EXHIBIT 4.3(a)
HEALTHTRUST, INC.--THE HOSPITAL COMPANY
(A Delaware corporation)
Senior Subordinated Notes due 2009
PURCHASE AGREEMENT
Dated: May 4, 1999
Table of Contents
Page
SECTION 1. Representations and Warranties by Healthtrust 3
(a) Representations and Warranties 3
(i) Offering Memorandum. 3
(iii) Financial Statements 4
(iv) No Material Adverse Change in Business 4
(v) Good Standing of Healthtrust, LifePoint and Holdings 5
(vi) Good Standing of Designated Subsidiaries 5
(vii) Capitalization 5
(viii) Authorization of Agreements 6
(ix) Authorization of the Indenture 6
(x) Authorization of the Securities 7
(xi) Description of the Securities, the Indenture and the Registration Rights Agreement 8
(xii) Absence of Defaults, Violations and Conflicts 8
(xiii) Absence of Labor Dispute 9
(xiv) Absence of Proceedings 9
(xv) Possession of Intellectual Property 10
(xvi) Absence of Further Requirements 10
(xvii) Possession of Licenses, Permits and Consents 10
(xviii) Medicare and Medicaid 11
(xix) Title to Property 12
(xx) Environmental Laws 12
(xxi) Investment Company Act 13
(xxii) Similar Offerings 13
(xxiii) Rule 144A Eligibility 13
(xxiv) No General Solicitation 13
(xxv) No Registration Required 13
(xxvi) Reporting Company 13
(xxvii) Accounting Controls 14
(xxviii) Insurance 14
(xxix) Solvency 14
(xxx) Stabilization 14
(xxxi) Year 2000 Problem 14
(xxxii) Compliance with the Cuba Act. 15
(xxxiii) New Credit Agreement 15
(xxxiv) Regulations T, U and X 15
(xxxv) 15
(b) Officer's Certificates 15
SECTION 2. Sale and Delivery to Initial Purchasers; Closing 15
(a) Securities 15
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(b) Payment 15
(c) Denominations; Registration 16
SECTION 3. Covenants of the Company 16
(a) Offering Memorandum 16
(b) Notice and Effect of Material Events 16
(c) Amendment to Offering Memorandum and Supplements 17
(d) Qualification of Securities for Offer and Sale 17
(e) Rating of Securities 17
(f) DTC 17
(g) Use of Proceeds 17
(h) Restriction on Sale of Securities 17
(i) PORTAL Designation 17
(j) Investment Company Status 18
(k) Furnishing of Information to Holders. 18
(l) Furnishing of Information to Representative. 18
(m) Filing of Registration Statement. 18
(n) Reporting Requirements 18
SECTION 4. Payment of Expenses 18
(a) Expenses 18
(b) Termination of Agreement 19
SECTION 5. Conditions of Initial Purchasers' Obligations 19
(a) Opinion of Counsel for Company 19
(b) Opinion of Counsel for Initial Purchasers 19
(c) No Loss or Interference with Business 19
(d) Officers' Certificate. 20
(e) Accountants' Comfort Letter 20
(f) Bring-down Comfort Letter 20
(g) Maintenance of Rating 20
(h) PORTAL. 20
(i) Registration Rights Agreement 20
(j) Additional Documents 20
(k) New Credit Agreement. 21
(l) Termination of Agreement 21
SECTION 6. Subsequent Offers and Resales of the Securities 21
(a) Offer and Sale Procedures 21
(i) Offers and Sales only to Qualified Institutional Buyers 21
(ii) No General Solicitation 21
(iii) Purchases by Non-Bank Fiduciaries 21
(iv) Subsequent Purchaser Notification 21
(v) Minimum Principal Amount 22
(vi) Restrictions on Transfer 22
ii
(vii) Delivery of Offering Memorandum 22
(b) Covenants of the Company 22
(i) Integration 22
(ii) Rule 144A Information 22
(iii) Restriction on Repurchases 22
(c) Qualified Institutional Buyer 23
(d) Resale Pursuant to Rule 144A 23
SECTION 7. Indemnification 23
(a) Indemnification of Initial Purchasers 23
(b) Indemnification of Company Directors and Officers 24
(c) Actions against Parties; Notification 24
(d) Settlement without Consent if Failure to Reimburse 25
SECTION 8. Contribution 25
SECTION 9. Representations, Warranties and Agreements to Survive Delivery 26
SECTION 10. Termination of Agreement 26
(a) Termination; General 26
(b) Liabilities 27
SECTION 11. Default by One or More of the Initial Purchasers 27
SECTION 12. Notices 28
SECTION 13. Parties 28
SECTION 14. GOVERNING LAW AND TIME 28
SECTION 15. Effect of Headings 28
SCHEDULES:
Schedule A - List of Initial Purchasers Sch A-1
Schedule B - Pricing Information Sch B-1
EXHIBITS:
Exhibit A - Form of Opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP A-1
Exhibit B - Form of Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ B-1
Exhibit C - Form of Opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III Esq. C-1
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Exhibit D - Form of Opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇, Esq. D-1
Exhibit E - Form of LifePoint Assumption Agreement E-1
Exhibit F - Form of Holdings Assumption Agreement F-1
Exhibit G - Form of Guarantor Assumption Agreement G-1
Exhibit H - Form of Registration Rights Agreement H-1
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HEALTHTRUST, INC. --THE HOSPITAL COMPANY
(a Delaware corporation)
$150,000,000
Senior Subordinated Notes due 2009
PURCHASE AGREEMENT
May 4, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
as Representative of the several Initial Purchasers
c/o Merrill ▇▇▇▇▇ & Co.
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Healthtrust, Inc.--The Hospital Company, a Delaware corporation
("Healthtrust"), confirms its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and each of the other
Initial Purchasers named in Schedule A hereto (collectively, the "Initial
Purchasers", which term shall also include any initial purchaser substituted as
hereinafter provided in Section 11 hereof), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ is acting as
representative (in such capacity, the "Representative"), with respect to the
issue and sale by Healthtrust and the purchase by the Initial Purchasers, acting
severally and not jointly, of the respective principal amounts set forth in said
Schedule A of $150,000,000 aggregate principal amount of Healthtrust's Senior
Subordinated Notes due 2009 (the "Securities"). The Securities are to be
issued pursuant to an indenture dated as of May 11, 1999 (the "Indenture")
between Healthtrust and Citibank N.A., as trustee (the "Trustee"). Securities
issued in book-entry form will be issued to Cede & Co. as nominee of The
Depository Trust Company ("DTC") pursuant to a letter agreement, to be dated as
of the Closing Time (as defined in Section 2(b)) (the "DTC Agreement"), among
Healthtrust, the Trustee and DTC.
Healthtrust understands that the Initial Purchasers propose to make an
offering of the Securities on the terms and in the manner set forth herein and
agrees that the Initial Purchasers may resell, subject to the conditions set
forth herein, all or a portion of the Securities to purchasers ("Subsequent
Purchasers") at any time after this Agreement has been executed and delivered.
The
Securities are to be offered and sold through the Initial Purchasers without
being registered under the Securities Act of 1933, as amended (the "1933 Act"),
in reliance upon exemptions therefrom. Pursuant to the terms of the Securities
and the Indenture, investors that acquire Securities may only resell or
otherwise transfer such Securities if such Securities are hereafter registered
under the 1933 Act or if an exemption from the registration requirements of the
1933 Act is available (including the exemption afforded by Rule 144A ("Rule
144A") of the rules and regulations promulgated under the 1933 Act by the
Securities and Exchange Commission (the "Commission")).
Healthtrust has prepared and delivered to each Initial Purchaser
copies of a preliminary offering memorandum dated April 20, 1999 (the
"Preliminary Offering Memorandum") and has prepared and will deliver to each
Initial Purchaser, on the date hereof or the next succeeding day, copies of a
final offering memorandum dated May 4, 1999 (the "Final Offering Memorandum"),
each for use by such Initial Purchaser in connection with its solicitation of
purchases of, or offering of, the Securities. "Offering Memorandum" means, with
respect to any date or time referred to in this Agreement, the most recent
offering memorandum (whether the Preliminary Offering Memorandum or the Final
Offering Memorandum, or any amendment or supplement to either such document),
including annexes and exhibits thereto and any documents incorporated therein by
reference, which has been prepared and delivered by Healthtrust to the Initial
Purchasers in connection with their solicitation of purchases of, or offering
of, the Securities.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Offering Memorandum (or other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information
which are incorporated by reference in the Offering Memorandum; and all
references in this Agreement to amendments or supplements to the Offering
Memorandum shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), which is
incorporated by reference in the Offering Memorandum.
For purposes of this Agreement, (a) the term "Business" shall mean the
net assets, business and operations comprising the America Group Division of
Columbia/HCA Healthcare Corporation ("Columbia/HCA") and (b) the term
"Distribution" shall mean (i) the incurrence by Healthtrust of the indebtedness
evidenced by the Securities and by the new credit agreement described in the
Offering Memorandum (the "New Credit Agreement"), (ii) the transfer of the
Business by Healthtrust to LifePoint Hospitals, Inc. ("LifePoint"), a new wholly
owned subsidiary of Healthtrust, and the simultaneous assumption by LifePoint of
the indebtedness evidenced by the Securities and by the New Credit Agreement,
(iii) the subsequent transfer of the Business by LifePoint to LifePoint
Hospitals Holdings, Inc. ("Holdings"), a new wholly owned subsidiary of
LifePoint, and the simultaneous assumption by Holdings of the indebtedness
evidenced by the Securities and the New Credit Agreement, (iv) the distribution
by Healthtrust of all of the common stock of LifePoint to Columbia/HCA, and (v)
the distribution by Columbia/HCA of all of the common stock of LifePoint to the
stockholders of Columbia/HCA, in each case, as set forth in the Offering
Memorandum.
Upon Healthtrust transferring the Business to LifePoint and the
assumption by LifePoint of the indebtedness evidenced by the Securities,
Healthtrust will cause LifePoint to assume all the rights, obligations and
liabilities of Healthtrust under this Agreement pursuant to the LifePoint
Assumption
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Agreement, the form of which is attached as Exhibit E hereto. Upon LifePoint
transferring the Business to Holdings and the assumption by Holdings of the
indebtedness evidenced by the Securities, LifePoint will cause Holdings to
assume all rights, obligations and liabilities of LifePoint under this Agreement
pursuant to the Holdings Assumption Agreement, the form of which is attached as
Exhibit F hereto. Following the assumption by Holdings of the indebtedness
evidenced by the Securities, Holdings will contribute certain assets to its
subsidiary, LifePoint Holdings 2, LLC and LifePoint Holdings 2, LLC will then
contribute certain assets to its subsidiary, LifePoint Holdings 3, Inc.
Following these contributions and immediately prior to the completion of the
Distribution, Holdings will cause the Guarantors (as defined in the Guarantor
Assumption Agreement) to execute the Guarantor Assumption Agreement, the form of
which is attached as Exhibit G hereto, pursuant to which each Guarantor will
agree to observe and perform as a "Guarantor" all rights, obligations and
liabilities of such Guarantor under this Agreement. The parties hereto
acknowledge and agree that once (i) the Business has been validly transferred to
LifePoint and the LifePoint Assumption Agreement has been executed and delivered
by the parties thereto, Healthtrust shall automatically be fully,
unconditionally and irrevocably released from all rights, obligations and
liabilities under this Agreement and (ii) the Business has been validly
transferred to Holdings and the Holdings Assumption Agreement has been executed
and delivered by the parties thereto, LifePoint shall automatically be fully,
unconditionally and irrevocably released from all rights, obligations and
liabilities under this Agreement. For purposes of this Agreement, the "Company"
shall refer to any of Healthtrust or LifePoint or Holdings, depending on which
such company has then assumed all rights, obligations and liabilities under this
Agreement as discussed in this paragraph.
The holders of the Securities will be entitled to the benefits of the
registration rights agreement substantially in the form of Exhibit H hereto to
be dated as of the Closing Time (the "Registration Rights Agreement") among
Healthtrust and the Initial Purchasers, pursuant to which the Company will agree
to file as soon as practicable after the Closing Time but in any event within 90
days after the Closing Time, a registration statement with the Commission
registering the Exchange Notes (as defined in the Registration Rights Agreement)
under the 1933 Act.
SECTION 1. Representations and Warranties by Healthtrust .
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(a) Representations and Warranties . Healthtrust represents and warrants to
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each Initial Purchaser as of the date hereof and as of the Closing Time
referred to in Section 2(b) hereof, and agrees with each Initial Purchaser,
as follows:
(i) Offering Memorandum. The Offering Memorandum and any
--------------------
amendments or supplements thereto do not and will not, as of their respective
dates and as of the Closing Time, contain an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that this representation, warranty and agreement shall not
apply to any statements or omissions from the Offering Memorandum made in
reliance upon and in conformity with information furnished to the Company in
writing by any Initial Purchaser through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Offering Memorandum.
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(ii) Independent Accountants. The accountants who certified the financial
-----------------------
statements and supporting schedules included in the Offering Memorandum are
independent public accountants with respect to each of LifePoint and its
subsidiaries and Columbia/HCA and its subsidiaries within the meaning of
Regulation S-X under the 1933 Act.
(iii) Financial Statements. The historical financial statements
--------------------
relating to LifePoint, together with the related schedules and notes, included
in the Offering Memorandum present fairly, in all material respects, the
financial position of Holdings at the dates indicated and the combined
statements of operations, combined statements of equity and combined statements
of cash flows of Holdings for the periods specified; said financial statements
have been prepared in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved except as
disclosed therein. The selected historical financial data and the summary
financial data included in the Offering Memorandum present fairly, in all
material respects, the information shown therein and have been compiled on a
basis consistent with that of the audited financial statements included in the
Offering Memorandum. The pro forma financial statements of LifePoint and the
related notes thereto included in the Offering Memorandum present fairly in all
material respects the information shown therein, have been prepared in all
material respects in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly compiled on the
bases described therein, and in the Company's opinion the assumptions used in
the preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred to
therein. The financial statements relating to Columbia/HCA, together with the
related schedules and notes, included in the Offering Memorandum present fairly
in all material respects the financial position of Columbia/HCA at the dates
indicated and the consolidated statements of operations, consolidated statements
of stockholders' equity and consolidated statements of cash flows of
Columbia/HCA for the periods specified; said financial statements have been
prepared in conformity with GAAP applied on a consistent basis throughout the
periods involved except as disclosed therein.
(iv) No Material Adverse Change in Business. Since the respective
--------------------------------------
dates as of which information is given in the Offering Memorandum,
except as otherwise described in the Offering Memorandum, (i) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Business whether or not
arising in the ordinary course of business (a "Material Adverse Effect"), (ii)
there have been no transactions entered into by the Business, LifePoint or
Holdings or any of the Designated Subsidiaries (as defined in Section 1(vi)
hereof), other than those in the ordinary course of business, which are material
with respect to the Business, and (iii) there has been no dividend or
distribution of any kind declared, paid or made by any of LifePoint or Holdings
on any class of its capital stock. Since the respective dates as of which
information is given in the Offering Memorandum, except as otherwise stated
therein, there has not been any material increase in the amount of debt to be
assumed by LifePoint and its subsidiaries in connection with the Distribution.
Since the respective dates as of which information is given in the Offering
Memorandum, there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of Healthtrust and its subsidiaries, considered as a whole, which
would materially adversely affect Healthtrust's ability to redeem the Securities
if it were required to do so pursuant to the mandatory redemption provisions in
the Indenture (a "Material Adverse Effect on the Mandatory Redemption").
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(v) Good Standing of Healthtrust, LifePoint and Holdings.
----------------------------------------------------
Each of Healthtrust, LifePoint and Holdings has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware and has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Offering Memorandum
and to enter into and perform its obligations under this Agreement; and each of
Healthtrust, LifePoint and Holdings is duly qualified as a foreign corporation
to transact business and is in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(vi) Good Standing of Designated Subsidiaries. Each subsidiary
----------------------------------------
of Healthtrust to be contributed to Holdings in connection with the Distribution
(each a "Designated Subsidiary" and, collectively, the "Designated
Subsidiaries") has been duly organized and is validly existing as a corporation,
a limited liability company or a limited partnership in good standing under the
laws of the jurisdiction of its incorporation or formation, has the requisite
power and authority to own, lease and operate its properties and to conduct its
business as described in the Offering Memorandum and is duly qualified as a
foreign corporation or foreign limited liability company to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect; except as otherwise
disclosed in the Offering Memorandum, all of the issued and outstanding capital
stock of each Designated Subsidiary has been duly authorized and validly issued,
is fully paid and non-assessable and, with respect to shares owned by
Healthtrust, such shares are owned by Healthtrust, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity other than those created pursuant to the New Credit
Agreement; none of the outstanding shares of capital stock of the Designated
Subsidiaries was issued in violation of any preemptive or similar rights of any
securityholder of such Designated Subsidiary. LifePoint has no direct
subsidiaries other than Holdings and Holdings has no subsidiaries other than
LifePoint Holdings 2, LLC and LifePoint Holdings 3, Inc.
(vii) Capitalization. The authorized, issued and outstanding
--------------
capital stock of LifePoint, after giving effect to the Distribution, will be as
set forth in the Offering Memorandum in the column entitled "Pro Forma" under
the caption "Capitalization" (except for subsequent issuances, if any, pursuant
to this Agreement, pursuant to reservations, agreements, employee benefit plans
referred to in the Offering Memorandum or pursuant to the exercise of
convertible securities or options referred to in the Offering Memorandum). The
shares of issued and outstanding capital stock of each of Healthtrust, LifePoint
and Holdings have been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of Healthtrust,
LifePoint or Holdings was issued in violation of the preemptive or other similar
rights of any securityholder of Healthtrust, LifePoint or Holdings. Healthtrust
owns 100% of the capital stock of LifePoint and LifePoint owns 100% of the
capital stock of Holdings.
(viii) Authorization of Agreements. This Agreement has been duly
---------------------------
authorized, executed and delivered by Healthtrust. At the Closing Time, this
Agreement will have been duly authorized by each of LifePoint, Holdings and the
Guarantors. Each of the Registration Rights Agreement and the DTC
5
Agreement have been authorized by Healthtrust and, when executed and delivered
by Healthtrust, will constitute a valid and binding agreement of Healthtrust,
enforceable against Healthtrust in accordance with its terms, except that (A)
the enforcement thereof (x) may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights generally
and (y) is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law) and (B) any
rights to indemnity or contribution thereunder may also be limited by federal
and state securities laws and public policy considerations. At the Closing Time,
the Registration Rights Agreement will have been duly authorized by each of
LifePoint and Holdings and, when LifePoint and Holdings execute and deliver the
LifePoint Assumption Agreement and the Holdings Assumption Agreement to the
Registration Rights Agreement, respectively, will constitute a valid and binding
agreement of LifePoint and Holdings, respectively, enforceable against LifePoint
and Holdings, respectively, in accordance with its terms, except that (A) the
enforcement thereof (x) may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights generally
and (y) is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law) and (B) any
rights to indemnity or contribution thereunder may also be limited by federal
and state securities laws and public policy considerations. At the Closing Time,
the Registration Rights Agreement will have been duly authorized by the
Guarantors and, when such agreement is assumed as a "Guarantor" by the
Guarantors, will constitute a valid and binding agreement of the Guarantors,
enforceable against the Guarantors in accordance with its terms, except that (A)
the enforcement thereof (x) may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights generally
and (y) is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law) and (B) any
rights to indemnity or contribution thereunder may also be limited by federal
and state securities laws and public policy considerations. At the Closing Time,
the DTC Agreement will have been duly authorized by LifePoint and Holdings and,
when such Agreement is assumed by LifePoint and Holdings, respectively, will
constitute a valid and binding agreement of LifePoint and Holdings,
respectively, enforceable against LifePoint and Holdings, respectively, in
accordance with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(ix) Authorization of the Indenture. The Indenture has been
------------------------------
duly authorized by Healthtrust and, when executed and delivered by Healthtrust
and the Trustee, will constitute a valid and binding agreement of Healthtrust,
enforceable against Healthtrust in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law). At the Closing Time, the Indenture will have been duly authorized by each
of LifePoint and Holdings and, when the first and second indenture supplements
to the Indenture are executed and delivered by LifePoint and Holdings,
respectively, will constitute a valid and binding
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agreement of LifePoint and Holdings, respectively, enforceable against LifePoint
and Holdings, respectively, in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law). At the Closing Time, the Indenture will have been duly authorized by the
Guarantors and, when the third indenture supplement to the Indenture is executed
and delivered by the Guarantors, will constitute a valid and binding agreement
of the Guarantors, enforceable against the Guarantors in accordance with its
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law). At the Closing Time, the Indenture will
conform in all material respects to the requirements of the Trust Indenture Act
of 1939, as amended (the "1939 Act"), and the rules and regulations of the
Commission applicable to an indenture that is qualified thereunder.
(x) Authorization of the Securities. The Securities have been
-------------------------------
duly authorized and, at the Closing Time, will have been duly executed by
Healthtrust and, when authenticated, issued and delivered in the manner provided
for in the Indenture and delivered against payment of the purchase price
therefor as provided in this Agreement, will constitute valid and binding
obligations of Healthtrust, enforceable against Healthtrust in accordance with
their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law), and will be substantially in the form
contemplated by, and entitled to the benefits of, the Indenture. At the Closing
Time, the Securities will have been authorized by each of LifePoint and Holdings
and, when the first and second indenture supplements to the Indenture are
executed and delivered by LifePoint and Holdings, respectively, will constitute
valid and binding obligations of LifePoint and Holdings, respectively,
enforceable against LifePoint and Holdings, respectively, in accordance with
their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law). The Exchange Notes have been authorized by
each of Healthtrust, and, at the Closing Time, will have been authorized by
LifePoint and Holdings and, when executed and issued and delivered by the
Company in exchange for the Securities pursuant to the Exchange Offer (as
defined in the Registration Rights Agreement), will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law).
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(xi) Description of the Securities, the Indenture and the
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Registration Rights Agreement. The Securities, the Exchange Notes, the
-----------------------------
Indenture and the Registration Rights Agreement will conform in all material
respects to the descriptions thereof contained in the Offering Memorandum and
will be in substantially the respective forms previously delivered to the
Initial Purchasers.
(xii) Absence of Defaults, Violations and Conflicts. None of
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LifePoint, Holdings or any of the Designated Subsidiaries is in violation of its
charter, by-laws or other formation documents or in default in the performance
or observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which any of them is a party or
by which or any of them may be bound, or to which any of the property or assets
of LifePoint, Holdings or any of the Designated Subsidiaries is subject
(collectively, the "Agreements and Instruments") or has violated or is in
violation of an applicable law, statute, rule, regulation, judgment, order, writ
or decree (including any "fraud and abuse legislation" or "anti-kickback law")
of any government, government instrumentality or court, domestic or foreign,
having jurisdiction over any of LifePoint, Holdings or any of the Designated
Subsidiaries or any of their assets, properties or operations (including,
without limitation, the Business), except, in each case, for such defaults or
violations that would not result in a Material Adverse Effect; and the
execution, delivery and performance by LifePoint or Holdings of this Agreement,
the Indenture, the Registration Rights Agreement, the Securities and the
Exchange Notes and any other agreement or instrument entered into or issued or
to be entered into or issued by any of LifePoint or Holdings in connection with
the transactions contemplated hereby or thereby and the consummation of (A) the
issuance and sale of the Securities and the use of the proceeds from the sale of
the Securities as described in the Offering Memorandum under the caption "Use of
Proceeds" and (B) the Distribution and compliance by each of LifePoint and
Holdings with their respective obligations hereunder have been duly authorized
by all necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or a Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of LifePoint, Holdings or any of the
Designated Subsidiaries pursuant to, the Agreements and Instruments, except for
such conflicts, breaches or defaults or liens, charges, encumbrances or
Repayment Events that, singly or in the aggregate, would not result in a
Material Adverse Effect or are disclosed in the Offering Memorandum, nor will
such action result in any violation of the provisions of (x) the charter, by-
laws or other formation documents of any of Healthtrust, LifePoint or Holdings
or any of the Designated Subsidiaries or (y) any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over any of
LifePoint or Holdings or any of the Designated Subsidiaries or any of their
assets, properties or operations (including, without limitation, the Business),
except, in the case of (y) above, for such violations that would not result in a
Material Adverse Effect. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such indebtedness
by any of LifePoint or Holdings or any of the Designated Subsidiaries.
Healthtrust is not in violation of its Certificate of Incorporation or by-laws,
except for such violations that would not result in a Material Adverse
8
Effect on the Mandatory Redemption; and the execution, delivery and performance
by Healthtrust of this Agreement, the Indenture, the Registration Rights
Agreement, the Securities and any other agreement or instrument entered into or
issued or to be entered into or issued by Healthtrust in connection with
transactions contemplated hereby or thereby and the consummation of (A) the
issuance and sale of the Securities and the use of proceeds from the sale of
Securities as described in the Offering Memorandum under the caption "Use of
Proceeds" and (B) the Distribution and compliance by Healthtrust with its
obligations under this Agreement, the Indenture, the Registration Rights
Agreement and the Securities have been duly authorized by all necessary
corporate action and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of, or
default or a Healthtrust Repayment Event (as defined below) under, or result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of Healthtrust pursuant to any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to which
Healthtrust is a party or by which it is bound or to which any of its properties
or assets is subject (collectively, the "Healthtrust Agreements and
Instruments"), except for such conflicts, breaches or defaults or liens,
charges, encumbrances or Healthtrust Repayment Events that, singly or in the
aggregate, would not result in a Material Adverse Effect on the Mandatory
Redemption or are disclosed in the Offering Memorandum, nor will such action
result in any violation of the provisions of (x) the Certificate of
Incorporation or by-laws of Healthtrust or (y) any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic of foreign, having jurisdiction over
Healthtrust or any of its assets, properties or operations, except in the case
of (y) above, for violations that would not result in a Material Adverse Effect
on the Mandatory Redemption. As used herein, a "Healthtrust Repayment Event"
means any event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all of a portion
of such indebtedness by Healthtrust.
(xiii) Absence of Labor Dispute. No labor dispute with the
------------------------
employees of any of the Business, LifePoint or Holdings or any of the Designated
Subsidiaries exists or, to the knowledge of the Company, is imminent, which,
would result in a Material Adverse Effect.
(xiv) Absence of Proceedings. Except as disclosed in the Offering
----------------------
Memorandum, there is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of Healthtrust, LifePoint or
Holdings, threatened, against or affecting any of Healthtrust, LifePoint or
Holdings or any of the Designated Subsidiaries which would reasonably be
expected to result in a Material Adverse Effect, or which might reasonably be
expected to materially and adversely affect the Business or the consummation of
the transactions contemplated by this Agreement or the Distribution or the
performance by the Company of its obligations hereunder or under the Securities
or the Exchange Notes. The aggregate of all pending legal or governmental
proceedings to which any of Healthtrust, LifePoint or Holdings or any of the
Designated Subsidiaries is a party or of which any of their respective property
or assets is the subject which are not described in the Offering Memorandum,
including ordinary routine litigation incidental to the business, would not
result in a Material Adverse Effect.
9
(xv) Possession of Intellectual Property. The Business owns or
-----------------------------------
possesses, or can acquire on reasonable terms, adequate patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks, trade names or other intellectual
property (collectively, "Intellectual Property") necessary to carry on the
Business as currently conducted except as would not result in a Material Adverse
Effect, and none of Healthtrust, LifePoint, Holdings or any of their respective
subsidiaries has received any notice or is otherwise aware of any infringement
of or conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any Intellectual
Property invalid or inadequate to protect the interest of the Business therein,
and which infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the aggregate,
would result in a Material Adverse Effect.
(xvi) Absence of Further Requirements. No filing with, or
-------------------------------
authorization, approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency is necessary or
required for the performance by any of Healthtrust, LifePoint or Holdings of its
obligations hereunder, in connection with (A) the offering, issuance or sale of
the Securities hereunder, (B) the consummation of the transactions contemplated
by this Agreement, the Registration Rights Agreement and the Indenture, (C) the
consummation of the Distribution or (D) for the due execution, delivery or
performance of the Indenture and the Registration Rights Agreement by any of
Healthtrust, LifePoint or Holdings, except (v) such as have been already
obtained and are in full force and effect, (w) in connection with the
registration of the Exchange Notes pursuant to the Registration Rights
Agreement, (x) any filings under state securities or Blue Sky laws in connection
with the sale of the Securities and the Exchange Notes, (y) the qualification of
the Indenture under the 1939 Act, in connection with the Exchange Offer and (z)
for such approvals or consents the failure so to obtain with respect to
LifePoint and Holdings would not have a Material Adverse Effect and would not
materially and adversely affect the consummation of the transactions
contemplated by this Agreement, the Registration Rights Agreement, the Indenture
or the Distribution and, with respect to Healthtrust would not have a Material
Adverse Effect on the Mandatory Redemption.
(xvii) Possession of Licenses, Permits and Consents. Each of the
--------------------------------------------
Business, LifePoint, Holdings and the Designated Subsidiaries possess such
permits, licenses, approvals, consents and other authorizations (collectively,
"Governmental Licenses") which have been issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them and to be conducted by them after giving effect to
the Distribution, except as disclosed in the Offering Memorandum and except
where the failure to so possess such Government Licenses would not, singly or in
the aggregate, have a Material Adverse Effect; each of the Business, LifePoint,
Holdings and the Designated Subsidiaries is in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure so to
comply would not, singly or in the aggregate, have a Material Adverse Effect;
all of the Governmental Licenses are valid and in full force and effect, except
as disclosed in the Offering Memorandum and except where the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be in full
force and effect would not have a Material Adverse Effect; and none of the
Business, LifePoint, Holdings or any of the Designated Subsidiaries has received
any notice of proceedings relating to the
10
revocation or modification of any such Governmental Licenses which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect, except as disclosed in the Offering
Memorandum. Each of the Business, LifePoint and Holdings possess such permits,
licenses, approvals, consents and other authorizations (collectively,
"Authorizations") which are necessary for Holdings and its subsidiaries to
participate, after giving effect to the Distribution, in managed care programs
except as would not result in a Material Adverse Effect; each of the Business,
LifePoint, Holdings and Designated Subsidiaries is in compliance with the terms
and conditions of all such Authorizations, except where the failure so to comply
would not, singly or in the aggregate, have a Material Adverse Effect; all such
Authorizations are valid and in full force and effect, except where the
invalidity of such Authorizations or the failure of such Authorizations to be in
full force and effect would not have a Material Adverse Effect; and none of the
Business, LifePoint, Holdings or any of the Designated Subsidiary has received
any notice of proceedings relating to the revocation or modification of any such
Authorizations which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(xviii) Medicare and Medicaid. To the extent described in the
---------------------
Offering Memorandum and except as otherwise described in the Offering
Memorandum, all facilities to be owned, operated or managed as continuing
operations by Holdings and its subsidiaries after giving effect to the
Distribution (the "Company Facilities") (A) are, and after the Distribution,
will be licensed, to the extent necessary, under appropriate state laws to
conduct the business as described in the Offering Memorandum, except as would
not result in a Material Adverse Effect; (B) are, and after the Distribution,
will be certified for participation or enrollment in the Medicare and Medicaid
programs; (C) have, and after the Distribution, will have the benefit of a
current and valid provider contract with the Medicare and Medicaid programs; and
(D) are, and after the Distribution, will be in substantial compliance with the
terms and conditions of participation in such programs and have received all
approvals or qualifications necessary for reimbursement, except, in each case,
where the failure to be so licensed or certified, to have such contracts, to be
in such compliance or to have such approvals or qualifications, singly or in the
aggregate, would not have a Material Adverse Effect. To the knowledge of each
of Healthtrust, LifePoint and Holdings, the amounts established as provisions
for Medicare and Medicaid adjustments and adjustments by any other third party
payors on the financial statements of LifePoint are sufficient in all material
respects to pay any amounts for which Holdings or any of its subsidiaries may be
liable for such adjustments. Except as described in the Offering Memorandum,
none of the Business, LifePoint, Holdings or any of the Designated Subsidiaries
has received notice from the regulatory authorities which enforce the statutory
or regulatory provisions in respect of the Medicare or Medicaid programs of any
pending or threatened investigations, surveys (other than routine surveys) or
decertification proceedings, and none of Healthtrust, LifePoint, Holdings or any
of their respective subsidiaries has any reason to believe that any such
investigations, surveys or proceedings are pending, threatened or imminent, in
each case, which notices or threatened investigations, surveys or proceedings
singly or in the aggregate would have a Material Adverse Effect.
(xix) Title to Property. The Business, LifePoint and Holdings and
-----------------
the Designated Subsidiaries have good and marketable title to all real property
described in the Offering Memorandum as owned by each of them and good title to
all other properties described in the
11
Offering Memorandum as owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except (A) such as are described in the Offering
Memorandum, (B) pursuant to the New Credit Agreement or (C) such as would not,
singly or in the aggregate, have a Material Adverse Effect; and all of the
leases and subleases material to the business of the Business, LifePoint,
Holdings and the Designated Subsidiaries and under which any of the Business,
LifePoint, Holdings or any of the Designated Subsidiaries holds properties
described in the Offering Memorandum, are in full force and effect, and none of
the Business, LifePoint, Holdings or any of the Designated Subsidiaries has any
notice of any material claim of any sort that has been asserted by anyone
adverse to the rights of any of the Business, LifePoint, Holdings or any of the
Designated Subsidiaries under any of the leases or subleases mentioned above, or
affecting or questioning the rights of any of the Business, LifePoint, Holdings
or any of the Designated Subsidiaries to the continued possession of the leased
or subleased premises under any such lease or sublease except such as would not,
singly or in the aggregate, have a Material Adverse Effect.
(xx) Environmental Laws. Except as described in the Offering
------------------
Memorandum and except such matters as would not, singly or in the aggregate,
result in a Material Adverse Effect, (A) none of the Business, LifePoint,
Holdings or any the Designated Subsidiaries is in violation of any federal,
state, local or foreign statute, law, rule, regulation, ordinance, code, policy
or rule of common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or judgment,
relating to pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Business, LifePoint, Holdings and the Designated Subsidiaries
have all permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with the requirements of such
permits, authorizations and approvals, (C) none of Healthtrust, LifePoint,
Holdings or any of the Designated Subsidiaries is aware of any pending or
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against any of
the Business, LifePoint, Holdings or any of the Designated Subsidiaries and (iv)
none of Healthtrust, LifePoint, Holdings or any of the Designated Subsidiaries
is aware of any events or circumstances that might reasonably be expected to
form the basis of an order for clean-up or remediation, or an action, suit or
proceeding by any private party or governmental body or agency, against or
affecting any of the Business, LifePoint, Holdings or any of the Designated
Subsidiaries relating to Hazardous Materials or Environmental Laws.
(xxi) Investment Company Act. None of Healthtrust, LifePoint, or
----------------------
Holdings is, and upon the issuance and sale of the Securities as herein
contemplated, the application of the net proceeds therefrom as described in the
Offering Memorandum and the assumption of the obligations of the Securities by
LifePoint and Holdings pursuant to the first and second indenture supplements to
the Indenture, will be, an "investment
12
company" or an entity "controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the "1940 Act").
(xxii) Similar Offerings. None of Healthtrust, LifePoint, Holdings
-----------------
or any of their respective affiliates, as such term is defined in Rule 501(b)
under the 1933 Act (each, an "Affiliate"), has, directly or indirectly,
solicited any offer to buy, sold or offered to sell or otherwise negotiated in
respect of, or will solicit any offer to buy, sell or offer to sell or otherwise
negotiate in respect of, in the United States or to any United States citizen or
resident, any security which is or would be integrated with the sale of the
Securities in a manner that would require the Securities to be registered under
the 1933 Act.
(xxiii) Rule 144A Eligibility. Assuming compliance with the
---------------------
procedures set forth in Section 6 hereof, the Securities are eligible for resale
pursuant to Rule 144A and will not be, at the Closing Time, of the same class as
securities listed on a national securities exchange registered under Section 6
of the 1934 Act, or quoted in a U.S. automated interdealer quotation system.
(xxiv) No General Solicitation. None of Healthtrust, LifePoint,
-----------------------
Holdings, its Affiliates or any person acting on its or any of their behalf
(other than the Initial Purchasers, as to whom Healthtrust, LifePoint and
Holdings make no representation) has engaged or will engage, in connection with
the offering of the Securities, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the 1933 Act.
(xxv) No Registration Required. Subject to compliance by the
------------------------
Initial Purchasers with the procedures set forth in Section 6 hereof, it is not
necessary in connection with the offer, sale and delivery of the Securities to
the Initial Purchasers and to each Subsequent Purchaser of the Securities in the
manner contemplated by this Agreement and the Offering Memorandum to register
the Securities under the 1933 Act or to qualify the Indenture under the 1939
Act.
(xxvi) Reporting Company. After the consummation of the Distribution,
-----------------
LifePoint will be subject to the reporting requirements of Section
13 or Section 15(d) of the 1934 Act.
(xxvii) Accounting Controls. Each of the Business, LifePoint, Holdings
-------------------
and the Designated Subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurances that (A) transactions are
executed in accordance with management's general or specific authorization, (B)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain accountability for assets,
(C) access to assets is permitted only in accordance with management's general
or specific authorization and (D) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(xxviii) Insurance. Each of the Business, LifePoint, Holdings and the
---------
Designated Subsidiaries carry or are entitled to, and after giving effect to the
Distribution, will carry or be entitled to, the benefits of insurance in such
amounts and covering such risks as is generally maintained by companies of
established repute engaged in the same or similar business, except for failures
to carry or be entitled to benefits of insurance which would not have a Material
Adverse Effect.
13
(xxix) Solvency. Healthtrust is, and immediately after the Closing Time
--------
will be, Solvent. Each of LifePoint and Holdings will be Solvent immediately
before and after they assume the obligations under the Securities and the
Indenture as contemplated by the first and second indenture supplements to the
Indenture. As used herein, the term "Solvent" means, with respect to
Healthtrust, LifePoint and Holdings, as the case may be, on a particular date,
that on such date (A) the fair market value of the assets of Healthtrust,
LifePoint and Holdings, as the case may be, is greater than the total amount of
liabilities (including contingent liabilities) of Healthtrust, LifePoint and
Holdings, as the case may be, (B) the present fair salable value of the assets
of Healthtrust, LifePoint and Holdings, as the case may be, is greater than the
amount that will be required to pay the probable liabilities of Healthtrust,
LifePoint and Holdings, as the case may be, on its debts as they become absolute
and matured, (C) Healthtrust, LifePoint and Holdings, as the case may be, able
to realize upon its assets and pay its debts and other liabilities, including
contingent obligations, as they mature, and (D) Healthtrust, LifePoint and
Holdings, as the case may be, does not have unreasonably small capital.
(xxx) Stabilization. None of Healthtrust, LifePoint, Holdings or any of their
-------------
respective officers, directors or controlling persons has taken, directly or
indirectly, any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of Healthtrust,
LifePoint or Holdings to facilitate the sale or resale of the Securities.
(xxxi) Year 2000 Problem. Each of Healthtrust, LifePoint and Holdings has
-----------------
reviewed and is continuing to review the operations of the Business and any
third parties with which the Business has a material relationship to evaluate
the extent to which the Business will be affected by the Year 2000 Problem. As a
result of such review, except as described in the Offering Memorandum each of
Healthtrust, LifePoint and Holdings has no reason to believe, and does not
believe, that the Year 2000 Problem will have a Material Adverse Effect. The
"Year 2000 Problem" as used herein means any significant risk that computer
hardware or software used in the receipt, transmission, processing,
manipulation, storage, retrieval, retransmission or other utilization of data or
in the operation of mechanical or electrical systems of any kind will not, in
the case of dates or time periods occurring after December 31, 1999, function at
least as effectively as in the case of dates or time periods occurring prior to
January 1, 2000.
(xxxii) Compliance with the Cuba Act. Each of Healthtrust, LifePoint and
----------------------------
Holdings has complied with all provisions of Section 517.075, Florida Statutes
(Chapter 92-198, Laws of Florida) relating to doing business with the Government
of Cuba or with any person or affiliate located in Cuba.
(xxxiii) New Credit Agreement. The Company has received written commitments
--------------------
from lenders under the New Credit Agreement for 100% of the commitments under
the New Credit Agreement.
(xxxiv) Regulations T, U and X. None of the transactions contemplated by this
----------------------
Agreement (including, without limitation, the use of proceeds from the sale of
the Securities) will violate or result in a violation of Section 7 of the 1934
Act, or any regulation promulgated thereunder,
14
including, without limitation, Regulations T, U and X of the Board of Governors
of the Federal Reserve System.
(xxxv) Healthtrust Assets. (A) The only material assets owned by Columbia/HCA
------------------
are the capital stock of Healthtrust and intercompany notes in an amount not to
exceed $1,800,000,000 and (B) other than as described in clause (A), all other
material assets of Columbia/HCA have been validly transferred to and are owned
by Healthtrust. The assets held by Healthtrust comprise substantially all of the
assets of Columbia/HCA reflected on its balance sheet dated December 31, 1998
included in the Offering Memorandum, with the exception of the intercompany
notes referred to in clause (A) of the preceding sentence.
(b) Officer's Certificates '. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Representative or to
counsel for the Initial Purchasers shall be deemed a representation and
warranty by the Company to each Initial Purchaser as to the matters covered
thereby.
SECTION 2. Sale and Delivery to Initial Purchasers; Closing.
------------------------------------------------
(a) Securities. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth,
Healthtrust agrees to sell to each Initial Purchaser, severally and not
jointly, and each Initial Purchaser, severally and not jointly, agrees to
purchase from Healthtrust, at the price set forth in Schedule B, the
aggregate principal amount of Securities set forth in Schedule A opposite
the name of such Initial Purchaser, plus any additional principal amount of
Securities which such Initial Purchaser may become obligated to purchase
pursuant to the provisions of Section 11 hereof.
(b) Payment. Payment of the purchase price for, and delivery of certificates
for, the Securities shall be made at the offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other
place as shall be agreed upon by the Representative(s) and the Company, at
9:00 A.M. (eastern time) on May 11, 1999 (unless postponed in accordance
with the provisions of Section 11), or such other time not later than ten
business days after such date as shall be agreed upon by the Representative
and Healthtrust (such time and date of payment and delivery being herein
called the "Closing Time").
Payment shall be made to Healthtrust by wire transfer of immediately
available funds to a bank account designated by Healthtrust, against
delivery to the Representative for the respective accounts of the Initial
Purchasers of certificates for the Securities to be purchased by them. It
is understood that each Initial Purchaser has authorized the
Representative, for its account, to accept delivery of, receipt for, and
make payment of the purchase price for, the Securities which it has agreed
to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as representative of the
Initial Purchasers, may (but shall not be obligated to) make payment of the
purchase price for the Securities to be purchased by any Initial Purchaser
whose funds have not been received by the Closing Time, but such payment
shall not relieve such Initial Purchaser from its obligations hereunder.
15
(c) Denominations; Registration. Certificates for the Securities shall be in
such denominations ($100,000 or integral multiples of $1,000 in excess
thereof) and registered in such names as the Representative may request in
writing at least one full business day before the Closing Time. The
certificates representing the Securities shall be made available for
examination and packaging by the Initial Purchasers in The City of New York
not later than 10:00 A.M. on the last business day prior to the Closing
Time.
SECTION 3. Covenants of the Company. The Company covenants with
------------------------
each Initial Purchaser as follows:
(a) Offering Memorandum. The Company, as promptly as possible, will furnish
to each Initial Purchaser, without charge, such number of copies of the
Preliminary Offering Memorandum, the Final Offering Memorandum and any
amendments and supplements thereto and documents incorporated by reference
therein as such Initial Purchaser may reasonably request.
(b) Notice and Effect of Material Events. The Company will immediately notify
each Initial Purchaser, and confirm such notice in writing, of (x) any
filing made by the Company of information relating to the offering of the
Securities with any securities exchange or any other regulatory body in the
United States or any other jurisdiction, and (y) prior to the completion of
the placement of the Securities by the Initial Purchasers as evidenced by a
notice in writing from the Initial Purchasers to the Company, any material
changes in or affecting the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Business which (i)
make any statement in the Offering Memorandum false or misleading or (ii)
are not disclosed in the Offering Memorandum. In such event or if during
such time any event shall occur as a result of which it is necessary, in
the reasonable opinion of any of the Company, its counsel, the Initial
Purchasers or counsel for the Initial Purchasers, to amend or supplement
the Final Offering Memorandum in order that the Final Offering Memorandum
not include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not
misleading in the light of the circumstances then existing, the Company
will forthwith amend or supplement the Final Offering Memorandum by
preparing and furnishing to each Initial Purchaser an amendment or
amendments of, or a supplement or supplements to, the Final Offering
Memorandum (in form and substance satisfactory in the reasonable opinion of
counsel for the Initial Purchasers) so that, as so amended or supplemented,
the Final Offering Memorandum will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances existing at the
time it is delivered to a Subsequent Purchaser, not misleading.
(c) Amendment to Offering Memorandum and Supplements. The Company will
advise each Initial Purchaser promptly of any proposal to amend or
supplement the Offering Memorandum and will not effect such amendment or
supplement without the consent of the Initial Purchasers. Neither the
consent of the Initial Purchasers, nor the Initial Purchaser's delivery of
any such amendment or supplement, shall constitute a waiver of any of the
conditions set forth in Section 5 hereof.
(d) Qualification of Securities for Offer and Sale . The Company will use its
reasonable best efforts, in cooperation with the Initial Purchasers, to
qualify the Securities for offering
16
and sale under the applicable securities laws of such states and other
jurisdictions as the Representative may reasonably request and will
maintain such qualifications in effect as long as necessary for the sale of
the Securities; provided, however, that the Company shall not be obligated
to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in
which it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so subject.
(e) Rating of Securities . The Company shall take all reasonable action
necessary to enable Standard & Poor's Ratings Services, a division of
McGraw Hill, Inc. ("S&P"), and ▇▇▇▇▇'▇ Investors Service Inc. ("Moody's")
to provide their respective credit ratings of the Securities.
(f) DTC . The Company will cooperate with the Representative and use its
reasonable best efforts to permit the Securities to be eligible for
clearance and settlement through the facilities of DTC.
(g) Use of Proceeds . Healthtrust will use the net proceeds received by it
from the sale of the Securities in substantially the manner specified in
the Offering Memorandum under "Use of Proceeds".
(h) Restriction on Sale of Securities . During a period of 90 days from the
date of the Offering Memorandum, Holdings will not, without the prior
written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, directly or indirectly, offer, sell,
contract to sell, or otherwise dispose of, any securities of Holdings that
are substantially similar to the Securities.
(i) PORTAL Designation . The Company will use its reasonable best efforts to
permit the Securities to be designated PORTAL securities in accordance with
the rules and regulations adopted by the National Association of Securities
Dealers, Inc. ("NASD") relating to trading in the PORTAL Market.
(j) Investment Company Status . The Company will not become, at any time prior
to the expiration of two years after the Closing Time, an open-end
investment company, unit investment trust, closed-end investment company or
face-amount certificate company that is or is required to be registered
under Section 8 of the 1940 Act.
(k) Furnishing of Information to Holders. To furnish to the holders of the
Securities as soon as practicable with annual reports, quarterly reports
and other documents required to be so furnished pursuant to Section 4.3 of
the Indenture.
(l) Furnishing of Information to Representative. During a period of five
years from the date of the Offering Memorandum, to furnish to you copies of
all reports or other communications (financial or other) furnished to
stockholders of the Company, and to deliver to the Representative (i) as
soon as they are available, copies of any reports and financial statements
furnished to or filed with the Commission or any securities exchange on
which the Securities or any class of securities of the Company is listed;
and (ii) such additional information concerning the business and financial
condition of the Company as the Representative may from time to time
reasonably request (such financial
17
statements to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission).
(m) Filing of Registration Statement. The Company shall file and use its
reasonable best efforts to cause to be declared or become effective under
the 1933 Act, on or prior to 90 days after the Closing Time, a registration
statement on Form S-4 providing for the registration of the Exchange Notes,
and the exchange of the Securities for the Exchange Notes, all in a manner
which will permit persons who acquire the Exchange Notes to resell the
Exchange Notes pursuant to Section 4(1) of the 1933 Act, all in accordance
with the provisions of the Registration Rights Agreement.
(n) Reporting Requirements. The Company, during the period when the Offering
Memorandum is required to be delivered pursuant to Section 6(a)(vii)
hereof, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act
and the 1934 Act Regulations.
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company will pay all expenses incident to the performance
of its obligations under this Agreement, including (i) the preparation,
printing, delivery to the Initial Purchasers and any filing of the Offering
Memorandum (including financial statements and any schedules or exhibits
and any document incorporated therein by reference) and of each amendment
or supplement thereto, (ii) the preparation, printing and delivery to the
Initial Purchasers of this Agreement, any Agreement among Initial
Purchasers, the Indenture and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Initial Purchasers, including any
transfer taxes, any stamp or other duties payable upon the sale, issuance
and delivery of the Securities to the Initial Purchasers and any charges of
DTC in connection therewith, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors, (v) the qualification of
the Securities under securities laws in accordance with the provisions of
Section 3(d) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Initial Purchasers in connection therewith
and in connection with the preparation of the Blue Sky Survey, any
supplement thereto, (vi) the fees and expenses of the Trustee, including
the reasonable fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Securities, (vii) any fees payable in
connection with the rating of the Securities, and (viii) any fees and
expenses payable in connection with the initial and continued designation
of the Securities as PORTAL securities under the PORTAL Market Rules
pursuant to NASD Rule 5322.
(b) Termination of Agreement. If this Agreement is terminated by the
Representative in accordance with the provisions of Section 5 or Section
10(a)(i) hereof, the Company shall reimburse the Initial Purchasers for all
of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Initial Purchasers.
SECTION 5. Conditions of Initial Purchasers' Obligations'. The
----------------------------------------------
obligations of the several Initial Purchasers hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any of its
18
subsidiaries delivered pursuant to the provisions hereof, to the performance by
the Company of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Opinion of Counsel for Company . At the Closing Time, the Representative
shall have received the opinion, dated as of the Closing Time, of each of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, special counsel for the Company, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
III, Esq., General Counsel to LifePoint, ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇, Esq., Senior
Counsel to Healthtrust, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, special
regulatory counsel for the Company, in each case, in form and substance
satisfactory to counsel for the Initial Purchasers, together with signed or
reproduced copies of such letters for each of the other Initial Purchasers
to the effect set forth in Exhibits A, B, C and D hereto and to such
further effect as counsel to the Initial Purchasers may reasonably request.
(b) Opinion of Counsel for Initial Purchasers . At the Closing Time, the
Representative shall have received the favorable opinion, dated as of the
Closing Time, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Initial
Purchasers, together with signed or reproduced copies of such letter for
each of the other Initial Purchasers with respect to certain matters. In
giving such opinion such counsel may rely, as to all matters governed by
the laws of jurisdictions other than the law of the State of New York, the
federal law of the United States and the General Corporation Law of the
State of Delaware, upon the opinions of counsel satisfactory to the
Representative. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper,
upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(c) No Loss or Interference with Business . None of the Business,
Healthtrust, LifePoint or Holdings, or any of the Designated Subsidiaries,
shall have sustained since the date of the latest audited financial
statements included in the Offering Memorandum any loss or interference
with its business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Offering Memorandum and except for such interference,
loss or damage which would not (i) with respect to Healthtrust, result in a
Material Adverse Effect on the Mandatory Redemption and (ii) with respect
to the Business, LifePoint or Holdings, result in a Material Adverse
Effect.
(d) Officers' Certificate. ' At the Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information
is given in the Offering Memorandum, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Business, whether or not arising in the ordinary
course of business, and the Representative shall have received a
certificate of the President or a Vice President of Healthtrust and of the
chief financial or chief accounting officer of Healthtrust, dated as of the
Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1 hereof
are true and correct with the same force and effect as though expressly
made at and as of the Closing Time, and (iii) Healthtrust has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Time.
(e) Accountants' Comfort Letter '. At the time of the execution of this
Agreement, the Representative shall have received from Ernst & Young LLP a
letter dated such date, in form and
19
substance satisfactory to the Representative, together with signed or
reproduced copies of such letter for each of the other Initial Purchasers
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to Initial Purchasers with respect to the
financial statements and certain financial information contained in the
Offering Memorandum.
(f) Bring-down Comfort Letter . At the Closing Time, the Representative shall
have received from Ernst & Young LLP a letter, dated as of the Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (d) of this Section, except that the
specified date referred to shall be a date not more than three business
days prior to the Closing Time.
(g) Maintenance of Rating . At the Closing Time, the Securities shall be
rated at least B3 by Moody's and B- by S&P, and the Company shall have
delivered to the Representative a letter dated the Closing Time, from each
such rating agency, or other evidence satisfactory to the Representative,
confirming that the Securities have such ratings; and since the date of
this Agreement, there shall not have occurred a downgrading in the rating
assigned to the Securities or any of the Company's other debt by any
"nationally recognized statistical rating agency", as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no
such securities rating agency shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of the Securities or any of the Company's other debt.
(h) PORTAL. At the Closing Time, the Securities shall have been designated
for trading on PORTAL.
(i) Registration Rights Agreement . At the Closing Time, the Representative
shall have received the Registration Rights Agreement, executed by
Healthtrust and such agreement shall be in full force and effect.
(j) Additional Documents . At the Closing Time, counsel for the Initial
Purchasers shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated, or in order to evidence
the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by Healthtrust in connection with the issuance and sale of the
Securities and the assumption by Holdings of the obligations under the
Securities, in each case, as herein contemplated shall be satisfactory in
form and substance to the Representative and counsel for the Initial
Purchasers.
(k) New Credit Agreement. The conditions to closing provided for in the New
Credit Agreement shall be simultaneously satisfied or waived, and
Healthtrust shall have received loan proceeds of not less than $110,000,000
under the New Credit Agreement.
(l) Termination of Agreement . If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representative by notice to Healthtrust
at any time at or prior to the Closing Time, and such termination shall be
without liability of any party to any other party except as provided in
Section 4 and except that Sections 7 and 8 shall survive any such
termination and remain in full force and effect.
20
SECTION 6. Subsequent Offers and Resales of the Securities.
-----------------------------------------------
(a) Offer and Sale Procedures . Each of the Initial Purchasers and the
Company hereby establish and agree to observe the following procedures in
connection with the offer and sale of the Securities:
(i) Offers and Sales only to Qualified Institutional Buyers .
-------------------------------------------------------
Offers and sales of the Securities shall only be made to persons whom the
offeror or seller reasonably believes to be qualified institutional buyers, as
defined in Rule 144A under the 1933 Act ("Qualified Institutional Buyers").
Each Initial Purchaser severally agrees that it will not offer, sell or deliver
any of the Securities in any jurisdiction outside the United States.
(ii) No General Solicitation . No general solicitation or general advertising
-----------------------
(within the meaning of Rule 502(c) under the ▇▇▇▇ ▇▇▇) will be used in the
United States in connection with the offering or sale of the Securities.
(iii) Purchases by Non-Bank Fiduciaries . In the case of a non-bank Subsequent
---------------------------------
Purchaser of a Security acting as a fiduciary for one or more third
parties, each third party shall, in the reasonable judgment of the
applicable Initial Purchaser, be a Qualified Institutional Buyer.
(iv) Subsequent Purchaser Notification . Each Initial Purchaser will take
---------------------------------
reasonable steps to inform, and cause each of its U.S. Affiliates to take
reasonable steps to inform, persons acquiring Securities from such Initial
Purchaser or affiliate, as the case may be, in the United States that the
Securities (A) have not been and will not be registered under the 1933
Act, (B) are being sold to them without registration under the 1933 Act in
reliance on Rule 144A, and (C) may not be offered, sold or otherwise
transferred except (1) to the Company or (2) inside the United States in
accordance with (x) Rule 144A to a person whom the seller reasonably
believes is a Qualified Institutional Buyer that is purchasing such
Securities for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or
transfer is being made in reliance on Rule 144A or (y) pursuant to another
available exemption from registration under the 1933 Act.
(v) Minimum Principal Amount . No sale of the Securities to any one
------------------------
Subsequent Purchaser will be for less than U.S. $100,000 principal amount
and no Security will be issued in a smaller principal amount. If the
Subsequent Purchaser is a non-bank fiduciary acting on behalf of others,
each person for whom it is acting must purchase at least U.S. $100,000
principal amount of the Securities.
(vi) Restrictions on Transfer . The transfer restrictions and the other
------------------------
provisions set forth in the Offering Memorandum under the heading "Notice
to Investors", including the legend required thereby, shall apply to the
Securities except as otherwise agreed by the Company and the Initial
Purchasers.
21
(vii) Delivery of Offering Memorandum . Each Initial Purchaser will deliver to
-------------------------------
each purchaser of the Securities from such Initial Purchaser, in
connection with its original distribution of the Securities, a copy of the
Offering Memorandum, as amended and supplemented at the date of such
delivery.
(b) Covenants of the Company . The Company covenants with each Initial
Purchaser as follows:
(i) Integration . The Company agrees that it will not and will cause its
-----------
Affiliates not to, directly or indirectly, solicit any offer to buy, sell
or make any offer or sale of, or otherwise negotiate in respect of,
securities of the Company of any class if, as a result of the doctrine of
"integration" referred to in Rule 502 under the 1933 Act, such offer or
sale would render invalid (for the purpose of (i) the sale of the
Securities by the Company to the Initial Purchasers, (ii) the resale of
the Securities by the Initial Purchasers to Subsequent Purchasers or (iii)
the resale of the Securities by such Subsequent Purchasers to others) the
exemption from the registration requirements of the 1933 Act provided by
Section 4(2) thereof or by Rule 144A thereunder or otherwise.
(ii) Rule 144A Information . The Company agrees that, in order to render the
---------------------
Securities eligible for resale pursuant to Rule 144A under the 1933 Act,
while any of the Securities remain outstanding, it will make available,
upon request, to any holder of Securities or prospective purchasers of
Securities the information specified in Rule 144A(d)(4), unless the
Company furnishes information to the Commission pursuant to Section 13 or
15(d) of the 1934 Act.
(iii) Restriction on Repurchases . Until the expiration of two years after the
--------------------------
original issuance of the Securities, the Company will not, and will cause
its Affiliates not to, resell any Securities which are "restricted
securities" (as such term is defined under Rule 144(a)(3) under the 1933
Act), whether as beneficial owner or otherwise (except as agent acting as
a securities broker on behalf of and for the account of customers in the
ordinary course of business in unsolicited broker's transactions).
(c) Qualified Institutional Buyer . Each Initial Purchaser severally and not
jointly represents and warrants to, and agrees with, the Company that it
is a Qualified Institutional Buyer.
(d) Resale Pursuant to Rule 144A . Each Initial Purchaser understands that the
Securities have not been and will not be registered under the 1933 Act and
may not be offered or sold within the United States except pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the 1933 Act. Each Initial Purchaser severally represents
and agrees that it has not offered or sold, and will not offer or sell,
any Securities constituting part of its allotment within the United States
except in accordance with Rule 144A under the 1933 Act or another
applicable exemption from the registration requirements of the 1933 Act.
Accordingly, neither it nor its affiliates or any persons acting on its or
their behalf have engaged or will engage in any directed selling efforts
with respect to the Securities.
SECTION 7. Indemnification .
---------------
22
(a) Indemnification of Initial Purchasers . The Company and, upon execution
of the Guarantor Assumption Agreement, each Guarantor agree, jointly and
severally, to indemnify and hold harmless each Initial Purchaser and each
person, if any, who controls any Initial Purchaser within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Offering
Memorandum or the Final Offering Memorandum (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
7(d) below) any such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred (including the fees
and disbursements of counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
-------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of any Initial Purchaser through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in
the Offering Memorandum (or any amendment thereto) and, provided, further,
however, this indemnity agreement shall not inure to the benefit of any Initial
Purchaser or any person controlling such Initial Purchaser on account of any
loss, claim, damage or liability or action arising from the sale of the
Securities to any person by such Initial Purchaser if such Initial Purchaser
failed to send or give a copy of the Final Offering Memorandum, as the same may
be amended or supplemented, to that person, and the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact was corrected in the Final Offering Memorandum, or any supplement
or amendment thereto, as the case may be. It is understood and agreed that the
only written information furnished by any Initial Purchaser for inclusion in the
Offering Memorandum consists of the following information in the Offering
Memorandum: (i) the last paragraph on the front cover, (ii) the second sentence
under the caption "Risk Factors--You May Not be Able to Sell Your Notes", and
(iii) the second, fourth and ninth paragraphs and the second sentence of the
fifth paragraph under the caption "Plan of Distribution".
(b) Indemnification of Company, Directors and Officers . Each Initial
Purchaser severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers and each
23
person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions,
made in the Offering Memorandum in reliance upon and in conformity with
written information furnished to the Company by or on behalf of such
Initial Purchaser through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Offering
Memorandum.
(c) Actions against Parties; Notification . Each indemnified party shall give
notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve
such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account
of this indemnity agreement. In the case of parties indemnified pursuant
to Section 7(a) above, counsel to the indemnified parties shall be selected
by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of parties indemnified pursuant to
Section 7(b) above, counsel to the indemnified parties shall be selected by
the Company. An indemnifying party may participate at its own expense in
the defense of any such action; provided, however, that counsel to the
-------- -------
indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel
for all indemnified parties in connection with any one action or separate
but similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought under this Section or
Section 8 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse . If at any time an
indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel, such indemnifying
party agrees that it shall be liable for any settlement of the nature
contemplated by Section 7(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party
shall have received notice of the terms of such settlement at least 30 days
prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with
such request prior to the date of such settlement.
SECTION 8. Contribution. If the indemnification provided for in
------------
Section 7 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the
24
relative benefits received by the Company on the one hand and the Initial
Purchasers on the other hand from the offering of the Securities pursuant to
this Agreement or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and of the Initial Purchasers on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and
the Initial Purchasers on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
Healthtrust and the total underwriting discount received by the Initial
Purchasers, bear to the aggregate initial offering price of the Securities.
The relative fault of the Company on the one hand and the Initial
Purchasers on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Initial Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Initial Purchasers agree that it would not be
just and equitable if contribution pursuant to this Section were determined by
pro rata allocation (even if the Initial Purchasers were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section, no Initial
Purchaser shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities purchased and sold by it hereunder
exceeds the amount of any damages which such Initial Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
25
For purposes of this Section, each person, if any, who controls an
Initial Purchaser within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such Initial
Purchaser, and each director of the Company, each officer of the Company, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. The Initial Purchasers' respective obligations to
contribute pursuant to this Section are several in proportion to the principal
amount of Securities set forth opposite their respective names in Schedule A
hereto and not joint.
SECTION 9. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. All representations, warranties and agreements contained in this
--------
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any Initial
Purchaser or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the Initial Purchasers. Notwithstanding
the foregoing, the parties hereto acknowledge and agree that the representations
and warranties relating to Healthtrust or Columbia/HCA and their respective
subsidiaries (other than the Business, LifePoint, Holdings and the Designated
Subsidiaries) shall survive only until the assumption of the indebtedness
evidenced by the Securities by Holdings has occurred and the Distribution has
been consummated.
SECTION 10. Termination of Agreement.
------------------------
(a) Termination; General . The Representative may terminate this Agreement, by
notice to the Company, at any time at or prior to the Closing Time (i) if
there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Offering
Memorandum, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Business, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial
markets in the United States, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving
a prospective change in national or international political, financial or
economic conditions, in each case the effect of which is such as to make
it, in the judgment of the Representative, impracticable to market the
Securities or to enforce contracts for the sale of the Securities, or (iii)
if trading in any securities of any of Columbia/HCA or LifePoint has been
suspended or materially limited by the Commission, the New York Stock
Exchange or the NASDAQ System, or if trading generally on the American
Stock Exchange or the New York Stock Exchange or in the NASDAQ System has
been suspended or materially limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices have been required,
by any of said exchanges or by such system or by order of the Commission,
the National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) if a banking moratorium has been declared
by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections
7 and 8 shall survive such termination and remain in full force and effect.
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SECTION 11. Default by One or More of the Initial Purchasers. If
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one or more of the Initial Purchasers shall fail at the Closing Time to purchase
the Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the Representative shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Initial Purchasers, or any other initial purchasers, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representative shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the aggregate
principal amount of the Securities to be purchased hereunder, each of the
non-defaulting Initial Purchasers shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Initial Purchasers, or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate
principal amount of the Securities to be purchased hereunder, this
Agreement shall terminate without liability on the part of any non-
defaulting Initial Purchaser.
No action taken pursuant to this Section shall relieve any defaulting
Initial Purchaser from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Company shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Offering Memorandum or in
any other documents or arrangements. As used herein, the term "Initial
Purchaser" includes any person substituted for an Initial Purchaser under this
Section.
SECTION 12. Notices. All notices and other communications
-------
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Initial Purchasers shall be directed to the Representative at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of Debt Capital Markets.
Notices to the Company shall be directed to it at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of General Counsel.
SECTION 13. Parties. This Agreement shall inure to the benefit of
-------
and be binding upon the Initial Purchasers and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Initial Purchasers and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 7 and 8
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Initial Purchasers and the
Company and their respective successors, and said controlling persons and
officers and directors and their heirs and legal
27
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any Initial Purchaser shall be deemed to be a
successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
----------------------
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings. The Article and Section headings
------------------
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to Healthtrust a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Initial Purchasers and the Company in accordance with its terms.
Very truly yours,
HEALTHTRUST, INC.--THE HOSPITAL COMPANY
By /s/ Healthtrust, Inc. - The Hospital Company
---------------------------------------------
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
DEUTSCHE BANK SECURITIES INC.
FLEET SECURITIES, INC.
SCOTIA CAPITAL MARKETS (USA) INC.
SUNTRUST EQUITABLE SECURITIES CORPORATION
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
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For itself and as Representative of the other Initial Purchasers
named in Schedule A hereto.
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