
"incur" and "borrow" shall be construed to mean incur, create, issue, assume,
become liable in respect of or suffer to exist (and the words "incurred" and
"incurrence" and "borrowings" shall have correlative meanings).
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Commitments.
(a) Subject to the terms and conditions hereof, each Lender severally
agrees to make revolving credit loans ("Revolving Loans") to Borrower from time
to time during the Revolving Commitment Period in an aggregate principal amount
at any one time outstanding which, when added to such Lender's Revolving
Percentage of the L/C Obligations then outstanding does not exceed the amount of
such Lender's Revolving Commitment. During the Revolving Commitment Period,
Borrower may use the Revolving Commitments by borrowing, prepaying and
reborrowing, all in accordance with the terms and conditions hereof. The
Revolving Loans may from time to time be LIBOR Loans or Base Rate Loans, as
determined by Borrower and notified to the Administrative Agent in accordance
with Sections 2.2 and 2.7.
(b) Borrower shall repay all outstanding Revolving Loans on the
Scheduled Revolving Termination Date.
(c) Borrower agrees that, upon the request to the Administrative Agent
by any Lender, which request is communicated to Borrower, Borrower will execute
and deliver to such Lender a promissory note of Borrower dated the Closing Date
evidencing the Revolving Commitment of such Lender, substantially in the form of
Exhibit I with appropriate insertions as to date and principal amount (each, as
amended, supplemented or otherwise modified from time to time, a "Revolving
Note"). Each Lender is hereby authorized to record the date, Type and amount of
each Revolving Loan made by such Lender, the date and amount of each payment or
prepayment of principal thereof, each continuation thereof, each conversion of
all or a portion thereof to another Type and, in the case of LIBOR Loans, the
length of each Interest Period and LIBOR Rate with respect thereto, on the
schedule (or any continuation of the schedule) annexed to and constituting a
part of its Revolving Note, and any such recordation shall, absent manifest
error and to the extent permitted by applicable law, constitute prima facie
evidence of the accuracy of the information so recorded, provided that the
failure to make any such recordation (or any error therein) shall not affect the
obligation of Borrower to repay (with applicable interest) the Revolving Loans
made to Borrower in accordance with the terms of this Agreement. Any Note and
the Obligations evidenced thereby may be assigned or otherwise transferred in
whole or in part only in accordance with Section 10.6 and by registration of
such assignment or transfer of such Note and the Obligations evidenced thereby
in the Register (and each Note shall expressly so provide). Upon receipt of an
affidavit of an officer of any Lender or the Administrative Agent as to the
loss, theft, destruction or mutilation of any Note or any other
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security document which is not of public record, and, in the case of any such
loss, theft, destruction or mutilation, upon surrender and cancellation of such
Note or other security document, and execution and delivery of an appropriate
indemnification agreement by such Lender or the Administrative Agent, as
applicable, in form and substance reasonably satisfactory to Borrower in favor
of Borrower relating thereto, Borrower will issue, in lieu thereof, a
replacement Note or other security document in the same principal amount thereof
and otherwise of like tenor.
2.2 Procedure for Revolving Loan Borrowing. Borrower may borrow under
the Revolving Commitments during the Revolving Commitment Period on any Business
Day, provided that Borrower shall give the Administrative Agent irrevocable
notice (received by the Administrative Agent prior to 12:00 Noon, New York City
time and confirmed in writing by delivery of a notice substantially in the form
of Exhibit J hereto (each a "Borrowing Notice"), (a) three Business Days prior
to the requested Borrowing Date, in the case of LIBOR Loans, or (b) one Business
Day prior to the requested Borrowing Date, in the case of Base Rate Loans,
specifying (i) the amount and Type of Revolving Loans to be borrowed, (ii) the
requested Borrowing Date and (iii) in the case of LIBOR Loans, the respective
amounts of each such Type of Loan and the respective lengths of the initial
Interest Period therefor. Any Revolving Loans made on the Closing Date shall
initially be Base Rate Loans. Each borrowing under the Revolving Commitments
shall be in an amount equal to (x) in the case of Base Rate Loans, $1,000,000 or
a whole multiple thereof (or, if the then aggregate Available Revolving
Commitments are less than $1,000,000, such lesser amount) and (y) in the case of
LIBOR Loans, $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
Upon receipt of any such notice from Borrower, the Administrative Agent shall
promptly notify each Lender thereof. Each Lender will make the amount of its pro
rata share of each borrowing available to the Administrative Agent for the
account of Borrower at the Funding Office prior to 12:00 Noon, New York City
time, on the Borrowing Date requested by Borrower in funds immediately available
to the Administrative Agent. Such borrowing will then be made available to
Borrower by the Administrative Agent crediting the account of Borrower on the
books of such office (or, if so requested by Borrower, by wire transferring
immediately available funds to such bank account as Borrower shall designate)
with the aggregate of the amounts made available to the Administrative Agent by
the Lenders and in like funds as received by the Administrative Agent.
2.3 Commitment Fees, etc.
(a) Borrower agrees to pay to the Administrative Agent for the account
of each Lender a commitment fee for the period from and including the Closing
Date to the last day of the Revolving Commitment Period, equal to the applicable
percentage per annum shown on the Pricing Grid, such fee to be calculated based
on the average daily amount of the Available Revolving Commitment (and including
Swingline Exposure as usage) of such Lender, payable quarterly in arrears on the
last day of each March, June, September and December and on the Scheduled
Revolving Termination Date, commencing on the first of such dates to occur after
the date hereof. Notwithstanding the foregoing, from and after the Closing Date
until the first Adjustment Date, the commitment fees shall be based on Level II
pricing as shown on the Pricing Grid.
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(b) Borrower agrees to pay to each Agent the fees in the amounts and on
the dates previously agreed to in writing by Borrower and such Agent.
2.4 Termination or Reduction of Revolving Commitments. Borrower shall
have the right, upon not less than three Business Days' notice to the
Administrative Agent, to terminate the Revolving Commitments or, from time to
time, to reduce the amount of the Revolving Commitments; provided that no such
termination or reduction of Revolving Commitments shall be permitted if, after
giving effect thereto and to any prepayments of the Revolving Loans made on the
effective date thereof, the Total Revolving Extensions of Credit and the
Swingline Exposure would exceed the Total Revolving Commitments. Any such
reduction shall be in an amount equal to $1,000,000, or an integral multiple of
$500,000 in excess thereof, and shall reduce permanently the Revolving
Commitments then in effect.
2.5 Swingline Loans.
(a) During the Revolving Commitment Period, the Swingline Lender
agrees, on the terms and conditions set forth in this Agreement, to lend to
Borrower from time to time amounts that will not result in (i) the aggregate
principal amount of outstanding Swingline Loans at any time exceeding
$15,000,000, or (ii) the sum of the L/C Obligations, the Swingline Exposure and
the Total Revolving Extensions of Credit at any time exceeding the Total
Revolving Commitments. Interest on such Swingline Loans shall accrue for each
day during the Interest Period applicable thereto at the Base Rate plus the
Applicable Margin for Base Rate Loans. Each Swingline Loan shall mature, and the
principal amount thereof shall be due and payable, together with accrued
interest thereon, on the last day of the Interest Period applicable to such
Swingline Loan. Swingline Loans may be repaid and reborrowed. Swingline Loans
may be prepaid at any time, without premium or penalty, provided that notice
shall be given not later than 12:00 Noon, New York City time on the date of
prepayment. The Swingline Loans shall be evidenced by a promissory note in the
form of Exhibit K hereto (as amended, supplemented or modified from time to
time, the "Swingline Note").
(b) In order to request a Swingline Loan, Borrower shall notify the
Administrative Agent of such request not later 12:00 Noon, New York City time on
the day of a proposed Swingline Loan, specifying the proposed date (which shall
be a Business Day) and amount of the requested Swingline Loan (which shall be
$100,000 or a larger multiple of $100,000). The Administrative Agent will
promptly advise the Swingline Lender of any such notice received from Borrower.
The Swingline Lender shall make each Swingline Loan available to Borrower by
means of a credit to the general deposit account of Borrower with the Swingline
Lender (or, if so requested by Borrower, by means of wire transfer of
immediately available funds to such bank account as Borrower shall designate) by
3:00 p.m. New York City time on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Lenders not
later than 10:00 A.M., New York City time, on any Business Day require the
Lenders to acquire participations on such Business Day in all or a portion of
the Swingline Loans outstanding. Such
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notice shall specify the aggregate amount of Swingline Loans in which the
Lenders will acquire participations. In furtherance of the foregoing, each
Lender hereby absolutely and unconditionally agrees, upon receipt of notice as
provided above, to pay to the Administrative Agent, for the account of the
Swingline Lender, such Lender's Aggregate Exposure Percentage of such Swingline
Loan or Loans. Each Lender acknowledges and agrees that its obligation to
acquire participations in Swingline Loans pursuant to this paragraph is absolute
and unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of an Event of Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever; provided, however,
that a Lender shall not be required to acquire a participation in a Swingline
Loan pursuant to this paragraph if (i) an Event of Default shall have occurred
and was continuing at the time such Swingline Loan was made and (ii) such Lender
shall have notified the Swingline Lender in writing, not less than one Business
Day before such Swingline Loan was made, that such Event of Default has occurred
and that such Lender will not participate in any Swingline Loans made while such
Event of Default is continuing. Each Lender shall comply with its obligation
under this paragraph by wire transfer of immediately available funds, in the
same manner as provided in Section 2.12 with respect to Revolving Loans made by
such Lender. The Administrative Agent shall notify the Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph. Any
amounts received by the Swingline Lender from Borrower (or other party on behalf
of any Borrower) in respect of a Swingline Loan after receipt by the Swingline
Lender of the proceeds of a sale of participations therein shall be promptly
remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Lenders that shall have made their payments pursuant to this paragraph and
to the Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
Borrower of any default in the payment thereof and shall be effected in a manner
substantially similar to that contained in Section 3.4 of this Agreement.
2.6 Prepayments.
(a) Borrower may at any time and from time to time prepay the Revolving
Loans, in whole or in part, without premium or penalty, upon irrevocable notice
delivered to the Administrative Agent at least three Business Days prior thereto
in the case of LIBOR Loans and at least one Business Day prior thereto in the
case of Base Rate Loans, which notice shall specify the date and amount of
prepayment and whether the prepayment is of LIBOR Loans or Base Rate Loans;
provided, that if a LIBOR Loan is prepaid on any day other than the last day of
the Interest Period applicable thereto, Borrower shall also pay any amounts
owing pursuant to Section 2.15. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof. If any
such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein, together with (except in the case of
Revolving Loans that are Base Rate Loans) accrued interest to such date on the
amount prepaid. Partial prepayments Revolving Loans shall be in an aggregate
principal amount of $1,000,000 or an integral multiple of $500,000 in excess
thereof.
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(b) If at any time the Total Revolving Extensions of Credit exceeds the
total Available Revolving Commitment, Borrower shall immediately pay the amount
of such excess to the Administrative Agent on behalf of the Lenders. If at any
time the aggregate principal amount of all outstanding Swingline Loans exceeds
$15,000,000, Borrower shall immediately pay the amount of such excess to the
Administrative Agent on behalf of the Lenders.
2.7 Conversion and Continuation Options.
(a) Borrower may elect from time to time to convert LIBOR Loans to Base
Rate Loans by giving the Administrative Agent prior irrevocable notice of such
election, confirmed in writing pursuant to the Interest Rate Option Notice
attached as Exhibit L, provided that any such conversion of LIBOR Loans may only
be made on the last day of an Interest Period with respect thereto. Borrower may
elect from time to time to convert Base Rate Loans to LIBOR Loans by giving the
Administrative Agent at least three Business Days' prior irrevocable notice of
such election (which notice shall specify the length of the initial Interest
Period therefor), provided, that no Base Rate Loan under the Revolving Facility
may be converted into a LIBOR Loan when any Event of Default has occurred and is
continuing and the Administrative Agent or the Required Lenders have determined
in its or their sole discretion not to permit such conversions. Upon receipt of
any such notice the Administrative Agent shall promptly notify each relevant
Lender thereof.
(b) Any LIBOR Loan may be continued as such upon the expiration of the
then current Interest Period with respect thereto by Borrower giving irrevocable
notice to the Administrative Agent, in accordance with the applicable provisions
of the term "Interest Period" set forth in Section 1.1, of the length of the
next Interest Period to be applicable to such LIBOR Loans, provided that no
LIBOR Loan under the Revolving Facility may be continued as such when any Event
of Default has occurred and is continuing and the Administrative Agent has or
the Required Lenders have determined in its or their sole discretion not to
permit such continuations, and provided, further, that if Borrower shall fail to
give any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso such LIBOR Loans
shall be automatically converted to Base Rate Loans on the last day of such then
expiring Interest Period. Upon receipt of any such notice the Administrative
Agent shall promptly notify each relevant Lender thereof.
2.8 Limitations on LIBOR Loans. Notwithstanding anything to the
contrary in this Agreement, all borrowings, conversions and continuations of
LIBOR Loans hereunder and all selections of Interest Periods hereunder shall be
in such amounts and be made pursuant to such elections so that, (a) after giving
effect thereto, the aggregate principal amount of the LIBOR Loans having the
same Interest Period beginning and ending on the same date shall be equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no more
than ten LIBOR Loans shall be outstanding for any Lender at any one time.
2.9 Interest Rates and Payment Date.
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(a) Each LIBOR Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to the LIBOR Rate
determined for such day plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per annum equal
to the Base Rate plus the Applicable Margin.
(c) Upon the occurrence and during the continuance of an Event of
Default, all outstanding Loans and Reimbursement Obligations (whether or not
overdue) and, to the extent permitted by law, interest on the Loans and any
other amounts owing hereunder or under the other Loan Documents shall, at the
option of the Required Lenders, bear interest at a rate per annum equal to (x)
in the case of any LIBOR Loans, the rate applicable to such LIBOR Loan plus 2%
until the end of the applicable Interest Period and thereafter the rate
applicable to Base Rate Loans plus 2% or (y) in the case of any Base Rate Loans,
Swingline Loans, Reimbursement Obligations, or any other amounts payable
hereunder, the rate applicable to Base Rate Loans plus 2.00% (each, the "Default
Rate"), from the date of such Event of Default until such Event of Default is
waived in writing by the Required Lenders or, if curable, cured in full.
(d) Interest shall be payable in arrears on each Interest Payment Date,
provided that interest accruing pursuant to paragraph (c) of this Section shall
be payable from time to time on demand.
2.10 Computation of Interest and Fees. Interest on LIBOR Loans shall be
calculated on the basis of a 360 day year for the actual days elapsed. Other
interest (including on Base Rate Loans and Swingline Loans) and fees payable
pursuant hereto shall be calculated on the basis of a 365-366 day year for the
actual days elapsed. The Administrative Agent shall as soon as practicable
notify Borrower and the relevant Lenders of each determination of a LIBOR Rate.
Any change in the interest rate on a Loan resulting from a change in the Base
Rate or the LIBOR Reserve Requirements shall become effective as of the opening
of business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify Borrower and the
relevant Lenders of the effective date and the amount of each such change in
interest rate. Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on Borrower and the Lenders in the absence of manifest error.
2.11 Inability to Determine Interest Rate. If prior to the first day of
any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon Borrower) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the LIBOR Rate for such
Interest Period, or
(b) the Administrative Agent shall have received notice from
the Required Lenders that the LIBOR Rate determined or to be
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determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans during such
Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (i) any LIBOR Loans under the Revolving Facility requested to be
made on the first day of such Interest Period shall be made as Base Rate Loans,
(ii) any Loans under the Revolving Facility that were to have been converted on
the first day of such Interest Period to LIBOR Loans shall be continued as Base
Rate Loans and (iii) any outstanding LIBOR Loans under the Revolving Facility
shall be converted, on the last day of the then current Interest Period, to Base
Rate Loans. Until such notice has been withdrawn by the Administrative Agent, no
further LIBOR Loans under the Revolving Facility shall be made or continued as
such, nor shall Borrower have the right to convert Base Rate Loans under the
Revolving Facility to LIBOR Loans.
2.12 Pro Rata Treatment and Payments.
(a) Each borrowing by Borrower from the Lenders hereunder, each payment
by Borrower on account of any commitment fee or Letter of Credit Fee and any
reduction of the Revolving Commitments of the Lenders shall be made pro rata
according to the respective Revolving Percentages of the Lenders.
(b) Each payment (including each prepayment) by Borrower on account of
principal of and interest on the Revolving Loans shall be made according to the
respective outstanding principal amounts of the Revolving Loans then held by the
Lenders.
(c) All payments (including prepayments) to be made by Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim and free and clear of, and without any
deduction or withholding for, any taxes or other payments as set forth in
Section 2.14(a), and shall be made prior to 12:00 Noon, New York City time, on
the due date thereof to the Administrative Agent, for the account of the
Lenders, at the Funding Office, in Dollars and in immediately available funds.
The Administrative Agent shall distribute such payments to the Lenders promptly
upon receipt in like funds as received. If any payment hereunder (other than
payments on the LIBOR Loans) becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding Business
Day. If any payment on a LIBOR Loan becomes due and payable on a day other than
a Business Day, the maturity thereof shall be extended to the next succeeding
Business Day unless the result of such extension would be to extend such payment
into another calendar month, in which event such payment shall be made on the
immediately preceding Business Day. In the case of any extension of any payment
of principal pursuant to the preceding two sentences, interest thereon shall be
payable at the then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified in writing
by any Lender prior to a borrowing that such Lender will not make the amount
that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may
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assume that such Lender is making such amount available to the Administrative
Agent, and the Administrative Agent may, in reliance upon such assumption, make
available to Borrower a corresponding amount. If such amount is not made
available to the Administrative Agent by the required time on the Borrowing Date
therefor, such Lender shall pay to the Administrative Agent, on demand, such
amount with interest thereon at a rate equal to the daily average Federal Funds
Effective Rate for the period until such Lender makes such amount immediately
available to the Administrative Agent. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under this Section
shall be conclusive in the absence of manifest error. If such Lender's share of
such borrowing is not made available to the Administrative Agent by such Lender
within three Business Days of such Borrowing Date, the Administrative Agent
shall also be entitled to recover such amount with interest thereon at the rate
per annum applicable to Base Rate Loans, on demand, from Borrower.
(e) Unless the Administrative Agent shall have been notified in writing
by Borrower prior to the date of any payment being made hereunder that Borrower
will not make such payment to the Administrative Agent, the Administrative Agent
may assume that Borrower is making such payment, and the Administrative Agent
may, but shall not be required to, in reliance upon such assumption, make
available to the Lenders their respective pro rata shares of a corresponding
amount. If such payment is not made to the Administrative Agent by Borrower
within three Business Days of such required date, the Administrative Agent shall
be entitled to recover, on demand, from each Lender to which any amount which
was made available pursuant to the preceding sentence, such amount with interest
thereon at the rate per annum equal to the daily average Federal Funds Effective
Rate. Nothing herein shall be deemed to limit the rights of the Administrative
Agent or any Lender against Borrower.
2.13 Legal Requirements.
(a) If the adoption of or any change in any Legal Requirement or in the
interpretation or application thereof or compliance by any Lender with any
request or directive (whether or not having the force of law) from any central
bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any L/C Application or
any LIBOR Loan made by it, or change the basis of taxation of payments
to such Lender in respect thereof (except for taxes covered by or
excluded from coverage by Section 2.14 and changes in the rate of tax
on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans
or other extensions of credit by, or any other acquisition of funds by,
any office of such Lender that is not otherwise included in the
determination of the LIBOR Rate hereunder; or
(iii) shall impose on such Lender any other condition;
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and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender deems to be material, of making, converting into,
continuing or maintaining LIBOR Loans or any Commitment hereunder or issuing or
participating in Letters of Credit, or to reduce any amount receivable hereunder
in respect thereof, then, in any such case, Borrower shall promptly pay such
Lender, upon its demand, any additional amounts necessary to compensate such
Lender for such actual increased cost or reduced amount receivable. If any
Lender becomes entitled to claim any additional amounts pursuant to this
paragraph, it shall promptly notify Borrower (with a copy to the Administrative
Agent) of the event by reason of which it has become so entitled.
(b) If any Lender shall have determined that the adoption of or any
change in any Legal Requirement regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to Borrower (with a copy to the Administrative Agent)
of a written request therefor, Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender for such reduction.
(c) A certificate as to any additional amounts payable pursuant to this
Section submitted by any Lender to Borrower (with a copy to the Administrative
Agent) shall be conclusive in the absence of manifest error. The obligations of
Borrower pursuant to this Section shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
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2.14 Taxes.
(a) All payments made by Borrower to or for the account of any Lender
or the Administrative Agent under this Agreement shall be made free and clear
of, and without deduction or withholding for or on account of, any present or
future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding net income taxes
and franchise taxes (imposed in lieu of net income taxes) imposed on the
Administrative Agent or any Lender as a result of a present or former connection
between the Administrative Agent or such Lender (or its applicable lending
office) and the jurisdiction of the Governmental Authority imposing such tax or
any political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") or other stamp or documentary taxes or
excise or property taxes, charges or similar levies arising from any payment
made hereunder or from the execution, delivery or enforcement of, or otherwise
with respect to, this Agreement or any other Loan Document ("Other Amounts") are
required to be withheld from any amounts payable to the Administrative Agent or
any Lender hereunder, the amounts so payable to the Administrative Agent or such
Lender shall be increased to the extent necessary to yield to the Administrative
Agent or such Lender (after payment of all Non-Excluded Taxes and Other Amounts)
interest or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement, provided, however, that Borrower shall not
be required to increase any such amounts payable to any Lender with respect to
any Non-Excluded Taxes (i) that are attributable to such Lender's failure to
provide Borrower and the Administrative Agent with the appropriate form or
documentation pursuant to paragraph (d) or (e) of this Section (unless such
failure is due to the adoption of or any change in any Legal Requirement or in
the interpretation or application thereof made subsequent to the date on which a
form with respect to such Lender originally was required to be provided) or (ii)
that are United States withholding taxes imposed on amounts payable to such
Lender at the time the Lender becomes a party to this Agreement, except, in the
case of an assignment of rights and obligations under this Agreement to a Lender
pursuant to Section 2.17 or 10.6, to the extent that such Lender's assignor, or
the replaced Lender, as applicable, was entitled, at the time of assignment, to
receive additional amounts from Borrower with respect to such Non-Excluded Taxes
pursuant to this Section. In addition, for any period with respect to which a
Lender has provided Borrower and the Administrative Agent with the Internal
Revenue Service forms specified in clause (ii) of paragraph (d) of this Section,
Borrower shall not be required to increase any amounts payable to such Lender
with respect to United States withholding taxes other than those imposed on
interest.
(b) In addition, Borrower shall pay any Other Amounts to the relevant
Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Amounts are payable by
Borrower, as promptly as possible thereafter Borrower shall send to the
Administrative Agent for its own
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account or for the account of the relevant Lender, as the case may be, a
certified copy of an original official receipt received by Borrower showing
payment thereof. If Borrower fails to pay any Non-Excluded Taxes or Other
Amounts when due to the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required documentary
evidence, Borrower shall indemnify the Administrative Agent and the Lenders for
any incremental taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure.
(d) Each Lender (or Transferee) that is not a United States person
under Section 7701(a)(30) of the Code for U.S. federal income tax purposes (a
"Non-U.S. Lender") shall deliver to Borrower and the Administrative Agent (i)
two properly completed and duly executed original copies of either U.S. Internal
Revenue Service Form W-8BEN or Form W-8ECI, as appropriate, or any subsequent
versions thereof or successors thereto, certifying that such Non-U.S. Lender is
entitled to a complete exemption from U.S. federal withholding tax on all
payments by Borrower under this Agreement and the other Loan Documents, or (ii),
in the case of a Non-U.S. Lender, which is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue
Service Form W-8BEN (with respect to a complete exemption under an income tax
treaty) or Form W-8ECI pursuant to clause (i), a statement substantially in the
form of Exhibit M (an "Exemption Certificate") and two properly completed and
duly executed original copies of Internal Revenue Service Form W-8BEN (with
respect to such Lender's status as a foreign person) or any subsequent versions
thereof or successors thereto, certifying that such Non-U.S. Lender is entitled
to a complete exemption from U.S. federal withholding tax on all payments of
interest by Borrower under this Agreement and the other Loan Documents. In
addition, if requested in writing by Borrower or the Administrative Agent, each
Lender (or Transferee) that is a United States person under Section 7701(a)(30)
of the Code for U.S. federal income tax purposes (a "U.S. Lender") shall deliver
to Borrower and the Administrative Agent two properly completed and duly
executed original copies of Internal Revenue Service Form W-9, or any subsequent
versions thereof or successors thereto, certifying that such U.S. Lender is
entitled to a complete exemption from U.S. federal withholding tax on all
payments by Borrower under this Agreement and the other Loan Documents. The
forms described in this paragraph shall be delivered by each Lender on or before
the date it becomes a party to this Agreement (or, in the case of any
Participant, on or before the date such Participant purchases the related
participation). In addition, each Lender shall deliver such forms promptly upon
the obsolescence or invalidity of any form previously delivered by such Lender
or upon the request of Borrower or the Administrative Agent (but only so long as
such Lender remains lawfully able to do so). Each Lender shall promptly notify
Borrower at any time it determines that it is no longer in a position to provide
any previously delivered certificate to Borrower (or any other form of
certification adopted by the U.S. taxing authorities for such purpose).
Notwithstanding any other provision of this Section, a Non-U.S. Lender shall not
be required to deliver any form pursuant to this Section that such Non-U.S.
Lender is not legally able to deliver.
(e) A Lender that is entitled to an exemption from or reduction of
non-U.S. withholding tax under the law of the jurisdiction in which Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement and the other
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Loan Documents shall deliver to Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by Borrower, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate, provided that such Lender is legally entitled
to complete, execute and deliver such documentation and in such Lender's
judgment such completion, execution or submission would not materially prejudice
the legal position of such Lender.
(f) If the Administrative Agent or any Lender determines that it has
received or realized any refund of tax, any reduction of, or credit against, its
tax liabilities or otherwise recovered any amount in connection with any
deduction or withholding, or payment of any additional amount, by Borrower
pursuant to Section 2.13 or 2.14(a) above, it shall reimburse Borrower an amount
determined to be equal to the net benefit, after tax, which was obtained by such
Lender or the Administrative Agent, as a consequence of such refund, reduction,
credit or recovery, provided that nothing contained in this paragraph (f) shall
require the Administrative Agent or any Lender to make available its tax returns
(or any other information relating to its taxes which it deems to be
confidential).
(g) The agreements in this Section shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
2.15 Indemnity. Borrower agrees to indemnify each Lender and to hold
each Lender harmless from any loss or expense that such Lender may sustain or
incur as a consequence of (a) failure by Borrower to make a borrowing of,
conversion into or continuation of LIBOR Loans after Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (b)
failure by Borrower to make any prepayment of or conversion from LIBOR Loans
after Borrower has given a notice thereof in accordance with the provisions of
this Agreement or (c) the making of a prepayment of LIBOR Loans on a day that is
not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest that would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) that
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. A certificate as to any amounts payable Borrower by any Lender shall be
conclusive in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.16 Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.13 or 2.14(a)
with respect to such Lender, it will, if requested by Borrower, use reasonable
efforts (subject to overall policy considerations of such
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Lender) to designate another lending office for any Loans affected by such event
with the object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect
or postpone any of the obligations of Borrower or the rights of any Lender
pursuant to Section 2.13 or 2.14(a). In determining whether designating another
lending office would cause such Lender or its lending office(s) to suffer
economic disadvantage, such Lender may disregard any economic disadvantage that
Borrower agrees in form and substance satisfactory to such Lender to indemnify
and hold such Lender harmless therefrom.
2.17 Replacement of Lenders. Borrower shall be permitted to replace any
Lender that (a) requests reimbursement for amounts owing pursuant to Section
2.13 or 2.14(a) or (b) defaults in its obligation to make Loans hereunder, with
a replacement financial institution; provided that (i) such replacement does not
conflict with any Legal Requirement, (ii) no Event of Default shall have
occurred and be continuing at the time of such replacement, (iii) prior to any
such replacement, such Lender shall not have taken action under Section 2.15 so
as to eliminate the continued need for payment of amounts owing pursuant to
Section 2.13 or 2.14(a), (iv) the replacement financial institution shall
purchase, at par, all Loans and other amounts owing to such replaced Lender on
or prior to the date of replacement, (v) Borrower shall be liable to such
replaced Lender under Section 2.15 if any LIBOR Loan owing to such replaced
Lender shall be purchased other than on the last day of the Interest Period
relating thereto as if such purchase were a prepayment of the Loans of such
Lender on such date, (vi) the replacement financial institution, if not already
a Lender, shall be reasonably satisfactory to the Administrative Agent, (vii)
the replaced Lender shall be obligated to make such replacement in accordance
with the provisions of Section 10.6 (provided that Borrower shall be obligated
to pay the registration and processing fee referred to therein), (viii) until
such time as such replacement shall be consummated, Borrower shall pay all
additional amounts (if any) required pursuant to Section 2.13 or 2.14(a), as the
case may be, and (ix) any such replacement shall not be deemed to be a waiver of
any rights that Borrower, the Administrative Agent or any other Lender shall
have against the replaced Lender.
SECTION 3. LETTERS OF CREDIT.
3.1 L/C Commitment. Subject to the terms and conditions hereof, each
Issuing Lender, in reliance on the agreements of the other Lenders set forth in
Section 3.4(a), agrees to issue standby letters of credit ("Letters of Credit")
for the account of Borrower on any Business Day during the Revolving Commitment
Period in such form as may be approved from time to time by such Issuing Lender;
provided that such Issuing Lender shall have no obligation to issue any Letter
of Credit if, after giving effect to such issuance, (i) the L/C Obligations
would exceed the L/C Commitment or (ii) the aggregate amount of the Available
Revolving Commitments would be less than zero. The parties hereto acknowledge
that in accordance with the Original Agreement, Fleet National Bank issued a
Letter of Credit for the benefit of Borrower on March 1, 2001 and as of the date
hereof $3,000,000 is outstanding thereon. Each Letter of Credit shall (i) be
denominated in Dollars and (ii) expire no later than the earlier of (x) the
first anniversary of its date of issuance and (y) the date that is 15 calendar
days prior to the Scheduled Revolving
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Termination Date, provided that any Letter of Credit may provide for the renewal
thereof for additional periods not to exceed one year (which shall in no event
extend beyond the date referred to in clause (y) above). Each Letter of Credit
shall be subject to the International Standby Practices (1998). An Issuing
Lender shall not at any time be obligated to issue any Letter of Credit
hereunder if such issuance would conflict with, or cause such Issuing Lender or
any L/C Participant to exceed any limits imposed by, any applicable Legal
Requirement.
3.2 Procedure for Issuance of Letter of Credit. Borrower may from time
to time request that an Issuing Lender issue a Letter of Credit by delivering to
such Issuing Lender at its address for notices specified herein an L/C
Application therefor, completed to the satisfaction of such Issuing Lender, and
such other certificates, documents and other papers and information as such
Issuing Lender may request. Upon receipt of any L/C Application, such Issuing
Lender will process such L/C Application and the certificates, documents and
other papers and information delivered to it in connection therewith in
accordance with its customary procedures and, subject to the terms and
conditions hereof, shall promptly issue the Letter of Credit requested thereby
(but in no event shall such Issuing Lender be required to issue any Letter of
Credit earlier than three Business Days after its receipt of the L/C Application
therefor and all such other certificates, documents and other papers and
information relating thereto) by issuing the original of such Letter of Credit
to the beneficiary thereof or as otherwise may be agreed to by such Issuing
Lender and Borrower. Such Issuing Lender shall furnish a copy of such Letter of
Credit to Borrower promptly following the issuance thereof. Such Issuing Lender
shall promptly furnish to the Administrative Agent, which shall in turn promptly
finish to the Lenders, notice of the issuance of each Letter of Credit
(including the amount thereof).
3.3 Fees and Other Charges. (a) Borrower will pay a fee on all
outstanding Letters of Credit at a per annum rate equal to the Applicable Margin
then in effect with respect to LIBOR Loans, shared ratably among the Lenders
(the "Letter of Credit Fees"). In addition, Borrower shall pay to the applicable
Issuing Lender for its own account a fronting fee of .125% per annum on the face
amount of each Letter of Credit. All fees specified in this Section 3.3(a)
shall, in each case, be payable quarterly in arrears on each L/C Fee Payment
Date after the date of issuance.
(b) In addition to the foregoing fees, Borrower shall pay or reimburse
such Issuing Lender for such normal and customary costs and expenses as are
incurred or charged by such Issuing Lender in issuing, negotiating, effecting
payment under, amending or otherwise administering any Letter of Credit.
3.4 L/C Participations. (a) Each Issuing Lender irrevocably agrees to
grant and hereby grants to each L/C Participant, and, to induce such Issuing
Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from such Issuing
Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Percentage in the Issuing Lender obligations and rights
under each Letter of Credit issued hereunder and the amount of each draft paid
by the applicable Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the applicable
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Issuing Lender that, if a draft is paid under any Letter of Credit for which
such Issuing Lender is not reimbursed in full by Borrower in accordance with the
terms of this Agreement, such L/C Participant shall pay to such Issuing Lender
upon demand at such Issuing Lender's address for notices specified herein an
amount equal to such L/C Participant's Revolving Percentage of the amount of
such draft, or any part thereof, that is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to the
such Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed
portion of any payment made by such Issuing Lender under any Letter of Credit is
not paid to such Issuing Lender within three Business Days after the date such
payment is due, such L/C Participant shall pay to such Issuing Lender on demand
an amount equal to the product of (i) such amount, times (ii) the daily average
Federal Funds Effective Rate during the period from and including the date such
payment is required to the date on which such payment is immediately available
to such Issuing Lender, times (iii) a fraction the numerator of which is the
number of days that elapse during such period and the denominator of which is
360. If any such amount required to be paid by any L/C Participant pursuant to
Section 3.4(a) is not made available to such Issuing Lender by such L/C
Participant within three Business Days after the date such payment is due, such
Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the
rate per annum applicable to Base Rate Loans. A certificate of the applicable
Issuing Lender submitted to any L/C Participant with respect to any amounts
owing under this Section shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after the applicable Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant its
pro rata share of such payment in accordance with Section 3.4(a), such Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from Borrower or otherwise, including proceeds of collateral applied thereto by
such Issuing Lender), or any payment of interest on account thereof, such
Issuing Lender will distribute to such L/C Participant its pro rata share
thereof; provided, however that in the event that any such payment received by
such Issuing Lender shall be required to be returned by such Issuing Lender,
such L/C Participant shall return to such Issuing Lender the portion thereof
previously distributed by such Issuing Lender to it.
3.5 Reimbursement Obligation of Borrower. Borrower agrees to reimburse
the applicable Issuing Lender with respect to each draft presented under any
Letter of Credit and paid by such Issuing Lender for the amount of (a) such
draft so paid and (b) any taxes, fees, charges or other costs or expenses
incurred by such Issuing Lender in connection with such payment, such
reimbursement (i) on the same date as such draft if oral notice thereof is given
to Borrower by 1:00 p.m. (New York time) on such date, or (ii) on next Business
Day if such oral notice thereof is given to Borrower after 1:00 p.m. (New York
time). Each such payment shall be made to such Issuing Lender at its address for
notices specified herein in lawful money of the United States and in immediately
available funds. Interest shall be payable on any and all amounts remaining
unpaid by Borrower under this Section from the date such amounts become payable
(whether at stated maturity, by acceleration or otherwise) until payment in full
at the rate set forth in (i) until the second Business Day following the date of
the applicable drawing, Section 2.9(a) and (ii) thereafter, Section 2.9(b).
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3.6 Obligations Absolute. Borrower's obligations under this Section 3
shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment that Borrower may
have or have had against the applicable Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. Borrower also agrees with the Issuing
Lender that the Issuing Lender shall not be responsible for, and Borrower's
Reimbursement Obligations under Section 3.5 shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of Borrower against any
beneficiary of such Letter of Credit or any such transferee. The applicable
Issuing Lender shall not be liable for any error, omission, interruption or
delay in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
such Issuing Lender. Borrower agrees that any action taken or omitted by such
Issuing Lender under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct, shall be binding on Borrower and shall not result in any liability
of such Issuing Lender to Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the applicable Issuing Lender shall promptly
notify Borrower of the date and amount thereof. The responsibility of such
Issuing Lender to Borrower in connection with any draft presented for payment
under any Letter of Credit shall, in addition to any payment obligation
expressly provided for in such Letter of Credit, be limited to determining that
the documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are substantially in conformity with such
Letter of Credit.
SECTION 4. CONDITIONS PRECEDENT.
4.1 Conditions to Initial Extension of Credit. The agreement of each
Lender to make the initial extension of credit requested to be made by it is
subject to the satisfaction, prior to or concurrently with the making of such
extension of credit on the Closing Date of the following conditions precedent:
(a) Credit Agreement; Notes; Other Loan Documents. The Administrative
Agent shall have received (i) this Agreement, executed and delivered by the
Administrative Agent, Borrower and each Lender listed on Schedule 1.1D, (ii) the
Notes, executed and delivered by Borrower, (iii) the LifePoint Parent Guarantee
and Security Agreement executed and delivered by LifePoint Parent, (iv) the
Borrower Security Agreement executed and delivered by Borrower, (v) the
Guarantee and Security Agreement executed and delivered by each Subsidiary
Guarantor, (vi) the Trademark Security Agreement executed and delivered by
Borrower, LifePoint Parent and certain of their Subsidiaries, and (vii) an
Acknowledgment and Consent in the form attached
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to the Guarantee and Security Agreement, executed and delivered by each Issuer
(as defined therein), if any, that is not a Loan Party.
(b) Equity Interests. The Administrative Agent shall have received (A)
the certificates representing the certificated Equity Interests pledged pursuant
to the Security Documents, together with an undated stock power for each such
certificate executed in blank by a duly authorized officer of the pledgor
thereof and (B) each promissory note (if any), other instruments and chattel
paper pledged to the Administrative Agent pursuant to the Security Documents
endorsed (without recourse) in blank (or accompanied by an executed transfer
form in blank) by the pledgor thereof.
(c) Other Documentation. The Administrative Agent shall have received
each document (including any Uniform Commercial Code financing statement)
required by the Security Documents or under law or reasonably requested by the
Administrative Agent to be filed, registered or recorded in order to create in
favor of the Administrative Agent, for the benefit of the Lenders, a perfected
Lien on the Collateral described therein, prior and superior in right to any
other Person (other than with respect to Liens expressly permitted by Section
7.3), shall be in proper form for filing, registration or recordation.
(d) Mortgages.
(i) If required, the Administrative Agent shall have received an
amendment to Mortgage with respect to each Mortgaged Property,
executed, notarized and delivered by a duly authorized officer of each
party thereto. In the case of each real property leasehold interest
constituting Mortgaged Property, if required, the Administrative Agent
shall have received in conjunction with execution and delivery of the
amendment to Mortgage (A) such estoppel letters, consents and waivers
from the landlords on such real property as may be obtained by the Loan
Parties on a reasonable best efforts basis, which estoppel letters
shall be in the form and substance reasonably satisfactory to the
Administrative Agent, and (B) evidence that the applicable lease, a
memorandum of lease with respect thereto, or other evidence of such
lease in form and substance reasonably satisfactory to the
Administrative Agent, has been or will be recorded in all places to the
extent necessary or desirable, in the reasonable judgment of the
Administrative Agent, so as to enable the Mortgage encumbering such
leasehold interest to effectively create a valid and enforceable first
priority lien (subject to Liens permitted hereunder) on such leasehold
interest in favor of the Administrative Agent (or such other Person as
may be required or desired under local law) for the benefit of the
Lenders.
(ii) The Administrative Agent shall have received in respect of
each Mortgaged Property a mortgagee's title insurance policy (or
policies) or marked up unconditional binder for such insurance. Each
such policy shall be in an amount satisfactory to the Administrative
Agent; be issued at ordinary rates; insure that the Mortgage insured
thereby creates a valid first Lien on such Mortgaged Property free and
clear of all defects and encumbrances, except as disclosed therein;
name the Administrative Agent for the benefit of the Lenders as the
insured thereunder; be in the
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form of ALTA Loan Policy - 1970 (Amended 10/17/70 and 10/17/84) (or
equivalent policies); contain such endorsements and affirmative
coverage as the Administrative Agent may reasonably request; and be
issued by title insurance companies satisfactory to the Administrative
Agent ("Title Insurance Companies"). The Administrative Agent shall
have received evidence satisfactory to it that all premiums in respect
of each such policy, all charges for mortgage recording tax, and all
related expenses, if any, have been paid.
(iii) The Administrative Agent shall have received title
rundowns and a copy of all recorded documents referred to, or listed as
exceptions to title in, the title policy or policies referred to above
and a copy of other material documents affecting the Mortgaged
Properties requested in writing by the Administrative Agent.
(e) Financial Information; Projections. The Lenders shall have received
all of the following in form and substance satisfactory to Lenders: (i) the
audited consolidated balance sheet of LifePoint Parent as at December 31, 2000
and the related consolidated statements of income, and equity and cash flow
reported on and accompanied by an unqualified report from Ernst & Young, and
(ii) the consolidated balance sheet of LifePoint Parent as of March 31, 2001 and
the related consolidated statements of income and equity and cash flow
(collectively, the "Initial Financial Statements"). Such Initial Financial
Statements shall not, in the reasonable judgment of the Lenders, reflect any
material adverse change in the consolidated financial condition of LifePoint
Parent, as reflected in the financial statements or projections contained in the
Confidential Information Memorandum. The Lenders shall have received
satisfactory statements of projected cash flow, projected changes in financial
position and projected income, each through December 31, 2005 for Borrower and
its Subsidiaries, based on assumptions satisfactory to the Administrative Agent.
(f) Lien Searches. The Administrative Agent shall have received the
results of recent lien searches in each of the jurisdictions where assets of
LifePoint Parent, Borrower and its Subsidiaries are located, such searches to be
in their names and the names of transferors thereto within the last seven years
(including sellers in connection with acquisitions), and such searches shall
reveal no Liens on any of the assets of such Persons, except for Liens permitted
by Section 7.3 or discharged on or prior to the Closing Date pursuant to
documentation satisfactory to the Administrative Agent.
(g) Fees. The Lenders and the Administrative Agent shall have received
all fees required to be paid, and all expenses for which invoices have been
presented (including the reasonable fees and expenses of legal counsel), at
least one day before the Closing Date. All such amounts will be paid with
proceeds of Loans made on the Closing Date and will be reflected in the funding
instructions given by Borrower to the Administrative Agent on or before the
Closing Date.
(h) Closing Certificate. The Administrative Agent shall have received,
with a counterpart for each Lender, a certificate of each Loan Party, dated the
Closing Date, substantially in the form of Exhibit N, with appropriate
insertions and attachments (a "Closing Certificate").
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(i) Legal Opinion. The Administrative Agent shall have received the
following executed legal opinions:
(i) the legal opinion of general counsel to Borrower and its
Subsidiaries in form and substance satisfactory to Administrative
Agent;
(ii) the legal opinion of local counsel in Tennessee, Kentucky,
Alabama, Kansas, Utah, Wyoming and Florida, and of such other special
and local counsel as may be required by the Administrative Agent.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent may
reasonably require.
(j) Insurance. The Administrative Agent shall have received insurance
certificates satisfying the requirements of this Agreement and the Security
Documents.
(k) Absence of Material Litigation, Etc. The Lenders shall be satisfied
that no litigation or other legal proceeding, tax or accounting matters, ERISA
matters, environmental matters or other matters for which any Loan Party or any
of their respective Subsidiaries is or could become liable exists which could
reasonably be expected to result in a Material Adverse Effect.
(l) Other. Receipt by the Lenders of such other documents, instruments,
agreements or information as reasonably requested by any Lender, including, but
not limited to, information regarding litigation, tax, accounting, labor,
insurance, pension liabilities (actual or contingent), real estate leases,
material contracts, debt agreements, property ownership, environmental matters,
contingent liabilities, corporate structure and management of LifePoint Parent,
Borrower and their respective Subsidiaries.
4.2 Conditions to Each Extension of Credit. The agreement of each
Lender to make any extension of credit requested to be made by it on any date
(including its initial extension of credit) is subject to the satisfaction of
the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents shall be
true and correct in all material respects on and as of such date as if made on
and as of such date.
(b) No Default. No Default or Event of Default shall have occurred and
be continuing on such date or after giving effect to the extensions of credit
requested to be made on such date and the Loan Parties shall have complied with
all obligations to be performed by each of them prior to the date of such Loan
or Letter of Credit.
(c) No Material Adverse Change. As of the applicable Borrowing Date,
and since the dates covered by the most recent audited financial statements
delivered to the Administrative
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Agent, no event or circumstance shall have occurred which had or would be
reasonably likely to have a Material Adverse Effect.
Each borrowing of a Loan by, and each request for issuance of a Letter of Credit
on behalf of, Borrower hereunder shall constitute a representation and warranty
by Borrower as of the date of such extension of credit that the conditions
contained in this Section 4.2 have been satisfied.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans and issue or participate in the Letters of
Credit, each of LifePoint Parent and Borrower, and each of their respective
Subsidiaries which become Subsidiary Guarantors, by execution and delivery of
their respective Loan Documents, hereby represents and warrants to the
Administrative Agent and each Lender that:
5.1 Financial Condition.
(a) The audited consolidated balance sheets of LifePoint Parent and its
Subsidiaries contained in the Initial Financial Statements present fairly the
consolidated financial condition of such Persons and their Subsidiaries as at
such date, and the consolidated results of operations, equity and cash flows for
the respective fiscal years then ended. Such Initial Financial Statements,
including the related schedules and notes thereto, have been prepared in
accordance with GAAP applied consistently throughout the periods involved.
(b) Neither LifePoint Parent nor any of their respective Subsidiaries
has any material Guarantee Obligations, contingent liabilities and liabilities
for taxes, or any long-term leases or unusual forward or long-term commitments,
including any interest rate or foreign currency swap or exchange transaction or
other obligation in respect of derivatives, that are not reflected in the most
recent Initial Financial Statements. During the period from December 31, 2000 to
and including the date hereof there has been no Disposition by LifePoint Parent
or Borrower of any material part of its business or property.
(c) Since December 31, 2000, there has been no development or event
that has had or could reasonably be expected to have a Material Adverse Effect.
5.2 Existence; Compliance with Law. Each Loan Party and each of their
respective Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
requisite organizational power and authority, and the legal right, to own and
operate its property, to lease the property it operates as lessee and to conduct
the business in which it is currently engaged, and (c) is duly qualified as a
foreign entity, if applicable, and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification and is in compliance with all Legal
Requirements, in each case except to the extent that the failure to be so
qualified or to comply with such Legal Requirements could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
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5.3 Power; Authorization; Enforceable Obligations. Each Loan Party has
the requisite organizational power and authority, and the legal right, to make,
deliver and perform the Loan Documents to which it is a party and, in the case
of Borrower, to borrow hereunder. Each Loan Party has taken all necessary
organizational action to authorize the execution, delivery and performance of
the Loan Documents to which it is a party and, in the case of Borrower, to
authorize the borrowings on the terms and conditions of this Agreement. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of this Agreement or any of the Loan
Documents, except (i) consents, authorizations, filings and notices described on
Schedule 5.3, which consents, authorizations, filings and notices have been
obtained or made and are in full force and effect or where the failure to so
obtain could not be expected in the aggregate to result in a Material Adverse
Effect and (ii) the filings referred to in Section 5.18. (It is agreed that the
failure of any Loan Party to list a material consent, authorization, filing or
notice on Schedule 5.3 which has in any event been obtained and in full force
and effect shall not constitute an Event of Default hereunder.) Each Loan
Document required to be delivered hereunder has been duly executed and delivered
on behalf of each Loan Party thereto. This Agreement constitutes, and each other
Loan Document executed and delivered constitutes, a legally valid and binding
obligation of each Loan Party thereto, enforceable against each such Loan Party
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
5.4 No Legal Impediment. The execution, delivery and performance of
this Agreement and the other Loan Documents, the issuance of Letters of Credit,
the borrowings hereunder and the use of the proceeds thereof will not violate
any Legal Requirement or any contractual obligation (other than any breach of
contractual obligations which, in the aggregate, (a) could not reasonably be
expected to result in a Material Adverse Effect and (b) would not impose any
liability on any Lender or the Administrative Agent) binding on any Loan Party
or any of their respective Subsidiaries and will not result in, or require, the
creation or imposition of any Lien on any of their respective properties or
revenues pursuant to any Legal Requirement or any such contractual obligation
(other than the Liens created by the Security Documents). No Legal Requirement
or contractual obligation applicable to any Loan Party or any of their
respective Subsidiaries could reasonably be expected to have a Material Adverse
Effect.
5.5 Litigation. Except as set forth on Schedule 5.5, no unsealed
litigation, or to the best of Borrower's knowledge, sealed litigation,
investigation, or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the best of Borrower's knowledge, threatened by or
against any Loan Party or any of their respective Subsidiaries or against any of
their respective properties or revenues (a) with respect to any of the Loan
Documents or any of the transactions contemplated hereby or thereby, or (b)
after giving effect to any applicable insurance and the obligations of
Columbia/HCA under the Distribution Agreement and the Tax Sharing Agreement,
that could reasonably be expected to have a Material Adverse Effect.
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5.6 No Default. No Loan Party nor any of their respective Subsidiaries
is in default under or with respect to any contractual obligations binding on it
in any respect that could reasonably be expected to have a Material Adverse
Effect. No Default or Event of Default has occurred and is continuing.
5.7 Ownership of Property; Liens. Each Loan Party and its Subsidiaries
has title in fee simple to, or a valid leasehold interest in, all its real
property purported to be owned by it on the Initial Financial Statements, both
historical and pro forma, and good title to, or a valid leasehold interest in,
all its other property, and none of such property is subject to any Lien except
as permitted by Section 7.3. Set forth on Schedule 5.7 is a complete and correct
list of all real property located in the United States and owned by, and all
leases material to the operation of LifePoint Parent, Borrower or any of their
respective Subsidiaries with street addresses and states where the same are
located. Set forth on Schedule 5.7 is a list of all locations where any material
tangible personal property of LifePoint Parent, Borrower or any of their
respective Subsidiaries is located. The notice address for Borrower set forth in
Section 10.2 is the location of the chief executive office of LifePoint Parent,
Borrower and any of their respective Subsidiaries. Schedule 5.7 sets forth a
list of the principal place of business of each of LifePoint Parent, Borrower
and any of their respective Subsidiaries. Each of the 18 Hospitals are owned and
3 Hospitals are leased by one of the Subsidiary Guarantors delivering a Mortgage
with respect thereto.
5.8 Licenses; Accreditations; Intellectual Property. Except as in the
aggregate could not reasonably be expected to have a Material Adverse Effect,
each Loan Party and each of its Subsidiaries has all necessary licenses,
permits, franchises, certificates of need, rights to participate in, or the
benefit of valid agreements to participate in, Medicare, Medicaid and other
material Third Party Payor Programs and other rights necessary for the conduct
of its business and for the intended use of its properties and assets to the
extent necessary to ensure no material interruption in cash flow. No less than
90% of the Hospitals are accredited by JCAHO. Each Hospital is licensed as an
acute care hospital by such other Accreditation Bodies having jurisdiction over
it. Except as in the aggregate could not reasonably be expected to affect 10% or
more of all Hospitals and could not reasonably be expected to result in a
Material Adverse Effect, there are no deficiencies in any services provided at
any Hospital that would prevent the extension of any accreditation by JCAHO or
other applicable Accreditation Body as an acute care hospital. With respect to
such Hospitals which are not so accredited by JCAHO, the Loan Parties are taking
all reasonable steps necessary or advisable to obtain such accreditation
promptly and, in any event, within twelve months after the loss or failure to
obtain such accreditation. As of the Closing Date, all of the 21 Hospitals
listed on Schedule 1.1B are accredited by JCAHO and are licensed as acute care
hospitals by the appropriate Accreditation Bodies for at least the number of
beds listed on Schedule 1.1B therefor. As of the Closing Date, each of such
Hospitals has the right to participate in Medicare, Medicaid and other material
Third Party Payor Programs to the extent necessary to ensure no material
interruption in cash flow which would reasonably be expected to result in a
Material Adverse Effect. Except as in the aggregate could not be reasonably
expected to have a Material Adverse Effect: (a) there are no rate appeals
currently pending before any Government Authority or any administrator of any
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Third Party Payor Program or referral source with respect to any Medical
Facility; (b) there are no recoupment claims made or contests pending or
threatened as a result of any audits by any Third Party Payor Programs or no
open or unsettled cost reports for which any Loan Party is financially
responsible or has not been indemnified with respect to any Medical Facility;
and (c) there are no material claims or assertions made in any utilization
review that any of the practices or procedures used at any Medical Facility are
improper or inappropriate. Each Loan Party and each of its Subsidiaries owns, or
is licensed to use, all Intellectual Property necessary for the conduct of its
business as currently conducted. No material claim has been asserted and is
pending by any Person challenging or questioning the use of any Intellectual
Property or the validity or effectiveness of any Intellectual Property, nor does
any Loan Party know of any valid basis for any such claim. The use of
Intellectual Property by each Loan Party and their respective Subsidiaries does
not infringe on the rights of any Person in any material respect.
5.9. Taxes. Each Loan Party and each of their respective Affiliates and
Subsidiaries has filed or caused to be filed all Federal, state and other
material tax returns that are required to be filed and has paid all taxes shown
to be due and payable on said returns or on any assessments made against it or
any of its property and all other taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority (other than any the amount or
validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on its books). No tax Lien has been filed, and, to the knowledge of any
Loan Party, no claim is being asserted, with respect to any such tax, fee or
other charge.
5.10 Federal Regulations. No part of the proceeds of any Loans will be
used for "buying" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U of the Board of
Governors of the Federal Reserve System as now and from time to time hereafter
in effect or for any purpose that violates the provisions of the Regulations of
such Board. If requested by any Lender or the Administrative Agent, Borrower
will furnish to the Administrative Agent and each Lender a statement to the
foregoing effect in conformity with the requirements of FR Form G-3 or FR Form
U-1, as applicable, referred to in Regulation U.
5.11 Labor Matters. Except as, in the aggregate could not reasonably be
expected to have a Material Adverse Effect: (a) there are no strikes or other
labor disputes against any Loan Party or any of their respective Affiliates or
Subsidiaries pending or, to the knowledge of any Loan Party, threatened; (b)
hours worked by and payment made to employees of any Loan Party or any of their
respective Affiliates or Subsidiaries have not been in violation of the Fair
Labor Standards Act or any other applicable Legal Requirement dealing with such
matters; and (c) all payments due from any Loan Party or any of their respective
Affiliates or Subsidiaries on account of employee health and welfare insurance
have been paid or accrued as a liability on the appropriate books.
5.12 ERISA. Except as, in the aggregate could not reasonably be
expected to have a Material Adverse Effect: (a) neither a Reportable Event nor
an "accumulated funding deficiency" (within the meaning of Section 412 of the
Code or Section 302 of ERISA) has
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occurred during the five-year period prior to the date on which this
representation, is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code, (b) no termination of a Single Employer Plan has occurred, and no
Lien in favor of the PBGC or a Plan has arisen, during such five-year period,
(c) the present value of all accrued benefits under each Single Employer Plan
(based on those assumptions used to fund such Plans) did not, as of the last
annual valuation date prior to the date on which this representation is made or
deemed made, exceed the value of the assets of such Plan allocable to such
accrued benefits by a material amount, (d) no Loan Party nor, to the best of
their knowledge, any Commonly Controlled Entity has had a complete or partial
withdrawal from any Multiemployer Plan that has resulted or could reasonably be
expected to result in a material liability under ERISA, and no Loan Party nor,
to the best of their knowledge, any Commonly Controlled Entity would become
subject to any material liability under ERISA if any Loan Party or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made, and (e) no such Multiemployer Plan is in
Reorganization or Insolvent.
5.13 Investment Company Act; Other Regulations. No Loan Party is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Legal Requirement (other than
Regulation X of the Board of Governors of the Federal Reserve System) that
limits its ability to incur Indebtedness.
5.14 Subsidiaries. Attached hereto is Schedule 5.14(a) is an
organization chart of LifePoint Parent, Borrower and their respective
subsidiaries as of the Closing Date. Except as disclosed to the Administrative
Agent by Borrower in writing from time to time after the Closing Date, (a)
Schedule 5.14(b) sets forth the name and jurisdiction of incorporation of each
Loan Party and each Subsidiary thereof and, as to each such Person, the owners
and percentages of each class of Equity Interests therein, and (b) there are no
outstanding subscriptions, options, warrants, calls, rights or other agreements
or commitments (other than stock options granted to employees or directors and
directors' qualifying shares) of any nature relating to any Equity Interests of
any Loan Party or any Subsidiary, except as created by the Loan Documents. The
only direct Subsidiary of LifePoint Parent is Borrower and all of the other
Subsidiaries which are a part of the consolidated group of LifePoint Parent are
directly or indirectly owned by Borrower, with the exception of the Existing
Joint Venture (in which Borrower indirectly holds the majority interests set
forth in Schedule 5.14(b)), and all of the Subsidiaries which are a part of such
consolidated group are Subsidiary Guarantors.
5.15 Use of Proceeds. The proceeds of the Loans shall only be used for
general corporate purposes of Borrower and the Subsidiary Guarantors, including
working capital, Capital Expenditures, Permitted Acquisitions, support for the
issuance of letters of credit and other lawful corporate purposes, subject to
Section 7.8 as to the Existing Joint Venture.
5.16 Environmental Matters. Except as, in the aggregate could not
reasonably be expected to have a Material Adverse Effect:
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(a) Each of the facilities and properties owned, leased or operated by
any Loan Party or any of their respective Subsidiaries (the "Properties") and
all operations at the Properties are in compliance with all applicable
Environmental Laws, and there is no violation of any Environmental Law with
respect to the Properties or the businesses operated by any Loan Party or any of
its Subsidiaries (the "Businesses"), and there are no conditions relating to the
Businesses or Properties that could give rise to liability under any applicable
Environmental Laws.
(b) None of the Properties contains, or has previously contained, any
Hazardous Materials at, on or under the Properties in amounts or concentrations
that constitute or constituted a violation of, or could give rise to liability
under, Environmental Laws.
(c) No Loan Party nor any of its Subsidiaries has received any written
or oral notice of, or inquiry from any Governmental Authority regarding, any
violation, alleged violation, non-compliance, liability or potential liability
regarding environmental matters or compliance with Environmental Laws with
regard to any of the Properties or the Businesses, nor does any Loan Party or
any or its Subsidiaries have knowledge or reason to believe that any such notice
will be received or is being threatened.
(d) Hazardous Materials have not been transported or disposed of from
the Properties, or generated, treated, stored or disposed of at, on or under any
of the Properties or any other location, in each case by or on behalf any Loan
Party or any of its Subsidiaries in violation of, or in a manner that would be
reasonably likely to give rise to liability under, any applicable Environmental
Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the best knowledge of any Loan Party, threatened, under any
Environmental Law to which any Loan Party or any of its Subsidiaries is or will
be named as a party, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect to
any Loan Party or its Subsidiaries, the Properties or the Businesses.
(f) There has been no release or, threat of release of Hazardous
Materials at or from the Properties, or arising from or related to the
operations (including, without limitation, disposal) of any Loan Party or any of
its Subsidiaries in connection with the Properties or otherwise in connection
with the Businesses, in violation of or in amounts or in a manner that could
give rise to liability under Environmental Laws.
(g) No Loan Party nor any of its Subsidiaries has assumed any liability
of any other Person under any Environmental Laws.
5.17 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document or any other document,
certificate or statement furnished by or on behalf of any Loan Party to the
Administrative Agent or the Lenders, or any of them, for
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use in connection with the transactions contemplated by this Agreement or the
other Loan Documents, contained as of the date such statement, information,
document or certificate was so furnished, any untrue statement of a material
fact or omitted to state a material fact necessary to make the statements
contained herein or therein not misleading. The projections and pro forma
financial information contained in the materials referenced above are based upon
good faith estimates and assumptions believed by management of each Loan Party
to be reasonable at the time made, it being recognized by the Lenders that such
financial information as it relates to future events is not to be viewed as fact
and that actual results during the period or periods covered by such financial
information may differ from the projected results set forth therein by a
material amount. There is no fact known to any Loan Party that could reasonably
be expected to have a Material Adverse Effect that has not been expressly
disclosed herein, in the other Loan Documents, in the Confidential Information
Memorandum or in any other documents, certificates and statements furnished to
the Administrative Agent and the Lenders for use in connection with the
transactions contemplated hereby and by the other Loan Documents.
5.18 Security Documents. The LifePoint Parent Guarantee and Security
Agreement, the Borrower Security Agreement, the Guarantee and Security Agreement
and the Trademark Security Agreement, are effective to create in favor of the
Administrative Agent, for the benefit of the Lenders, a legally valid and
enforceable security interest in the Collateral described therein and proceeds
thereof. In the case of the Pledged Stock described in any of the Security
Documents when certificates representing such Pledged Stock are delivered to the
Administrative Agent, and in the case of the other Collateral described in the
Security Documents (other than the Mortgages), when financing statements and
other filings specified on Schedule 5.18 in appropriate form are filed in the
offices specified on Schedule 5.18, the LifePoint Parent Guaranty Security
Agreement, the Borrower Security Agreement, the Guarantee and Security Agreement
and the Trademark Security Agreement shall constitute a fully perfected Lien on,
and security interest in, all right, title and interest of LifePoint Parent,
Borrower and the Subsidiary Guarantors in such Collateral and the proceeds
thereof, as security for their respective obligations (as set forth in the
LifePoint Parent Guarantee and Security Agreement, the Borrower Security
Agreement, the Guarantee and Security Agreement and the Trademark Security
Agreement), to the extent a Lien in such Collateral (other than the Pledged
Stock) can be perfected pursuant to such financing statements and such other
filings, in each case prior and superior in right to any other Person (except,
in the case of Collateral other than Pledged Stock, Liens permitted by Section
7.3).
(b) Each of the Mortgages or amendments thereto will be effective to
create in favor of the Administrative Agent, for the benefit of the Lenders, a
legally valid and enforceable Lien on the Mortgaged Properties described therein
and proceeds thereof, and when the Mortgages are filed in the appropriate
offices in the jurisdictions in which the Mortgaged Properties are located, each
such Mortgage shall constitute a fully perfected Lien on, and security interest
in, all right, title and interest of the Loan Parties in the Mortgaged
Properties and the proceeds thereof, as security for their respective
obligations (as set forth in the relevant Mortgage), in each case prior and
superior in right to any other Person subject to those matters listed on the
title insurance policies being issued to the Administrative Agent as of the date
hereof.
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5.19 Solvency. Each Loan Party is, both before and after giving effect
to the incurrence of all Indebtedness and obligations being incurred in
connection with the Loans, will be and will continue to be at all times,
Solvent.
5.20 Flood Zone. To the knowledge of Borrower, no Mortgage encumbers
improved real property that is located in an area that has been identified by
the Secretary of Housing and Urban Development as an area having special flood
hazards and in which flood insurance has been made available under the National
Flood Insurance Act of 1968.
5.21 Delaware Code. None of the Organizational Documents of any of the
Loan Parties contain any provision similar to those set forth in Section
102(b)(2) of Title 8 of the Delaware Code, as amended.
5.22 Distribution Agreement. As of the date hereof, the Distribution
Agreement is in full force and effect to the extent of and in accordance with
the terms thereof, and is hereby ratified and affirmed.
SECTION 6. AFFIRMATIVE COVENANTS
Each of LifePoint Parent and Borrower hereby agrees, so long as
Commitments remain in effect, any Letter of Credit remains outstanding or any
Loan or other amount is owing to any Lender or the Administrative Agent
hereunder, it shall and shall cause each of its Subsidiaries to:
6.1 Financial Statements. Furnish to the Administrative Agent and each
Lender:
(a) as soon as available, but in any event within 90 days after the end
of each fiscal year of LifePoint Parent, a copy of the audited consolidated
balance sheet of such Persons and its consolidated Subsidiaries as at the end of
such year and the related audited consolidated statements of income and of cash
flows for such year, setting forth in each case in comparative form the figures
for the previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope of the
audit, by Ernst & Young or other independent certified public accountants of
nationally recognized standing (the "Accountants"); together with consolidating
financial statements and, if any, management letters and other written reports
for such Persons prepared by such Accountants;
(b) as soon as available, but in any event not later than 45 days after
the end of each of the first three quarterly periods of each fiscal year of
LifePoint Parent, the unaudited consolidated balance sheet of LifePoint Parent
and its consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and of cash flows for such quarter
and the portion of the fiscal year through the end of such quarter, setting
forth in each case in comparative form the figures for the previous year,
certified by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments); and
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All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
6.2 Certificates; Other Information. Furnish to the Administrative
Agent and each Lender:
(a) concurrently with the delivery of the financial statements referred
to in Section 6.1(a), a certificate of the Accountants reporting on such
financial statements stating that in making the examination necessary therefor
no knowledge was obtained of any Default or Event of Default, except as
specified in such certificate;
(b) concurrently with the delivery of any financial statements pursuant
to Section 6.1(a) and (b), (i) a certificate of a Responsible Officer stating
that, to the best of each such Responsible Officer's knowledge, each Loan Party
during such period has observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in this Agreement and the
other Loan Documents to which it is a party to be observed, performed or
satisfied by it, and that such Responsible Officer has obtained no knowledge of
any Default or Event of Default except as specified in such certificate and (ii)
(x) a Compliance Certificate containing all information and calculations
necessary for determining compliance by Borrower and its Subsidiaries with the
provisions of this Agreement referred to therein as of the last day of the
fiscal quarter or fiscal year of Borrower, as the case may be, and (y) to the
extent not previously disclosed to the Administrative Agent, a listing of any
county or state within the United States where any Loan Party keeps any material
assets acquired by LifePoint Parent, Borrower or any of their Subsidiaries since
the date of the most recent list delivered pursuant to this clause (y) (or, in
the case of the first such list so delivered, since the Closing Date);
(c) as soon as available, and in any event no later than the end of
each fiscal year of Borrower, a detailed consolidated budget for the following
fiscal year (including a projected consolidated balance sheet of Borrower and
its Subsidiaries as of the end of the following fiscal year, the related
consolidated statements of projected cash flow, projected changes in financial
position and projected income and a description of the underlying assumptions
applicable thereto), and, as soon as available, significant revisions, if any,
of such budget and projections with respect to such fiscal year (collectively,
the "Projections"), which Projections shall in each case be accompanied by a
certificate or letter of a Responsible Officer stating that such Projections are
based on reasonable estimates, information and assumptions;
(d) within five days after the same are sent, copies of all financial
statements, proxies and reports that LifePoint Parent or Borrower or any of its
Subsidiaries sends to its material creditors (other than the Lenders) or to the
holders of any class of its debt securities or public equity securities; within
five days after the same are filed, copies of all proxy statements, registration
statements, prospectuses and amendments and supplements thereto, and any regular
and periodic reports and financial statements (including reports on Form 10K and
Form 10Q and Form 8K (as to Form 8K, to the extent material, e.g. not merely an
item 9 disclosure)) and other
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reports relating to any Loan Party and made to or filed with any securities
exchange or with the SEC; and, within five days after the same are available,
letters of comment or correspondence sent to any Loan Party by any securities
exchange or the SEC; and
(e) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
6.3 Payment of Obligations. Except with respect to Subordinated Debt
which may only be paid in accordance with Section 7.6, pay, discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all its material obligations of whatever nature, except where the
amount or validity thereof is currently being contested in good faith by
appropriate proceedings and reserves in conformity with GAAP with respect
thereto have been provided on the books of LifePoint Parent or its Subsidiaries,
as the case may be. As to Borrower and each of its direct and indirect
Subsidiaries, cause their direct and indirect Subsidiaries to make dividends,
distributions and other payments to Borrower from time to time as may be
necessary to ensure that Borrower is able to pay the Obligations as and when the
same become due. As to any Subsidiary holding any Equity Interests in any joint
ventures which are not Subsidiary Guarantors, cause dividends, distributions and
other payments to the full extent possible to be made to such holders of Equity
Interests in such joint ventures from time to time as soon and as often as such
dividends, distributions and other payments are permitted to be made, or not
prohibited from being made, in any fiscal year under the terms of the
Organizational Documents of such joint ventures.
6.4 Maintenance of Existence; Compliance. (a) (i) Preserve, renew and
keep in full force and effect its existence as a corporation, partnership or
limited liability company, as applicable, (ii) take all reasonable action to
maintain all accreditations by JCAHO and licenses as acute care hospitals by
Accreditation Bodies of its Hospitals, (iii) take all reasonable action
necessary to maintain its other accreditations, licenses, permits, certificates
of need, rights, privileges and franchises necessary in the normal conduct of
its business, except, in each case, as otherwise permitted by Section 7.4 and
Section 7.5 and except, in the case of clause (iii) above, to the extent that
failure to do so could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect; and (b) comply with all contractual obligations and
Legal Requirements except to the extent that failure to comply therewith could
not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
Maintain with respect to each Hospital, the right to participate in Medicare,
Medicaid and other material Third Party Payor Programs with no material
interruption in cash flow which would reasonably be expected to result in a
Material Adverse Effect. With respect to each Hospital, maintain Medicare and
Medicaid provider agreements relating specifically to each such Hospital. As to
LifePoint Parent, maintain its status as a public company listed and in good
standing on a nationally recognized securities exchange (whether or not its
common Equity Interests are so listed).
6.5 Maintenance of Property. Keep all material property useful and
necessary in its business in good working order and condition, ordinary wear and
tear excepted.
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6.6 Inspection of Property; Books and Records; Discussions. (a) Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Legal Requirements shall be made of all dealings
and transactions in relation to its business and activities, and (b) permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records (in each case
excluding patient medical records and other patient material which is
confidential pursuant to any Legal Requirement) at any reasonable time (and upon
reasonable notice unless an Event of Default exists) and as often as may
reasonably be desired and to discuss its and its Subsidiaries' business,
operations, properties and financial and other condition with its officers and
employees and, subject to the right of a representative of the relevant Loan
Party to be present, with its independent certified public accountants.
6.7 Notices. Promptly after any Responsible Officer has knowledge
thereof, give notice to the Administrative Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any default or event of default under any contract to which any
Loan Party or any of their respective Subsidiaries is bound or litigation,
investigation or proceeding that may exist at any time between any such Person
and any Governmental Authority, that in either case if not cured or if adversely
determined, as the case may be, could reasonably be expected to have a Material
Adverse Effect;
(c) any litigation or proceeding involving LifePoint Parent, Borrower
or any of their respective Subsidiaries involving an amount of $5,000,000 or
more and not fully covered by insurance or in which injunctive or similar relief
is sought;
(d) the following events, as soon as possible and in any event within
30 days after any Responsible Officer obtains knowledge thereof: (i) the
occurrence of any Reportable Event with respect to any Plan, a failure to make
any required contribution to a Plan, the creation of any Lien in favor of the
PBGC or a Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings or
the taking of any other action by the PBGC or any Loan Party or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the withdrawal from,
or the termination, Reorganization or Insolvency of, any Plan; and
(e) any development or event that has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section 6.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the relevant Persons propose to take with
respect thereto.
6.8 Environmental Laws.
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(a) Comply in all material respects with, and ensure compliance in all
material respects by all tenants and subtenants, if any, with, all applicable
Environmental Laws, and obtain and comply in all material respects with and
maintain, and ensure that all tenants and subtenants obtain and comply in all
material respects with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws, except where the failure to do so could not reasonably be expected to have
a Material Adverse Effect.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws, except where the failure to do so could not reasonably be expected to have
a Material Adverse Effect. Notwithstanding the foregoing sentence, nothing in
this Credit Agreement shall prevent any Loan Party or any Subsidiary of any Loan
Party from exercising any rights to contest or appeal any order or directive
issued under Environmental Laws by a Governmental Authority prior to undertaking
any investigations, studies, sampling, or testing, or any remedial, removal or
other actions required thereunder, nor shall any provision of this Credit
Agreement limit any rights of any Loan Party or any Subsidiary of any Loan Party
under any Environmental Laws or other Legal Requirements to seek to require
third parties to conduct, complete, or pay for any investigations, studies,
sampling, testing, or remedial, removal, or other actions required under
Environmental Laws or under lawful orders and directives issued under
Environmental Laws by Governmental Authorities.
(c) Jointly and severally indemnify, defend and hold the Lenders and
the Administrative Agent harmless from and against any claim, cost, damage
(including without limitation consequential damages), expenses (including
without limitation attorneys' fees and expenses), loss, liability, and judgment
now or hereafter arising as a result of any claim for environmental clean-up
costs, any resulting damage to the environment and any other environmental
claims against any Loan Party, the Administrative Agent, any Lender, or the
Properties. The provisions of this subparagraph (c) shall continue in effect and
shall survive (among other events) any termination of this Agreement,
foreclosure, a deed in lieu of transaction, payment and satisfaction of the
Notes and release of any Collateral.
6.9 Reserved.
6.10 Insurance. Comply at all times with all insurance provisions of
the Security Documents. Keep all of its insurable properties now or hereafter
owned adequately insured at all times against loss or damage by fire or other
casualty to the extent customary with respect to like properties of companies
conducting similar businesses and to the extent required by Administrative
Agent; maintain public liability, professional liability, business interruption
and workers' compensation insurance insuring each Loan Party and each Subsidiary
thereof to the extent customary with respect to companies conducting similar
businesses, all by financially sound and reputable insurers and furnish to the
Lenders satisfactory evidence of the same (including certification by a
Responsible Officer of Borrower of the timely renewal of, and timely payment of
all insurance premiums payable under, all such policies, which certification
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shall be included in the next succeeding Compliance Certificate delivered
pursuant to hereto); notify each of the Lenders of any material change in the
insurance maintained on its properties after the date hereof and furnish each of
the Lenders satisfactory evidence of any such change; maintain insurance with
respect to its real estate improvements and tangible personal property in an
amount equal to the full replacement cost thereof; and provide that each
insurance policy pertaining to any of its insurable properties shall (a) name
the Administrative Agent, on behalf of the Lenders, (i) as loss payee pursuant
to a so-called "standard mortgagee clause" or "Lender's loss payable
endorsement", with respect to property coverage, and shall name the
Administrative Agent on behalf of the Lenders as an additional insured, with
respect to general liability coverage; (b) provide that no action of any Loan
Party or any Subsidiary or any other Person shall void any such policy as to the
Administrative Agent or the Lenders, and (c) provide that the insurer(s) shall
notify the Administrative Agent of any proposed cancellation of such policy at
least 30 days in advance thereof (unless such proposed cancellation arises by
reason of non-payment of insurance premiums in which case such notice shall be
given at least 10 days in advance thereof) and that the Administrative Agent or
the Lenders will have the opportunity to correct any deficiencies justifying
such proposed cancellation. Deliver to the Administrative Agent a policy of
flood insurance that covers any parcel of improved real property that is
encumbered by any Mortgage, is written in an amount not less than the fair
market value thereof or the maximum limit of coverage made available with
respect to the particular type of property under the National Flood Insurance
Act of 1968, whichever is less, and has a term ending not later than the
maturity of the Revolving Notes.
6.11 After-Acquired Equity Interests, etc. With respect to any
Subsidiary created or acquired after the Closing Date by LifePoint Parent,
Borrower or any of their respective Subsidiaries, promptly (i) execute and
deliver to the Administrative Agent such amendments to the Guarantee and
Security Agreement as the Administrative Agent deems necessary or advisable to
grant to the Administrative Agent, for the benefit of the Lenders, a perfected
first priority security interest in the Equity Interests of such Subsidiary held
by such Loan Party, (ii) deliver to the Administrative Agent the certificates
representing such Equity Interests, together with undated stock powers, in
blank, executed and delivered by a duly authorized officer of such Loan Party,
as the case may be, (iii) cause such new Subsidiary (with the exception of the
Cumberland Ambulatory Surgery Subsidiary) (A) to execute and deliver to the
Administrative Agent for the benefit of the Lenders a Guarantee and Pledge
Agreement in the form of Exhibit O hereto and (B) to deliver to the
Administrative Agent a Closing Certificate of such Subsidiary with appropriate
insertions and attachments, and (iv) if requested by the Administrative Agent,
deliver to the Administrative Agent legal opinions relating to the matters
described above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent.
6.12 Appraisals; Environmental Reports; etc.
(a) From time to time after the Closing Date, at the request of the
Administrative Agent (but no more than once per property if the Administrative
Agent reasonably deems it necessary or advisable under applicable Legal
Requirements, unless an Event of Default exists and is continuing), permit the
Administrative Agent to obtain appraisals at Borrower's expense of
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the real property of LifePoint Parent, Borrower and its Subsidiaries required to
be subject to a Mortgage hereunder by an appraiser selected by the
Administrative Agent in its reasonable discretion.
(b) Upon the reasonable written request of the Administrative Agent
following the occurrence of an Event of Default or any event or the discovery of
any condition which the Administrative Agent or the Required Lenders reasonably
believe has caused (or could be reasonably expected to cause) the
representations and warranties set forth in Section 5.16 to be untrue in any
material respect, furnish or cause to be furnished to the Administrative Agent,
at the Loan Parties' expense, a report of an environmental assessment of
reasonable scope, form and depth, (including, where appropriate, invasive soil
or groundwater sampling) by a consultant reasonably acceptable to the
Administrative Agent as to the nature and extent of the presence of any
Hazardous Materials on any Properties (as defined in Section 5.16) and as to the
compliance by any Loan Party and its respective Subsidiaries with Environmental
Laws at such Properties. If the Loan Parties fail to deliver such an
environmental report within 75 days after receipt of such written request (or
within 30 days if an Event of Default shall then exist) then the Administrative
Agent may arrange for same, and the Loan Parties and their respective
Subsidiaries hereby grant to the Administrative Agent and their representatives
access to the Properties to reasonably undertake such an assessment (including,
where appropriate, invasive soil or groundwater sampling). The reasonable cost
of any assessment arranged for by the Administrative Agent pursuant to this
provision will be payable by the Loan Parties on demand and added to the
Obligations.
SECTION 7. NEGATIVE COVENANTS.
Each of LifePoint Parent and Borrower hereby agrees, so long as
Commitments remain in effect, any Letter of Credit remains outstanding or any
Loan or other amount is owing to any Lender or the Administrative Agent
hereunder, it shall not, and shall cause each of its Subsidiaries to not:
7.1 Financial Covenants.
(a) Leverage Ratios.
(i) Permit the ratio of Consolidated Total Debt of LifePoint Parent
at any date to Consolidated EBITDA of LifePoint Parent for the most
recently ended Reference Period to exceed 3.50:1.00.
(ii) Permit the ratio of Consolidated Senior Debt of LifePoint
Parent at any date to Consolidated EBITDA of LifePoint Parent for the
most recently ended Reference Period to exceed 2.50:1.00.
(b) Consolidated Interest Coverage Ratio. Permit the ratio of
Consolidated EBITDA of LifePoint Parent for any Reference Period ending on any
Quarterly Date falling during the
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periods set forth below to Consolidated Interest Expense of LifePoint Parent for
such Reference Period to be less than the rate set forth below opposite such
period:
Quarterly Dates Ratio
--------------- -----
June 30, 2001 through March 31, 2002 3.00:1.00
June 30, 2002 and each Quarterly Date thereafter 3.50:1.00
(c) Consolidated Net Worth. Permit Consolidated Net Worth of LifePoint
Parent at any time from and after the Closing Date through June 30, 2001 to be
less than $204,400,000, which amount is 85% of Borrower's Consolidated Net Worth
as of March 31, 2001. Permit Consolidated Net Worth of LifePoint Parent at any
time thereafter to be less than the sum of (a) 100% of Consolidated Net Worth of
LifePoint Parent required hereunder with respect to the fiscal quarter most
recently ended, plus (b) 50% of Consolidated Net Income of LifePoint Parent for
the fiscal quarter most recently ended (without any reduction for losses), plus
(c) 100% of the Net Cash Proceeds of any offering of Equity Interests of any
Loan Party consummated after the Closing Date.
7.2 Indebtedness. Create, issue, incur, assume, become liable in
respect of or suffer to exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan Document;
(b) Indebtedness of Borrower to any Subsidiary Guarantor and of any
Subsidiary Guarantor (other than the Existing Joint Venture or any other joint
venture) to Borrower or any other Subsidiary Guarantor;
(c) Guarantee Obligations incurred in the ordinary course of business
(provided such obligations are not prohibited under this Agreement) by Borrower
or any of its Subsidiaries of obligations of any Subsidiary Guarantor (other
than the Existing Joint Venture or any other joint venture);
(d) purchase money Indebtedness (including, without limitation, Capital
Lease Obligations) secured by Liens permitted by Section 7.3(f) in an aggregate
principal amount not to exceed at one time outstanding as to all Loan Parties an
amount not to exceed ten percent (10%) of the book value of Consolidated Total
Assets (calculated as of the end of the most recent Reference Period for which
the Administrative Agent has received financial statements pursuant to Section
6.1(a) or (b));
(e) Indebtedness of Borrower (and the related Guarantee Obligations)
under the High Yield Offering pursuant to the High Yield Documents;
(f) Indebtedness of any Loan Party existing on the Closing Date and
listed on Schedule 7.2 attached hereto;
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(g) Indebtedness of LifePoint Parent (and the related Guarantee
Obligations) pursuant to any public offering of Subordinated Debt (including
without limitation, any Subordinated Debt convertible into Equity Interests)
occurring after the Closing Date in an aggregate amount not to exceed
$150,000,000;
(h) Indebtedness of Borrower or any of its Subsidiaries under any Rate
Hedging Agreement; and
(i) additional unsecured Indebtedness (but not Guarantee Obligations)
of Borrower or any of the Subsidiary Guarantors (other than the Existing Joint
Venture or any other joint venture) in an aggregate principal amount (for
Borrower and all Subsidiary Guarantors) not to exceed an amount equal to five
percent (5%) of the book value of Consolidated Total Assets (calculated as of
the end of the most Reference Period for which the Administrative Agent has
received financial statements pursuant to Section 6.1(a) or (b)).
7.3 Liens. Create, incur, assume or suffer to exist any Lien upon any
of its property, whether now owned or hereafter acquired, except for:
(a) Liens for taxes not yet due or that are being contested in good
faith by appropriate proceedings, provided that adequate reserves with respect
thereto are maintained on its books in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business that are not
overdue for a period of more than 30 days or that are being contested in good
faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(e) easements, rights-of-way, restrictions, defects or irregularities
in title, encroachments and other similar encumbrances incurred in the ordinary
course of business that, in the aggregate, are not substantial in amount and
that do not in any case materially detract from the value of any Mortgaged
Property or any other property material to the business of Borrower and its
Subsidiaries subject thereto or materially interfere with the ordinary conduct
of the business of Borrower and its Subsidiaries taken as a whole;
(f) Liens securing Indebtedness of the Loan Parties incurred pursuant
to Section 7.2(d) to finance the acquisition of new real or personal property;
provided that (i) such Liens shall be created substantially simultaneously with
the acquisition of such equipment (or within 45 days thereafter), (ii) such
Liens do not at any time encumber any property other than the
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property financed by such Indebtedness, and (iii) the amount of Indebtedness
secured thereby is not increased;
(g) Liens on deposits relating to self insurance with respect to
medical malpractice insurers in the ordinary course of business not exceeding
$50,000,000 in the aggregate made by any Loan Party in connection with any
insurance or bond maintained by any Loan Party with respect to medical
malpractice; provided, however, that if a Default exists, no such deposit shall
be made without the Administrative Agent's prior written consent;
(h) Liens created pursuant to the Security Documents; and
(i) any interest or title of a lessor under any true lease (not a
Capital Lease Obligation) entered into by any Loan Party in the ordinary course
of its business and covering only the assets so leased and the rights of the
lessee thereunder.
7.4 Fundamental Changes. Enter into any merger or consolidation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or Dispose of, all or substantially all of its property or
business, except that: (a) any Subsidiary of Borrower may be merged or
consolidated with or into Borrower (provided that Borrower shall be the
continuing or surviving corporation) or with or into any Subsidiary Guarantor
other than the Existing Joint Venture or any other joint venture (provided that
the Subsidiary Guarantor shall be the continuing or surviving corporation); and
(b) any Subsidiary of Borrower may Dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to Borrower or any Subsidiary Guarantor
(other than to the Existing Joint Venture or any other joint venture). Permit or
suffer any amendment of its Organizational Documents which could have a Material
Adverse Effect (it being expressly agreed that the inclusion in any such
Organizational Documents of any provision similar to those set forth in Section
102(b)(2) of Title 8 of the Delaware Code is prohibited under this Section).
7.5 Disposition of Property. Dispose of any of its property, whether
now owned or hereafter acquired, or, issue or sell any Equity Interests to any
Person, except:
(a) the Disposition of obsolete or worn out isolated items of equipment
in the ordinary course of business or isolated items of equipment which has been
replaced with equipment of equal or greater value in which the Administrative
Agent has a perfected first priority security interest;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.4(b);
(d) the sale or issuance of any Subsidiary's Equity Interests to
Borrower or any Subsidiary Guarantor (other than to the Existing Joint Venture);
(e) provided no Event of Default exists at the time or would result
therefrom, the Disposition of (i) up to 40% of the Equity Interests of the
Cumberland Ambulatory Surgery
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Subsidiary on a fully diluted basis, provided the Borrower, directly or
indirectly, still holds no less than 60% thereof, or (ii) up to 19% of the
Equity Interests of the Existing Joint Venture on a fully diluted basis,
provided the Borrower, directly or indirectly, still holds no less than 51%
thereof;
(f) the issuance by LifePoint Parent of its publicly traded common
Equity Interests; and
(g) Asset Sales (other than sale leasebacks prohibited by Section
7.10); provided that (i) the purchase price thereof is for at least fair market
value and the consideration paid therefor shall consist of cash, cash
equivalents and Investments to the extent permitted under Section 7.8(r), (ii)
that the aggregate amount of all Asset Sales during any fiscal year does not
exceed an amount equal to ten percent (10%) of the book value of Consolidated
Total Assets (calculated as of the end of the most recent fiscal year for which
the Administrative Agent has received audited financial statements, and (iii) no
Default or Event of Default shall exist immediately before or after giving
effect thereto.
7.6 Restricted Payments. Directly or indirectly declare, order, pay or
make any Restricted Payment or set aside any sum or property therefor except as
follows:
(a) The Subsidiary Guarantors may (A) pay dividends and make
distributions to Borrower and any other Subsidiary Guarantors (other than to the
Existing Joint Venture or any other joint venture), (B) repay Indebtedness owed
to Borrower or any other Subsidiary Guarantor (other than to the Existing Joint
Venture or any other joint venture), and (C) make intercompany loans to Borrower
or to any Subsidiary Guarantor (other than to the Existing Joint Venture or any
other joint venture) if and as permitted under Section 7.2(b);
(b) Borrower may make distributions to LifePoint Parent to the extent
necessary to pay its operating and administrative expenses incurred in the
ordinary course of business, including, without limitation, payroll expenses,
directors' fees, legal and audit expenses, SEC compliance expenses and corporate
franchise and federal, state and local income taxes, in an aggregate amount not
to exceed $2,500,000 in any fiscal year;
(c) Borrower may make distributions to LifePoint Parent to permit it to
pay expenses incurred under the corporate integrity program referenced in the
Distribution Agreement;
(d) Borrower may make distributions to LifePoint Parent to permit it to
pay expenses incurred under the Transition Agreements;
(e) Borrower may make distributions to LifePoint Parent or the ESOP, or
directly, to be used to repurchase, redeem, acquire or retire for value any
Equity Interests of LifePoint Parent pursuant to any stockholder's agreement,
management equity subscription plan or agreement, stock option plan or agreement
or employee benefit plan as may be adopted by Borrower or LifePoint Parent from
time to time in an aggregate amount not to exceed $2,000,000 in any fiscal year;
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(f) Borrower may make distributions to LifePoint Parent to permit
LifePoint Parent to make purchases permitted under Section 7.8(l);
(g) Borrower may make regularly scheduled payments (but not
prepayments) of interest under the High Yield Notes unless, on the date of any
such proposed payment or after giving effect thereto, an Event of Default shall
have occurred and be continuing; and
(h) Unless on the date of any such proposed redemption, repurchase or
other acquisition (or, if earlier, on the date Borrower becomes obligated to
consummate such transaction) after giving effect thereto, an Event of Default
shall have occurred and be continuing, Borrower shall (i) be permitted to
redeem, repurchase or otherwise acquire High Yield Notes from the proceeds of
Indebtedness permitted pursuant to clause (g) of Section 7.2 or from proceeds
(and/or in exchange for) any issuance of publicly traded common stock of
LifePoint Parent for a period of 90 days following the incurrence of such
Indebtedness or the issuance of such stock, and (ii) be permitted to redeem,
repurchase or otherwise acquire up to an additional $50,000,000 of High Yield
Notes.
7.7 Capital Expenditures. Make or commit to make any Capital
Expenditure in any fiscal year, except Capital Expenditures in an amount not to
exceed ten percent (10%) of consolidated net revenues of LifePoint Parent for
the immediately preceding fiscal year determined on a consolidated basis in
accordance with GAAP and adjusted as provided below. For the purposes of
calculating consolidated net revenues for any fiscal year, (i) if at any time
during such year such Person or any Subsidiary shall have made any Material
Disposition, the consolidated net revenues for such fiscal year shall be reduced
by an amount equal to the consolidated net revenues attributable to the property
that is the subject of such Material Disposition for such fiscal year and (ii)
if during such fiscal year such Person or any Subsidiary shall have made a
Material Acquisition, consolidated net revenues for such fiscal year shall be
calculated after giving pro forma effect thereto as if such Material Acquisition
occurred on the first day of such fiscal year. Capital Expenditures which the
Borrower or any of its Subsidiaries are obligated to make under a Purchase
Agreement or any other related closing documents in conjunction with a Permitted
Acquisition may be included in the Total Purchase Price attributable to such
Permitted Acquisition and shall not be included in the calculation of Capital
Expenditures for purposes of this Section 7.7 up to an aggregate amount of all
such excluded Capital Expenditures not exceeding $10,000,000 for the period
beginning January 1, 2001 and thereafter.
7.8 Investments. Make any advance, loan, extension of credit (by way of
guaranty or otherwise) or capital contribution to, or purchase any Equity
Interests, bonds, notes, debentures or other debt securities of, or any assets
constituting a business unit of, or make any other investment in, any Person or
form any Subsidiary (all of the foregoing, "Investments"), except:
(a) extensions of trade credit by Borrower and its Subsidiaries in the
ordinary course of business;
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(b) investments in Cash Equivalents;
(c) Guarantee Obligations permitted by Section 7.2;
(d) as to Borrower and the Subsidiary Guarantors, loans and advances to
employees, physicians, medical office buildings and other current accounts
receivables and long term notes receivables as identified on Borrower's balance
sheet (which will include, without limitation, loans and advances to physicians
and employees and receivables on medical office building leases) in an aggregate
amount for Borrower and its Subsidiaries not to exceed $1,000,000 at any one
time outstanding;
(e) existing Investments by Borrower and its Subsidiaries in the
Existing Joint Venture, the proposed Investment in the Cumberland Ambulatory
Surgery Subsidiary which when formed will be a Subsidiary (but not a Subsidiary
Guarantor) of the Borrower, and existing Investments by the Loan Parties in
other Subsidiaries and Affiliates existing on the Closing Date, each to the
extent described on Schedule 7.8(e);
(f) as to Borrower and its Subsidiaries, additional Investments after
the date hereof in joint ventures which are Subsidiaries but not Subsidiary
Guarantors (including any additional Investment in the Existing Joint Venture)
in an aggregate amount for Borrower and such Subsidiaries not to exceed
$10,000,000;
(g) Capital Expenditures to the extent permitted under this Agreement;
(h) Investments by Borrower or any of its Subsidiaries in Borrower or
any Person that, prior to such Investment, is a Subsidiary Guarantor (other than
additional Investments in the Existing Joint Venture);
(i) Permitted Acquisitions;
(j) The formation of and Investments in new Subsidiaries of Borrower in
connection with Permitted Acquisitions or otherwise, provided that (i) such
Subsidiary is wholly-owned by Borrower or a Subsidiary Guarantor, (ii) Borrower
shall have notified the Administrative Agent at least ten Business Days prior to
the formation or acquisition of any such Subsidiary, (iii) such Subsidiary shall
be engaged in a permitted business of Borrower or its Subsidiaries hereunder and
(iv) as of the date of the formation or acquisition of any such Subsidiary and
the Investment therein, and after giving effect thereto, (A) such new Subsidiary
and its parent shall have entered into any and all agreements (in form and
substance satisfactory to the Administrative Agent) necessary to comply with the
provisions of Section 6.11, and the Administrative Agent shall be satisfied that
all Liens required to be granted in the Equity Interests of such new Subsidiary
under such Section 6.11 have been granted or pledged and have been perfected and
are subject only to permitted Liens hereunder, and (B) without limiting the
generality of the foregoing, no Default shall exist and be continuing or
reasonably be expected to result therefrom;
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(k) provided no Default then exists or could reasonably be expected to
result therefrom, stock repurchases by LifePoint Parent of odd lots of its
publicly traded common Equity Interests for purchase prices which in the
aggregate do not exceed $5,000,000 after the date of this Agreement;
(l) Investments consisting of Equity Interests, obligations, securities
or other property received in settlement of accounts receivable (created in the
ordinary course of business) from bankrupt obligors;
(m) Other existing Investments as listed on Schedule 7.8(m);
(n) Investments made by any Loan Party after the Closing Date in Equity
Interests in Persons other than Subsidiaries provided that the aggregate amount
of all such Investment (net of capital returns distributed in cash to such Loan
Party) with respect to such Investments shall not exceed $15,000,000 in the
aggregate;
(o) advances or loans to customers and suppliers in the ordinary course
of business that do not exceed $1,000,000 in the aggregate at any time
outstanding;
(p) the Investment evidenced by the promissory note of the ESOP issued
in exchange for the purchase by the ESOP of newly issued shares of Equity
Interests in LifePoint Parent in an amount equal to 8.3% of the outstanding
shares of LifePoint Parent, as described in the High Yield Offering Memorandum;
(q) the Investments evidenced by promissory notes from executives of
LifePoint Parent in an aggregate principal amount not exceeding $12,000,000
during the term of this Agreement received by LifePoint Parent in exchange for
Equity Interests in LifePoint Parent issued at fair market value pursuant to the
Executive Stock Purchase Plan described in the High Yield Offering Memorandum;
(r) Investments consisting of notes receivable issued by non-Affiliates
on a bona fide arms length basis in connection with any Disposition, provided
that the aggregate principal amount of such notes receivable at any time
outstanding shall not exceed an amount equal to five percent (5%) of the book
value of Consolidated Total Assets (as at the end of the most recent Reference
Period for which the Administrative Agent has received financial statements
pursuant to Section 6.1(a) or (b)); and
(s) Investments (but not Acquisitions) of a nature not contemplated in
any of the foregoing subsections in an amount made or purchased not to exceed
$2,000,000 in each fiscal year.
7.9 Transactions with Affiliates. Enter into any transaction, including
any purchase, sale, lease or exchange of property, the rendering of any service
or the payment of any management, advisory or similar fees, with any Affiliate
unless such transaction is (a) otherwise permitted under this Agreement or (b)
in the ordinary course of business of such Loan Party and
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upon fair and reasonable terms no less favorable to such Loan Party than it
would obtain in a comparable arm's length transaction with a Person that is not
an Affiliate.
7. 10 Sales and Leasebacks. Enter into any arrangement with any Person
providing for the leasing by any Loan Party of real or personal property that
has been or is to be sold or transferred by Borrower or such Subsidiary to such
Person or to any other Person to whom funds have been or are to be advanced by
such Person on the security of such property or rental obligations of Borrower
or such Subsidiary.
7.11 Changes in Fiscal Periods. Permit the fiscal year of any Loan
Party to end on a day other than December 31 or change any Loan Party's method
of determining fiscal quarters.
7.12 Negative Pledge Clauses. Enter into or suffer to exist or become
effective any agreement that prohibits or limits the ability of any Loan Party
to create, incur, assume or suffer to exist any Lien upon any of its property or
revenues, whether now owned or hereafter acquired, to secure its obligations
under the Loan Documents to which it is a party other than (a) this Agreement
and the other Loan Documents and (b) any agreements governing any purchase money
Liens or Capital Lease Obligations otherwise permitted hereby (in which case,
any prohibition or limitation shall only be effective against the assets
financed thereby).
7.13 Restrictive Clauses. Enter into or suffer to exist or become
effective any consensual encumbrance or restriction on the ability of any
Subsidiary of any Loan Party to (a) make Restricted Payments in respect of any
Equity Interests of such Subsidiary held by, or pay any Indebtedness owed to,
such Loan Party or any other Subsidiary of such Loan Party, (b) make loans or
advances to, or other Investments in, any Loan Party or any other Subsidiary of
any Loan Party or (c) transfer any of its assets to any Loan Party or any other
Subsidiary of any Loan Party, except for such Liens or restrictions existing
under or by reason of any restrictions existing under the Loan Documents or the
High Yield Documents. Enter into any agreement (excluding this Agreement, any
other Loan Document or the High Yield Documents) prohibiting (a) any Loan Party
from amending or otherwise modifying this Agreement or any other Loan Document
or (b) the creation or assumption of any Lien upon the properties, revenues or
assets of any Loan Party, whether now owned or hereafter acquired. Enter into
any agreement to effect a transaction that is prohibited under this Agreement or
any other Loan Document, unless such agreement is expressly subject to the
written consent of the Lenders hereunder.
7.14 Lines of Business. As to Borrower, enter into any business, either
directly or through any Subsidiary, except for those businesses in which
Borrower is engaged on the date of this Agreement or medical service businesses
relating thereto. As to any Subsidiary of Borrower, enter into any business,
either directly or through any other Subsidiary, except for those businesses in
which the Subsidiaries of Borrower are engaged on the date of this Agreement. As
to the LifePoint Parent, enter into any business other than holding all of the
Equity Interests of Borrower, maintaining its existence as a public company, and
performing services and making payments as a party to, and enforcing, the
Transition Agreements. In connection therewith, the LifePoint Parent shall have
no liabilities other than its liabilities under the Loan Documents, tax
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liabilities incurred in the ordinary course of business, and administrative and
Transition Agreement expenses incurred in the ordinary course of business.
7.15 Amendment of Certain Agreements. Amend or modify the High Yield
Documents, the Transition Agreements or any documents, if any, evidencing any
Subordinated Debt hereafter permitted. Amend or modify the Organizational
Documents of the Existing Joint Venture in a manner adverse to Borrower's direct
or indirect partnership interest(s) therein.
SECTION 8. EVENTS OF DEFAULT.
If any of the following events shall occur and be continuing:
(a) Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or
Borrower shall fail to pay any interest, fees or other amount payable hereunder
or under any other Loan Document within three days after such other amount
becomes due in accordance with the terms hereof; or
(b) any material representation or warranty made or deemed made by any
Loan Party herein or in any other Loan Document or that is contained in any
certificate, document or financial or other statement furnished by it at any
time under or in connection with this Agreement or any such other Loan Document
shall prove to have been inaccurate in any material respect on or as of the date
made or deemed made; or
(c) (i) any Loan Party shall default in the observance or performance
of any agreement contained in 6.4(a)(i) as to LifePoint Parent, Borrower or any
Material Subsidiary, 6.6, 6.10 (as to the failure to maintain at all times
casualty or liability insurance) or 6.11 or Section 7 of this Agreement or any
material agreement contained in the LifePoint Parent Guarantee and Security
Agreement or the Guarantee and Security Agreement or (ii) an "Event of Default"
under and as defined in any Mortgage shall have occurred and be continuing; or
(d) any Loan Party shall default in the observance or performance of
any agreement contained in Section 6.1(a) or (b) or 6.2(b), and such default
shall continue unremedied for a period of five days after the earlier of the
date a Responsible Officer becomes aware of such default or the date notice
thereof is given to Borrower from the Administrative Agent or the Required
Lenders; any Loan Party shall default in the observance or performance of any
other agreement contained in this Agreement or any other Loan Document (other
than as provided in paragraphs (a) through (c) of this Section or the foregoing
sentence), and such default shall continue unremedied for a period of 15 days
after the earlier of the date any Responsible Officer becomes aware of such
default or the date notice thereof is given to Borrower from the Administrative
Agent or the Required Lenders; or
(e) any Loan Party shall (i) default in making any payment of any
principal of any Indebtedness (including any Guarantee Obligation, but excluding
the Loans) on the scheduled or original due date with respect thereto, and such
default has not been waived; or (ii) default in making any payment of any
interest on any such Indebtedness beyond the period of grace, if any,
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provided in the instrument or agreement under which such Indebtedness was
created and such default has not been waived; or (iii) default in the observance
or performance of any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to permit the
holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of
such holder or beneficiary) to cause, with the giving of notice if required,
such Indebtedness to become due prior to its stated maturity or (in the case of
any such Indebtedness constituting a Guarantee Obligation) to become payable and
such default has not been waived; provided, that a default, event or condition
described in clause (i), (ii) or (iii) of this paragraph (e) shall not at any
time constitute an Event of Default unless, at such time, one or more defaults,
events or conditions of the type described in clauses (i), (ii) and (iii) of
this paragraph (e) shall have occurred and be continuing with respect to
Indebtedness the outstanding principal amount of which exceeds in the aggregate
$5,000,000; or
(f) (i) any Loan Party shall commence any case, proceeding or other
action (A) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for it or
for all or any substantial part of its assets, or any Loan Party shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against any Loan Party any case, proceeding or other action of a
nature referred to in clause (i) above that (A) results in the entry of an order
for relief or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against any Loan Party any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets that results in the entry of
an order for any such relief that shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof; or (iv)
any Loan Party shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) any Loan Party shall generally not, or shall
be unable to, or shall admit in writing its inability to, pay its debts as they
become due; or
(g) (i) any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets of any Loan Party or any
Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect
to, or proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer Plan,
which Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Required Lenders, likely to result
in the termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v)
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Borrower or any other Loan Party or any Commonly Controlled Entity shall, or in
the reasonable opinion of the Required Lenders is likely to, incur any liability
in connection with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or exist
with respect to a Plan; and in each case in clauses (i) through (vi) above, such
event or condition, together with all other such events or conditions, if any,
could, in the sole judgment of the Required Lenders, reasonably be expected to
have a Material Adverse Effect; or
(h) one or more judgments or decrees shall be entered against any Loan
Party involving in the aggregate a liability (not paid or fully covered by
insurance as to which the relevant insurance company has acknowledged coverage)
of $1,000,000 or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 45 days from the
entry thereof; or
(i) once executed and delivered to Administrative Agent, any of the
Security Documents shall cease, for any reason, to be in full force and effect,
or any Loan Party or any Affiliate of any Loan Party shall so assert, or any
Lien created by any of the Security Documents shall cease to be enforceable and
of the same effect and priority purported to be created thereby; or
(j) the indemnification provisions of the Distribution Agreement shall
cease, for any reason, to be in full force and effect for the benefit of the
LifePoint Parent and its Subsidiaries; or any Security Document shall cease, for
any reason, to be in full force and effect, or any Loan Party who is a party
thereto shall so assert; or
(k) a Change of Control shall have occurred; or
(l) a default shall have occurred under the High Yield Documents;
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (f) above automatically the Commitments shall immediately terminate
and the Loans hereunder (with accrued interest thereon) and all other amounts
owing under this Agreement and the other Loan Documents by Borrower (including
all amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) shall immediately become due and payable, and (B) if such event is
any other Event of Default specified in this Section 8, any of the following
actions may be taken: (i) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to Borrower declare the Commitments to be
terminated forthwith, whereupon the Commitments shall immediately terminate;
(ii) with the consent of the Required Lenders, the Administrative Agent may, or
upon the request of the Required Lenders, the Administrative Agent shall, by
notice to Borrower, declare the Loans hereunder (with accrued interest thereon)
and all other amounts owing by Borrower under this Agreement and the Loan
Documents (including all amounts of L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented the
documents required thereunder) to be due and payable forthwith, whereupon the
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same shall immediately become due and payable; and (iii) the Administrative
Agent may exercise any and all rights it has under this Agreement, the Security
Documents or any other Loan Documents, or at law or in equity, and proceed to
protect and enforce the Administrative Agent's and the Lenders' rights by any
action at law, in equity or other appropriate proceeding, whether for the
specific performance of any agreement contained in this Agreement, any Security
Document or the Notes, or for an injunction against a violation of any of the
terms hereof or thereof or in the exercise of any power granted hereby or
thereby or by law. In the event that the Administrative Agent shall apply for
the appointment of, or the taking of possession by, a trustee, receiver or
liquidator of any Loan Party or of any other similar official to hold or
liquidate all or any substantial part of the properties or assets of any Loan
Party following the occurrence of a default in payment of any amount owed
hereunder and following any applicable notice or cure period, each of the Loan
Parties (with all due and proper corporate, partnership or other authorization,
as the case may be), hereby consents to such appointment and taking of
possession and agrees to execute and deliver any and all documents requested by
the Administrative Agent relating thereto (whether by joining in a petition for
the voluntary appointment of, or entering no contest to a petition for the
appointment of, such an official or otherwise, as appropriate under applicable
law). With respect to all Letters of Credit with respect to which presentment
for honor shall not have occurred at the time of an acceleration pursuant to
this paragraph, Borrower shall at such time deposit in a cash collateral account
opened by the Administrative Agent an amount equal to the aggregate then undrawn
and unexpired amount of such Letters of Credit. Amounts held in such cash
collateral account shall be applied by the Administrative Agent to the payment
of drafts drawn under such Letters of Credit, and the unused portion thereof
after all such Letters of Credit shall have expired or been fully drawn upon, if
any, shall be applied to repay other obligations of Borrower hereunder and under
the other Loan Documents. After all such Letters of Credit shall have expired or
been fully drawn upon, all Reimbursement Obligations shall have been satisfied
and all other obligations of Borrower hereunder and under the other Loan
Documents shall have been paid in full, the balance, if any, in such cash
collateral account shall be returned to Borrower (or such other Person as may be
lawfully entitled thereto). Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived by Borrower.
SECTION 9. THE AGENTS.
9.1 Appointment. Each Lender hereby irrevocably designates and appoints
the Administrative Agent as the agent of such Lender under this Agreement and
the other Loan Documents, and each such Lender irrevocably authorizes the
Administrative Agent, in such capacity, to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and to exercise
such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties,
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obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Administrative Agent.
9.2 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither any Agent nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from its or such Person's own gross negligence or willful misconduct)
or (ii) responsible in any manner to any of the Lenders, representations or
warranties made by any Loan Party or any officer thereof contained in this
Agreement or any other Loan Document or in any certificate, report, statement or
other document referred to or provided for in, or received by the Agents under
or in connection with, this Agreement or any other Loan Document or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document or for any failure of any Loan Party a
party thereto to perform its obligations hereunder or thereunder. The Agents
shall not be under any obligation to any Lender to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of any Loan Party.
9.4 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any instrument,
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including counsel to Borrower), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent may deem and
treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of
the Required Lenders (or, if so specified by this Agreement, all Lenders) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense that may be incurred by it by
reason of taking or continuing to take any such action. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement and the other Loan Documents in accordance with a request
of the Required Lenders (or, if so specified by this Agreement, all Lenders),
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all the Lenders and all future holders of the Loans.
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9.5 Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders (or, if so specified by this Agreement, all
Lenders); provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
9.6 Non-Reliance on Agents and Other Lenders. Each Lender expressly
acknowledges that neither the Agents nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or affiliates have made any
representations or warranties to it and that no act by any Agent hereinafter
taken, including any review of the affairs of a Loan Party or any affiliate of a
Loan Party, shall be deemed to constitute any representation or warranty by any
Agent to any Lender. Each Lender represents to the Agents that it has,
independently and without reliance upon any Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon any Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party or any affiliate of
a Loan Party that may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
9.7 Indemnification. The Lenders agree to indemnify each Agent in its
capacity as such (to the extent not reimbursed by Borrower and without limiting
the obligation of Borrower to do so), ratably according to their respective
Aggregate Exposure Percentages in effect on the date on which indemnification is
sought under this Section (or, if indemnification is sought after the date upon
which the Commitments shall have terminated and the Loans shall have been paid
in full, ratably in accordance with such Aggregate Exposure Percentages
immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever that may at
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any time (whether before or after the payment of the Loans) be imposed on,
incurred by or asserted against such Agent in any way relating to or arising out
of, the Commitments, this Agreement, any of the other Loan Documents or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with, any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements that are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from such Agent's gross negligence or
willful misconduct. The agreements in this Section shall survive the payment of
the Loans and all other amounts payable hereunder.
9.8 Agent in its Individual Capacity. Each Agent and its affiliates may
make loans to, accept deposits from and generally engage in any kind of business
with any Loan Party as though such Agent was not an Agent. With respect to its
Loans made or renewed by it and with respect to any Letter of Credit issued or
participated in by it, each Agent shall have the same rights and powers under
this Agreement and the other Loan Documents as any Lender and may exercise the
same as though it were not an Agent, and the terms "Lender" and "Lenders" shall
include each Agent in its individual capacity.
9.9 Successor Administrative Agent. The Administrative Agent may resign
as Administrative Agent upon 10 days' notice to the Lenders and Borrower. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent shall
(unless an Event of Default under Section 8(a) or Section 8(f) with respect to
Borrower shall have occurred and be continuing) be subject to approval by
Borrower (which approval shall not be unreasonably withheld or delayed),
whereupon such successor agent shall succeed to the rights, powers and duties of
the Administrative Agent, and the term "Administrative Agent" shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. If no successor agent has accepted appointment as
Administrative Agent by the date that is 10 days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the
Lenders shall assume and perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above. After any retiring Administrative Agent's
resignation as Administrative Agent, the provisions of this Section 9 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement and the other Loan Documents.
9.10 Authorization to Release Guarantees and Liens. Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the
Administrative Agent is hereby irrevocably authorized by each of the Lenders
(without requirement of notice to or consent of any Lender except as expressly
required by Section 10.1) to take any action requested by Borrower having the
effect of releasing any Collateral or guarantee obligations to the extent
necessary to
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permit consummation of any transaction not prohibited by any Loan Document or
that has been consented to in accordance with Section 10.1.
9.11 Documentation Agent, Syndication Agent, Arrangers and Co-Agent.
Neither the Documentation Agent nor the Syndication Agent nor the Arranger nor
any Co-Arranger nor the Co-Agent shall have any duties or responsibilities
hereunder in its capacity as such.
SECTION 10. MISCELLANEOUS.
10.1 Amendments and Waivers. Neither this Agreement, any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 10.1. The
Required Lenders and each Loan Party to the relevant Loan Document may, or, with
the written consent of the Required Lenders, the Administrative Agent and each
Loan Party to the relevant Loan Document may, from time to time, (a) enter into
written amendments, supplements or modifications hereto and to the other Loan
Documents for the purpose of adding any provisions to this Agreement or the
other Loan Documents or changing in any manner the rights of the Lenders or of
the Loan Parties hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders or the Administrative Agent, as the case may
be, may specify in such instrument, any of the requirements of this Agreement or
the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) forgive the principal amount or extend the
final scheduled date of maturity of any Loan, reduce the stated rate of any
interest or fee payable hereunder or extend the scheduled date of any payment
thereof, or increase the amount or extend the expiration date of any Commitment,
in each case without the consent of each Lender directly affected thereby; (ii)
amend, modify or waive any provision of this Section 10.1 or reduce any
percentage specified in the definition of Required Lenders, consent to the
assignment or transfer by Borrower of any of its rights and obligations under
this Agreement and the other Loan Documents, release all or substantially all of
the Collateral or release LifePoint Parent from its obligations under the
LifePoint Parent Guarantee and Security Agreement or release all or
substantially all of the Subsidiary Guarantors from their obligations under the
Guarantee and Security Agreement, in each case without the written consent of
all Lenders; (iii) amend, modify or waive any condition precedent to any
extension of credit under any Facility set forth in Section 4.2 (including any
waiver of an existing Default or Event of Default) without the written consent
of the Required Lenders; (iv) amend, modify or waive any provision of Section
2.17 without the consent of the Required Lenders; (v) reduce the percentage
specified in the definition of Required Lenders without the written consent of
all Lenders under the Revolving Facility; (vi) amend, modify or waive any
provision of Section 9 without the written consent of the Administrative Agent;
or (vii) amend, modify or waive any provision of Section 3 without the written
consent of any Issuing Lender. Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Lenders and shall
be binding upon the Loan Parties, the Lenders, the Swingline Lender, the
Administrative Agent and all future holders of the Loans. In the case of any
waiver, the Loan Parties, the Lenders and the Administrative Agent shall be
restored to their former position and rights hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not
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continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of Borrower and the Administrative
Agent, and as set forth in an administrative questionnaire delivered to the
Administrative Agent in the case of the Lenders, or to such other address as may
be hereafter notified by the respective parties hereto:
Borrower: c/o LifePoint Hospitals, Inc.
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
with a copy to: Xxxxxxx X. Xxxxxxxxx III
c/o LifePoint Hospitals, Inc.
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The Administrative Agent: Fleet National Bank
000 Xxxxxxx Xxxxxx
Mail Stop: MA DE 10008E
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders shall not be effective until received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
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10.4 Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans and other extensions of credit hereunder.
10.5 Payment of Expenses and Taxes. Borrower agrees (a) to pay or
reimburse the Administrative Agent for all its out-of-pocket costs and expenses
incurred in connection with the development, preparation and execution of, and
any amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including the reasonable fees and disbursements of counsel to the
Administrative Agent and filing and recording fees and expenses, with statements
with respect to the foregoing to be submitted to Borrower prior to the Closing
Date (in the case of amounts to be paid on the Closing Date) and from time to
time thereafter on a quarterly basis or such other periodic basis as the
Administrative Agent shall deem appropriate, (b) to pay or reimburse each Lender
and the Administrative Agent for all its costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any such other documents, including the
reasonable fees and disbursements of counsel (including the allocated fees and
expenses of in-house counsel) to each Lender and of counsel to the
Administrative Agent, (c) to pay, indemnify, and hold each Lender and the
Administrative Agent harmless from, any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other taxes, if any, that may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents, and (d)
to pay, indemnify, and hold each Lender and the Administrative Agent and their
respective officers, directors, employees, affiliates, agents and controlling
persons (each, an "Indemnitee") harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents, including any
of the foregoing relating to the use of proceeds of the Loans or the violation
of, noncompliance with or liability under, any Environmental Law applicable to
the operations of Borrower any of its Subsidiaries or any of the Properties and
the reasonable fees and expenses of legal counsel in connection with claims,
actions or proceedings by any Indemnitee against any Loan Party under any Loan
Document (all the foregoing in this clause (d), collectively, the "Indemnified
Liabilities"), provided, that Borrower shall have no obligation hereunder to any
Indemnitee with respect to Indemnified Liabilities to the extent such
Indemnified Liabilities are found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of such Indemnitee. Without limiting the foregoing, and to
the extent permitted by applicable law, Borrower agrees not to assert and to
cause its Subsidiaries not to assert, and hereby waives and agrees to cause its
Subsidiaries to so waive, all rights for contribution or any other rights of
recovery with respect to all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature, under or
related to
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Environmental Laws, that any of them might have by Statute or otherwise
against any Indemnitee, unless such claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or
nature, under or related to Environmental Laws, are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of such Indemnitee. The
agreements in this Section 10.5 shall survive repayment of the Loans and all
other amounts payable hereunder.
10.6 Successors and Assigns; Participations and Assignments. (a) This
Agreement shall be binding upon and inure to the benefit of Borrower, the
Lenders, the Administrative Agent, all future holders of the Loans and their
respective successors and assigns, except that Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
(b) Any Lender may, without the consent of Borrower, in accordance with
applicable law, at any time sell to one or more banks, financial institutions or
other entities (each, a "Participant") participating interests in any Loan owing
to such Lender, any Commitment of such Lender or any other interest of such
Lender hereunder and under the other Loan Documents. In the event of any such
sale by a Lender of a participating interest to a Participant, such Lender's
obligations under this Agreement to the other parties to this Agreement shall
remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Loan for
all purposes under this Agreement and the other Loan Documents, and Borrower and
the Administrative Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. In no event shall any Participant under
any such participation have any right to approve any amendment or waiver of any
provision of any Loan Document, or any consent to any departure by any Loan
Party therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Loans or any fees payable
hereunder, or postpone the date of the final maturity of the Loans, in each case
to the extent subject to such participation. Borrower agrees that if amounts
outstanding under this Agreement and the Loans are due or unpaid, or shall have
been declared or shall have become due and payable upon the occurrence of an
Event of Default, each Participant shall, to the maximum extent permitted by
applicable law, be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement, provided that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in Section 10.7(a) as fully as if it
were a Lender hereunder. Borrower also agrees that each Participant shall be
entitled to the benefits of Sections 2.13, 2.14 and 2.15 with respect to its
participation in the Commitments and the Loans outstanding from time to time as
if it was a Lender; provided that, in the case of Section 2.14 such Participant
shall have complied with the requirements of said Section and provided, further,
that no Participant shall be entitled to receive any greater amount pursuant to
any such Section than the transferor Lender would have been entitled to receive
in respect of the amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred.
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(c) Any Lender (an "Assignor") may, in accordance with applicable law,
at any time and from time to time assign to any Lender or any affiliate thereof
or, with the consent of Borrower and the Administrative Agent (which, in each
case, shall not be unreasonably withheld or delayed), to an additional bank,
financial institution or other entity (an "Assignee") all or any part of its
rights and obligations under this Agreement pursuant to an Assignment and
Acceptance, executed by such Assignee, such Assignor and any other Person whose
consent is required pursuant to this paragraph, and delivered to the
Administrative Agent for its acceptance and recording in the Register; provided
that no such assignment to an Assignee (other than any Lender or any affiliate
thereof) shall be in an aggregate principal amount of less than $5,000,000
(other than in the case of an assignment of all of a Lender's interests under
this Agreement) unless otherwise agreed by Borrower and the Administrative
Agent. Upon such execution, delivery, acceptance and recording, from and after
the effective date determined pursuant to such Assignment and Acceptance, (x)
the Assignee thereunder shall be a party hereto and, to the extent provided in
such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Commitment and/or Loans as set forth therein, and (y) the
Assignor thereunder shall, to the extent provided in such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of an Assignor's rights and
obligations under this Agreement, such Assignor shall cease to be a party
hereto). Notwithstanding any provision of this Section 10.6, the consent of
Borrower shall not be required for any assignment that occurs when an Event of
Default shall have occurred and be continuing with respect to Borrower. On or
prior to the date of any assignment to an Assignee that is not already a Lender
hereunder pursuant to this Section, such Assignee shall deliver to Borrower and
the Administrative Agent certification as to exemption from deduction or
withholding of taxes in accordance with Section 2.14.
(d) The Administrative Agent shall, on behalf of Borrower, maintain at
its address referred to in Section 10.2 a copy of each Assignment and Acceptance
delivered to it and a register (the "Register") for the recordation of the names
and addresses of the Lenders and the Commitment of, and the principal amount of
the Loans owing to, each Lender from time to time. The entries in the Register
shall be conclusive, in the absence of manifest error, and Borrower, each other
Loan Party, the Administrative Agent and the Lenders shall treat each Person
whose name is recorded in the Register as the owner of the Loans and any Notes
evidencing the Loans recorded therein for all purposes of this Agreement. Any
assignment of any Loan, whether or not evidenced by a Note, shall be effective
only upon appropriate entries with respect thereto being made in the Register
(and each Note shall expressly so provide). Any assignment or transfer of all or
part of a Loan evidenced by a Note shall be registered on the Register only upon
surrender for registration of assignment or transfer of the Note evidencing such
Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon
one or more new Notes shall be issued to the designated Assignee.
(e) Upon its receipt of an Assignment and Acceptance executed by an
Assignor, an Assignee and any other Person whose consent is required by Section
10.6(c), together with payment to the Administrative Agent of a registration and
processing fee of $3,500, the Administrative Agent shall (i) promptly accept
such Assignment and Acceptance and (ii) record
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the information contained therein in the Register on the effective date
determined pursuant thereto.
(f) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this Section 10.6 concerning assignments of Loans and
Notes relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests, including any pledge or
assignment by a Lender of any Loan or Note to any Federal Reserve Bank in
accordance with applicable law.
10.7 Adjustments; Set-off. (a) Except to the extent that this Agreement
or the fee letter between Borrower and the Administrative Agent provides
otherwise, if any Lender shall, at any time after and during the continuance of
a Default, receive any payment of all or part of the Obligations owing to it, or
receive any collateral in respect thereof (whether voluntarily or involuntarily,
by set-off, pursuant to insolvency proceedings or otherwise), in a greater
proportion than any such payment to or collateral received by any other Lender,
if any, in respect of the Obligations owing to such other Lender, such Lender
shall purchase for cash from the other Lenders a participating interest in such
portion of the Obligations owing to each such other Lender, or shall provide
such other Lenders with the benefits of any such collateral, as shall be
necessary to cause all Lenders to share the excess payment or benefits of such
collateral ratably with each other; provided, however that if all or any portion
of such excess payment or benefits, is thereafter recovered from such Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice Borrower, any such
notice being expressly waived by Borrower to the extent permitted by applicable
law, upon any amount becoming due and payable by Borrower hereunder (whether at
the stated maturity, by acceleration or otherwise), to set off and appropriate
and apply against such amount any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or the
account of Borrower, as the case may be, and whether or not such Lender is
otherwise fully secured. Each Lender agrees promptly to notify Borrower and the
Administrative Agent after any such setoff and application made by such Lender,
provided, that the failure to give such notice shall not affect the validity of
such setoff and application. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO
EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH
SECURES THE LOANS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH
DEPOSITS, CREDITS OR OTHER PROPERTY OF BORROWER, ARE HEREBY KNOWINGLY,
VOLUNTARILY AND IRREVOCABLY WAIVED.
10.8 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement by
facsimile transmission shall be effective as delivery of a
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manually executed counterpart hereof. A set of the copies of this Agreement
signed by all the parties shall be lodged with Borrower and the Administrative
Agent.
10.9 Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10 Integration. This Agreement and the other Loan Documents
represent the agreement of Borrower, the Administrative Agent and the Lenders
with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (EXCLUDING THE
LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW EXCEPT SECTION 5.1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW).
10.12 Submission To Jurisdiction; Waivers. Borrower hereby irrevocably
and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the State of
New York, the Commonwealth of Massachusetts, the courts of the United States for
the Southern District of New York and the District of Massachusetts, and
appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid to Borrower at its address
set forth in Section 10.2 or at such other address of which the Administrative
Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right to xxx
in any other jurisdiction; and
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(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this Section any special, exemplary, punitive or consequential damages.
10.13 Confidentiality. Each of the Administrative Agent and each Lender
agrees to keep (and to cause its employees, directors, agents, attorneys,
accounts and other professionals and those of its Affiliates to keep)
confidential all non-public information provided to it by any Loan Party
pursuant to this Agreement; provided that nothing herein shall prevent the
Administrative Agent or any Lender from disclosing any such information (a) to
the Administrative Agent, any other Lender or any affiliate of any Lender, (b)
to any Transferee or prospective Transferee that agrees to comply with the
provisions of this Section, (c) to its employees, directors, agents, attorneys,
accountants and other professional advisors or those of any of its affiliates,
(d) upon the request or demand of any Governmental Authority, (e) in response to
any order of any court or other Governmental Authority or as may otherwise be
required pursuant to any Legal Requirement, (f) if requested or required to do
so in connection with any litigation or similar proceeding, (g) that has been
publicly disclosed, (h) to any organization or any nationally recognized rating
agency that requires access to information about a Lender's investment portfolio
in connection with ratings issued with respect to such Lender, (i) in connection
with the exercise of any remedy hereunder or under any other Loan Document, or
(j) to any bank examiner, central bank or other supervisory authority (whether
or not required by law). The agreements in this Section 10.13 shall survive
repayment of the Loans and termination of this Agreement.
10.14 WAIVERS OF JURY TRIAL. EACH OF THE PARTIES HERETO MUTUALLY HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN
RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT, THE NOTES OR ANY OTHER LOAN DOCUMENTS CONTEMPLATED TO BE
EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING, WITHOUT
LIMITATION, ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF
THE ADMINISTRATIVE AGENT OR ANY LENDER RELATING TO THE ADMINISTRATION OF THE
LOANS OR ENFORCEMENT OF THE LOAN DOCUMENTS, AND AGREE THAT NO PARTY WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT
BE OR HAS NOT BEEN WAIVED. EXCEPT AS PROHIBITED BY LAW, BORROWER HEREBY WAIVES
ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES. BORROWER CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF THE ADMINISTRATIVE AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR SUCH LENDER WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE XXX
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XXXXXXXXX XXXXXX. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE
ADMINISTRATIVE AGENT AND THE LENDERS TO ACCEPT THIS AGREEMENT AND MAKE THE LOAN.
10.15 Usury. All agreements among Borrower, the Administrative Agent
and the Lenders are hereby expressly limited so that in no contingency or event
whatsoever, whether by reason of acceleration of maturity of the indebtedness
evidenced hereby or otherwise, shall the amount paid or agreed to be paid to any
Lender for the use or the forbearance of the indebtedness evidenced hereby
exceed the maximum permissible under applicable law. As used herein, the term
"applicable law" shall mean the law in effect as of the date hereof; provided,
however, that in the event there is a change in the law which results in a
higher permissible rate of interest, then this Agreement and the Notes shall be
governed by such new law as of its effective date. In this regard, it is
expressly agreed that it is the intent of Borrower, the Administrative Agent and
the Lenders in the execution, delivery and acceptance of this Agreement and the
Notes to contract in strict compliance with the laws of the New York from time
to time in effect. If, under or from any circumstances whatsoever, fulfillment
of any provision hereof or of any of the Loan Documents at the time of
performance of such provision shall be due, shall involve transcending the limit
of such validity prescribed by applicable law, then the obligation to be
fulfilled shall automatically be reduced to the limits of such validity, and if
under or from circumstances whatsoever any Lender should ever receive as
interest an amount which would exceed the highest lawful rate, such amount which
would be excessive interest shall be applied to the reduction of the principal
balance and not to the payment of interest. This provision shall control every
other provision of all agreements between Borrower and the Administrative Agent.
-81-
87
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered under seal by their proper and duly authorized
officers as of the day and year first above written.
LIFEPOINT HOSPITALS HOLDINGS, INC.
By:
----------------------------------------
Name:
Title:
FLEET NATIONAL BANK,
as Administrative Agent and a Lender
By:
----------------------------------------
Name:
Title:
BANK OF AMERICA, N.A.,
as Co-Syndication Agent and a Lender
By:
----------------------------------------
Name:
Title:
DEUTSCHE BANC ALEX. XXXXX INC.,
as Co-Syndication Agent
By:
----------------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH,
as Co-Documentation Agent and a Lender
By:
----------------------------------------
Name:
Title:
* Signatures continued on next page *
88
SUNTRUST BANK,
as Co-Documentation Agent and a Lender
By:
----------------------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLAND BRANCHES,
as a Lender
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON,
as a Lender
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
FIRSTAR BANK, N.A.,
as a Lender
By:
----------------------------------------
Name:
Title:
NATIONAL CITY BANK OF KENTUCKY,
as a Lender
By:
----------------------------------------
Name:
Title:
* Signatures continued on next page *
89
XXXXXXX XXXXX CAPITAL CORPORATION,
as a Lender
By:
----------------------------------------
Name:
Title:
