EXHIBIT 10.13
_________________________________________________________
CREDIT AGREEMENT
among
HEALTHTRUST, INC. - THE HOSPITAL COMPANY,
as Borrower,
The Lenders
from Time to Time Parties Hereto,
FLEET NATIONAL BANK,
as Arranger,
FLEET NATIONAL BANK,
DEUTSCHE BANK SECURITIES INC.
and
SCOTIABANC, INC.,
as Co-Arrangers,
SCOTIABANC, INC.,
as Documentation Agent,
DEUTSCHE BANK SECURITIES INC.
as Syndication Agent,
SUNTRUST BANK, NASHVILLE, N.A., as Co-Agent,
and
FLEET NATIONAL BANK,
as Administrative Agent
Dated as of May 11, 1999
_________________________________________________________
TABLE OF CONTENTS
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Page
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SECTION 1. DEFINITIONS.................................................... 2
1.1 Defined Terms........................................................ 2
1.2 Other Definition Provisions.......................................... 30
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS................................ 30
2.1 Term Commitments..................................................... 30
2.2 Procedure for Term Loan Borrowing.................................... 30
2.3 Repayment of Term Loans.............................................. 31
2.4 Revolving Commitments................................................ 34
2.5 Procedure for Revolving Loan Borrowing............................... 35
2.6 Commitment Fees, etc................................................. 36
2.7 Termination or Reduction of Revolving Commitments.................... 36
2.8 Optional Prepayments................................................. 36
2.9 Mandatory Prepayments and Commitment Reductions...................... 37
2.10 Conversion and Continuation Options................................. 39
2.11 Limitations on LIBOR Loans.......................................... 40
2.12 Interest Rates and Payment Date..................................... 40
2.13 Computation of Interest and Fees.................................... 40
2.14 Inability to Determine Interest Rate................................ 41
2.15 Pro Rata Treatment and Payments..................................... 41
2.16 Legal Requirements.................................................. 43
2.17 Taxes............................................................... 44
2.18 Indemnity........................................................... 46
2.19 Change of Lending Office............................................ 46
2.20 Replacement of Lenders.............................................. 46
SECTION 3. LETTERS OF CREDIT.............................................. 47
3.1 L/C Commitment....................................................... 47
3.2 Procedure for Issuance of Letter of Credit........................... 47
3.3 Fees and Other Charges............................................... 48
3.4 L/C Participations................................................... 48
3.5 Reimbursement Obligation of the Borrower............................. 49
3.6 Obligations Absolute................................................. 49
3.7 Letter of Credit Payments............................................ 50
SECTION 4. CONDITIONS PRECEDENT............................................ 50
4.1 Conditions to Initial Extension of Credit............................ 50
4.2 Conditions to Each Extension of Credit............................... 53
SECTION 5. REPRESENTATIONS AND WARRANTIES.................................. 54
5.1 Financial Condition.................................................. 54
5.2 Existence; Compliance with Law....................................... 55
5.3 Power; Authorization; Enforceable Obligations........................ 55
5.4 No Legal Impediment.................................................. 55
5.5 Litigation........................................................... 56
5.6 No Default........................................................... 56
5.7 Ownership of Property; Liens......................................... 56
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5.8 Licenses; Accreditations; Intellectual Property...................... 57
5.9. Taxes............................................................... 57
5.10 Federal Regulations................................................. 58
5.11 Labor Matters....................................................... 58
5.12 ERISA............................................................... 58
5.13 Investment Company Act; Other Regulations........................... 59
5.14 Subsidiaries........................................................ 59
5.15 Use of Proceeds..................................................... 59
5.16 Environmental Matters............................................... 59
5.17 Accuracy of Information, etc........................................ 60
5.18 Security Documents.................................................. 61
5.19 Solvency............................................................ 62
5.20 Year 2000 Matters................................................... 62
5.21 Flood Zone.......................................................... 62
5.22 Delaware Code....................................................... 63
SECTION 6. AFFIRMATIVE COVENANTS........................................... 63
6.1 Financial Statements................................................. 63
6.2 Certificates; Other Information...................................... 64
6.3 Payment of Obligations............................................... 65
6.4 Maintenance of Existence; Compliance................................. 65
6.5 Maintenance of Property.............................................. 66
6.6 Inspection of Property; Books and Records; Discussions............... 66
6.7 Notices.............................................................. 66
6.8 Environmental Laws................................................... 67
6.9 Rate Hedging Agreements.............................................. 68
6.10 Insurance........................................................... 68
6.11 Spinoff; Release of HTI; Collateral................................. 68
6.12 Leasehold Interests; Additional Collateral, etc..................... 70
6.13 Appraisals; Surveys; Environmental Reports; etc..................... 72
6.14 Existing Joint Ventures............................................. 73
SECTION 7. NEGATIVE COVENANTS.............................................. 74
7.1 Financial Covenants.................................................. 74
7.2 Indebtedness......................................................... 75
7.3 Liens................................................................ 75
7.4 Fundamental Changes.................................................. 76
7.5 Disposition of Property.............................................. 76
7.6 Restricted Payments.................................................. 77
7.7 Capital Expenditures................................................. 79
7.8 Investments.......................................................... 79
7.9 Transactions with Affiliates......................................... 81
7.10 Sales and Leasebacks................................................ 81
7.11 Changes in Fiscal Periods........................................... 82
7.12 Negative Pledge Clauses............................................. 82
7.13 Restrictive Clauses................................................. 82
7.14 Lines of Business................................................... 82
7.15 Amendment of Certain Agreements..................................... 82
SECTION 8. EVENTS OF DEFAULT............................................... 83
SECTION 9. THE AGENTS...................................................... 86
9.1 Appointment.......................................................... 86
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9.2 Delegation of Duties................................................ 86
9.3 Exculpatory Provisions.............................................. 86
9.4 Reliance by Administrative Agent.................................... 87
9.5 Notice of Default................................................... 87
9.6 Non-Reliance on Agents and Other Lenders............................ 88
9.7 Indemnification..................................................... 88
9.8 Agent in Its Individual Capacity.................................... 89
9.9 Successor Administrative Agent...................................... 89
9.10 Authorization to Release Guarantees and Liens...................... 89
9.11 Documentation Agent, Syndication Agent and Arrangers............... 89
SECTION 10. REPRESENTATIONS AND COVENANTS OF HTI.......................... 90
10.1 Financial Condition and Financial Reporting........................ 90
10.2 Notices............................................................ 91
10.3 Existence and Authority............................................ 91
10.4 Compliance with Legal Requirements................................. 91
10.5 Legal Proceedings.................................................. 92
10.6 No Default......................................................... 92
10.7 Purpose of Loans................................................... 92
10.8 No Material Misstatements.......................................... 92
10.9 Indebtedness....................................................... 92
10.10 Liens............................................................. 93
10.11 Mergers; Acquisitions and Asset Sales............................. 93
10.12 Investments....................................................... 93
10.13 Restricted Payments............................................... 93
10.14 Transactions with Affiliates...................................... 93
SECTION 11. MISCELLANEOUS................................................. 93
11.1 Amendments and Waivers............................................. 93
11.2 Notices............................................................ 94
11.3 No Waiver; Cumulative Remedies..................................... 95
11.4 Survival of Representations and Warranties......................... 95
11.5 Payment of Expenses and Taxes...................................... 96
11.6 Successors and Assigns; Participations and Assignments............. 97
11.7 Adjustments; Set-off............................................... 99
11.8 Counterparts....................................................... 99
11.9 Severability....................................................... 99
11.10 Integration....................................................... 100
11.11 Governing Law..................................................... 100
11.12 Submission To Jurisdiction; Waivers............................... 100
11.13 Confidentiality................................................... 100
11.14 WAIVERS OF JURY TRIAL............................................. 101
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SCHEDULES:
A America Group Division Hospitals
1.1A Commitments
1.1B Mortgaged Property
1.1C Pricing Grid
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
7.8 Investments
EXHIBITS:
A Form of Assignment and Acceptance
B Form of Compliance Certificate
C Form of Guarantee and Security Agreement
D-1 Form of HCA Guaranty
D-2 Form of HTI Guaranty
E Form of LifePoint Guaranty
F Form of LifePoint Parent Security Agreement
G Form of LifePoint Security Agreement
H Form of Mortgage
I Form of Acquisition Compliance Checklist
J Form of Tranche A Term Note
K Form of Tranche B Term Note
L Form of Revolving Note
M-1 Form of Borrowing Notice
M-2 Form of Interest Rate Option Notice
N Form of Prepayment Option Notice
O Form of Exemption Certificate
P Form of Closing Certificate
Q Form of Assumption Agreement
R Form of Borrower Release
S Form of HTI Release
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CREDIT AGREEMENT
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This CREDIT AGREEMENT, dated as of May 11, 1999, among HEALTHTRUST, INC. -
THE HOSPITAL COMPANY, a Delaware corporation ("HTI"), FLEET NATIONAL BANK, as
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arranger (in such capacity, the "Arranger") and as administrative agent (in such
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capacity, the "Administrative Agent"), the financial institutions or entities
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from time to time parties to this Agreement as lenders (the "Lenders"),
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SCOTIABANC, INC., as documentation agent (in such capacity, the "Documentation
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Agent"), DEUTSCHE BANK SECURITIES INC., as syndication agent (in such capacity,
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the "Syndication Agent"), SUNTRUST BANK, NASHVILLE, N.A., as Co-Agent (in such
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capacity, "Co-Agent"), and FLEET NATIONAL BANK, SCOTIABANC, INC. and DEUTSCHE
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BANK SECURITIES INC., as co-arrangers (in such capacity, the "Co-Arrangers" and
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each a "Co-Arranger").
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RECITALS
A. In connection with the reorganization of 23 Hospitals listed on
Schedule A and related assets of a division of Columbia/HCA Healthcare
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Corporation ("Columbia/HCA") and its Subsidiaries known as the America Group
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("America Group"), HTI desires senior bank financing and senior subordinated
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debt financing (such senior bank financing and senior subordinated debt
financing being sometimes collectively referred to herein as the "Financings").
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B. HTI has advised the Administrative Agent and the Lenders that, in
connection with such reorganization, substantially all of the assets of
Columbia/HCA will be transferred to HTI on or prior to the Closing Date (as
defined herein).
C. HTI has further advised the Administrative Agent and the Lenders that,
following the Closing Date, HTI may cause the following transactions to occur in
the following order: (1) HTI would transfer such America Group division assets
to LifePoint Hospitals, Inc. ("LifePoint Parent") (including without limitation
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all of HTI's rights under the Financings) and, simultaneously therewith,
LifePoint Parent would assume all of HTI's obligations under the Financings and
become the "Borrower" hereunder and under the other Loan Documents (and HTI in
connection therewith would be released from its primary obligations hereunder
and would guarantee the obligations of LifePoint Parent hereunder), (2) (a)
LifePoint Parent would contribute all of its assets to LifePoint Hospitals
Holdings, Inc. ("LifePoint"), and, simultaneously therewith, LifePoint would
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assume all obligations under the Financings and become the "Borrower" hereunder
and under the other Loan Documents (and LifePoint Parent in connection therewith
would be released from its primary obligations hereunder and would guarantee the
obligations of LifePoint hereunder), (b) LifePoint would contribute a portion of
its assets (but none of its indebtedness) to a wholly-owned subsidiary,
LifePoint Holdings 2, LLC ("LifePoint II") and (c) LifePoint II would contribute
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a portion of its assets (but none of its indebtedness) to a wholly-owned
subsidiary, LifePoint Holdings 3, LLC ("LifePoint III"), (3) HTI would then make
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a dividend distribution to Columbia/HCA of all outstanding stock of LifePoint
Parent, and (4) Columbia/HCA would then make a dividend distribution of all such
outstanding stock to its stockholders (steps (1) and (2), collectively, the
"Dropdown"; steps (3)
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and (4), collectively, the "HCA Distributions"; and steps (1) through (4),
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collectively, the "Spinoff").
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D. HTI has further advised the Administrative Agent and the Lenders
that the Borrower will repay in full the Financings two days after the Closing
Date (or if not a Business Day, on the next succeeding Business Day) in the
event the Spinoff has not been completed within such period.
The parties hereto hereby agree as follows:
I. DEFINITIONS.
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1.1 Defined Terms. As used herein, the terms listed in this Section 1.1
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shall have the meanings assigned to them in this Section 1.1.
"Accreditation Body": all Persons having jurisdiction over the
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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
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equity interests of any Person or any division thereof.
"Adjustment Date": as defined in the Pricing Grid.
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"Administrative Agent": see the Preamble.
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"Affiliate": as to any Person, any other Person that, directly or
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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,
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the Co-Agent and the Documentation Agent.
"Aggregate Exposure": with respect to any Lender at any time, an amount
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equal to (a) until the Closing Date, the aggregate amount of such Lender's
Commitments at such time and (b) thereafter, the sum of (i) the aggregate then
unpaid principal amount of such Lender's Term Loans and (ii) the amount of such
Lender's Revolving Commitment then in effect or, if the Revolving Commitments
have been terminated, the amount of such Lender's Revolving Extensions of Credit
then outstanding.
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"Aggregate Exposure Percentage": with respect to any Lender at any time,
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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.
"Agreement": this Agreement, as amended, supplemented or otherwise modified
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from time to time.
"America Group": see the Recitals.
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"Applicable Margin": for each Type of Loan, the rate per annum set forth
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under the relevant column heading below:
Base Rate Loans LIBOR Loans
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Revolving Loans 2.00% 3.00%
Tranche A Term Loans 2.00% 3.00%
Tranche B Term Loans 2.50% 3.50%
; provided, that on and after the first Adjustment Date occurring after the
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delivery of financial statements for the fiscal quarter of the Borrower ending
December 31, 1999, the Applicable Margin with respect to Loans will be
determined pursuant to the Pricing Grid.
"Arranger": see the preamble hereto.
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"Asset Sale": any sale, lease, sale and leaseback, assignment, conveyance,
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transfer or other disposition ("Disposition") of property or a series of any
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such related Dispositions of property (excluding any such Disposition permitted
by clause (a), (b) or (c) of Section 7.5) for which the Borrower or any of its
Subsidiaries receives (valued at the initial principal amount thereof in the
case of non-cash proceeds consisting of notes or other debt, securities and
valued at fair market value in the case of other non-cash proceeds) in excess of
$500,000.
"Assignee": as defined in Section 11.6(c).
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"Assignment and Acceptance": an Assignment and Acceptance, substantially in
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the form of Exhibit A.
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"Assignor": as defined in Section 11.6(c).
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"Assumption Agreement": as defined in Section 6.11.
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"Available Revolving Commitment": as to any Revolving Lender at any time,
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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.
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"Bartow Contribution Agreement": that certain Contribution Agreement among
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Bartow Memorial Hospital, Inc., HCA of Florida, Inc. and Bartow Healthcare
System, Ltd., dated as of August 16, 1996, as originally executed or as amended
with the prior written consent of the Required Lenders.
"Base Rate": for any day, a rate per annum equal to the greater of (a) the
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Prime Rate in effect on such day or (b) the Federal Funds Effective Rate
(rounded upwards, if necessary, to the next 1/16th of 1%) in effect on such day
plus .50%.
"Base Rate Loans": Loans bearing interest based upon the Base Rate.
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"Borrower": HTI; provided, however, in the event step (1) of the Dropdown
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occurs, LifePoint Parent shall become the "Borrower" hereunder and HTI shall
become a "Guarantor" hereunder pursuant to Section 6.11 and in the event step
(2) of the Dropdown occurs, LifePoint shall become and thereafter remain the
"Borrower" hereunder and LifePoint Parent shall become an additional "Guarantor"
with HTI hereunder pursuant to Section 6.11.
"Borrowing Date": any Business Day specified by the Borrower as a date on
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which the Borrower requests the relevant Lenders to make Loans hereunder.
"Borrowing Notice": see Section 2.2.
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"Business Day": a day on which commercial banks settle payments in (i) New
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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
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aggregate of all payments by such Person and its Subsidiaries during such period
(including, without duplication, 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
the 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
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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
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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
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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
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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) upon LifePoint Parent becoming a
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public company, 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) Columbia/HCA shall
cease to be listed as a public company traded on a nationally recognized
securities exchange or shall cease to own of record and beneficially 100% of the
issued and outstanding Equity Interests in HTI, in each case so long as HTI is a
Loan Party hereunder; (c) 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; (d) LifePoint Parent shall cease to own of record and beneficially 100%
of the issued and outstanding Equity Interests of LifePoint; (e) LifePoint shall
cease to 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 Ventures or as permitted pursuant to Sections 7.4 or 7.5; (f)
LifePoint shall cease to own of record and beneficially, directly or indirectly
through one or more other Subsidiaries, at least 75% as of the Closing Date of
all of the issued and outstanding Equity Interests of Columbia/Bartow Healthcare
System, Ltd. (with such percentage to increase proportionately in accordance
with the Bartow Contribution Agreement and Organizational Documents as and when
HCA of Florida, Inc. makes any additional contribution thereto); or (g)
LifePoint shall cease to own of record and
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beneficially, directly or indirectly through one or more Subsidiaries, at least
70% of the issued and outstanding Equity Interests of Dodge City Healthcare
Group, L.P.
"Closing Certificate": see Section 4.1.
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"Closing Date": the date on which the conditions precedent set forth in
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Section 5.1 shall have been satisfied, which date is May 11, 1999.
"Co-Agent": see the preamble hereto.
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"Co-Arranger": see the preamble hereto.
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"Code": the Internal Revenue Code of 1986, as amended from time to time.
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"Collateral": all property of the Loan Parties, now owned or hereafter
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acquired, upon which a Lien is purported to be created by any Security Document.
"Columbia/HCA": see the Recitals.
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"Columbia/HCA Intercompany Receivable": the intercompany receivable held by
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Columbia/HCA in the principal amount of no more than $1,800,000,000, which may
be paid down with initial proceeds of the Financings and the Triad Financings in
accordance with Section 7.6(i) and thereafter shall have a principal balance of
no greater than $50,000,000.
"Commitment": as to any Lender, the sum of the Tranche A Term Commitment,
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the Tranche B Term Commitment and the Revolving Commitment of such Lender.
"Commonly Controlled Entity": an entity, whether or not incorporated, that
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is under common control with the Borrower within the meaning of Section 4001 of
ERISA or is part of a group that includes the Borrower and that is treated as a
single employer under Section 414 of the Code.
"Compliance Certificate": a certificate duly executed by a Responsible
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Officer substantially in the form of Exhibit B.
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"Confidential Information Memorandum": the Confidential Information
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Memorandum dated April, 1999 and furnished to the Lenders.
"Consolidated Annualized EBITDA": for the Reference Period ending June 30,
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1999, Consolidated EBITDA for the two fiscal quarters ending on such date times
two; for the Reference Period ending September 30, 1999, Consolidated EBITDA for
the three fiscal quarters ending on such date times 4/3rds; and for the
Reference Period ending December 31, 1999, Consolidated EBITDA for the four
fiscal quarters ending on such date.
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"Consolidated Cash Flow": as to LifePoint Parent and its Subsidiaries,
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"Consolidated Cash Flow" shall mean: (a) For the Reference Periods ending on
Quarterly Dates falling during the period from June 30, 1999 through December
31, 1999: (i) Consolidated Annualized EBITDA for such Reference Period, minus
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(ii) cash taxes of LifePoint Parent and its Subsidiaries for such Reference
Period; (b) for the Reference Periods ending on Quarterly Dates falling during
the period from March 31, 2000 through December 31, 2000: (i) Consolidated
EBITDA for such Reference Period, minus (ii) cash taxes for such Reference
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Period; (c) for the Reference Period ending March 31, 2001: (i) Consolidated
EBITDA for such Reference Period, minus (ii) cash taxes for such Reference
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Period, minus (iii) Capital Expenditures for the fiscal quarter ending March 31,
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2001; (d) for the Reference Period ending June 30, 2001: (i) Consolidated EBITDA
for such Reference Period, minus (ii) cash taxes for such Reference Period,
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minus (iii) Capital Expenditures for the two fiscal quarters ending June 30,
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2001; (e) For the Reference Period ending September 30, 2001: (i) Consolidated
EBITDA for such Reference Period, minus (ii) cash taxes for such Reference
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Period, minus (iii) Capital Expenditures for the three fiscal quarters ending
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September 30, 2001; and (f) for each Reference Period ending on or after
December 31, 2001: (i) Consolidated EBITDA for such Reference Period, minus (ii)
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cash taxes for such Reference Period, minus (iii) Capital Expenditures for such
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Reference Period.
"Consolidated EBITDA": for any period, as to LifePoint Parent and its
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Subsidiaries, Consolidated Net Income for such period plus, without duplication
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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 non-cash
charge), (e) non-cash charges and non-cash adjustments for impairment of long-
lived assets not to exceed $10,000,000 in the aggregate for any Reference
Period, and (f) other non-cash items and extraordinary non-cash charges not to
exceed $10,000,000 for any Reference Period, 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 or the ratio of Consolidated Cash
Flow to Consolidated Fixed Charges, (i) if at any time during such Reference
Period such Person or any Subsidiary shall have made any Material Disposition
(other than any sale of the Three Sale Hospitals), 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
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Material Acquisition occurred on the first day of such Reference Period.
"Consolidated Fixed Charge Coverage Ratio": for any period, the ratio of
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(a) Consolidated Cash Flow for such period to (b) Consolidated Fixed Charges for
such period.
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"Consolidated Fixed Charges": for any period, as to LifePoint Parent and
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its Subsidiaries, the sum of (a) the cash portion of Consolidated Interest
Expense for such period (annualized for the first three fiscal quarters measured
hereunder), plus (b) the aggregate amount (determined on a consolidated basis in
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accordance with GAAP) of principal and premium, if any, required to be paid
during such period with respect to all outstanding Indebtedness of LifePoint
Parent and its Subsidiaries.
"Consolidated Interest Expense": for any period, as to LifePoint Parent and
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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) during such period (including
without limitation the commitment fees and the Letters 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) the sum of any amounts attributable to (i)
-----
goodwill, (ii) intangible items including unamortized debt discount and expense,
patents, trade and service marks and names, copyrights and research development
expenses except prepaid expenses, and (iii) any write-up in the book value of
assets resulting from any revaluation thereof, and minus (c) total liabilities
-----
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.
"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.
"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".
-----------
-8-
"Distribution Agreement" the Distribution Agreement, dated on or about the
----------------------
date hereof, 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.
------- -
"Domestic Subsidiary": any Subsidiary of LifePoint organized under the laws
-------------------
of any jurisdiction within the United States.
"Dropdown": see the Recitals.
--------
"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.
"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.
----------------
"Excess Cash Flow": for any period, as to LifePoint Parent (a) Consolidated
----------------
EBITDA for such period, minus (b) Consolidated Fixed Charges for such period,
-----
minus (c) voluntary prepayments of the Term Loans and voluntary prepayments of
-----
the Revolving Loans made in connection with voluntary permanent reductions of
the Revolving Commitments during such period, minus (d) Capital Expenditures
------
(net of any proceeds of any related financings with respect to such Capital
Expenditures) for such period, minus (e) cash taxes for such Person and its
-----
Subsidiaries for such period.
"Existing Joint Ventures": Columbia/Bartow Healthcare System, Ltd. and
-----------------------
Dodge City Healthcare Group, L.P.
-9-
"Facility": each of (a) the Tranche A Term Commitments and the Tranche
--------
A Term Loans made thereunder (the "Tranche A Term Facility"), (b) the Tranche B
-----------------------
Term Commitments and the Tranche B Term Loans made thereunder (the "Tranche B
---------
Term Facility") and (c) the Revolving Commitments and the extensions of credit
-------------
made thereunder (the "Revolving 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).
"Financings": see the Recitals.
----------
"Funding Office": the office of the Administrative Agent specified in
--------------
Section 11.2 or such other office as may be specified from time to time by the
Administrative Agent as its funding office by written notice to the 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, 1998 as applied by
Columbia/HCA and 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 the 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 the 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
the 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 exercising executive, legislative,
judicial, taxing, regulatory or administrative functions or pertaining to
government, any securities exchange and any self-regulatory organization.
-10-
"Guarantee and Security Agreement": the Guarantee and Security Agreement to
--------------------------------
be executed and delivered by each Subsidiary Guarantor, substantially in the
form of Exhibit C, 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 the 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, (a) HTI, in the event HTI is no longer the
----------
"Borrower" hereunder and has not been released as a Guarantor pursuant to
Section 6.11, (b) LifePoint Parent, in the event step (2) of the Dropdown occurs
and LifePoint Parent is no longer the "Borrower" hereunder pursuant to Section
6.11, and (c) the Subsidiary Guarantors, in the event HTI is released as a
"Borrower" and "Guarantor" hereunder pursuant to Section 6.11. (It is a
requirement of this Agreement that the Subsidiary Guarantors become "Guarantors"
hereunder prior to the occurrence of either of the HCA Distributions described
in steps (3) and (4) of the Spinoff and contemporaneously with any release of
HTI as a "Guarantor" pursuant to Section 6.11).
"HCA Asset Transfer Side Letter": see Section 4.1(l).
------------------------------
"HCA Distributions": see the Recitals.
-----------------
-11-
"HCA Guaranty": the Guarantee Agreement of Columbia/HCA to be executed and
------------
delivered on the Closing Date substantially in the form attached as Exhibit D-1
-----------
as may be amended, supplemented or modified from time to time.
"HCA Other Side Letter": see Section 4.1(l).
---------------------
"HCA Senior Credit Facilities": Columbia/HCA's senior credit facilities in
----------------------------
effect on the date hereof.
"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, 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 or about the Closing Date.
"High Yield Offering": see Section 4.1.
-------------------
"HTI": see the preamble.
---
"HTI Guaranty": collectively, the two Guarantee Agreements of HTI to be
------------
executed and delivered by HTI pursuant to Section 6.11, substantially in the
forms of Exhibit D-2, as the same may be amended, supplemented or otherwise
-----------
modified from time to time.
"HTI Release": see Section 6.11.
-----------
"Hospitals": any of the acute care hospitals owned or operated by any of
---------
the Loan Parties from time to time, of which 23 are owned and operated by
LifePoint and its Subsidiaries on the date hereof, as set forth on Schedule A
----------
hereto.
-12-
"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 or an Asset Sale
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.
"Initial Financial Statements": see Section 4.1.
----------------------------
"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 Loan is outstanding and
the final maturity date of such Loan, (b) as to any LIBOR Loan having an
Interest Period of three months or less, the last day of such Interest Period,
(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 and (d) as to
any Loan (other than any
-13-
Revolving Loan that is an Base Rate Loan), the date of any repayment or
prepayment made in respect thereof.
"Interest Period": 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, as
selected by the 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, as selected
by the 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) the Borrower may not select an Interest Period under a
particular Facility that would extend beyond the Scheduled Revolving
Termination Date or beyond the date final payment is due on the Tranche A
Term Loans or the Tranche B Term Loans, as the case may be;
(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 month at the end of such Interest Period) shall end on
the last Business Day of a calendar month; and
(iv) the Borrower shall select Interest Periods so as not to require
a payment or prepayment of any LIBOR Loan during an Interest Period for
such 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.
"JCAHO": the Joint Commission on Accreditation of Healthcare
-----
Organizations, or any similar successor organization thereto.
"L/C Application": an application, in such form as the Issuing Lender may
---------------
specify from time to time, requesting the Issuing Lender to issue a Letter of
Credit.
"L/C Commitment": $12,000,000.
--------------
-14-
"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 Revolving Lenders other than the 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. (S)1320a-7b, 42 U.S.C. (S)1395nn or 31 U.S.C. (S)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.
-------
"Letter of Credit Fees" see Section 3.3.
---------------------
"Letters of Credit": as defined in Section 3.1(a).
-----------------
"LIBOR Base Rate": with respect to each Interest Period for a LIBOR Loan,
---------------
that rate per annum (rounded upward, if necessary, to the nearest 1/32nd of one
percent) 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 as described above, if necessary) for deposits in
dollars for a period substantially equal to such Interest Period shown on the
Reuters Page "LIBO" (or such other page as may replace the LIBO Page on that
service for the purpose of displaying such rates), as of 11:00 a.m. (London
Time) on that day that is two Business Days prior to the beginning of such
Interest Period. If both the Telerate and Reuters systems are unavailable, then
the LIBOR Base Rate for any Interest Period will be 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
-15-
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 the 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": 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
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": see the Recitals.
---------
"LifePoint II": see the Recitals.
------------
-16-
"LifePoint III": see the Recitals.
-------------
"LifePoint Parent": see the Recitals.
----------------
"LifePoint Parent Guaranty": the Guarantee Agreement of LifePoint Parent to
-------------------------
be executed and delivered by LifePoint Parent pursuant to Section 6.11,
substantially in the form of Exhibit E, as the same may be amended, supplemented
---------
or otherwise modified from time to time.
"LifePoint Parent Security Agreement": the Security Agreement of LifePoint
-----------------------------------
Parent to be executed and delivered by LifePoint Parent pursuant to Section
6.11, substantially in the form of Exhibit F, as the same may be amended,
---------
supplemented or otherwise modified from time to time.
"LifePoint Security Agreement": the Security Agreement of LifePoint to be
----------------------------
executed and delivered by LifePoint pursuant to Section 6.11, substantially in
the form of Exhibit G, as the same may be amended, supplemented or otherwise
---------
modified from time to time.
"Loan" any loan made by any Lender pursuant to this Agreement.
----
"Loan Documents": this Agreement, the Security Documents and the Notes.
--------------
"Loan Parties": (a) HTI (until the HTI Release has been executed and
------------
delivered), (b) LifePoint Parent, (c) LifePoint and each of its Subsidiaries,
and (d) any other Affiliate of LifePoint that is or becomes a party to a Loan
Document.
"Loan Party": any of the Loan Parties.
----------
"Majority Facility Lenders": with respect to the Tranche A Term and the
-------------------------
Revolving Facility, the holders (who are not Defaulting Lenders) of more than
50% of the aggregate unpaid principal amount of the Tranche A Term Loans or the
Total Revolving Extensions of Credit, as the case may be, outstanding under such
Facility (or, prior to any termination of the Tranche A Term Commitments or the
Revolving Commitments, the holders (who are not Defaulting Lenders) of more than
50% of the aggregate Tranche A Term Commitments or Total Revolving Commitments,
as the case may be), and with respect to the Tranche B Term Facility, the
holders (who are not Defaulting Lenders) of more than 50% of the aggregate
principal amount of the Tranche B Term Loans outstanding under the Tranche B
Term Facility.
"Majority Revolving Facility Lenders": the Majority Facility Lenders in
-----------------------------------
respect of the Revolving Facility.
"Majority Tranche A Term Lenders": the Majority Facility Lenders in respect
-------------------------------
of the Tranche A Term Facility.
-17-
"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 Columbia/HCA (so long as HTI remains a Loan Party), HTI (so long as
it remains a Loan Party), LifePoint Parent, LifePoint, or LifePoint 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 enforceability of (i) this Agreement or (ii) any of
the other Loan Documents or (iii) any aspect of the Spinoff materially adverse
to any Loan Party or (iv) 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 LifePoint existing on the date hereof or hereafter
acquired or created which (i) has a tangible net worth (calculated in accordance
with GAAP) equal to or greater than 10% of the Consolidated Net Worth of
LifePoint 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 LifePoint and its Subsidiaries (calculated for the most recent fiscal
year of LifePoint 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 1.1B and properties related thereto, as to which the Administrative
-------------
Agent for the benefit of the Lenders shall request and shall be granted a Lien
pursuant to the Mortgages.
-18-
"Mortgages": each of the mortgages and deeds of trust made by any Loan
---------
Party in favor of, or for the benefit of, the Administrative Agent for the
benefit of the Lenders, substantially in the form of Exhibit H (with such
---------
changes thereto as shall be advisable under the law of the jurisdiction in which
such mortgage or deed of trust is to be recorded), as the same may be amended,
supplemented or otherwise modified from time to time.
"Multiemployer Plan": a Plan that is a multiemployer plan as defined in
------------------
Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or any Recovery
-----------------
Event, to the extent the aggregate proceeds thereof exceed $500,000 in any
fiscal year, such proceeds in the form of cash and Cash Equivalents (including
any such proceeds received by way of deferred payment of principal pursuant to a
note or installment receivable or purchase price adjustment receivable or
otherwise, but only as and when received) of such Asset Sale or Recovery Event,
net of attorney's fees, accountant's fees, investment banking fees, amounts
required to be applied to the repayment of Indebtedness (including principal,
interest, premium and penalties, if any) secured by a Lien expressly permitted
hereunder on any asset that is the subject of such Asset Sale or Recovery Event
(other than any Lien pursuant to a Security Document) and other customary fees
and expenses actually incurred in connection therewith and net of taxes paid or
reasonably estimated to be payable as a result thereof (after taking into
account any available tax credits or deductions and any tax sharing
arrangements) and net reserves (which shall not exceed in any event 20% of such
cash and Cash Equivalents) for reasonable post-closing adjustments (to be
reserved until adjusted no later than nine months after such Asset Sale)
relating to settlement of receivables and other working capital adjustments in
the ordinary course of business, reasonably determined by LifePoint; (b) in
connection with any issuance or sale of equity securities or debt securities or
instruments or the incurrence of loans, the cash proceeds received from such
issuance or incurrence, 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. Any excess net
reserve amounts netted out from Net Cash Proceeds shall be turned over to the
Administrative Agent as Net Cash Proceeds for mandatory prepayment at the end of
the reserve and adjustment period relating thereto.
"Non-Excluded Taxes": as defined in Section 2.17(a).
------------------
"Non-U.S. Lender": as defined in Section 2.17(d).
---------------
"Notes":the collective reference to the Tranche A Term Notes, the Tranche B
-----
Term Notes and the Revolving Notes.
"Notice of Reinvestment":a written notice executed by a Responsible Officer
----------------------
stating that no Event of Default has occurred and is continuing and that
LifePoint (directly or indirectly through a Subsidiary Guarantor) intends and
expects to use all or a specified portion of the Net Cash Proceeds of an Asset
Sale or Recovery Event to acquire assets to be used and useful in its business.
-19-
"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
the 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 the 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 the 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.
"Participant": as defined in Section 11.6(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 LifePoint or a Subsidiary
----------------------
Guarantor, subject to the fulfillment of the following conditions:
(i) LifePoint shall have obtained the prior written approval of the
Required Lenders, if (A) such Acquisition involves a Total Purchase Price of
$32,500,000 or more in the aggregate, or (B) the aggregate Total Purchase
Price of such Acquisition and all other Acquisitions consummated within the
calendar year of the date of the proposed Acquisition exceeds $40,000,000.
(ii) Target EBITDA of the Target for its most recently ended four
fiscal quarters shall exceed $1.00;
(iii) No later than (A) 15 days (or such shorter period as may be
reasonably practicable, if approved by the Required Lenders) prior to the
consummation of any such Acquisition or, if earlier, 10 Business Days after
the execution and delivery of the related Purchase Agreement, LifePoint
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 LifePoint, and any additional agreements
or instruments to be executed at the
-20-
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 Sections 6.11 and 6.12, 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
LifePoint 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, LifePoint 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. Without limiting the generality of the foregoing, both
before, and after giving effect to such Acquisition calculated on a pro
---
forma basis as of the end of and for the Reference Period most recently
-----
ended prior to the date of such Acquisition, the ratio of Consolidated
Total Debt to Consolidated Annualized EBITDA (for the most recently ended
Reference Periods ending on or before September 30, 1999) or to
Consolidated EBITDA (for Reference Periods ending thereafter) shall be less
than 4.00:1.00. At least eight Business Days prior to the closing of such
Acquisition, LifePoint shall provide to the Administrative Agent (with
sufficient copies for all of the Lenders) a certificate signed on behalf of
LifePoint by a Responsible Officer demonstrating such compliance in
reasonable detail; and
-21-
(x) LifePoint shall have submitted to the Administrative Agent a
properly completed Acquisition Compliance Checklist substantially in the
form of Exhibit I hereto which must be satisfactory to the Administrative
---------
Agent in form and substance.
"Person": an individual, partnership, corporation, limited liability
------
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity.
"Plan": at a particular time, any employee benefit plan that is covered by
----
ERISA and in respect of which the 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 1.1C.
------------ -------------
"Pricing Leverage Ratio": at any date, the ratio of (a) Consolidated Total
----------------------
Debt on such date to (b) Consolidated EBITDA for the most recently ended
Reference Period.
"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.
"Pro Forma Financial Statements": as defined in Section 4.1(a).
------------------------------
"Projections": as defined in Section 6.2(a).
-----------
"Properties": as defined in Section 4.17(a).
----------
"Purchase Agreement": any of the asset and/or equity purchase agreements
------------------
relating to a Permitted Acquisition between LifePoint 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.
"Recovery Event": any settlement of or payment in respect of any property or
--------------
casualty insurance claim or any condemnation proceeding relating to any asset of
the Borrower or any of its Subsidiaries in excess of $500,000.
"Reference Lender": Fleet National Bank.
----------------
-22-
"Reference Period": any period of four consecutive fiscal quarters of the
----------------
Borrower.
"Register": as defined in Section 11.6(d).
--------
"Regulation U": Regulation U of the Board as in effect from time to time.
------------
"Reimbursement Obligation": the obligation of the Borrower to reimburse the
------------------------
Issuing Lender pursuant to Section 3.5 for amounts drawn under Letters of
Credit.
"Reinvestment Deferred Amount": with respect to any Asset Sale or Recovery
----------------------------
Event for which a Notice of Reinvestment has been delivered, the aggregate Net
Cash Proceeds received by LifePoint or any of its Subsidiaries in connection
therewith that are not applied to prepay the Term Loans pursuant to Section
2.9(b) as a result of the delivery of a Reinvestment Notice,
"Reinvestment Prepayment Amount": with respect to any Asset Sale or Recovery
------------------------------
Event for which a Notice of Reinvestment has been delivered, the Reinvestment
Deferred Amount relating thereto less any amount expended prior to the relevant
Reinvestment Prepayment Date to acquire assets to be used and useful in the
business of LifePoint and the Subsidiary Guarantors.
"Reinvestment Prepayment Date": with respect to any Asset Sale or Recovery
----------------------------
Event for which a Notice of Reinvestment has been delivered, the earlier of (a)
the date occurring nine months after such Asset Sale or Recovery Event and (b)
the date on which the Borrower shall have determined not to, or shall have
otherwise ceased to, acquire assets to be used and useful in the business of
LifePoint and the Subsidiary Guarantors with all or any portion of the
applicable Reinvestment Deferred Amount.
"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. (S) 4043.
"Required Lenders": at any time, the holders (who are not Defaulting
----------------
Lenders) of more than 50% of (a) until the Closing Date, the Commitments then in
effect and (b) thereafter, the sum of (i) the aggregate unpaid principal amount
of the Term Loans then outstanding, (ii) the aggregate undrawn Tranche A Term
Commitments then in effect, and (iii) the Total Revolving Commitments then in
effect or, if the Revolving Commitments have been terminated, the Total
Revolving Extensions of Credit then outstanding.
"Required Prepayment Lenders": the Majority Facility Lenders in respect of
---------------------------
each Facility.
-23-
"Responsible Officer": as to any Loan Party, the chief executive officer,
-------------------
chief operating officer, president, chief financial officer or general counsel
of such Loan Party, but in any event, with respect to financial matters, the
chief financial officer of the 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; provided, however, that Restricted Payments shall
not include transactions that comply with Section 7.9.
"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 1.1A
-------------
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. The original aggregate amount of the Total Revolving Commitments is
$65,000,000.
"Revolving Commitment Period": the period from and including the Closing
---------------------------
Date to the Scheduled Revolving Termination Date.
"Revolving Extensions of Credit": as to any Revolving Lender at any time, an
------------------------------
amount equal to the sum of (a) the aggregate principal amount of all Revolving
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 Lender": each Lender that has a Revolving Commitment or that
----------------
holds Revolving Loans.
"Revolving Loans": as defined in Section 2.4(a).
---------------
"Revolving Note": as defined in Section 2.4(c).
--------------
"Revolving Percentage": as to any Revolving 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": November 11, 2004.
------------------------------------
-24-
"Scheduled Tranche A Termination Date": the first anniversary of the date
------------------------------------
of this Agreement.
"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 the
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 HTI Guaranty (so long
------------------
as HTI remains a Loan Party), the HCA Asset Transfer Side Letter (so long as HTI
remains a Loan Party), the HCA Other Side Letter, the HCA Guaranty, the
LifePoint Parent Guaranty, the LifePoint Parent Security Agreement, the
LifePoint Security Agreement, the Guarantee and Security Agreement, the
Assumption Agreements, 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.
"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.
-25-
"Spinoff": see the Recitals.
-------
"Subordinated Debt": any Indebtedness of the 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, including the High Yield Offering and
the Columbia/HCA Intercompany Receivable.
"Subordination Agreement": see Section 4.1.
-----------------------
"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 LifePoint shall include the Existing Joint Ventures. 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 LifePoint; provided that no Plan (including the ESOP) shall
be considered a Subsidiary of LifePoint Parent or LifePoint.
"Subsidiary Guarantor": each direct or indirect Subsidiary of LifePoint.
--------------------
"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 LifePoint 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
consistently applied.
"Tax Sharing Agreement": the Tax Sharing and Indemnification Agreement,
---------------------
dated on or about the date hereof, 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.
-26-
"Term Lenders": the collective reference to the Tranche A Term Lenders and
------------
the Tranche B Term Lenders.
"Term Loans": the collective reference to the Tranche A Term Loans and
----------
Tranche B Term Loans.
"Third Party Payor Programs": All third party payor programs in which
--------------------------
LifePoint 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, including without limitation all Third Party Payor Programs
in which the America Group division of Columbia/HCA participated immediately
prior to the Spinoff.
"Three Sale Hospitals": the following three Hospitals, Trinity Hospital,
--------------------
Xxxx, Tennessee, Xxxxxx Medical Center, Winder, Georgia and Xxxxxxxx Hospital,
Halstead, Kansas.
"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 LifePoint
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 LifePoint 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
-27-
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 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).
"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 Revolving Lenders outstanding at such
time.
"Tranche A Term Commitment": as to any Lender, the obligation of such
-------------------------
Lender, if any, to make a Tranche A Term Loan to the Borrower hereunder in a
principal amount not to exceed the amount set forth under the heading "Tranche A
Term Commitment" opposite such Lender's name on Schedule 1.1A. The original
-------------
aggregate amount of the Tranche A Term Commitments is $60,000,000.
"Tranche A Term Lender": each Lender that has a Tranche A Term Commitment or
---------------------
holds a Tranche A Term Loan.
"Tranche A Term Loan": as defined in Section 2.1.
-------------------
"Tranche A Term Note": as defined in Section 2.3(c).
-------------------
"Tranche A Term Percentage": as to Tranche A Term Lender at any time, the
-------------------------
percentage which such Lender's Tranche A Term Commitment then constitutes of the
aggregate Tranche A Term Commitments (or, at any time after the Closing Date,
the percentage which the sum of the aggregate principal amount of such Lender's
Tranche A Term Loans then outstanding plus such Lender's undrawn Tranche A Term
Commitment constitutes of the sum of the aggregate principal amount of the
Tranche A Term Loans then outstanding plus the aggregate principal amount of the
undrawn Tranche A Term Commitments).
"Tranche B Term Commitment": as to Tranche B Term Lender, the obligation of
-------------------------
such Lender, if any, to make a Tranche B Term Loan to the Borrower hereunder in
a principal amount not to exceed the amount set forth under the heading "Tranche
B Term Commitment" opposite such Lender's name on Schedule 1.1A. The original
-------------
aggregate amount of the Tranche B Term Commitments is $85,000,000.
"Tranche B Term Lender": each Lender that has a Tranche B Term Commitment or
---------------------
holds a Tranche B Term Loan.
-28-
"Tranche B Term Loan": as defined in Section 2.1.
-------------------
"Tranche B Term Note": as defined in Section 2.3(d).
-------------------
"Tranche B Term Percentage": as to any Lender at any time, the percentage
-------------------------
which such Lender's Tranche B Term Commitment then constitutes of the aggregate
Tranche B Term Commitments (or, at any time after the Closing Date, the
percentage which the aggregate principal amount of such Lender's Tranche B Term
Loans then outstanding constitutes of the aggregate principal amount of the
Tranche B Term Loans then outstanding); provided, that solely for purposes of
--------
calculating the amount of each installment of Tranche B Term Loans (other than
the last installment) payable to a Tranche B Term Lender, such Term Lender's
Tranche B Term Percentage shall be calculated without giving effect to any
portion of any prior mandatory or optional prepayment attributable to such Term
Lender's Tranche B Term Loans that shall have been declined by such Term Lender
(or, in the case of any Term Lender that shall have acquired its Tranche B Term
Loans by assignment from another Person, by such other Person).
"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) subleases between certain subsidiaries of Columbia/HCA and
LifePoint Parent relating to LifePoint Parent's principal executive offices; (g)
the transitional services agreement between Columbia/HCA and LifePoint Parent;
(h) agreement to share telecommunications services between CIS and LifePoint
Parent; (i) 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; and (j) Year
2000 professional services agreement between CIS and LifePoint Parent.
"Triad Financings": the credit facilities provided under the Credit
----------------
Agreement dated as of May 11, 1999 among Healthtrust, Inc.-The Hospital Company,
Bank of America National Trust and Savings Association, as administrative agent,
and the lenders who become parties thereto from time to time (the "Triad Credit
------------
Agreement") and the financing under the Senior Subordinated Notes (as defined in
---------
the Triad Credit Agreement).
"Type": as to any Loan, its nature as a Base Rate Loan or a LIBOR Loan.
----
"United States" or "U.S.": the United States of America.
------------- ----
"U.S. Taxes": as defined in Section 11.6(d).
----------
-29-
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 hereto or thereto, (a)
accounting terms relating to the 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 Term Commitments. (a) Subject to the terms and conditions hereof,
----------------
each Tranche A Term Lender severally agrees to make up to three term loans
(each, a "Tranche A Term Loan") to the Borrower from time to time as provided
-------------------
below until the Scheduled Tranche A Termination Date; with the initial Tranche A
Term Loan of such Tranche A Term Lender to be made on the Closing Date in an
amount not exceeding such Tranche A Term Lender's Tranche A Term Percentage of
$25,000,000. Subject to the terms and conditions hereof, the Borrower may
borrow the aggregate undrawn Tranche A Term Commitments in two advances after
the Closing Date until the Scheduled Tranche A Termination Date.
(b) Subject to the terms and conditions hereof, each Tranche B Term Lender
severally agrees to make a term loan (a "Tranche B Term Loan") to the Borrower
-------------------
on the Closing Date in an amount not to exceed the amount of the Tranche B Term
Commitment of such Lender.
(c) The Term Loans may from time to time be LIBOR Loans or Base Rate Loans,
as determined by the Borrower and notified to the Administrative Agent in
accordance with Sections 2.2 and 2.10.
2.2 Procedure for Term Loan Borrowing. (a) The Borrower shall give the
---------------------------------
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 12:00 Noon, New York City time, one Business Day
prior to the anticipated Closing Date and shall be confirmed in writing pursuant
to the Borrowing Notice attached as Exhibit M-1, a "Borrowing Notice")
----------- ----------------
requesting that the Term Lenders make the initial Tranche A Term Loans (in an
aggregate amount not to exceed $25,000,000) and make the Tranche B Term Loans on
the Closing Date and specifying the amount to be borrowed. The Term Loans made
on the Closing Date shall initially be Base Rate Loans. Upon receipt of such
notice the Administrative Agent shall promptly notify each Term Lender thereof.
Not later than 12:00 Noon, New York City time, on the Closing Date each Term
Lender shall make available to the Administrative Agent at the Funding Office an
amount in immediately available funds equal to the Term Loan or Term Loans to be
made by such Lender on the Closing Date. The Administrative Agent shall credit
the account of the Borrower on the books of such office of the
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Administrative Agent by the Term Lenders in immediately available funds.
Thereafter, the Borrower may borrow under the remaining undrawn Tranche A Term
Commitment in two advances until the Scheduled Tranche A Termination Date on any
Business Day, provided that the Borrower shall give the Administrative Agent
irrevocable notice (received by the Administrative Agent prior to 12:00 Noon,
New York City time) (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 Tranche A 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. Each
such advance shall be in an amount equal to (x) in the case of Base Rate Loans,
$5,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if the then
aggregate undrawn Tranche A Term Commitment is 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 the Borrower,
the Administrative Agent shall promptly notify each Tranche A Term Lender
thereof. Each Tranche A Term Lender or Tranche B Term Lender, as applicable,
will make the amount of its pro rata share of each borrowing available to the
--- ----
Administrative Agent for the account of the Borrower at the Funding Office prior
to 12:00 Noon, New York City time, on the Borrowing Date requested by the
Borrower in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower by the Administrative
Agent crediting the account of the Borrower on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the
Tranche A Term Lenders and in like funds as received by the Administrative
Agent.
2.3 Repayment of Term Loans. (a) Subject to Section 2.3(c) below, the
-----------------------
Tranche A Term Loan of each Tranche A Lender shall mature in 19 consecutive
quarterly installments, commencing on June 30, 2000, each of which shall be paid
on the payment dates set forth below and shall be in an amount equal to such
Lender's Tranche A Term Percentage multiplied by the amount equal to the
percentage of aggregate outstanding principal of Tranche A Term Loans as of the
Scheduled Tranche A Termination Date set forth below opposite such payment date:
Payment Date Principal Amount
----------------- ----------------------
06/30/00 2.75%
09/30/00 2.75%
12/31/00 2.75%
03/31/01 4.1875%
06/30/01 4.1875%
09/30/01 4.1875%
12/31/01 4.1875%
03/31/02 6.25%
06/30/02 6.25%
09/30/02 6.25%
12/31/02 6.25%
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Payment Date Principal Amount
------------------- -----------------------
03/31/03 6.25%
06/30/03 6.25%
09/30/03 6.25%
12/31/03 6.25%
03/31/04 6.25%
06/30/04 6.25%
09/30/04 6.25%
11/11/04 6.25%
(b) Subject to Section 2.3(c) below, the Tranche B Term Loan of each
Tranche B Lender shall mature in 24 consecutive quarterly installments,
commencing on March 31, 2000, each of which shall be in an amount equal to such
Lender's Tranche B Term Percentage multiplied by the amount set forth below
opposite such installment.
Payment Date Principal Amount
------------------- -----------------------
03/31/00 $ 212,500
06/30/00 $ 212,500
09/30/00 $ 212,500
12/31/00 $ 212,500
03/31/01 $ 212,500
06/30/01 $ 212,500
09/30/01 $ 212,500
12/31/01 $ 212,500
03/31/02 $ 212,500
06/30/02 $ 212,500
09/30/02 $ 212,500
12/31/02 $ 212,500
03/31/03 $ 212,500
06/30/03 $ 212,500
09/30/03 $ 212,500
12/31/03 $ 212,500
03/31/04 $ 212,500
06/30/04 $ 212,500
09/30/04 $ 212,500
12/31/04 $ 212,500
03/31/05 $20,187,500
06/30/05 $20,187,500
09/30/05 $20,187,500
11/11/05 $20,187,500
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(c) Notwithstanding anything in this Agreement or any other Loan
Document to the contrary, all of the Term Loans shall be immediately due and
payable, without demand or notice of any kind, and the Tranche A Term
Commitments and the Tranche B Term Commitments shall immediately terminate,
without demand or notice of any kind, on the second calendar day after the
Closing Date (or if not a Business Day, on the next succeeding Business Day) in
the event the Spinoff has not been completed in its entirety (including all
steps (1) through (4) thereof) in accordance with the terms of this Agreement
(including without limitation Section 6.11).
(d) The Borrower agrees that, upon the request to the Administrative
Agent by any Tranche A Term Lender, which request is communicated to the
Borrower, the Borrower will execute and deliver to such Tranche A Term Lender a
promissory note of the Borrower dated the Closing Date evidencing the Tranche A
Term Loans made by such Tranche A Term Lender, substantially in the form of
Exhibit J (a "Tranche A Term Note"), payable to the order of such Tranche A Term
--------- -------------------
Lender and in a principal amount equal to, in the case of Tranche A Term Notes
issued on the Closing Date, the lesser of (A) the initial Tranche A Term
Commitment of such Tranche A Term Lender or (B) the unpaid principal amount of
the Tranche A Term Loans made by such Tranche A Term Lender plus the undrawn
amount of the Tranche A Term Commitment, if not terminated, and, in the case of
Tranche A Term Notes issued after the Closing Date, the unpaid principal amount
of the Tranche A Term Loan made by such Tranche A Term Lender plus the undrawn
amount of the Tranche A Term Commitment, if not terminated. Each Tranche A Term
Lender is hereby authorized to record the date, Type and amount of each Tranche
A Term Loan made by such Tranche A Term 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 Tranche A Term 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 the Borrower to repay (with applicable interest) the
Tranche A Term Loans made to the Borrower in accordance with the terms of this
Agreement. A Tranche A Term Note and the Obligations evidenced thereby may be
assigned or otherwise transferred in whole or in part only in accordance with
Section 11.6 and by registration of such assignment or transfer of such Tranche
A Term Note and the Obligations evidenced thereby in the Register.
(e) The Borrower agrees that upon the request to the Administrative
Agent by any Tranche B Term Lender, which request is communicated to the
Borrower, the Borrower will execute and deliver to such Tranche B Term Lender a
promissory note of the Borrower dated the Closing Date evidencing the Tranche B
Term Loans made by such Tranche B Term Lender, substantially in the form of
Exhibit K (a "Tranche B Term Note"), payable to the order of such Tranche B Term
--------- -------------------
Lender and in a principal amount equal to, in the case of Tranche B Term Notes
issued on the Closing Date, the lesser of (A) the initial Tranche B Term
Commitment of such Tranche B Term Lender or (B) the unpaid principal amount of
the Tranche B Term Loan made by such Tranche B Term Lender, and, in the case of
Tranche B Term Notes issued after the
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Closing Date, the unpaid principal amount of the Tranche B Term Loan made by
such Tranche B Term Lender. Each Tranche B Term Lender is hereby authorized to
record the date, Type and amount of each Tranche B Term Loan made by such
Tranche B Term 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
Tranche B Term 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
the Borrower to repay (with applicable interest) the Tranche B Term Loans made
to the Borrower in accordance with the terms of this Agreement. A Tranche B Term
Note and the Obligations evidenced thereby may be assigned or otherwise
transferred in whole or in part only in accordance with Section 11.6 and by
registration of such assignment or transfer of such Tranche B Term Note and the
Obligations evidenced thereby in the Register.
2.4 Revolving Commitments. (a) Subject to the terms and conditions
---------------------
hereof, each Revolving Lender severally agrees to make revolving credit loans
("Revolving Loans") to the 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 the 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 the Borrower and notified to
the Administrative Agent in accordance with Sections 2.5 and 2.10.
(b) Subject to Section 2.4(c) below, the Borrower shall repay all
outstanding Revolving Loans on the Scheduled Revolving Termination Date.
(c) Notwithstanding anything in this Agreement or in any other Loan
Document to the contrary, all outstanding Revolving Loans shall be immediately
due and payable, without demand or notice of any kind, and the Revolving
Commitments shall immediately terminate, without demand or notice of any kind,
on the second calendar day (or, if not a Business Day, the next succeeding
Business Day) after the Closing Date in the event the Spinoff has not been
completed in its entirety (including all steps (1) through (4) thereof) in
accordance with the terms of this Agreement (including without limitation
Section 6.11).
(d) The Borrower agrees that, upon the request to the Administrative
Agent by any Revolving Lender, which request is communicated to the Borrower,
the Borrower will execute and deliver to such Revolving Lender a promissory note
of the Borrower dated the Closing Date evidencing the Revolving Commitment of
such Revolving Lender, substantially in the form of Exhibit L with appropriate
---------
insertions as to date and principal amount (a "Revolving Note"). Each Revolving
--------------
Lender is hereby authorized to record the date, Type and amount of each
Revolving
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Loan made by such Revolving 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 the Borrower to repay (with applicable interest) the Revolving
Loans made to the Borrower in accordance with the terms of this Agreement. A
Revolving Note and the Obligations evidenced thereby may be assigned or
otherwise transferred in whole or in part only in accordance with Section 11.6
and by registration of such assignment or transfer of such Revolving Note and
the Obligations evidenced thereby in the Register (and each Revolving 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 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 the
Borrower in favor of the Borrower relating thereto, the Borrower will issue, in
lieu thereof, a replacement Note or other security document in the same
principal amount thereof and otherwise of like tenor.
2.5 Procedure for Revolving Loan Borrowing. The Borrower may borrow
--------------------------------------
under the Revolving Commitments during the Revolving Commitment Period on any
Business Day, provided that the 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 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 the Borrower, the
Administrative Agent shall promptly notify each Revolving Lender thereof. Each
Revolving Lender will make the amount of its pro rata share of each borrowing
--------
available to the Administrative Agent for the account of the Borrower at the
Funding Office prior to 12:00 Noon, New York City time, on the Borrowing Date
requested by the Borrower in funds immediately available to the Administrative
Agent. Such borrowing will then be made available to the Borrower by the
Administrative Agent crediting the account of the Borrower on the books of such
office with the aggregate of the amounts made available to the
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Administrative Agent by the Revolving Lenders and in like funds as received by
the Administrative Agent.
2.6 Commitment Fees, etc. (a) The Borrower agrees to pay to the
--------------------
Administrative Agent for the account of each Revolving Lender a commitment fee
for the period from and including the Closing Date to the last day of the
Revolving Commitment Period, equal to 1/2 of 1.00% per annum on the average
daily amount of the Available Revolving Commitment of such Revolving 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.
(b) The Borrower agrees to pay to the Administrative Agent for the
account of each Tranche A Term Lender a commitment fee for the period from and
including the Closing Date through the Scheduled Tranche A Termination Date
equal to 1/2 of 1.00% per annum on the average daily amount of the undrawn
Tranche A Term Commitment of such Tranche A Term Lender, payable quarterly in
arrears on the last day of each March, June, September and December and on the
Scheduled Tranche A Termination Date, commencing on the first of such dates to
occur after the date hereof.
(c) The Borrower agrees to pay to each Agent the fees in the amounts
and on the dates previously agreed to in writing by the Borrower and such Agent.
2.7 Termination or Reduction of Revolving Commitments. The Borrower
-------------------------------------------------
shall have the right, upon not less than seven 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 would exceed
the Total Revolving Commitments. Any such reduction shall be in an amount equal
to $1,000,000, or a whole multiple thereof, and shall reduce permanently the
Revolving Commitments then in effect.
2.8 Optional Prepayments. (a) The Borrower may at any time and
--------------------
from time to time prepay the Loans, in whole or in part, without premium or
penalty, upon irrevocable notice delivered to the 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, the Borrower
shall also pay any amounts owing pursuant to Section 2.18, and, provided,
further, that if any portion or all of any Tranche B Term Loan is prepaid
pursuant to this Section 2.8 on or before the second anniversary of the Closing
Date, the Borrower shall also pay any amounts owing pursuant to Section 2.8(c).
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
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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 of Term Loans and Revolving Loans shall be in an aggregate
principal amount of $1,000,000 or a whole multiple thereof.
(b) Optional prepayments of the Term Loans shall be applied pro rata
--- ----
to the Tranche A and Tranche B Term Loans, and, ratably to the respective
installments thereof. Optional prepayments of Term Loans may not be reborrowed.
(c) In connection with, and at the time of, any optional prepayment of
all or any portion of the Tranche B Term Loans (i) at any time from the Closing
Date until the first anniversary thereof, the Borrower shall also pay a
prepayment penalty equal to 2.00% of the principal amount so prepaid, or (ii) at
any time from the first anniversary of the Closing Date until the second
anniversary thereof, the Borrower shall also pay a prepayment penalty equal to
1.00% of the principal amount so prepaid.
(d) Notwithstanding anything to the contrary in Section 2.8(b) or
2.15, with respect to the amount of any prepayment described in Section 2.8 that
is allocated to Tranche B Term Loans (such amounts, the "Tranche B Prepayment
--------------------
Amount"), at any time when Tranche A Term Loans remain outstanding, the Borrower
------
will, in lieu of applying such amount to the prepayment of Tranche B Term Loans
as provided in paragraph (b) above, on the date of such prepayment, give the
Administrative Agent telephonic notice (promptly confirmed in writing)
requesting that the Administrative Agent prepare and provide to each Tranche B
Lender a notice (each, a "Prepayment Option Notice") as described below. As
------------------------
promptly as practicable after receiving such notice from the Borrower, the
Administrative Agent will send to each Tranche B Lender a Prepayment Option
Notice, which shall be in the form of Exhibit N, and shall include an offer by
---------
the Borrower to prepay on the date (each an "Optional Prepayment Date") that is
------------------------
10 Business Days after the date of the Prepayment Option Notice, the relevant
Term Loans of such Lender by an amount equal to the portion of the prepayment
amount indicated in such Lender's Prepayment Option Notice as being applicable
to such Lender's Tranche B Term Loans. On the Optional Prepayment Date, (i) the
Borrower shall pay to the relevant Tranche B Lenders the aggregate amount
necessary to prepay that portion of the outstanding relevant Term Loans in
respect of which such Lenders have accepted prepayment as described above (such
Lenders, the "Accepting Lenders"), (ii) the Borrower shall pay to the Tranche A
-----------------
Lenders an amount equal to the portion of the Tranche B Prepayment Amount not
accepted by the Accepting Lenders, and such amount shall be applied to the
prepayment of the Tranche A Term Loans.
2.9 Mandatory Prepayments and Commitment Reductions.: (a) Unless
------------------------------------------------
the Required Prepayment Lenders shall otherwise consent in writing, if any
Equity Interests shall be issued or Indebtedness incurred (excluding any
Indebtedness incurred in accordance with Section 7.2 of this Agreement) by the
Borrower or any of its Subsidiaries, an amount equal to 100% of the Net Cash
Proceeds thereof shall be delivered to the Administrative Agent within three
Business Days after the date of such issuance or incurrence to be applied
towards the prepayment of the Loans as set forth in Section 2.9(d).
-37-
(b) Unless the Required Prepayment Lenders shall otherwise consent in
writing, if the Borrower or any of its Subsidiaries shall receive Net Cash
Proceeds from any Asset Sale or Recovery Event, an amount equal to such Net Cash
Proceeds shall be delivered to the Administrative Agent within three Business
Days after such date of receipt to be applied towards the prepayment of the Term
Loans as set forth in Section 2.9(d), unless a Notice of Reinvestment has been
delivered relating thereto; provided, that (i) the aggregate Net Cash Proceeds
of Asset Sales and Recovery Events that may be excluded from the foregoing
mandatory prepayment requirement pursuant to Notices of Reinvestment shall not
exceed $5,000,000 in any fiscal year of the Borrower, and (ii) on each
Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment
Amount with respect to the relevant Asset Sale or Recovery Event shall be
applied toward the prepayment of the Term Loans as set forth in Section 2.9(d).
(c) Unless the Required Prepayment Lenders shall otherwise consent in
writing, if, for any fiscal year of the Borrower in which its ratio of
Consolidated Total Debt to Consolidated EBITDA is greater than or equal to
4.00:1.00, commencing with the fiscal year ending December 31, 1999, there shall
be Excess Cash Flow, the Borrower shall pay an amount equal to 75% of such
Excess Cash Flow to prepay the Term Loans as set forth in Section 2.9(d).
Unless the Required Lenders shall otherwise consent in writing, if, as at the
end of and for any fiscal year of the Borrower in which its ratio of
Consolidated Total Debt to Consolidated EBITDA is less than 4.00:1.00 on the
last day thereof, commencing with the fiscal year ending December 31, 1999,
there shall be Excess Cash Flow, the Borrower shall pay an amount equal to 50%
of such Excess Cash Flow to prepay the Term Loans as set forth in Section
2.9(d). Such prepayment out of Excess Cash Flow shall be made no later than
five Business Days after the earlier of (i) the date on which the financial
statements of the Borrower referred to in Section 6.1(a) for the fiscal year
with respect to which such prepayment is made, are required to be delivered to
the Lenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant
to Section 2.9 shall be applied (i) first to the prepayment of the Term Loans
pro rata to Tranche A Term Loans and Tranche B Term Loans and ratably to
--- ----
scheduled installments thereof, provided, however, prepayments of Term Loans
resulting from the incurrence of Indebtedness shall be applied to installments
of Term Loans in inverse order of maturity, and (ii) second, to the prepayment
of Revolving Loans and, in such event, such prepayment will permanently reduce
the Revolving Commitments in the amount thereof. The application of any
prepayment pursuant to Section 2.9 shall be made, first, to Base Rate Loans and,
-----
second, to LIBOR Loans. Each prepayment of the Loans under Section 2.9 (except
------
in the case of Revolving Loans that are Base Rate Loans) shall be accompanied by
accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.9(d) or
2.15, with respect to the amount of any mandatory prepayment described in
Section 2.9 that is allocated to Tranche B Term Loans (such amounts, the
"Tranche B Prepayment Amount"), at any time when Tranche A Term Loans remain
----------------------------
outstanding, the Borrower will, in lieu of applying such amount to the
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prepayment of Tranche B Term Loans as provided in paragraph (d) above, on the
date specified in Section 2.9 for such prepayment, give the Administrative Agent
telephonic notice (promptly confirmed in writing) requesting that the
Administrative Agent prepare and provide to each Tranche B Lender a Prepayment
Option Notice. As promptly as practicable after receiving such Prepayment Option
Notice from the Borrower, the Administrative Agent will send it to each Tranche
B Lender and shall include an offer by the Borrower to prepay on the date (each
a "Mandatory Prepayment Date") that is 10 Business Days after the date of the
-------------------------
Prepayment Option Notice, the relevant Term Loans of such Lender by an amount
equal to the portion of the prepayment amount indicated in such Lender's
Prepayment Option Notice as being applicable to such Lender's Tranche B Term
Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the
relevant Tranche B Lenders the aggregate amount necessary to prepay that portion
of the outstanding relevant Term Loans in respect of which such Lenders have
accepted prepayment as described above (such Lenders, the "Accepting Lenders"),
-----------------
(ii) the Borrower shall pay to the Tranche A Lenders an amount equal to the
portion of the Tranche B Prepayment Amount not accepted by the Accepting
Lenders, and such amount shall be applied to the prepayment of the Tranche A
Term Loans.
2.10 Conversion and Continuation Options. (a) The 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 M-2,
-----------
provided that any such conversion of LIBOR Loans may only be made on the last
--------
day of an Interest Period with respect thereto. The 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 a particular Facility may be converted
into a LIBOR Loan when any Event of Default has occurred and is continuing and
the Administrative Agent or the Majority Facility Lenders in respect of such
Facility have determined in its or their sole discretion not to permit such
conversions. Upon receipt of any such notice the 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 the 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 Loans, provided
that no LIBOR Loan under a particular Facility may be continued as such when any
Event of Default has occurred and is continuing and the Administrative Agent has
or the Majority Facility Lenders in respect of such Facility have determined in
its or their sole discretion not to permit such continuations, and provided,
further, that if the 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 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.
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2.11 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.
2.12 Interest Rates and Payment Date. (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) If all or a portion of the principal amount of any Loan or
Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), all outstanding Loans and Reimbursement
Obligations (whether or not overdue) shall bear interest at a rate per annum
equal to (x) in the case of the Loans, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this Section plus
----
2.00% or (y) in the case of Reimbursement Obligations, the rate applicable to
Base Rate Loans under the Revolving Facility plus 2.00%. If all or a portion of
----
any interest payable on any Loan or Reimbursement Obligation or any commitment
fee or other amount payable hereunder shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to the rate then applicable to Base Rate
Loans under the relevant Facility plus 2.00% (or, in the case of any such other
----
amounts that do not relate to a particular Facility, the rate then applicable to
Base Rate Loans under the Revolving Facility plus 2.00%), in each case, with
----
respect to clauses (i) and (ii) above, from the date of such non-payment until
such amount is paid in full.
(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.
2.13 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 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 the
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 the 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
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provision of this Agreement shall be conclusive and binding on the Borrower and
the Lenders in the absence of manifest error.
2.14 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 the
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 Majority Facility Lenders in respect of the
relevant Facility that the LIBOR Rate determined or to be
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 the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (i) any LIBOR Loans under the relevant 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 relevant 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 relevant 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 relevant Facility shall be made or continued as
such, nor shall the Borrower have the right to convert Loans under the relevant
Facility to LIBOR Loans.
2.15 Pro Rata Treatment and Payments. (a) Each borrowing by the
-------------------------------
Borrower from the Lenders hereunder, each payment by the Borrower on account of
any commitment fee or Letter of Credit Fee and any reduction of the Commitments
of the Lenders shall be made pro rata according to the respective Tranche A Term
--- ----
Percentages, Tranche B Term Percentages or Revolving Percentages, as the case
may be, of the relevant Lenders.
(b) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Term Loans shall be made pro rata
--- ----
according to the respective outstanding principal amounts of the Term Loans then
held by the Term Lenders (except as otherwise provided in Section 2.9(e)). The
amount of each principal prepayment of the Term Loans shall be applied to reduce
the then remaining installments of the Tranche A Term Loans and Tranche B Term
Loans, as the case may be, based upon the then remaining principal amount
thereof. Amounts prepaid on account of the Term Loans may not be reborrowed.
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(c) Each payment (including each prepayment) by the 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
Revolving Lenders.
(d) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim 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.
(e) 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 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 the 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
under the relevant Facility, on demand, from the Borrower.
(f) Unless the Administrative Agent shall have been notified in writing by
the Borrower prior to the date of any payment being made hereunder that the
Borrower will not make such payment to the Administrative Agent, the
Administrative Agent may assume that the 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 the 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
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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 the Borrower.
2.16 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 Non-Excluded Taxes covered by Section
2.17 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;
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, the 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 the 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 the Borrower (with a copy to the Administrative Agent) of a written
request
-43-
therefor, the 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 the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
obligations of the Borrower pursuant to this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.17 Taxes. (a) All payments made by the Borrower 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 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 the 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
comply with the requirements of paragraph (d) or (e) of this Section 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 to the
extent that such Lender's assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrower with respect to such
Non-Excluded Taxes pursuant to this Section.
(b) In addition, the 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 the
Borrower, as promptly as possible thereafter the Borrower shall send to the
Administrative Agent for its own account or for the account of the relevant
Lender, as the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof. If the
-44-
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, the 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 citizen or resident of the
United States of America, a corporation, partnership or other entity created or
organized in or under the laws of the United States of America (or any
jurisdiction thereof), or any estate or trust that is subject to federal income
taxation regardless of the source of its income (a "Non-U.S. Lender") shall
---------------
deliver to the Borrower and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) two copies of either U.S. Internal Revenue Service Form 1001 or Form
4224, or, in the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 88 1 (c) of the Code with respect to
payments of "portfolio interest", a statement substantially in the form of
Exhibit O (an "Exemption Certificate") and a Form W-8, or any subsequent
--------- ---------------------
versions thereof or successors thereto, properly completed and duly executed by
such Non-U.S. Lender claiming complete exemption from, or a reduced rate of,
U.S. federal withholding tax on all payments by the Borrower under this
Agreement and the other Loan Documents. Such forms shall be delivered by each
Non-U.S. 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 Non-U.S. Lender shall deliver such
forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify
the Borrower at any time it determines that it is no longer in a position to
provide any previously delivered certificate to the 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 the Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the 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
recovered or used as a credit any amount withheld on its account pursuant to
Section 2.16 or 2.17(a) above, it shall reimburse the Borrower to the extent of
such amount so determined to have been recovered or used as a credit, provided
that nothing contained in this paragraph (f) shall require the
-45-
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.
2.18 Indemnity. The 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 the Borrower to make a borrowing of,
conversion into or continuation of LIBOR Loans after the Borrower has given a
notice requesting the same in accordance with the provisions of this Agreement,
(b) failure by the Borrower to make any prepayment of or conversion from LIBOR
Loans after the 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.
2.19 Change of Lending Office. Each Lender agrees that, upon the
------------------------
occurrence of any event giving rise to the operation of Section 2.16 or 2.17(a)
with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such 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 any Borrower or the rights of any Lender
pursuant to Section 2.16 or 2.17(a).
2.20 Replacement of Lenders. The Borrower shall be permitted to replace
----------------------
any Lender that (a) requests reimbursement for amounts owing pursuant to Section
2.16 or 2.17(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 2.19 so
as to eliminate the continued need for payment of amounts owing pursuant to
Section 2.16 or 2.17(a), (iv) the
-46-
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) the Borrower shall be liable to such replaced Lender under Section 2.18 if
any LIBOR Loan owing to such replaced Lender shall be purchased other than on
the last day of the Interest Period relating thereto, (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 11.6
(provided that the Borrower shall be obligated to pay the registration and
processing fee referred to therein), (viii) until such time as such replacement
shall be consummated, the Borrower shall pay all additional amounts (if any)
required pursuant to Section 2.16 or 2.17(a), as the case may be, and (ix) any
such replacement shall not be deemed to be a waiver of any rights that the
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, the
--------------
Issuing Lender, in reliance on the agreements of the other Revolving Lenders set
forth in Section 3.4(a), agrees to issue standby letters of credit ("Letters of
----------
Credit") for the account of the Borrower on any Business Day during the
------
Revolving Commitment Period in such form as may be approved from time to time by
the Issuing Lender; provided that the 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. 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 Termination Date, provided that
any Letter of Credit with a one-year term may provide for the renewal thereof
for additional one-year periods (which shall in no event extend beyond the date
referred to in clause (y) above). Each Letter of Credit shall be subject to the
International Standby Practices (1998). The Issuing Lender shall not at any
time be obligated to issue any Letter of Credit hereunder if such issuance would
conflict with, or cause the 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. The Borrower may from
------------------------------------------
time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender at its address for notices specified herein an
L/C Application therefor, completed to the satisfaction of the Issuing Lender,
and such other certificates, documents and other papers and information as the
Issuing Lender may request. Upon receipt of any L/C Application, the 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 the 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 the Issuing
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Lender and the Borrower. The Issuing Lender shall furnish a copy of such Letter
of Credit to the Borrower promptly following the issuance thereof. The 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) The 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 under the Revolving Facility, shared
ratably among the Revolving Lenders (the "Letter of Credit Fees"). In addition,
---------------------
the Borrowers shall pay to the Issuing Lender for its own account a fronting fee
of .25% per annum on the face amount of each Letter of Credit, payable quarterly
in arrears on each L/C Fee Payment Date after the Issuance Date.
(b) In addition to the foregoing fees, the Borrower shall pay or reimburse
the Issuing Lender for such normal and customary costs and expenses as are
incurred or charged by the Issuing Lender in issuing, negotiating, effecting
payment under, amending or otherwise administering any Letter of Credit.
3.4 L/C Participations. (a) The Issuing Lender irrevocably agrees
------------------
to grant and hereby grants to each L/C Participant, and, to induce the Issuing
Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the 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 Issuing Lender thereunder. Each L/C Participant unconditionally and
irrevocably agrees with the Issuing Lender that, if a draft is paid under any
Letter of Credit for which the Issuing Lender is not reimbursed in full by the
Borrower in accordance with the terms of this Agreement, such L/C Participant
shall pay to the Issuing Lender upon demand at the 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
Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion
of any payment made by the Issuing Lender under any Letter of Credit is paid to
the Issuing Lender within three Business Days after the date such payment is
due, such L/C Participant shall pay to the 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 the
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 the Issuing Lender by such L/C Participant
within three Business Days after the date such payment is due, the 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 under the
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Revolving Facility. A certificate of the 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 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), the Issuing Lender
receives any payment related to such Letter of Credit (whether directly from the
Borrower or otherwise, including proceeds of collateral applied thereto by the
Issuing Lender), or any payment of interest on account thereof, the 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 the
Issuing Lender shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion thereof previously
distributed by the Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. The Borrower agrees
----------------------------------------
to reimburse the Issuing Lender with respect to each draft presented under any
Letter of Credit and paid by the Issuing Lender for the amount of (a) such draft
so paid and (b) any taxes, fees, charges or other costs or expenses incurred by
the 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 the Borrower after 1:00 p.m. (New York time). Each
such payment shall be made to the 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 the 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 2.12(b) and (ii) thereafter, Section
2.12(c).
3.6 Obligations Absolute. The 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 the Borrower
may have or have had against the Issuing Lender, any beneficiary of a Letter of
Credit or any other Person. The Borrower also agrees with the Issuing Lender
that the Issuing Lender shall not be responsible for, and the 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 the 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 the Borrower against any
beneficiary of such Letter of Credit or any such transferee. The 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
the Issuing Lender. The Borrower agrees that any action taken or omitted by the
Issuing Lender under or in
-49-
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
the Borrower and shall not result in any liability of the Issuing Lender to the
Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented for
-------------------------
payment under any Letter of Credit, the Issuing Lender shall promptly notify the
Borrower of the date and amount thereof. The responsibility of the Issuing
Lender to the 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. The Administrative Agent shall have received
-----------------------
(i) this Agreement, executed and delivered by the Administrative Agent, HTI and
each Person listed on Schedule 1.1A, and (ii) the Revolving Notes, the Tranche A
-------------
Term Notes and the Tranche B Term Notes, executed and delivered by HTI.
(b) Financial Information; Projections. The Lenders shall have received
----------------------------------
all of the following in form and substance satisfactory to Lenders: (i) the
audited combined balance sheets of the net assets and operations contributed to
the LifePoint Parent as at December 31, 1997 and 1998 and the related combined
statements of income (for fiscal years 1996 through 1998), and equity and cash
flow (for fiscal years 1997 through 1998) reported on and accompanied by an
unqualified report from Ernst & Young, (ii) the audited consolidated balance
sheets of Columbia/HCA as at December 31, 1996, 1997 and 1998 and the related
consolidated statements of income, equity and cash flow for such fiscal year
then ended, reported on and accompanied by an unqualified report from Ernst &
Young, (iii) the pro forma consolidated balance sheet of HTI as of March 31,
--- -----
1999 and LifePoint Parent as of March 31, 1999, giving effect, as to HTI, to the
transfers from Columbia/HCA into it and its Subsidiaries, and, as to LifePoint
Parent, to the Spinoff, and giving effect to the Loans to be made on the Closing
Date and the High Yield Offering and the payment of closing costs in connection
therewith, and (iv) unaudited interim consolidated financial statements of
Columbia/HCA and LifePoint Parent for each fiscal quarter ended subsequent to
the date of the latest applicable financial statements delivered pursuant to
clause (i) or (ii) of this paragraph as to which such financial statements are
available (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
HTI or LifePoint Parent, as reflected in the financial statements or projections
contained in the Confidential Information Memorandum. The Lenders shall have
-50-
received satisfactory statements of projected cash flow, projected changes in
financial position and projected income, each through December 31, 2005 for
LifePoint and its Subsidiaries, based on assumptions satisfactory to the
Administrative Agent.
(c) Approvals, etc. The Accreditations for the 23 Hospitals listed on
--------------
Schedule A from the JCAHO and state licensing authorities with respect to the
licensing of acute care hospitals shall be in full force and effect as of the
Closing Date and shall license such 23 Hospitals with at least the number of
beds designated therefor on Schedule A hereto. Such 23 Hospitals shall have the
----------
right to participate in Medicare, Medicaid and other existing material Third
Party Payor Programs to the extent necessary to ensure no material interruption
to cash flow which could reasonably be expected to result in a Material Adverse
Effect. The certificate of need necessary for the new Hospital contemplated for
Bartow, Florida has been obtained and is in full force and effect,
notwithstanding the Spinoff. Except as in the aggregate could not reasonably be
expected to result in a Material Adverse Effect, all other governmental and
material third party approvals and licenses (including accreditations from
Accreditation Bodies, approvals and licenses relating to licenses, permits and
certificates of need for the Hospitals, Medical Facilities, SEC approval and
other consents) necessary in connection with the Spinoff, the Financings and the
continuing operations of HTI, LifePoint Parent, LifePoint and their respective
Subsidiaries and the transactions contemplated hereby, and the consent for
LifePoint and its Subsidiaries to participate in Medicare, Medicaid and other
material Third Party Payor Programs shall have been obtained and be in full
force and effect, and all applicable waiting periods shall have expired without
any action being taken or threatened by any Person that would restrain, prevent
or otherwise impose adverse conditions with respect to the financing
contemplated hereby.
(d) Lien Searches. The Administrative Agent shall have received the
-------------
results of recent lien searches in each of the jurisdictions where assets of HTI
and its Subsidiaries purportedly holding any America Group assets are located,
such searches to be in their names and the names of transferors thereto within
the last seven years (including Columbia/HCA and 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.
(e) 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 the Borrower to the Administrative Agent on or before the
Closing Date.
(f) 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 P, with appropriate
---------
insertions and attachments (a "Closing Certificate").
-------------------
-51-
(g) Legal Opinion. The Administrative Agent shall have received the
-------------
following executed legal opinions:
(i) the legal opinion of general counsel to the Borrower and its
Subsidiaries in form and substance satisfactory to Administrative Agent;
(ii) the legal opinion of local counsel in Tennessee, Kentucky 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.
(h) Transition Agreements. The Transition Agreements shall have been
---------------------
executed and delivered in form and substance (including the indemnification
provisions thereof) satisfactory to the Administrative Agent, and Columbia/HCA
shall have consented to the conditional assignment thereof by LifePoint Parent
to the Administrative Agent on behalf of the Lenders.
(i) Insurance. The Administrative Agent shall have received insurance
---------
certificates satisfying the requirements of this Agreement.
(j) High Yield Offering. HTI shall have completed a subordinated debt
-------------------
offering on terms satisfactory to the Administrative Agent (including the
subordination provisions thereof), and HTI shall have received the proceeds
thereof in an amount of no less than $150,000,000, less reasonable, customary
fees and expenses (the "High Yield Offering") pursuant to the High Yield
-------------------
Documents.
(k) Solvency Opinion. The Administrative Agent and the Lenders shall
----------------
have received a solvency opinion dated as of the Closing Date with respect to
LifePoint Parent and its Subsidiaries, each in form and substance satisfactory
to each Agent, in each case assuming such Loan Party becomes the "Borrower"
hereunder.
(l) HCA Guaranty and Columbia/HCA Side Letters. The Administrative Agent
------------------------------------------
shall have received from Columbia/HCA the HCA Guaranty, executed and delivered
by Columbia/HCA and two side letter agreements in form and substance
satisfactory to the Administrative Agent as follows: One side letter shall
contain a covenant, representation and warranty to the effect that, at all times
that HTI is the Borrower or a Guarantor hereunder (i) after giving effect to the
payment referred to in Section 7.6(j), the only material assets owned by
Columbia/HCA will be all of the Equity Interests of HTI and the Columbia/HCA
Intercompany Receivable in an amount not to exceed $50,000,000, which will be
subordinated to the Obligations pursuant to such letter and not paid so long as
HTI is a Loan Party, and (ii) all other material assets held by Columbia/HCA
reflected in its December 31, 1998 audited balance sheet shall have been
transferred to, and have been and will be retained by, HTI and its Subsidiaries
(the "HCA Asset Transfer Side Letter"); the other side letter shall contain
------------------------------
consent of Columbia/HCA to the limited conditional assignment to the
Administrative Agent of the rights
-52-
of LifePoint Parent under the Transition Agreements, and shall contain a
representation and warranty that the Transition Agreements have been duly
authorized, executed and delivered and are enforceable in accordance with their
terms, subject to standard creditors' rights exceptions.
(m) 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 or which restrains
or attempts to restrain the consummation of the Spinoff or any portion thereof.
(n) 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 HTI, LifePoint
Parent, LifePoint 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, including without limitation, if required
hereunder, delivery of Security Documents pursuant to Section 6.11 or 6.12 after
the Closing Date.
(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 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, the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date of such extension of credit that the
conditions contained in this Section 4.2 have been satisfied.
-53-
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 LifePoint, 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 Columbia/HCA and its
Subsidiaries and the audited combined balance sheets of the net assets and
operations contributed to LifePoint Parent 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) The pro forma Initial Financial Statements of LifePoint Parent and HTI
--- -----
have been prepared giving effect (as if such events had occurred on such date)
to the Loans to be made on the Closing Date and the use of proceeds thereof and
the borrowing and proceeds of the High Yield Offering on the Closing Date and
the payment of fees and expenses in connection with the foregoing, and, with
respect to LifePoint Parent and HTI, giving effect to the Spinoff. Such pro
---
forma Initial Financial Statements have been prepared in good faith based on the
-----
best information available to such Persons as of the date of delivery thereof,
and present fairly on a pro forma basis the estimated financial position of such
--- -----
Persons and their respective Subsidiaries as at the dates thereof, assuming that
the events specified in the preceding sentence had actually occurred at such
date.
(c) Neither Columbia/HCA, HTI, 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, 1998 to and including the date
hereof there has been no Disposition by Columbia/HCA, HTI, LifePoint Parent or
LifePoint of any material part of its business or property, except that
substantially all of the assets of Columbia/HCA have been transferred to HTI,
other than the Columbia/HCA Intercompany Receivable. As of the Closing Date, all
of such asset transfers (including Equity Interest transfers) to HTI have been
consummated so that HTI holds, directly or indirectly, through its wholly-owned
Subsidiaries, all of the material assets of Columbia/HCA, with the exception of
the Columbia/HCA Intercompany Receivable and the assets held by HTI as of the
date hereof comprise substantially all of the assets of Columbia/HCA reflected
on its balance sheet dated December 31, 1998 (with the exception of the
Columbia/HCA Intercompany Receivable).
-54-
(d) Since December 31, 1998 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.
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 each 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 each 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, or with the Spinoff, 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, could not reasonably be
expected to result in a Material Adverse Effect) binding on any Loan
-55-
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 the Borrower's knowledge, sealed litigation,
investigation, or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the best of the 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, (b) with
respect to any aspect of the Spinoff, or (c) 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.
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, provided, however, after the Spinoff the America Group
assets shall thereafter be held by LifePoint and its wholly-owned Subsidiaries.
After the Spinoff, each of LifePoint Parent and LifePoint and their respective
Subsidiaries will have title in fee simple to, or a valid leasehold interest in,
all of their real property purported to be owned by them on their respective pro
---
forma Initial Financial Statements and good title to, or a valid leasehold
-----
interest in, all of their other property purported to be owned by them on their
respective pro forma Initial Financial Statements, and none of such property
--- -----
will be 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, LifePoint 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, LifePoint or any of their respective Subsidiaries is located. The notice
address for the Borrower set forth in Section 11.2 is the location of the chief
executive office of LifePoint Parent, LifePoint and any of their respective
Subsidiaries. Schedule 5.7 sets forth a list of the principal place of business
------------
of each of LifePoint Parent, LifePoint and any of their respective Subsidiaries.
Each of the 23 Hospitals which are a part of the America Group division of
Columbia/HCA are and will be owned by one of the Subsidiary Guarantors
-56-
delivering a Mortgage with respect thereto pursuant to Section 6.11, if HTI is
released from the HTI Guaranty as provided for therein.
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 23 Hospitals
listed on Schedule A 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 A 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
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
-57-
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 use
-------------------
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, the 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 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.
-58-
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, LifePoint and their respective
subsidiaries as of the Closing Date, after giving effect to the Spinoff. Except
as disclosed to the Administrative Agent by the 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 LifePoint and all of the other Subsidiaries which are a part
of the consolidated group of LifePoint Parent are directly or indirectly owned
by LifePoint, with the exception of the Existing Joint Ventures (in which
LifePoint 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 Term Loans made to the
---------------
Borrower on the Closing Date which total in the aggregate up to $110,000,000,
along with the net proceeds of the High Yield Offering, shall be used by HTI,
directly or indirectly, to repay principal on the Columbia/HCA Intercompany
Receivable in the amount of $250,000,000 and up to $10,000,000 to pay for
closings costs in connection with the Financings and the Spinoff. The balance
of the Term Loans shall only be used if LifePoint becomes a Borrower and its
Subsidiaries become Subsidiary Guarantors hereunder for Capital Expenditures
(including up to $35,000,000 relating to the new Bartow, Florida Hospital) of
LifePoint and the Subsidiary Guarantors, subject to Section 7.8 as to Existing
Joint Ventures. The proceeds of the Revolving Loans shall only be used if
LifePoint becomes a Borrower hereunder for general corporate purposes of
LifePoint and the Subsidiary Guarantors, including working capital, Capital
Expenditures, Permitted Acquisitions and other lawful corporate purposes,
subject to Section 7.8 as to Existing Joint Ventures.
5.16 Environmental Matters. Except as, in the aggregate could not
---------------------
reasonably be expected to have a Material Adverse Effect:
(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
----------
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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 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
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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 Security Agreement, the
------------------
LifePoint Security Agreement and the Guarantee and Security Agreement, when and
at all times after it is executed and delivered pursuant to Section 6.11 hereto,
will be 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 (including without limitation
the capital stock of LifePoint and LifePoint III and each Subsidiary which is a
corporation and the member interests of LifePoint II and each Subsidiary which
is a limited liability company, all of which are certificated), 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 Security Agreement, the
-------------
LifePoint Security Agreement and the Guarantee and Security Agreement shall
constitute a fully perfected Lien on, and security interest in, all right, title
and interest of LifePoint Parent, LifePoint and the Subsidiary Guarantors in
such Collateral and the proceeds thereof, as security for their respective
obligations (as set forth in the LifePoint Parent Security Agreement, LifePoint
Security Agreement and the Guarantee and 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, when and at all times after it is executed and
delivered pursuant to Section 6.11 or Section 6.12 hereto, 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 each step of the Spinoff, and to the incurrence of all Indebtedness
and obligations being incurred in connection with the Financings, will be and
will continue to be at all times, Solvent.
5.20 Year 2000 Matters. (a) The Loan Parties have considered the
-----------------
Year 2000 Risk and are taking such action as may be necessary to ensure that the
Year 2000 Risk will not have a Material Adverse Effect and that all of the Loan
Parties will be Year 2000 Compliant. The Loan Parties will provide by September
30, 1999 the Administrative Agent with a written plan detailing the actions
previously taken or to be taken to ensure that all of the Loan Parties will be
Year 2000 Compliant. As used in this Section:
(i) the "Year 2000 Risk" shall mean the risk that computer
--------------
applications used by the Loan Parties and/or their suppliers, vendors and
customers (other than a Governmental Authority or any Lender) may be unable
to recognize and perform without error date-sensitive functions involving
certain dates prior to and any date after December 31, 1999;
(ii) "At-Risk Equipment" shall mean all computer systems and other
-----------------
equipment containing embedded microchips, in either case owned or operated
by the Loan Parties or any of them, or used or relied upon in the conduct
of any of their business, including any such computer systems and other
equipment supplied by others or with which any of their computer systems
interface; and
(iii) "Year 2000 Compliant" shall mean, with regard to the Loan
-------------------
Parties, that all At-Risk Equipment is able to interpret and manipulate
data on and involving all calendar dates correctly, including in relation
to dates on and after January 1, 2000, and without having a Material
Adverse Effect or resulting in a Default.
(b) Any and all reprogramming required to address the Year 2000 Risk
and assure the proper functioning (to the extent that such proper functioning
would otherwise be impaired by the occurrence of the year 2000) on and after
January 1, 2000 of all At-Risk Equipment and the testing of all reprogrammed At-
Risk Equipment will be completed in a timely manner and in any event by
September 30, 1999.
(c) The costs which the Loan Parties will incur after the date hereof
to reprogram and test the At-Risk Equipment and to address the reasonably
foreseeable consequences to the Loan Parties of any improper functioning of
other At-Risk Equipment due to the Year 2000 Risk could not reasonably be
expected to result in a Default or to have a Material Adverse Effect. Except
for any reprogramming referred to above, their computer systems are and, with
ordinary course upgrading and maintenance, will continue for the term of this
Agreement to be, sufficient for the conduct of their businesses as currently
conducted in all material respects.
5.21 Flood Zone. To the knowledge of LifePoint, no Mortgage encumbers
----------
improved real property that is located in an area that has been identified by
the Secretary of Housing and
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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.
5.22 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.
SECTION 6. AFFIRMATIVE COVENANTS
Each of LifePoint Parent and LifePoint 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 a management letter with respect to fiscal year 1999 and, if any, management
letters with respect to later fiscal years 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 Columbia/HCA (so long as HTI remains a Loan Party), HTI (as long as it
remains a Loan Party) and LifePoint Parent, the unaudited consolidated balance
sheet of such Person 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
(c) as soon as available, but in any event not later than 45 days after
the end of each month occurring during each fiscal year of HTI (as long as it
remains a Loan Party) and LifePoint Parent, beginning with July 31, 1999 and
each month thereafter for which the leverage ratio under Section 7.1 for the
most recently ended Reference Period was greater than 4.00:1.00, the unaudited
consolidated balance sheets of such Persons and their respective Subsidiaries as
at the end of such month and the related unaudited consolidated statements of
income for such month and the portion of the fiscal year through the end of such
month, setting forth with respect to the monthly financials on or after June 30,
2000 in comparative form the figures for the
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previous year, certified by a Responsible Officer as being fairly stated in all
material respects (subject to normal quarter-end reserve adjustments and normal
year-end audit adjustments).
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 LifePoint 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 LifePoint, 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, LifePoint 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 LifePoint, a detailed consolidated budget for the following
fiscal year (including a projected consolidated balance sheet of LifePoint 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 of a Responsible Officer stating that such Projections are based on
reasonable estimates, information and assumptions and that such Responsible
Officer has no reason to believe that such Projections are incorrect or
misleading in any material respect;
(d) within five days after the same are sent, copies of all financial
statements , proxies and reports that LifePoint Parent or LifePoint or any of
its Subsidiaries sends to its material
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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 registration statements, prospectuses and amendments and
supplements thereto, and any regular and periodic reports and financial
statements (including reports on Form 10K, Form 10Q and Form 8K) and other
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 the Borrower and each of its direct and indirect
Subsidiaries, cause their direct and indirect Subsidiaries to make dividends,
distributions and other payments to the Borrower from time to time as may be
necessary to ensure that the Borrower is able to pay the Obligations as and when
the same become due. As to HCA of Florida, Inc., Western Plains Regional
Hospital, LLC, Columbia HCA of Dodge City, Inc. and any other Subsidiary holding
any Equity Interests in either of the Existing Joint Ventures (or any other
joint ventures hereafter permitted by the Required Lenders pursuant to the terms
hereof), cause dividends, distributions and other payments to the full extent
possible to be made to such holders of Equity Interests in the Existing Joint
Ventures (and such other 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
applicable Organizational Documents of the Existing Joint Ventures (and such
other 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 and the certificate of need for the new
Bartow, Florida Hospital so long as necessary for construction thereof, (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
-65-
result in a Material Adverse Effect. With respect to each Hospital, use its best
efforts and diligently pursue obtaining promptly after the date hereof Medicare
and Medicaid provider agreements relating specifically to each such Hospital to
the extent not already obtained. As to LifePoint Parent, within ten days after
the Closing Date, become a public company listed and in good standing on a
nationally recognized securities exchange, and thereafter remain a public
company (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.
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 Columbia/HCA (so long as any
Loan Party could be liable with respect thereto), HTI (so long as any Loan Party
could be liable with respect thereto), LifePoint Parent, LifePoint 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
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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. (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.
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6.9 Rate Hedging Agreements. As to the Borrower, enter into one or more
-----------------------
Rate Hedging Agreements so that interest is fixed on no less than 50% of its
Consolidated Total Debt within three months after the Closing Date on terms and
conditions mutually satisfactory to the Administrative Agent and the Borrower.
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 LifePoint of the timely renewal of, and timely payment of all
insurance premiums payable under, all such policies, which certification 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 upon the HTI Release pursuant to Section 6.11 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 pursuant to Section
6.11 or 6.12, 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
Notes.
6.11 Spinoff; Release of HTI; Collateral. (a) Prior to the making of
-----------------------------------
either of the HCA Distributions, complete both steps of the Dropdown. Prior to
being released pursuant to the HTI Release, do all things required pursuant to
Section 6.11(b) hereof to effect the release of HTI from the HTI Guaranty,
including without limitation the execution and delivery of the Security
Documents required hereunder and financing statements relating thereto, and the
delivery of such Mortgages to the Title Insurance Companies for recording and
the filing of financing statements
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sufficient to create in the Administrative Agent a perfected security interest
and mortgage in the Collateral with the priority required thereunder.
Contemporaneously with step (1), cause LifePoint Parent to become the "Borrower"
hereunder pursuant to an assumption agreement in form attached as Exhibit Q (an
---------
"Assumption Agreement") executed and delivered to the Administrative Agent and
--------------------
deliver to the Administrative Agent replacement Notes executed by LifePoint
Parent and the HTI Guaranty relating to LifePoint Parent executed by HTI; and,
in such event, HTI shall thereafter be a "Guarantor" and shall be released as a
"Borrower" hereunder pursuant to the form of release attached hereto as Exhibit
-------
R, provided no Event of Default then exists. Contemporaneously with step (2) of
-
the Spinoff, cause LifePoint to become a "Borrower" hereunder pursuant to an
Assumption Agreement executed and delivered to the Administrative Agent and
deliver to the Administrative Agent replacement Notes executed by LifePoint and
the HTI Guaranty relating to LifePoint executed by HTI and the LifePoint Parent
Guaranty executed by LifePoint Parent; and, in connection therewith, LifePoint
Parent shall thereafter be a "Guarantor" and shall be released as a "Borrower"
hereunder pursuant to the form of release attached as Exhibit R, provided no
---------
Event of Default then exists.
(b) Each HTI Guaranty, and HTI as a Loan Party, shall be released by the
Administrative Agent pursuant to the form of release attached as Exhibit S (the
---------
"HTI Release") in the event all of the following conditions are fulfilled:
-----------
(i) no Event of Default shall have occurred and be continuing.
(ii) HCA Distributions shall not have been made.
(iii) the Administrative Agent shall have received the LifePoint
Parent Security Agreement executed and delivered by LifePoint Parent, the
LifePoint Security Agreement executed and delivered by LifePoint, the
Guarantee and Security Agreement executed and delivered by each Subsidiary
Guarantor, and an Acknowledgment and Consent in the form attached to the
Guarantee and Security Agreement, executed and delivered by each Issuer (as
defined therein), if any, that is not a Loan Party.
(iv) 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.
(v) 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
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with respect to Liens expressly permitted by Section 7.3), shall be in
proper form for filing, registration or recordation.
(vi) (A) The Administrative Agent shall have received a Mortgage with
respect to each Mortgaged Property, executed, notarized and delivered by a
duly authorized officer of each party thereto; provided, however, Mortgages
(and related items set forth in (B) and (C) below) with respect to the
Three Sale Hospitals are not required to be delivered with respect to the
Mortgaged Property relating thereto until May 11, 2000 with respect to any
of the Three Sale Hospitals which have not been sold pursuant to Section
7.5(f) by such date, and Mortgages (and related items set forth in (B) and
(C) below) with respect to leasehold interests constituting Mortgaged
Property are not required to be delivered until July 31, 1999. Such
Mortgages on the Three Sale Hospitals and leasehold interests shall not be
a condition to the HTI Release.
(B) 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 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.
(C) The Administrative Agent shall have received 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 all other
material documents affecting the Mortgaged Properties.
(vii) The Administrative Agent shall have received certificates of
insurance satisfying the requirements of the Security Documents.
6.12 Leasehold Interests; After-Acquired Collateral, etc. (a) In the case
----------------------------------------------------
of each real property leasehold interest constituting Mortgaged Property, the
Administrative Agent shall receive in conjunction with execution and delivery of
the Mortgage (i) 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 (ii) evidence that the
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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.
(b) With respect to any property acquired after the Closing Date and the
Spinoff by LifePoint Parent or LifePoint or any of their respective Subsidiaries
(other than any property described in paragraph (b) or (c) below, or any
property subject to a Lien expressly permitted by Section 7.3(f)) as to which
the Administrative Agent, for the benefit of the Lenders, does not have a
perfected Lien, promptly (i) execute and deliver to the Administrative Agent
such amendments to the Security Documents or such other documents as the
Administrative Agent deems necessary or advisable to grant to the Administrative
Agent for the benefit of the Lenders, a security interest in such property and
(ii) take all actions necessary or advisable to grant to the Administrative
Agent, for the benefit of the Lenders, a perfected first priority security
interest in such property, including the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the Guarantee
and Security Agreement or by law or as may be reasonably requested by the
Administrative Agent.
(c) With respect to any leased or owned fee interest in any real property
having a value (together with improvements thereof) of at least $1,000,000
acquired after the Closing Date and the Spinoff by LifePoint Parent or LifePoint
or any of their respective Subsidiaries, promptly (i) execute and deliver a
first priority Mortgage, in favor of the Administrative Agent, for the benefit
of the Lenders, covering such real property, (ii) provide the Lenders with (x)
title and extended coverage insurance covering such real property in an amount
at least equal to the purchase price of such real property as well as a current
ALTA survey thereof, together with a surveyor's certificate and (y) any consents
or estoppels reasonably deemed necessary or advisable by the Administrative
Agent in connection with such mortgage or deed of trust, each of the foregoing
in form and substance reasonably satisfactory to the Administrative Agent and
(iii) 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.
(d) With respect to any new Subsidiary created or acquired after the
Closing Date by LifePoint Parent, LifePoint 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 new Subsidiary that is owned 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 (A) to become a party as a "Grantor" to the Guarantee and
Security
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Agreement, (B) to take such actions necessary or advisable to grant to
the Administrative Agent for the benefit of the Lenders a perfected first
priority security interest in the Collateral described in the Guarantee and
Security Agreement with respect to such new Subsidiary, including the filing of
Uniform Commercial Code financing statements in such jurisdictions as may be
required by the Guarantee and Security Agreement or by law or as may be
requested by the Administrative Agent and (C) 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.
6.13 Appraisals; Surveys; 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 the Borrower's expense of the real property of LifePoint Parent,
LifePoint and its Subsidiaries required to be subject to a Mortgage hereunder by
an appraiser selected by the Administrative Agent in its reasonable discretion.
(b) No later than September 30, 1999, the Administrative Agent shall have
received, and the Title Insurance Company shall have received, at Borrower's
expense, maps or plats of an as-built survey of the sites of the Mortgaged
Properties certified to the Administrative Agent and the Title Insurance Company
in a manner reasonably satisfactory to them, dated a date satisfactory to the
Administrative Agent and the Title Insurance Company by an independent
professional licensed land surveyor satisfactory to the Administrative Agent and
the Title Insurance Company, which maps or plats and the surveys on which they
are based shall be made in accordance with the Minimum Standard Detail
Requirements for Land Title Surveys jointly established and adopted by the
American Land Title Association and the American Congress on Surveying and
Mapping in 1992, and, without limiting the generality of the foregoing, there
shall be surveyed and shown on such maps, plats or surveys the following: the
locations on such sites of all the buildings, structures and other improvements
and the established building setback lines; the lines of streets abutting the
sites and width thereof; all access and other easements appurtenant to the
sites; all roadways, paths, driveways, easements, encroachments and overhanging
projections and similar encumbrances affecting the site, whether recorded,
apparent from a physical inspection of the sites or otherwise known to the
surveyor; any encroachments on any adjoining property by the building structures
and improvements on the sites; if the site is described as being on a filed map,
a legend relating the survey to said map; and the flood zone designations, if
any, in which the Mortgaged Properties are located. LifePoint Parent, LifePoint
and their respective Subsidiaries agree that after receipt of the surveys for
such properties, at the request of the Administrative Agent, each owner of the
Mortgaged Properties will execute such amendments to the Mortgages and/or such
new Mortgages as the Administrative Agent shall require, shall cause such
amendments/Mortgages to be recorded, shall supply such title insurance policies
and/or endorsements, and other items relating to the Mortgaged Properties as the
Administrative Agent shall reasonably require, and shall pay such recording
charges, recording
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taxes, title insurance premiums, attorneys' fees for the Administrative Agent,
and related expenses in connection therewith.
(c) 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.
6.14 Existing Joint Ventures. Use its reasonable best efforts to cause
-----------------------
the limitation contained in Section 8.4(e) of the Amended and Restated Limited
Partnership Agreement of Dodge City Healthcare Group, L.P., dated as of March 1,
1995, among Columbia/HCA of Dodge City, Inc., American Medicorp Development Co.,
Western Plains Regional Hospital, Inc. and Dodge City Outpatient Surgical
Facility, Inc. to be modified as soon as practicable to permit Dodge City
Healthcare Group, L.P. to guarantee the payment and performance of all Borrower
Obligations (as defined under the Guarantee and Security Agreement) without the
limitation contained in Section 2.8 of the Guarantee and Security Agreement and
to permit Dodge City Healthcare, L.P. to encumber all of its assets to secure
the Borrower Obligations (but subject in any event to Section 2.1(b) thereof);
and use its reasonable best efforts to cause the limitation contained in Section
8.4(f) of the Amended and Restated Limited Partnership Agreement of Bartow
Healthcare System, Ltd. (a Florida Limited Partnership) dated as of August 19,
1996, among HCA of Florida, Inc. and Bartow Memorial Hospital, Inc. to be
modified as soon as practicable to permit Bartow Healthcare System, Ltd. to
guarantee the payment and performance of all Borrower Obligations (as defined
under the Guarantee and Security Agreement) and all Grantor Obligations (as
defined in the Guarantee and Security Agreement) of the general partner of
Bartow Healthcare System, Ltd., Bartow Healthcare Partner, Inc. without the
limitation contained in Section 2.8 of the Guarantee and Security Agreement (but
subject in any event to Section 2.1(b) thereof) and to permit Bartow Healthcare
System, Ltd. to encumber all of its assets to secure the obligations of Bartow
Healthcare System, Ltd. and such general partner under the Guarantee and
Security Agreement.
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SECTION 7. NEGATIVE COVENANTS.
Each of LifePoint Parent and LifePoint 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 from June 30, 1999 through March 30, 2000 to Consolidated Annualized
EBITDA of LifePoint Parent for the most recently ended Reference Period to
exceed 4.25:1.00.
(ii) Permit the ratio of Consolidated Total Debt of LifePoint Parent at
any date thereafter falling during any period set forth below to Consolidated
EBITDA of LifePoint Parent for the most recently ended Reference Period to
exceed the ratio set forth below opposite such period:
Period Ratio
------ -----
March 31, 2000 through June 29, 2000 4.25:1.00
June 30, 2000 through December 30, 2000 4.00:1.00
December 31, 2000 through June 29, 2001 3.75:1.00
June 30, 2001 and at all times thereafter 3.50:1.00
(b) Consolidated Fixed Charge Coverage Ratio. Permit the ratio of
----------------------------------------
Consolidated Cash Flow of LifePoint Parent for any Reference Period ending on
any Quarterly Date falling during the periods set forth below to Consolidated
Fixed Charges of LifePoint Parent for such Reference Period to be less than the
rate set forth below opposite such period:
Quarterly Dates Ratio
--------------- -----
June 30, 1999 through December 31, 1999 2.00:1.00
March 31, 2000 through September 30, 2000 1.75:1.00
December 31, 2000 1.50:1.00
March 31, 2001 through September 30, 2001 1.10:1.00
December 31, 2001 through December 31, 2002 1.05:1.00
March 31, 2003 and each Quarterly Date 1.10:1.00
thereafter
(c) Consolidated Net Worth. Permit Consolidated Net Worth of LifePoint
-----------------------
Parent at any time from and after the Spinoff through June 30, 1999 to be less
than $18,800,000, subject to
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Spinoff adjustments. 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) 75% 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 LifePoint to any Subsidiary Guarantor and of any
Subsidiary Guarantor (other than the Existing Joint Ventures) to LifePoint or
any other Subsidiary Guarantor;
(c) Guarantee Obligations incurred in the ordinary course of business by
LifePoint or any of its Subsidiaries of obligations of any Subsidiary Guarantor
(other than the Existing Joint Ventures);
(d) Indebtedness (including, without limitation, Capital Lease
Obligations) secured by Liens permitted by Section 7.3(f) in an aggregate
principal amount not to exceed $1,000,000 at one time outstanding as to all Loan
Parties;
(e) Indebtedness of LifePoint (and the related Guarantee Obligations)
under the High Yield Offering pursuant to the High Yield Documents;
(f) Indebtedness of LifePoint or any of its Subsidiaries under any Rate
Hedging Agreement entered into pursuant to Section 6.9; and
(g) additional Indebtedness of LifePoint or any of the Subsidiary
Guarantors (other than the Existing Joint Ventures) in an aggregate principal
amount (for LifePoint and all Subsidiary Guarantors) not to exceed $1,000,000 at
any time outstanding.
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;
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(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 LifePoint and its
Subsidiaries subject thereto or materially interfere with the ordinary conduct
of the business of LifePoint 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 equipment; 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 property financed by such
Indebtedness, and (iii) the amount of Indebtedness secured thereby is not
increased;
(g) Liens created pursuant to the Security Documents; and
(h) 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 the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower shall be the
continuing or surviving corporation) or with or into any Subsidiary Guarantor
other than the Existing Joint Ventures (provided that the Subsidiary Guarantor
shall be the continuing or surviving corporation); and (b) any Subsidiary of the
Borrower may Dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to the Borrower or any Subsidiary Guarantor (other than to either of
the Existing Joint Ventures). 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:
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(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 the
Borrower or any Subsidiary Guarantor (other than to either of the Existing Joint
Ventures);
(e) the Dispositions to LifePoint Parent and LifePoint pursuant to the
Spinoff, provided LifePoint Parent becomes the "Borrower" hereunder pursuant to
an Assumption Agreement at the time such Disposition is made to LifePoint
Parent and provided LifePoint becomes the "Borrower" hereunder pursuant to an
Assumption Agreement at the time of such Disposition is made to LifePoint;
(f) on or before 12 months following the Closing Date, the Asset Sales of
the Three Sale Hospitals; provided, that the Borrower and the Subsidiary
Guarantors receive not less than the fair market value of each of such Three
Sale Hospitals and (ii) notwithstanding the terms of Section 2.9, no mandatory
prepayment under Section 2.9(b) shall be required as a result of such Asset
Sales unless a Default then exists or could reasonably be expected to result
therefrom;
(g) provided no Default then exists or could be expected to result
therefrom, as to LifePoint and its Subsidiaries, the Disposition of other
property having a fair market value not to exceed $1,000,000 in the aggregate
for any of their fiscal years;
(h) the issuance by LifePoint Parent of its publicly traded common Equity
Interests, provided the mandatory prepayment required by Section 2.9 relating
thereto is made to the Administrative Agent; and
(i) the issuance by LifePoint Parent of no greater than 9% of its common
stock in connection with the ESOP (and the Disposition by LifePoint Parent,
LifePoint, and LifePoint II to any Loan Party of their interests in the
promissory note of the ESOP in connection therewith).
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 Subsidiaries of any Loan Party (other than LifePoint Parent's
Subsidiary, LifePoint, unless LifePoint Parent is the "Borrower" hereunder) may
(A) pay dividends and make distributions to such Loan Party once it becomes and
so long as it remains a "Borrower" or a "Subsidiary Guarantor" hereunder, (B)
repay indebtedness owed to any Loan Party once it becomes and so long as it
remains a "Borrower" or a "Guarantor" hereunder and (C) make
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intercompany loans to LifePoint or to any Subsidiary Guarantor (other than to
either Existing Joint Venture) if and as permitted under Section 7.2(b);
(b) LifePoint 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) LifePoint may make distributions to LifePoint Parent to permit it to
pay expenses incurred under the corporate integrity program referenced in the
Distribution Agreement;
(d) LifePoint may make distributions to LifePoint Parent to permit it to
pay expenses incurred under the Transition Agreements;
(e) LifePoint 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 LifePoint or LifePoint Parent from
time to time in an aggregate amount not to exceed $2,000,000 in any fiscal year;
(f) LifePoint may make distributions to LifePoint Parent to permit
LifePoint Parent to make purchases permitted under Section 7.8(1);
(g) The 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;
(h) HTI may make the HCA Distributions in connection with the Spinoff;
provided (i) on the date of any such proposed HCA Distribution or after giving
effect thereto, an Event of Default shall not have occurred and be continuing
and (ii) HTI has been released from the HTI Guaranty pursuant to Section 6.11
hereof and the LifePoint Parent, LifePoint and the Subsidiary Guarantors shall
have executed and delivered the Security Documents required under Section 6.11
as a condition for such release and shall have obtained, in connection
therewith, perfected security interests required hereunder in the Collateral
described therein; and
(i) HTI may pay up to $250,000,000 in principal of the Columbia/HCA
Intercompany Receivable on the Closing Date with proceeds of the High Yield
Offering, the initial advance under the Tranche A Term Commitments, and the
Tranche B Term Loans and up to $650,000,000 in principal of the Columbia/HCA
Intercompany Receivable with proceeds of the Triad Financings.
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7.7 Capital Expenditures. Make or commit to make any Capital
--------------------
Expenditure, except Capital Expenditures may be made by LifePoint and the
Subsidiary Guarantors as follows (a) provided no Event of Default exists or
could reasonably be expected to result therefrom and the Administrative Agent
has a first priority Mortgage relating thereto, Columbia/Bartow Healthcare
System, Ltd. may make Capital Expenditures for the construction and equipping of
the new Bartow, Florida Hospital out of two cash contributions of no greater
than $35,000,000 made by HCA of Florida, Inc. pursuant to Section 2.8.2 of the
Bartow Contribution Agreement, if the Equity Interests of HCA of Florida, Inc.
in Columbia/Bartow Healthcare System, Ltd. have increased correspondingly at the
time of each such cash contribution and (b) other Capital Expenditures in the
ordinary course of business not exceeding the following aggregate amounts
(excluding such Bartow, Florida Capital Expenditures) plus the Carryforward
Amount in the fiscal years (and fiscal quarters, as applicable) set forth below:
Fiscal Year Amount
----------- ------
1999 $60,000,000 total for calendar year 1999
(but no more than $20,000,000 in any fiscal
quarter therein, after giving effect to Capital
Expenditures made by the America Group since
January 1, 1999)
2000 $47,000,000 total (but no more than $15,700,000
in any fiscal quarter therein)
2001 $35,000,000 total
2002 $37,000,000 total
2003 $38,000,000 total
Any such amounts referred to above (excluding carryforwards from prior years),
if not spent in any applicable fiscal year, may be carried forward to the
immediately succeeding fiscal year (the "Carryforward Amount") to be applied
-------------------
first to Capital Expenditures in such immediately succeeding fiscal year, prior
to the application of the amount reserved for such fiscal year.
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 LifePoint and its Subsidiaries in the
ordinary course of business;
(b) investments in Cash Equivalents;
(c) Guarantee Obligations permitted by Section 7.2;
(d) as to LifePoint and the Subsidiary Guarantors, loans and advances to
employees, physicians, medical office buildings and other current accounts
receivables and long term notes
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receivables as identified on LifePoint'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
LifePoint and its Subsidiaries not to exceed $1,000,000 at any one time
outstanding;
(e) existing Investments by LifePoint and its Subsidiaries in the
Existing Joint Ventures as described on Schedule 7.8 and existing Investments by
------------
the Loan Parties in other Subsidiaries and Affiliates existing on the Closing
Date (with all Investments other than Investments in Subsidiary Guarantors also
being described on Schedule 7.8);
------------
(f) as to LifePoint and its Subsidiaries, additional investments in joint
ventures, partnerships and other equity investments (including any investments
in existing joint ventures or partnerships) in an aggregate amount for LifePoint
and such Subsidiaries not to exceed $1,000,000 at any one time outstanding;
(g) Capital Expenditures to the extent permitted under this Agreement;
(h) Investments by the Borrower or any of its Subsidiaries in the
Borrower or any Person that, prior to such Investment, is a Subsidiary Guarantor
(other than additional Investments in the Existing Joint Ventures);
(i) Permitted Acquisitions;
(j) The formation of and Investments in new Subsidiaries of LifePoint in
connection with Permitted Acquisitions or otherwise, provided that (i) such
Subsidiary is wholly-owned by LifePoint or a Subsidiary Guarantor, (ii)
LifePoint 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 the 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 Sections 6.11 and 6.12, and the
Administrative Agent shall be satisfied that all Liens required to be granted in
the assets and ownership interests of such new Subsidiary under such Sections
6.11 and 6.12 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;
(k) additional Investments by HCA of Florida, Inc. in Columbia/Bartow
Healthcare System, Ltd. pursuant to Section 2.8.2 of the Bartow Contribution
Agreement for the purpose of the construction of the new Bartow, Florida
Hospital pursuant thereto; provided, that, (i) no Event of Default then exists
or could reasonably be expected to result therefrom, (ii) the Administrative
Agent holds a first priority perfected Mortgage on the real estate and
improvements relating thereto, subject to no Liens except those permitted under
Section 7.3
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hereof, (iii) such additional Investments are made only out of proceeds of the
two additional advances of the Tranche A Term Loans, and (iv) at the time of
each of such two additional Investments, the Equity Interests of HCA of Florida,
Inc. in Columbia/Bartow Healthcare System, Ltd. shall, as a result thereof, be
increased proportionately in accordance with the terms of the Bartow
Contribution Agreement and applicable Organizational Documents;
(l) 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 during the term of this Agreement;
(m) 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;
(n) 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;
(o) 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;
(p) 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;
and
(q) Investments (but not Acquisitions) of a nature not contemplated in the
foregoing subsections in an amount not to exceed $1,000,000 in the aggregate at
any time outstanding.
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 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 the 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 the
Borrower or such Subsidiary.
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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 any Borrower, enter into any business,
-----------------
either directly or through any Subsidiary, except for those businesses in which
such Borrower is engaged on the date of this Agreement or medical service
businesses relating thereto. As to any Subsidiary of any Borrower, enter into
any business, either directly or through any other Subsidiary, except for those
businesses in which the Subsidiaries of such 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 LifePoint , 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 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, the Bartow Contribution Agreement or any
documents, if any, evidencing the Columbia/HCA Intercompany Receivable or other
Subordinated Debt hereafter permitted. Amend or modify the Organizational
Documents of either Existing Joint Venture in a manner adverse to LifePoint's
direct or indirect partnership interest(s) therein.
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SECTION 8. VENTS OF DEFAULT.
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or the
Borrower shall fail to pay any interest 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, LifePoint 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 or Section 10 of this
Agreement or any material agreement contained in the HTI Guaranty, the LifePoint
Parent Guaranty, the LifePoint Parent Security Agreement or the Guarantee and
Security Agreement (once any of the foregoing is executed and delivered
hereunder) or (ii) an "Event of Default" under and as defined in any Mortgage
shall have occurred and be continuing (once any of the same is executed and
delivered hereunder); 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 the 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 the 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, 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
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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 or Columbia/HCA (so long as HTI is a 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 or Columbia/HCA (so long as HTI is a Loan Party) shall
make a general assignment for the benefit of its creditors; or (ii) there shall
be commenced against any Loan Party or Columbia/HCA (so long as HTI is a 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 or Columbia/HCA (so long as HTI is a 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 or Columbia/HCA (so long as HTI is a 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 or Columbia/HCA (so long as HTI is a 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) the
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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 Distribution Agreement shall cease, for any reason, to be in full
force and effect, or Columbia/HCA shall so assert with respect to 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 clause (i) or (ii) of 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
the 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, either or both of the following
actions may be taken: (i) with the consent of the Majority Revolving Facility
Lenders, the Administrative Agent may, or upon the request of the Majority
Revolving Facility Lenders, the Administrative Agent shall, by notice to the
Borrower declare the Revolving Commitments to be terminated forthwith, whereupon
the Revolving Commitments shall immediately terminate; (ii) with the consent of
the Majority Tranche A Term Lenders, the Administrative Agent may, upon the
request of the Majority Tranche A Term Lenders, the Administrative Agent shall,
by notice to the Borrower, declare the Tranche A Term Commitments to be
terminated forthwith, whereupon the Tranche A Term Commitments shall immediately
terminate; and (iii) with the consent of the Required
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Lenders, the Administrative Agent may, or upon the request of the Required
Lenders, the Administrative Agent shall, by notice to the Borrower, declare the
Loans hereunder (with accrued interest thereon) and all other amounts owing by
the 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 same shall immediately become due and
payable. 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, the 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 the 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 the 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 the 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 the 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, 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
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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 the 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.
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
the 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
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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 the Borrower and without
limiting the obligation of the 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 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
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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 the 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 the Borrower shall have occurred and be continuing) be subject to
approval by the 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 11.1) to take any action requested by the Borrower having
the effect of releasing any Collateral or guarantee obligations to the extent
necessary to permit consummation of any transaction not prohibited by any Loan
Document or that has been consented to in accordance with Section 11.1.
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.
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SECTION 10. REPRESENTATIONS AND COVENANTS OF HTI.
To induce the Lenders to enter into this Credit Agreement and to make Loans
hereunder to HTI, HTI hereby represents and warrants and covenants to the
Administrative Agent and to each Lender as follows:
10.1 Financial Condition and Financial Reporting. (a) The financial
-------------------------------------------
statements described below (copies of which have heretofore been provided to the
Administrative Agent for distribution to the Lenders) have been prepared in
accordance with GAAP consistently applied throughout the periods covered
thereby, are complete and correct in all material respects and present fairly
the financial condition (including disclosure of all material liabilities,
contingent and otherwise) and results from operation of the entities and for the
periods specified, subject in the case of interim company-prepared statements to
normal year-end adjustment and the absence of footnotes:
(i) audited consolidated balance sheets for Columbia/HCA and its
consolidated subsidiaries dated as of December 31, 1996, December 31,
1997 and December 31, 1998, together with related audited consolidated
statements of income and cash flows for the fiscal years then ending;
and
(ii) pro forma company-prepared consolidated balance sheet for
--- -----
HTI and its consolidated subsidiaries dated as of March 31, 1999.
As of the Closing Date and as of the date of any Loans to HTI hereunder, neither
Columbia/HCA nor HTI or their respective Subsidiaries has any known contingent
liabilities of any significant amount which are not referred to in said
financial statements or in the notes thereto which would have a Material Adverse
Effect. Substantially all of the material assets of Columbia/HCA reflected on
its audited balance sheet as of December 31, 1998 have been transferred to HTI
and its Subsidiaries, other than the Columbia/HCA Intercompany Receivable. As
of the Closing Date, all of such asset transfers (including Equity Interest
transfers) to HTI have been consummated so that HTI holds, directly or
indirectly, through its wholly-owned Subsidiaries, all of the material assets of
Columbia/HCA, with the exception of the Columbia/HCA Intercompany Receivable and
the assets held by HTI and its Subsidiaries as of the date hereof comprise
substantially all of the assets of Columbia/HCA reflected on its balance sheet
dated December 31, 1998 (with the exception of the Columbia/HCA Intercompany
Receivable). Since December 31, 1998 there has been no development or event
that has had or could reasonably be expected to have a Material Adverse Effect
on HTI. HTI is Solvent and is not a direct or contingent obligor on the HCA
Senior Credit Facilities. If HTI chooses to effect the Dropdown, HTI will
transfer the America Group division assets transferred to LifePoint Parent and
shall cause LifePoint Parent to transfer such assets to LifePoint.
(b) Unless and until released from its obligations as a Loan Party
hereunder, HTI will furnish, or cause to be furnished, to the Administrative
Agent and each of the Lenders audited annual and company-prepared quarterly
consolidated and consolidating financial
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statements, including a balance sheet and related income statement and statement
of cash flows, in each case including information from prior years in
comparative form, prepared in accordance with GAAP, in reasonable form and
detail reasonably acceptable to the Administrative Agent which in the case of
the annual audited financial statements, shall include an opinion of independent
certified accountants of recognized national standing without qualification as
to the scope of the audit or the status HTI or its subsidiaries as going
concerns, and which in the case of the company-prepared financial statements,
shall be subject only to changes resulting from normal audit and year-end
adjustments and shall be accompanied by a certificate of the chief financial
officer of HTI to the effect that the financial statements present fairly the
financial condition and performance of HTI and its subsidiaries as of such date
and for such periods and that no Default or Event of Default exists under this
Credit Agreement.
10.2 Notices. Unless and until released from its obligations as a Loan
-------
Party hereunder, HTI will furnish, or cause to be furnished, to the
Administrative Agent (i) notice of the occurrence of any event or condition
which would constitute a Default or Event of Default immediately upon discovery,
and (ii) notice of the pendency, commencement or material development in any
investigation, assertion of liability, arbitral, governmental or other legal
proceedings which might reasonably be expected to have a Material Adverse
Effect. (Notwithstanding the foregoing sentence, HTI shall not be liable for
the failure to give any such notice, after the execution and delivery of the HTI
Release, in the event the Administrative Agent and the Required Lenders had
knowledge of any event or condition which was required to be the subject of such
notice, or in the event such event or condition did not result in a Material
Adverse Effect.)
10.3 Existence and Authority. HTI is duly organized, validly existing in
-----------------------
good standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own and operate its property and conduct its
business as currently conducted and to authorize the execution, delivery and
performance of this Agreement and the other Loan Documents to which it is or
will be a party, is duly qualified as a foreign entity in each jurisdiction
where failure to so qualify could have a Material Adverse Effect. HTI has duly
authorized, executed and delivered this Agreement and the other Loan Documents
to which it is a party, and this Agreement and the other Loan Documents to which
it is a party constitute the legal, valid and binding obligations of the HIT
enforceable against it in accordance with its terms, except as 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). Unless and until released from its obligations as a Loan Party
hereunder, HTI will take action as necessary to maintain its and its Material
Subsidiaries existence and qualifications in force and effect.
10.4 Compliance with Legal Requirements. HTI is, and unless and until
----------------------------------
released from its obligations as a Loan Party hereunder, will continue to be, in
compliance with all Legal Requirements, except as disclosed in Columbia/HCA's
Annual Report for the fiscal year ended December 31, 1998 and any Current
Reports on Form 8-K filed with the SEC, or to the extent that failure to be in
compliance therewith could not reasonably be expected to have a Material
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Adverse Effect. Neither the execution, delivery or performance by HTI of its
obligations under the Loan Documents, will violate any Legal Requirement or
contractual obligation applicable to it. The Loans to HTI hereunder will not be
used, directly or indirectly, for the purpose of purchasing or carrying "margin
stock" in violation of the requirements of Regulation U.
10.5 Legal Proceedings. Except as disclosed in Columbia/HCA's Annual
-----------------
Report for the fiscal year ended December 31, 1998 and any Current Reports on
Form 8-K filed with the SEC prior to the date hereof, no investigation,
assertion of liability, unsealed litigation, arbitral, governmental or other
legal proceedings are pending, or to the best of HTI's knowledge, threatened,
against HTI or any of its Subsidiaries, or their properties or operations, which
(i) relate to the Loan Documents or the transactions contemplated herein, or
(ii) could reasonably be expected to have a Material Adverse Effect.
10.6 No Default. No Default or Event of Default has occurred and is
----------
continuing hereunder.
10.7 Purpose of Loans. The Loans to HTI hereunder will be used exclusively
----------------
to repay, directly or indirectly, inter-company indebtedness to Columbia/HCA
under the Columbia/HCA Intercompany Receivable, to pay for costs and expenses
incurred in connection with the transactions contemplated hereby and by the
Spinoff, and for no other purposes.
10.8 No Material Misstatements. HTI represents that it has acted in good
-------------------------
faith using reasonable assumptions and due care in the preparation of
information, reports and financial statements delivered to the Administrative
Agent in connection with this Agreement.
10.9 Indebtedness. Unless and until released from its obligations as a
------------
Loan Party hereunder pursuant to the HTI Release, HTI will not contract, create,
incur or assume, nor will it permit any of its subsidiaries to contract, create,
incur or assume, or permit to exist, any Indebtedness, except:
(i) Indebtedness existing or arising under this Credit
Agreement, the other Loan Documents and the High Yield Notes;
(ii) Indebtedness of up to $790,000,000 under the Triad
Financings;
(iii) the Columbia/HCA Intercompany Receivable;
(iv) existing Indebtedness set forth on the pro forma balance
--- -----
sheet of HTI as of March 31, 1999 delivered to the Administrative
Agent; and
(v) other Indebtedness not exceeding $5,000,000 in the
aggregate outstanding.
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10.10 Liens. Unless and until released from its obligations as a Loan
-----
Party hereunder, HTI will not contract, create, incur or assume any Lien, nor
will it permit any of its Subsidiaries to contract, create, incur or assume any
Liens other than Liens of the type and to the extent permitted under Section 7.3
and those existing as of the Closing Date and not created or incurred in
anticipation or contemplation of this Credit Agreement, as fully described in
the financial statements referenced in Section 10.1.
10.11 Mergers; Acquisitions and Asset Sales. Unless and until released
-------------------------------------
from its obligations as a Loan Party hereunder, except in connection with the
Spinoff or with respect to transactions under contract on the date hereof or
except as the following in the aggregate would involve an amount equal to or
less than $100,000,000, HTI will not, nor will it permit any of its Subsidiaries
(other than Health Care Indemnity, Inc., its malpractice insurance Subsidiary)
to, (i) enter into any transaction of merger, consolidation or combination, (ii)
dissolve, liquidate or wind-up its affairs, (iii) acquire all or substantially
all of the Equity Interests of any other Person or acquire any material assets,
property or operations from any other Person other than in the ordinary course
of business, or (iv) make any sale, lease or other disposition of assets or
property other than in the ordinary course of business.
10.12 Investments. Unless and until released from its obligations as a
-----------
Loan Party hereunder, HTI will not, nor will it permit any of its Subsidiaries
(other than Health Care Indemnity, Inc., its malpractice insurance Subsidiary)
to, make or permit to exist any Investment other than (i) cash and Cash
Equivalents, (ii) Investments of the types described in clauses (ii) and (iii)
of the definition of "Permitted Investments", (iii) Investments of the type
existing as of the Closing Date and not created or incurred in anticipation or
contemplation of this Agreement, as fully described in the financial statements
referenced in Section 10.1.
10.13 Restricted Payments. Unless and until released from its obligations
-------------------
as a Loan Party hereunder, HTI will not, nor will it permit any of its
Subsidiaries to, make or permit, any Restricted Payment other than the payment,
directly or indirectly, of up to $900 million on the Columbia/HCA Intercompany
Receivable; provided, however, HTI shall cause its Subsidiaries to make
distributions to it to enable it to pay its Obligations hereunder as and when
due and, provided no Event of Default then exists, the Subsidiaries of HTI may
make Restricted Payments amongst themselves.
10.14 Transactions with Affiliates. Except as contemplated for the
----------------------------
Spinoff, unless and until released from its obligations as a Loan Party
hereunder, HTI will not, nor will it permit any of its Subsidiaries to, have
dealing with any officer, director, shareholder, Subsidiary or Affiliate, unless
and to the extent that such dealings are made on terms as would be obtainable in
a comparable transaction made with an unrelated third party on an arms' length
basis.
SECTION 11. MISCELLANEOUS.
11.1 Amendments and Waivers. Neither this Agreement, any other Loan
----------------------
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in
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accordance with the provisions of this Section 11.1. 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, extend the scheduled date of any
amortization payment in respect of any Term 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 11.1 or reduce any
percentage specified in the definition of Required Lenders or Required
Prepayment Lenders, consent to the assignment or transfer by the 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 Guaranty 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 the Revolving Facility set forth in Section 4.2
(including any waiver of an existing Default or Event of Default) without the
written consent of the Majority Revolving Facility Lenders; (iv) amend, modify
or waive any condition precedent to any advance under the Tranche A Term
Commitments set forth in Section 4.2 (including any waiver of an existing
Default or Event of Default) without the written consent of the Majority Tranche
A Term Lenders; (v) amend, modify or waive any provision of Section 2.17 without
the consent of the Majority Facility Lenders in respect of each Facility
adversely affected thereby; (vi) reduce the percentage specified in the
definition of Majority Facility Lenders with respect to any Facility without the
written consent of all Lenders under such Facility; (vi) amend, modify or waive
any provision of Section 9 without the written consent of the Administrative
Agent; or (viii) amend, modify or waive any provision of Section 3 without the
written consent of the 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 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 continuing; but no
such waiver shall extend to any subsequent or other Default or Event of Default,
or impair any right consequent thereon.
11.2 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
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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 the
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:
The Borrower: c/o LifePoint Hospitals, Inc.
0000 Xxxxxxx Xxxx
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.
0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The Administrative Agent: Fleet National Bank
One Federal Street
Mail Stop: MA XX X00X
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Healthcare Division
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.
11.3 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.
11.4 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.
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11.5 Payment of Expenses and Taxes. The 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 the 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 the 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 the 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, the 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 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
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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.
11.6 Successors and Assigns; Participations and Assignments. (a) This
------------------------------------------------------
Agreement shall be binding upon and inure to the benefit of the Borrower, the
Lenders, the Administrative Agent, all future holders of the Loans and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender except pursuant to Section 6.11.
(b) Any Lender may, without the consent of the 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 the 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. The 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. The Borrower also agrees that each Participant shall be
entitled to the benefits of Sections 2.16, 2.17 and 2.18 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 2.17, 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.
(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 the
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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 the Borrower and the Administrative Agent. Any such assignment need
not be ratable as among the Facilities. 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 the Borrower shall not be required for any assignment that occurs
when an Event of Default shall have occurred and be continuing with respect to
the Borrower.
(d) The Administrative Agent shall, on behalf of the Borrower, maintain at
its address referred to in Section 11.2 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 the 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 the information contained therein
in the Register on the effective date determined pursuant thereto.
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(f) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this Section 11.6 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.
11.7 Adjustments; Set-off. (a) Except to the extent that this Agreement
--------------------
or the fee letter between the 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 the Borrower, any
such notice being expressly waived by the Borrower to the extent permitted by
applicable law, upon any amount becoming due and payable by the 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 the Borrower, as the case may be, and whether or not
such Lender is otherwise fully secured. Each Lender agrees promptly to notify
the 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.
11.8 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 manually executed
counterpart hereof. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Administrative Agent.
11.9 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
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or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.10 Integration. This Agreement and the other Loan Documents represent
-----------
the agreement of the 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.
11.11 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.
11.12 Submission To Jurisdiction; Waivers. The 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 the Borrower at its
address set forth in Section 11.2 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
(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.
11.13 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
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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 oth er 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, or (i) in connection with the exercise of any remedy hereunder or under
any other Loan Document. The agreements in this Section 11.13 shall survive
repayment of the Loans and termination of this Agreement (and shall survive for
the benefit of HTI after its release, if any, pursuant to Section 6.11).
11.14 WAIVERS OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
---------------------
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
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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.
HEALTHTRUST, INC. - THE HOSPITAL COMPANY
By: /s/ R. Xxxxxx Xxxxxxx
---------------------------------------
Name: R. Xxxxxx Xxxxxxx
Title: Vice President
FLEET NATIONAL BANK,
as Administrative Agent, Arranger, Co-Arranger
and a Lender
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
DEUTSCHE BANK SECURITIES INC.,
as Syndication Agent and Co-Arranger
By: /s/ Xxx Xxxxxxx
---------------------------------------
Name: /s/ Xxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
SCOTIABANC, INC.,
as Documentation Agent, Co-Arranger and a Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Relationship Manager
SUNTRUST BANK, NASHVILLE, N.A.,
as Co-Agent and a Lender
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN ISLANDS
BRANCHES, as a Lender
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
By: /s/ Xxxxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Associate
XXXXXXX XXXXX CAPITAL CORPORATION, as a Lender
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
ALLIANCE CAPITAL MANAGEMENT
CORPORATION, as a Lender
By:______________________________
Name:
Title:
NATIONSBANK, N.A., as a Lender
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK, as a Lender
By: /s/ Xxxx Xxx Xxx
------------------------------------
Name: Xxxx Xxx Xxx
Title: Vice President
FIRST AMERICAN NATIONAL BANK,
as a Lender
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice Pesident
